Mohanan s/o Lakshmanan v. State of Kerala

Crl.A. No.1749 of 2006 1 ## **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.1749 OF 2006** **AGAINST THE JUDGMENT IN SC 743/2003 DATED 27-05-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), ALAPPUZHA** **AGAINST THE ORDER IN CP 40/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KAYAMKULAM** ## **APPELLANT:** **MOHANAN S/O.LAKSHMANAN, PANAMURIKIZHAKKETHARA, PUTHUPPALLYTHEKKUM MURI,, PUTHUPPALLY VILLAGE, KARTHIKAPPALLY TALUK.** **BY ADV. SRI.T.GOPALAKRISHNAN** ## **RESPONDENT:** **STATE OF KERALA** **REPRESENTED BY THE THE INSPECTOR OF EXCISE, KAYAMKULAM THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY PUBLIC PROSECUTOR** ## **SRI.K.B.UDAYAKUMAR, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1749 of 2006 2 ## **P.V.KUNHIKRISHNAN, J.** **=================== Crl.A. No.1749 of 2006 =================== Dated this the 3[rd] day of December, 2020** ## **J U D G M E N T** Appellant is the accused in S. C. No. 743/2003 on the file of Additional Sessions Judge, Fast Track (AdhocI), Alappuzha. The above case is charge sheeted by the Excise Range Inspector, Kayamkulam against the appellant alleging offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that, on 18.09.2001 at about 5.30 p.m. while CW1 the Excise Range Inspector, Kayamkulam and his party were on patrol duty he saw the accused coming in the opposite direction along the road with a plastic bottle. When it was inspected it was found that, it contain arrack. Hence, it is alleged that the accused committed the offence. Crl.A. No.1749 of 2006 3 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts. P1 to P4 are the exhibits marked on the side of the prosecution. One witness was examined on the side of defence as DW1. MO1 is the material objects. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 8(1) and (2) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the appellant is entitled to the benefit of doubt in this case, for the simple reason that, the forwarding note Crl.A. No.1749 of 2006 4 is not marked in this case. The learned counsel for the appellant submitted that, the arrest memo is also not produced and proved in this case to show that, the accused was arrested from the spot. On these grounds, the learned counsel submitted that, the appellant is entitled to the benefit of doubt. 7. The learned public prosecutor submitted that, there is oral and documentary evidence to prove that the accused committed offence. 8. The point for consideration in this appeal is whether the accused committed the offence under Section 8(1) and (2) of the Abkari Act. 9. Admittedly, the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several judgments. It is to prove that, the seized articles reaches in the hands of the analyst. In abkari cases, forwarding note is important because the specimen seal used by the Detecting Officer will find a place in it. It is the fundamental duty of the Crl.A. No.1749 of 2006 5 prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 10. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96)**_ . The relevant portion of the judgment in _**Gireesh's case**_ (supra) extracted hereunder: “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition _**(See**_ Crl.A. No.1749 of 2006 6 _**Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))**_ .” 11. Moreover, admittedly, the arrest memo is also not produced and marked in this case. The purpose of arrest memo is considered by this Court in detail in several cases and observed that the same is to prove that the accused is arrested from the place. 12. Admittedly, the arrest memo is not produced in this case. On that ground also the accused is entitle to the benefit of doubt. 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.A. No.1749 of 2006 7 "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 directions of the Supreme Court which read as follows: "That the Police Officer carrying out the arrest of the arrestee shall prepare Crl.A. No.1749 of 2006 8 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." 13. In the light of the above discussions, the accused is entitled to the benefit of doubt. Crl.A. No.1749 of 2006 9 Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the accused as per judgment dated 27.05.2006 in S. C. No. 743/2003 on the file of Additional Sessions Judge, Fast Track (AdhocI), Alappuzha is set aside. The accused is set at liberty. The bail bond, if any, executed by the accused, is canceled. **Sd/P.V.KUNHIKRISHNAN, JUDGE** LU