Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** ## **CRL.A.No.2055 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 174/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM** **AGAINST THE ORDER/JUDGMENT IN CP 3/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KANJIRAPPALLY** ## **APPELLANT/S:** **SASIDHARAN, S/O. NANU, PUTHENPARAMBIL HOUSE, PARATHANAM KARA,, KOOTTICKAL PANCHAYAT, MUNDAKKAYAM VILLAGE,, KANJIRAPPALLY.** **BY ADVS. SRI.V.K.SUNIL SRI.AJEY THOMAS** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2020, ALONG WITH CRL.A.1131/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2055 OF 2006** **2** ## **J U D G M E N T** Dated this the 16th day of December 2020 Appellant is the accused in S.C.No. 174/2006 on the file of the Additional Sessions Judge, (Adhoc)-I, Kottayam. Above case is charge sheeted against the appellant alleging offences punishable under Section 55(a) and Section 8 of the Abkari Act. 2. The prosecution case is that, the accused was found in possession of 750ml. of arrack in a building bearing No.KP I/150 of parathanamkara in Mundakkayam Village, and hence he committed the offence under Section 55(a) and Section 8 of the Abkari Act. 3. To substantiate the case, prosecution examined PW1 to PW5. Exts.P1 to P8 are the documents marked on the side of the prosecution. MO1 is the material object. **CRL.A.No.2055 OF 2006** **3** 4. After going through the evidence and the documents, the trial court found that the accused committed the offence punishable under Section 55(a) of the Abkari Act. Separate sentence was also imposed. 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 counsel for the appellant submits that no forwarding note is marked in this case and there is no arrest memo also marked in this case. On these grounds, the accused is entitled to the benefit of doubt. 7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence. 8. The points for consideration in this case is whether the accused committed the offence under Section 55(a) of the **CRL.A.No.2055 OF 2006** **4** Kerala Abkari Act. 9. Admittedly, the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several decisions. It is the fundamental duty of the prosecution to prove that the seized articles reached in the hands of the analyst. Then only the prosecution can establish that the seized articles are liquor as defined in Abkari Act. Admittedly, the forwarding note is not marked in this case. That itself is sufficient to acquit the accused. 10. 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 **CRL.A.No.2055 OF 2006** **5** 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 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. Moreover, arrest memo is also not produced and marked in this case. The importance of arrest memo is also considered by this Court in several judgments. If the arrest memo is not marked, arrest of the accused cannot be proved. 13. Admittedly, the arrest memo is not produced in this **CRL.A.No.2055 OF 2006** **6** 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. 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_ **CRL.A.No.2055 OF 2006** **7** _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 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. In the light of the above discussion, I think the appellant is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 26.09.2006 in S.C No.174/2006 on the file of Additional Sessions Judge, (Adhoc)-1, Kottayam is set aside. **CRL.A.No.2055 OF 2006** **8** The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** **JS/sa**