Satheesan v. Excise Inspector, Feroke Range & State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 102 OF 2006 ``` ``` AGAINST THE JUDGMENT CRA 435/2004 OF DISTRICT COURT & SESSIONS ``` ``` COURT,KOZHIKODE ``` ``` SC 290/2001 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOZHIKODE REVISION PETITIONER/APPELLANT/ACCUSED: ``` ``` SATHEESAN, S/O RARUKUTTY, PALATT HOUSE, VELLIPARAMBA AMSOM, KUTTIKKATTOOR DESOM, KOZHIKODE ``` ``` BY ADV K.V.RASHMI ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE:`** ``` 1EXCISE INSPECTOR FEROKE EXCISE RANGE, (C.R.NO.11/99). 2STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` PP - RENJIT GERORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.102 of 2006 2 **VIJU ABRAHAM, J. ................................................................. Crl.R.P. No.102 of 2006 .................................................................** Dated this the 27[th] day of October, 2023 ## **ORDER** Revision petitioner is the appellant in Crl. Appeal No.435 of 2004 on the file of the Sessions Court, Kozhikode being the accused in S.C.No.290 of 2001 on the file of the Assistant Sessions Court, Kozhikode alleging commission of offence punishable under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 11.10.1999 at about 4.00 p.m. the accused was found to be in possession of 8 litres of wash prepared for distillation of illicit arrack in two jerry cans having five litres capacity each, on the Panchayat road in front of the shop of one Mohammed at Kuriyedaththazham in Velliparamba desom and thereby the accused has committed the offence. 3. The learned Assistant Sessions Court found the revision petitioner guilty under Section 55(g) of the Abkari Act and sentenced him to undergo simple imprisonment for three years and pay a fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for one year. In the appeal, the conviction and sentence were confirmed, but the sentence was modified by imposing imprisonment for a period of Crl.RP No.102 of 2006 3 three months whereby maintaining the fine amount imposed by the trial court. It is assailing the said orders the present criminal revision petition has been filed. 4. Before the trial court the prosecution examined PW 1 to PW6 and marked Exts.P1 to P7 and identified MO1 series. 5. The learned counsel appearing for the revision petitioner assailed the said orders on various grounds. Though as per the prosecution case, arrest was recorded on 11.10.1999, no arrest intimation has been produced and marked. Learned counsel further contended that PW 4 and PW5 who are independent witnesses examined to prove the prosecution case had turned hostile and only the evidence of the official witnesses was available and therefore it is not safe to rely on the evidence of the official witnesses alone. There were very serious flaws in the investigation and that there were material contradictions in the evidence adduced by the witnesses which makes the prosecution story highly unbelievable. A perusal of Ext.P5 would show that it does not contain the date on which the said sample bottles were forwarded to the Chemical Examiner’s Laboratory and no date has been shown and that as per the chemical analysis report the samples were received on 09.11.1999 and the date of forwarding note is 12.10.1999, there is considerable delay in forwarding the same and the delay, as well as safe and proper custody of the same in between 12.10.1999 and 09.11.1999, has not been duly Crl.RP No.102 of 2006 4 explained by the prosecution. Since the prosecution failed to prove the case beyond all reasonable doubt, it is contended by the learned counsel that the revision petitioner is entitled for acquittal. 6. On the contrary the learned Public Prosecutor would submit that there are sufficient materials and evidence in support of the prosecution case. Solely for the reason that the independent witnesses had turned hostile is not a reason to disbelieve the case of the prosecution. The investigating officer as well as the detecting officer has mounted the box and has deposed in terms of the prosecution version. 7. I have heard the learned counsel appearing for the revision petitioner as well as the learned public prosecutor. 8. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT** Crl.RP No.102 of 2006 5 **SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 9. Let me consider the contentions raised by the counsel for the revision petitioner. The first contention raised is that though as per the prosecution case, arrest was recorded on 11.10.1999, no arrest intimation has been produced and marked. To which, the learned public prosecutor would submit that Ext P1 arrest memo has been produced and further that PW1, who is the detecting officer has deposed that the brother of the accused was informed. The question to be considered is as to whether the non-production of arrest intimation is fatal to the case of the prosecution. 10. The Apex Court in _**D.K.Basu v. State of West Bengal (1997) 1 SCC 416**_ , has held that preparation of arrest memo and arrest intimation is a mandatory requirement and that the arrest memo should be countersigned by the arrestee and shall contain the time and date of arrest. The Apex Court in _**D.K.Basu’s**_ case cited supra has held that the time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest and that the person arrested must be made aware of this right to have someone informed Crl.RP No.102 of 2006 6 of his arrest or detention as soon as he is put under arrest or is detained. The Apex Court has further held that compliance with the directions issued are mandatory to safeguard the fundamental rights of an arrestee guaranteed under Article 21 of the Constitution of India and that noncompliance with the directions will not only result in disciplinary proceedings against the delinquent officers but they are also liable to be proceeded for contempt of court by the jurisdictional High Courts. In the present case, no such evidence has been produced. This court in **Baburaj’s** case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the noncompliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in ## **Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT** **SN 83** which held that noncompliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore, the noncompliance of these mandatory requirements makes the prosecution case doubtful. 11. Yet another contention raised by the learned counsel for the revision petitioner is that a perusal of Ext.P5 would show that it does Crl.RP No.102 of 2006 7 not contain the date on which the said sample bottles were forwarded to the Chemical Examiner’s Laboratory and no date has been shown and that as per the chemical analysis report the samples were received on 09.11.1999 and the date of forwarding note is 12.10.1999, there is considerable delay in forwarding the same and the delay, as well as safe and proper custody of the same in between 12.10.1999 and 09.11.1999, has not been duly explained by the prosecution. This court in **Viayan v. State of Kerala, 2021 (5) KLT 321** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. Since no steps have been taken by the prosecution in this regard, the revision petitioner is entitled for the benefit of doubt. 12. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty forthwith. Crl.RP No.102 of 2006 8 Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. Sd/- **VIJU ABRAHAM JUDGE** cks