Kanakkeri Raveendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **CRL.A.No.709 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 802/2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY** ## **APPELLANT/S:** **KANAKKERI RAVEENDRAN, S/O MADHAVAN, KANNANKERI VEEDU, AYYANKUNNU AMSOM, DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. SREEJA .V, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.709 of 2008 -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.** **2. The prosecution allegation is that on 2.9.2000 at about 3.00 p.m., the appellant was found in possession of 30 packets of Karnataka made arrack, each packet having a capacity of 100 ml each, for the purpose of sale in contravention of the provisions of the Abkari Act.** **3. Heard.** **4. The learned counsel for the** **appellant has argued that since the prosecution could not prove the arrest of** ## Crl.A.No.709 of 2008 -3- **the appellant, the appellant is entitled to benefit of doubt. It has been further argued by the learned counsel for the appellant that since no facsimile of the seal was affixed on the copy of the forwarding note, the appellant is entitled to benefit of doubt on that ground as well.** **5. PW1 was the Detecting Officer, who also arrested the appellant and seized the contraband. However, the appellant had a contention during the cross-examination of PW1 that the appellant was not arrested by PW1 as stated by him. Ext.P1 is the arrest memo proved through PW1. Ext.P1 does not contain the signature and thumb impression of the appellant. No evidence was adduced** ## Crl.A.No.709 of 2008 -4- **by the prosecution as to why the signature and the thumb impression of the appellant were not obtained in column No.9 of Ext.P1 arrest memo. The arrest of the appellant is very significant in this case, particularly when the prosecution alleged that the appellant was found in possession of the contraband at the time when he was arrested by PW1. Therefore, it is the bounden duty of the prosecution to prove the arrest of the appellant.** **6. This Court in Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC** **308], held that the arrest memo is a crucial document to be prepared at the time of arrest and the non-production thereof is** ## Crl.A.No.709 of 2008 -5- **fatal to the prosecution case. It was further held in Ramankutty (supra) that if arrest is not proved beyond reasonable** **doubt, the entire case set up by the prosecution would fall to ground.** **7. In this case, the arrest of the appellant with the contraband in his hands is the basis of the prosecution case. Therefore, if the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution would fall to ground as held in Ramankutty (supra).** **8. Ext.P1 is the arrest memo. It does not contain the signature and thump impression of the appellant at the space provided for the same or at any other place.** ## Crl.A.No.709 of 2008 -6- **There was also no explanation as to why the signature and the thump impression of the appellant were not obtained in Ext.P1. The prosecution has no contention that the appellant refused to give his signature and thump impression. In view of the above, the appellant is entitled to benefit of doubt with regard to his arrest. If that be so, the entire case set up by the prosecution would fall to ground. Consequently, the appellant is entitled to be acquitted on that ground alone.** **9. It is also to be noted that Ext.P5 copy of the forwarding note does not contain the facsmile of the seal at the space provided for the same.** ## Crl.A.No.709 of 2008 -7- **10. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:** **“Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.”** **11. In Ravi v. State of Kerala [2011** **(3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which** ## Crl.A.No.709 of 2008 **was allegedly seized from the accused eventually reached the hands of the chemical examiner by change of hands in a tamperproof condition.** **12. The Court in Krishnan H. v. State [2015(1) KHC 822] held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason to presume that the sample seal was not affixed on the original forwarding note. No evidence was adduced by the prosecution in this case to show that the sample seal was affixed in the original forwarding note. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was** ## Crl.A.No.709 of 2008 -9- **drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.** **In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.** **Needless to state that if the appellant had already deposited any amount before the court pursuant to the direction of this court, the appellant is entitled to reimbursement of the said amount from the** ## Crl.A.No.709 of 2008 -10- ## **court concerned.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** **STK**