Muraleedhara Kurup v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 08TH DAY OF JULY 2020 / 17TH ASHADHA, 1942** ## **CRL.A.No.206 OF 2005(C)** **AGAINST THE JUDGMENT IN SC 84/1998 DATED 24-01-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/ACCUSED:** **MURALEEDHARA KURUP, S/O SIVARAMAN NAIR, LEKSHMI NIVAS, CHERUKUNNAM MURI, ADOOR TALUK, ADOOR.** **BY ADV. SRI.LEO GEORGE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** **BY ADV.** **SR.PP. B. JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.206 of 2005 2 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- ## Crl.A.No. 206 of 2005 ------------------------------- ## Dated this the 8[th] day of July, 2020 ## **JUDGMENT** The above appeal is filed by the accused in S.C.No. 84/1998 on the file of Additional District and Sessions Judge (Adhoc) Court-II, Kollam. The above case is charge sheeted by the Excise Inspector, Sasthamcotta, against the appellant/accused alleging offences punishable under Sections 8(1) and 55(a) of the Abkari Act. 2. The prosecution case is that the accused was found in possession of 270 litres of spirit on 16.06.1997 at about 4.30 p.m. at Anayadi Muri, Sooranaud North Village and hence committed offences under Section 8(1) and 55(a) of the Abkari Act. When the final report is filed before the lower court, the case was committed to the Sessions Court. The Sessions Court issued summons to the appellant and he appeared before the trial court. The trial court framed charge under Sections 8(1) and 55(a) of the Abkari Act. To substantiate the case, the prosecution examined PW1 to PW6. DW1 to DW4 were Crl.A.No.206 of 2005 3 examined on the side of defence. Ext.D1 to D5 are the Exhibits marked on the side of the defence. MO1 to MO4 are the material objects. After going through the evidence and documents the trial court found that, the accused committed the offence under Section 8(1) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for 4 years and to pay fine of Rs.1,00,000 (Rupees One Lakh only) under Section 8(2) of the Abkari Act. In default of payment of fine, the accused is directed to undergo simple imprisonment for one year. Aggrieved by the conviction and sentence this criminal appeal is filed. 3. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor. 4. The learned counsel for the appellant submitted that, no forwarding note is marked in this case. Moreover, the counsel submitted that, the place of alleged search and seizure was at Parakode excise range. But the investigation was conducted by the Excise Inspector, Sasthamcotta. He has no jurisdiction to conduct investigation as per the Abkari Act. The learned counsel also submitted that, the arrest memo is also Crl.A.No.206 of 2005 4 not produced and marked in this case. The appellant also submitted that, the Detecting Officer has not taken any sample from the spot and the sample was taken by the Court and such a procedure is without any authority. 5. The learned Senior Public Prosecutor submitted that, in the light of oral and documentary evidence the prosecution proved the offence. 6. The point for consideration in this case is whether the accused committed offence under Section 8(2) of the Abkari Act. 7. The search and seizure of the contraband article in this case is within the jurisdiction of Parakode range. But the arrest seizure and investigation in this case is conducted by the Excise Inspector, Sasthamcotta excise range. The trial court rejected this contention of the accused observing that, the point is not raised at the preliminary stage and no prejudice is caused to the accused because of the same. This point is considered by this Court on several occasion. In **Balachandran V. Vs. State of Kerala [2020(3) KHC 697]** this Court considered this points. Relevant paragraphs are extracted 5 ## hereunder: _“14. S.R.O.No.234/67, which is extracted above, will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. ‘Abkari Officer’ is defined as per Section 3(2) of the Abkari Act which is extracted hereunder:_ _“Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”_ _S.R.O. No.234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31, 32, 34, 35, 38, 39, 53, 59, 67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are_ Crl.A.No.206 of 2005 6 _appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the Sections aforesaid within their respective jurisdiction. Similarly, clause 11,12 and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed._ _15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Of course, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction. ”_ 8. In the light of the above judgment, I think the search, seizure and investigation in this case will not stand. 9. Admittedly, the arrest memo is not produced in this Crl.A.No.206 of 2005 7 case. 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. _"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._ Crl.A.No.206 of 2005 8 _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 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_ Crl.A.No.206 of 2005 9 _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."_ 10. Similarly, the forwarding note is not produced in this case. 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 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. 11. 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 Crl.A.No.206 of 2005 10 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 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)).” 12. No sample is taken from the spot by the Detecting Officer in this case. A perusal of Ext.P2 seizure mahazar, it is clear that, no sample is taken by the Detecting Officer from the spot. This Court in **Smithesh v. State of Kerala (2019 (2) KLT 974)** considered this point. This Court observed that, the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment is extracted hereunder : _“7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples_ Crl.A.No.206 of 2005 11 _from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Any way, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the detecting officer or why he did not take sample from the 18 cans.” [Emphasis supplied]_ In the light of the above discussion, the accused in this case is entitled the benefit of doubt. Hence this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 24.01.2005 in S.C.No.84/1998 of the Additional District and Sessions Judge (Adhoc)II, Kollam, is set aside. The appellant is set at liberty. Bail bond, if any, executed by him is canacelled. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** VPK