Sankar S/o Bhargavan v. State of Kerala and Sub Inspector of Police, East Kallada (CRL.A. No. 875 of 2006 (A))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.A.No.875 OF 2006(A)** **AGAINST THE JUDGMENT IN SC 77/2001 DATED 12-04-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM** **AGAINST THE ORDER IN CP 18/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM** ## **APPELLANT:** **SANKAR S/O.BHARGAVAN, KADAYYATHU VEEDU,, NEAR ELAVOORKAVU,, THAZHAM MURI, EAST KALLADA VILLAGE.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** - **2 SUB INSPECTOR OF POLICE EAST KALLADA POLICE STATION.** **R1-2 BY PUBLIC PROSECUTOR** ## **SRI.K.B.UDAYAKUMAR, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.875 OF 2006(A)** **2** ## **JUDGMENT** **Dated this the 7th day of December 2020** The appellant is the accused in Sessions Case No. 77/2001 on the file of Additional District and Sessions Judge (Adhoc) Court-I, Kollam. 2. The above appellant is charge sheeted by the Sub Inspector of Police, East Kallada Police station alleging offence punishable under Section 55(a) & (i) of the Kerala Abkari Act. 3. The prosecution case is that, on 23.12.1998, at about 5.55 pm, the accused was found in possession of 4.5 litres of arrack in a black plastic cannas of 10 litres capacity. It is also alleged that the accused was selling the same from the sand-ghat on the west of Elavoorkavu temple in Thazham muri of East Kallada village. Hence, it is alleged that the accused committed offence. 4. To substantiate the case, prosecution examined PW1 to PW4. Exhibit P1 to P5 are the exhibits marked on the **CRL.A.No.875 OF 2006(A)** **3** side of the prosecution. D1 to D3 are the exhibits marked on the side of defense. MO1 and MO2 are the material objects. 5. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 55(a) & (i) of the Kerala Abkari Act. The accused is sentenced to undergo rigorous imprisonment for a period of four year and to pay a fine of Rs.1 lakh under Section 55(a) & (I) of the said 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. 6. Heard the learned Counsel for the appellant and the learned Public Prosecutor. 7. The learned Counsel for the appellant submitted that the accused in this case is entitled to the benefit of doubt on three grounds. The learned Counsel submitted that the prosecution is not maintainable because the forwarding note is not marked. The learned Counsel also submitted that the arrest memo is also not produced and marked in this **CRL.A.No.875 OF 2006(A)** **4** case to prove that the accused is arrested from the spot. The learned Counsel also submitted that there is delay in producing the contraband articles before the court. 8. The learned Public Prosecutor submitted that there is oral and documentary evidences to prove the offence against the appellant under Section 55(a) & (I) of the Abkari act. The Public Prosecutor submitted that this Court may not interfere with the conviction and sentence on technical grounds. 9. The point for consideration in this case is whether the accused committed offence punishable under Section 55(a) & (i) of the Kerala Abkari Act. 10. Admittedly, the forwarding note is not marked in this case. In a prosecution under the Kerala Abkari act, the forwarding note is an important document to be marked by the prosecution. To rely the chemical analysis report, the prosecution has to prove that the seized articles reached in the hands of the analyst. To prove the links starting from seizure till it reaches in the hands of the analyst, forwarding **CRL.A.No.875 OF 2006(A)** **5** note is a material document to be produced by the prosecution. Admittedly the same is not produced by the prosecution. 11. In Abkari cases, forwarding notes 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. 12. 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 **CRL.A.No.875 OF 2006(A)** **6** 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))**_ .” 13. Moreover, the arrest memo is not produced and marked in this case. In **Ramankutty v. Excise Inspector, Chalannur Range** [2013 (3) KHC 308], this Court observed the relevancy of arrest memo in Abakri cases. The relevant portion of the judgment 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_ **CRL.A.No.875 OF 2006(A)** **7** _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 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_ **CRL.A.No.875 OF 2006(A)** **8** _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."_ 14. The alleged seizure of the contraband in this case was on 23.12.1998. The sample reached the court only on 21.01.1999. Ext.P4 is the property list. There is no proper explanation from the part of the prosecution regarding the delay in producing the sample before the court. 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_ **CRL.A.No.875 OF 2006(A)** **9** _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 tot he evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband africles 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.”_ In the light of the above discussions, I think the 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 judgment dated 12.04.2006 in S.C. No. 77/2001 on the file of Additional District and Sessions Judge (Adhoc) Court-I, Kollam is set aside. The appellant/accused is set at liberty. The bail bond, if any, executed by the appellant/accused, is canceled. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **AJ**