P. Kumaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942** ## **CRL.A.No.928 OF 2006** **AGAINST THE JUDGMENT IN SC 189/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), KASARAGOD** **AGAINST THE JUDGMENT IN CP 180/2004 OF JUDICIAL FIRST CLASS MAGISTRATE,I,HOSDRUG** ## **APPELLANT/ACCUSED:** **P.KUMARAN AGED 36 YEARS S/O. KARIAMBU, RESIDING AT PANALIL,, MONACHA, PUDUKKAI VILLAGE.** ## **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE, S.H.O., HOSDURG POLICE STATION.** ## **R1 BY SMT.S.L.SYLAJA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.928 OF 2006** **2** ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No. 928 of 2006** ## **=================== Dated this the 22nd day of February, 2021** ## **J U D G M E N T** Appellant is the accused in S.C.No. 189/2005 on the file of the Additional Sessions Judge (Adhoc-I), Kasaragod. Above case is charge sheeted against the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 03-12-2002 at about 03.45 p.m, the accused was found in possession of 2 liters of arrack in a plastic can in the courtyard of his house situated at Monacha-Panjal in Puthukai village, and hence the accused committed the offence. 3. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P7 are the documents marked on the side of the prosecution. MO1 is the material object. After going through the evidence and the documents, the trial court found that the **CRL.A.No.928 OF 2006** **3** accused committed the offence punishable under Section 55(a) of Abkari Act. He is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public prosecutor. 5. The learned counsel for the appellant submitted that, the arrest memo is not produced in this case. The learned counsel submitted that, there is no evidence to show that the accused was arrested from the place of occurrence . The counsel also submitted that there is delay in producing articles before the Court. The counsel submitted that the seizure in this case was on 03-12-2002 and the contraband article produced before the Court only on 05-12-2002. There is absolutely no explanation for the same. The learned counsel submitted that on these grounds, the appellant is entitled to the benefit of doubt. 6. The learned Public Prosecutor submitted that, there is **CRL.A.No.928 OF 2006** **4** oral and documentary evidence to prove the case. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence imposed by the trial Court on technical grounds. 7. The point for consideration in this case is whether the accused committed the offence punishable under Section 55 (a) of the Abkari Act. 8. Admittedly, the arrest memo is not produced in this case. The arrest memo is necessary to prove the arrest of the accused from the place of occurrence with the contraband articles. If the arrest memo is not produced, the accused is entitled to the benefit of doubt. 9. Admittedly, the arrest memo is not produced in this 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. **CRL.A.No.928 OF 2006** **5** "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 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 **CRL.A.No.928 OF 2006** **6** 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." 10. Moreover, the alleged seizure in this case was on 03.12.2002, and the properties were produced before the Court only on 05.12.2002. PW1 deposed before the Court that, the contraband articles were in his safe custody. When the statute mandate that the properties should be produced before the Court forthwith, the detecting officer had no business to keep the property in his safe custody, especially when there is no **CRL.A.No.928 OF 2006** **7** explanation for not producing the contraband before the Court forthwith. 11. This point is also considered by 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 cannot act upon Ext.P6 copy of the forwarding note.” 12. In the light of the above discussion, I think the **CRL.A.No.928 OF 2006** **8** appellant in this case is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the accused as per the judgment dated 22-3-2006 in S.C. No. 189/2005, on the file of the Additional Sessions Judge (Adhoc-I), Kasaragod is set aside. The appellant is set at liberty. The bail bond if any, executed by the appellant, is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **sa**