Remani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **CRL.A.No.582 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 10/2006 DATED 08-02-2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KOTTAYAM** ## **APPELLANT:** **REMANI, W/O.KESAVAN ELAVUMKAL HOUSE, I.H.D.P.COLONY, ELIVALLIKARA POST, MUKKOOTTUTHARA KARA, ERUMELY SOUTH VILLAGE.** **BY ADV. SREEDEV.U** ## **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No. 582 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No. 582 of 2006 =================== Dated this the 4[th] day of December, 2020** ## **J U D G M E N T** Appellant is the accused in S. C. No.10 of 2006 on the file of Additional District & Sessions Judge Fast Tack Court (Adhoc-II), Kottayam. The above case is charge sheeted against the appellant, alleging offences punishable under Section 8 of the Abkari Act. 2. The prosecution case is that, the appellant found in possession of 150 ml of arrack in a 375 ml capacity bottle. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P5 are the exhibits marked on the side of the prosecution. Crl.A. No. 582 of 2006 3 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 8 of the Abkari Act. She was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1 Lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for three 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, there is no forwarding note marked in this case. The learned counsel also submitted that, there is nothing to show that, the appellant was arrested from the spot. The arrest memo is also not marked. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant. Crl.A. No. 582 of 2006 4 8. The point for consideration in this appeal is whether the accused committed the offence punishable under Section 8 (1) of the Abkari Act. 9. Admittedly, the forwarding note is not produced and marked by the prosecution in this case. It is true that, the forwarding note is an important document in Abkari cases, because the specimen seal will be affixed in the forwarding note. 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 documents to be produced by the prosecution in abkari cases. This Court in _**Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Vijayan @ Pattalam Vijayan and Another v. State of Kerala [2018 (2) KHC 814]**_ and in _**Prakasan and Another v. State of Kerala [2016 KHC 96]**_ explained the importance of forwarding note. The relevant portions in the judgment in _**Gireesh @ Manoj v. State of Kerala [2019 KHC 655]**_ is extracted hereunder. Crl.A. No. 582 of 2006 5 _“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 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)).”_ 10. In the light of the above dictum laid down by this Court, the non production of the forwarding note in this case is fatal to the prosecution. 11. Admittedly, the arrest memo is not marked in this case. The relevancy of the arrest memo is considered by this court in several decision. 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 Crl.A. No. 582 of 2006 6 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. 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 Crl.A. No. 582 of 2006 7 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." 12. In the light of the above facts discussed above, I think the accused in this case is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 08.02.2006 in S. C. No.10 of 2006 on Crl.A. No. 582 of 2006 8 the file of Additional District & Sessions Judge Fast Tack Court (Adhoc-II), Kottayam is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU