K. Madhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **CRL.A.No.1634 OF 2006** **AGAINST THE JUDGMENT IN SC NO.835/2004 DATED 12.5.2006 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-1), KASARAGOD** ## **APPELLANT/ACCUSED:** **K.MADHAVAN, S/O. MANI, ATHANADY, KUNDAR, ADHUR VILLAGE, KASARAGODE.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 THE STAION HOUSE OFFICER, ADHUR POLICE STATION.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 AND R2 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1634 of 2006 2** ## **JUDGMENT** ## **Dated this the 3rd day of December 2020** .. The appellant is the accused in Sessions Case No.835 of 2004 on the file of the Court of the Additional Sessions Judge (Adhoc-1), Kasaragod. 2. The above case is charge sheeted by the Station House Officer, Adhur Police Station against the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that, on 28.04.2003 at 6 p.m., the accused was found in possession 3 litres of illicit arrack in the front courtyard of his house situated in Ward No.1 of Karaduka village, in contravention of the provisions of the Abkari Act and Rules. Hence, it is alleged that, the accused committed the said offence. 4. To substantiate the case, the prosecution ## **CRL.APPEAL No.1634 of 2006 3** examined PW1 to PW3. Exhibits P1 to P7 are the documents marked on the side of the prosecution. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by the above this criminal appeal is filed. 6. Heard the learned counsel for the appellant and the learned public prosecutor. 7. The learned counsel for the appellant submitted that, the accused in this case is entitled an acquittal order for the sole reason that, there is long delay in producing the contraband article before the court. There is ## **CRL.APPEAL No.1634 of 2006 4** absolutely no explanation from the side of the prosecution for the same. The counsel also submitted that, the detecting officer himself investigated the case and that will prejudice the interest of the accused. The counsel also submitted that, the arrest memo is not produced and marked in this case. 8. The learned Public Prosecutor submitted that, there is evidence of official witness and there is nothing to disbelieve their evidence. The public prosecutor submitted that, the defence has no allegation that, no enmity by the police officials towards the accused. In such circumstances, there is nothing to disbelieve the evidence of the police officials. The public prosecutor submitted that, the properties were returned by the court because there was no space to store the same. Therefore, it cannot be said that, there is any delay in producing the contraband article before the court. **CRL.APPEAL No.1634 of 2006 5** 9. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 10. Admittedly, the alleged seizure from the possession of the accused was on 28.4.2003 at 6 p.m. Exhibit P3 is the property list produced by the prosecution. In Ext.P3 property list, it is stated that, the property was produced only on 24.5.2003. Of course, the learned Judge endorsed on that day on the back side of the property list that, since there is no space to keep the property, the Station House Officer, Adhur Police Station should keep the same in their safe custody. But it is an admitted fact that, the property was produced before the court only on 24.5.2003 whereas the seizure of the article was on 28.4.2003. Admittedly, there was no explanation from the prosecution for the delay in producing the article before the court. It is now settled position that, the delay in producing the **CRL.APPEAL No.1634 of 2006 6** article before the court is fatal to the prosecution. This Court in **Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi's** case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court_ ## **CRL.APPEAL No.1634 of 2006 7** _cannot act upon Ext.P6 copy of the forwarding note.”_ Since there is no explanation from the part of the prosecution for the delay in producing the contraband article before the court, the benefit of doubt in this case will go in favour of the accused. 11. It is also contended by the counsel for the appellant that, the arrest memo is not produced and marked in this case. This point is also considered by this Court in several decisions. This Court in **Sathyan v. State of** **Kerala** [2015 (1) KLT 586] and in **Ramankutty v.** **Excise Inspector, Chalannur Range** [2013 (3) KHC 308] mentioned about the importance of arrest memo in Abkari cases. To prove the arrest, this court observed that, the arrest memo is necessary. The relevant paragraph in **Ramankutty** **v. Excise Inspector, Chalannur Range** [2013 (3) KHC 308] is extracted hereunder. ## **CRL.APPEAL No.1634 of 2006 8** _"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 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_ **CRL.APPEAL No.1634 of 2006 9** _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 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 non-compliance 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."_ **CRL.APPEAL No.1634 of 2006 10** Since no arrest memo is produced in this case, in the light of the above authoritative judgments, the benefit of doubt will go to the accused. 15. In light of the above discussions, I am of the opinion that, the accused is entitled the benefit of doubt in this case. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 12.5.2006 in S.C.No. 835 of 2004 of the court of the Additional Sessions Judge (Adhoc-1), Kasaragod are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**