Robin, S/o Augusty v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936 CRL.A.No.1572 of 2003 (E) ------------------------------AGAINST THE JUDGMENT IN SC 416/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 20-08-2003 --------- APPELLANT/ACCUSED: ------------------------- ROBIN, S/O AUGUSTY, MEKKUNNEL VEEDU, IRUMBUPALAM BHAGOM, VALARA KARA, MANNAMKANDOM VILLAGE. BY ADVS. SRI.THOMAS M.JACOB SRI.G.RAJAGOPAL RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1572 of 2003 -----------------------------------------------Dated this the 29[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-II, Thodupuzha, for the offence under Section 55(i) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1₹ lakh and, in default of payment of fine, to undergo imprisonment for two months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The case of the prosecution is briefly stated as follows: PW4, the Sub Inspector of Police, Adimali, and his party were on patrol at Irumbupalam in Mannamkandam Village at about 6.00 p.m. on 06-12-1999. While so, Crl. Appeal No.1572 of 2003 -2- receiving reliable information that the appellant was selling liquor near Irumbupalam junction, PW4 and his party reached that place at 6.15 p.m. Seeing the police party, the appellant attempted to flee away. But, he was stopped there by PW4. On searching his body, a 375 ml. bottle containing 300 ml. of Indian made foreign liquor namely, No.1 Royal King VSOP Blended Grape Brandy was found at his loin. A 750 ml. plastic bottle containing water, a 180 ml. empty plastic bottle and a glass tumbler were also found near. Realising that the appellant was selling liquor unauthorisedly, PW4 arrested him then and there. On examining the pocket of his shirt, two 50 rupee notes, four 10 rupee notes and a 5 rupee note totalling 145/- were₹ found. PW4 seized all these properties under Ext.P1 Seizure Mahazar in the presence of witnesses. The bottle containing liquor was sealed for the purpose of subjecting it to chemical analysis. Thereafter, PW4 reached Adimali Police Station with the appellant and the properties and registered Crime No.399 of 1999 of that Police Station. Ext.P4 is the FIR thus Crl. Appeal No.1572 of 2003 -3- drawn by PW4. Ext.P4(a) is his F.I. Statement. He had produced the appellant along with a Remand Report before the court. He had also produced the properties including the liquor seized before the court along with Ext.P5 List of Property. He had submitted a Forwarding Note before the court for subjecting the liquor seized to chemical analysis. Ext.P6 is a copy of that Forwarding Note. Ext.P8 is the Certificate of Chemical Analysis and Ext.P9 is the Arrest Memo. PW4 conducted the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Adimali. 4. The learned Magistrate, after complying with the required legal formalities, had committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Thodupuzha. The Assistant Sessions Court, Thodupuzha, framed a charge against the appellant alleging the offences under Section 55 Crl. Appeal No.1572 of 2003 -4- (a) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. Later, the case was transferred to the Additional Sessions Court (Adhoc)-II, Thodupuzha. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P9 and MO1 to MO4 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(i) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that the appellant was found in possession of Indian made foreign liquor for the purpose of sale at 6.15 p.m. on 06-12-1999 and PW4 arrested him and seized that liquor under Ext.P1 Seizure Mahazar then and there in the presence of witnesses. PW4 deposed, by and Crl. Appeal No.1572 of 2003 -5- large, in terms of the prosecution version of occurrence. The evidence given by PW1, a police constable, claimed to have accompanied PW4 at the time of detecting the offence supports the evidence of PW4. PWs.2 and 3 were cited and examined by the prosecution as independent witnesses for proving their case. They did not support the prosecution case. In these circumstances, whether the appellant can be convicted for a serious offence under Section 55(i) of the Abkari Act relying on the evidence of PWs.1 and 4 is the question to be considered. 6. The prosecution case is that the appellant was found in possession of liquor for the purpose of sale at 6.15 p.m. on 06-12-1999 and that liquor was seized by PW4 then and there. But, he had produced the properties including liquor claimed to have been seized only on 11-01-2000 as evident from Ext.P5 List of Property. PW4 admitted also that the properties were produced before the court only on 11-01-2000. What was the reason for occurring such an inordinate delay in producing the properties before the Crl. Appeal No.1572 of 2003 -6- court? PW4 attempted to justify the delay in producing the properties before the court by saying that it was due to the busy work at the Police Station. He also stated that till the properties were produced before the court, they were under his safe custody. These statements had been made by PW4 during chief examination. During cross examination, PW4 deposed that he happened to omit to produce the properties due to busy work at the Police Station. Can these explanations offered by PW4 be believed? The properties in this case are only a few items, namely, one 375 ml. plastic bottle containing 300 ml. of Indian made foreign liquor, an empty 180 ml. of plastic bottle, one litre plastic bottle containing 500 ml. of water, one glass tumbler and 145/-.₹ These properties are not voluminous in nature or in the nature of causing much time for producing before the court. PW4 himself had caused the production of the appellant along with a remand report and Exts.P1 Seizure Mahazar and Ext.P4 FIR before the court on 07-12-1999. The busy work in the Police Station did not stand in the way of PW4 producing Crl. Appeal No.1572 of 2003 -7- those documents and the accused before the court. If PW4 wanted, he could have caused the production of the few items of the properties involved in this case also along with those documents and the accused before the court. The explanation offered by PW4 is not at all an appealing one. It cannot be believed or acted upon. The production of contraband along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW4 did not tell the court as to what was the busy nature of the works prevented him from producing the contraband till 11-01-2000. A bald statement that he was busy with other works cannot be accepted as a satisfactory explanation for such an inordinate delay in producing the properties before the court. 7. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation Crl. Appeal No.1572 of 2003 -8- acceptable to the court. In the case on hand, as already found, the explanation offered by PW4 is not proper and satisfactory. A learned Single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reasons stated in that judgment, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, the unexplained inordinate delay occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 8. One more aspect also has to be considered in this case. It is the case of the prosecution that an Arrest Memo has been prepared when the appellant was arrested by PW4. Moreover, the factum of arrest had been intimated to his brother, according to the prosecution. Ext.P9 is the Arrest Memo claimed to have been prepared by PW4 while arresting the appellant. Ext.P9 was not produced before the court. While examining PW4 before the court on 15-07-2003, he had produced Ext.P9 from the CD file and tendered in Crl. Appeal No.1572 of 2003 -9- evidence. Similarly, PW4 claimed that the factum of arrest had been intimated to the brother of the appellant. If that be so, where is that arrest intimation. No such intimation had been produced. PW4 himself admitted that there was no special reason for him not to produce such a document before the court. Preparation of Arrest Memo and Arrest Notice are significant in a case of this nature. This Court in **Ramankutty v. Excise Inspector** (supra), dealing with the necessity of preparing Arrest Memo and Arrest Notice, has held as follows: “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 Crl. Appeal No.1572 of 2003 -10- 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 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 Crl. Appeal No.1572 of 2003 -11- 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 or arrest, beyond reasonable doubt.” In the case on hand, the inordinate and unexplained delay occurred in producing the Arrest Memo and the nonproduction of the Arrest Notice throw shadow of doubt on the prosecution version of occurrence. The accused, at least, is entitled to the benefit of doubt for this reason. 9. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant Crl. Appeal No.1572 of 2003 -12- are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(i) of the Abkari Act. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(i) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE