Joy, S/O. Sebastian v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 2ND DAY OF JUNE 2014/12TH JYAISHTA, 1936 CRL.A.No. 531 of 2005 -------------------------- AGAINST THE JUDGMENT IN SC 680/1999 of ADDL. DISTRICT AND SESSIONS (ADHOC)-COURT I, KOLLAM DATED 16-02-2005 CP 176/1998 of JUDICIAL MAGISTRATE OF I CLASS-I, KOLLAM ## APPELLANT/ACCUSED: JOY, S/O. SEBASTIAN, JYOTHI BHAVANAM, KODUVILA, KORUVILA BHAGOM EAST KALLADA VILLAGE BY ADVS.SRI.R.KRISHNA RAJ SRI.A.SHANAVAS KHAN RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = Crl.A. No. 531 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of June, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I. Kollam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for one year. Challenging the conviction and sentence, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: CRA 531/2005 2 PW4, the Sub Inspector of Police, East Kallada Police Station, and his party were on patrol at 4.30 p.m.on 3.7.1998. While so, based on information, PW4 and the police party reached Koduvila at about 5 p.m. on that day when the appellant was seen holding a 10 litre black jerrycan. Seeing the police party, the appellant attempted to flee away. But, the police party stopped him there. On examination, about six litres of arrack was found in the jerrycan. The appellant was arrested then and there. 350 ml.of arrack was taken as sample from the bulk in a 375 ml. bottle. The sample and the jerrycan containing the remaining arrack were seized under Ext.P1 seizure mahazar in the presence of PWs.1 and 2. Thereafter, PW4 proceeded to the East Kallada Police Station with the appellant and the contraband and registered Crime No. 108 of 1998 of that Police Station. Ext.P2 is the F.I.R. thus prepared by PW4. PW4 had produced the appellant before the court along with the contraband. Ext.P3 is the List of Properties. PW4 CRA 531/2005 3 continued the investigation and completed the same and filed the Final Report before the court. 4. The learned Magistrate committed the case to the Court of Session, Kollam, and, from there, it was made over to the Principal Assistant Sessions Court, Kollam. Subsequently, it was transferred to the Additional Sessions Court (Adhoc)-I, Kollam. The court below framed a charge against the appellant alleging the offence under Section 55 (a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P4 and MO.1 on their side. The appellant was questioned under Section 313(1)(b) of Cr.P.C. He has denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. CRA 531/2005 4 5. The appellant has raised many contentions challenging the conviction and sentence passed against him. PW4 is the Detecting Officer and he himself had conducted the investigation of the case. PW3 also accompanied PW4 while detecting the offence in this case. PWs.3 and 4 have given evidence supporting the case of the prosecution. PWs.1 and 2 were examined as independent witnesses for proving the case of the prosecution. Both of them did not support the prosecution case. Their evidence is not at all useful for the prosecution to prove their case against the appellant. 6. The offence was allegedly detected at 5 p.m. on 3.7.1998 by PW4 while he was on patrol along with the police party. It is the case of the prosecution that the appellant was arrested then and there and the inspection of his body was performed by PW4. Arrest and seizure of contraband are noted in Ext.P1. Ext.P1 is silent as to the CRA 531/2005 5 facts whether PW4 had prepared an arrest memo while arresting the appellant or prepared an inspection memo while inspecting his body. In the Final Report submitted by PW4 before the court, a bald statement was made to the effect that while arresting the appellant an arrest card was prepared and it was sent to the court. While PW4 was in the witness box, he had no case that he had prepared an arrest memo at the time of arrest of the appellant or prepared an inspection memo while inspecting the body of the appellant. No arrest memo or inspection memo has been marked by the prosecution. No arrest memo (or arrest card as claimed by PW4) or inspection memo could be found out from the records of the case. Preparation of arrest memo is very important as far as a case of this nature is concerned. It is a document prepared contemporaneously at the time of detection of the offence. Production of such a document before the court and marking the same are very important for the prosecution to prove their case against the appellant. CRA 531/2005 6 Certain procedures are also required to be followed in the case of arrest as directed by the Honourable Supreme Court in **D.K.Basu v. State of W.B.(A.I.R.1997 SC 610** ). This Court had occasion to consider the relevance of preparing an arrest memo and the procedures to be followed in the case of arrest in **Ramankutty v. Excise Inspector(2013 (3)KHC 308).** Paragraph 7 of the judgment is relevant here which reads as follows: “7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in _D.K.Basu v. State of West Bengal_ . The specific case of the prosecution is that the Revision petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road CRA 531/2005 7 and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in _D.K.Basu's_ case. It is apposite to have a look at the said directions of the Supreme Court which read as follows: “That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend CRA 531/2005 8 or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.” The prosecution has no case that they have complied the said directions. I am of the opinion that the noncompliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt.” Therefore, the non-preparation of an arrest memo or its non-production and marking before the court by the prosecuting agency is fatal to the prosecution in this case. 7. The case of the prosecution is that the contraband was seized at 5 p.m. on 3.7.1998 by PW4. Ext.P3 is the List of Properties produced by PW4 before the court. According to the prosecution, the contraband was produced before the CRA 531/2005 9 court along with Ext.P3. Two endorsements are seen in this document. One, presumably done in the office of the court, is a number given on 15.7.1998 and the other one is a direction to the office, viz. verify and receive, made by the Magistrate on 16.7.1998. Therefore, going by Ext.P3, the properties were produced before the court only on 15.7.1998. 8. The prosecution has a duty to explain the reason for the delay occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala(2011(3)KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the properties. In **2013(3)KHC 308** (supra) also it was found, for the reason stated therein, that an unexplained delay of a single day as fatal to the prosecution case. 9. PW4, while he was in the witness box, made an attempt to explain the delay in this way. According to him, the appellant was produced before the court on 4.7.1998 CRA 531/2005 10 and along with him, the properties were also produced before the court. But, due to absence of space in the property room of the court, these properties were returned to him and hence kept by him under his safe custody. This cannot be accepted. If such a course was adopted by the court, an endorsement to that effect would have been made on Ext.P3 by the court on 4.7.1998 itself. Such an endorsement is absent on Ext.P3. Therefore, such an explanation offered by PW4 for the delay in producing the properties before the court cannot be acted upon or believed. Along with this, another aspect also has to be considered. It is stated in Ext.P1 that the jerrycan contained about six litres of arrack. A sample of 350 ml. was taken from the bulk. Therefore, the balance available in the jerrycan should be about 5.650 litres. But, in Ext.P3 List of Properties, it is stated that the jerrycan contained about five litres of arrack. CRA 531/2005 11 10. For the foregoing reasons, it is unsafe to rely on the evidence of PWs.3 and 4 and find the appellant guilty of the offence under Section 55(a) of the Abkari Act. The appellant, at least, is entitled to benefit of doubt. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to be acquitted of the offence alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks True copy P.S. To Judge CRA 531/2005 12