Sreenivasan s/o Narayanan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **CRL.A.No.501 OF 2005(C)** **AGAINST THE JUDGMENT IN SC NO.60/2003 DATED 02-02-2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA** ## **APPELLANT/ACCUSED:** **SREENIVASAN S/O NARAYANAN, CHAKKALATH VEEDU, ERAMATHUR MURI, THRIPPERUMTHURA VILLAGE.** **BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR OF MAVELIKKARA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL No.501 of 2005 2 ## **JUDGMENT** ## **Dated this the 2[nd] day of July, 2020** ## **...** The above appeal is filed by the accused in Sessions Case No.60 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha. 2. The Excise Range Inspector, Mavelikara charge sheeted the accused alleging offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that, on 16.12.1998 at 5.15 p.m., the accused was found keeping wash in plastic cans in the courtyard of his house as concealed under the sand against the provisions of Abkari Act and hence committed the above offence. 4. When the accused appeared before the lower court, charge under Section 55(g) of the Abkari Act was framed. The accused denied the charge. 5. To substantiate the case, PW1 to PW5 are CRL.APPEAL No.501 of 2005 3 examined on the side of the prosecution. Exhibits P1 to P6 are the documents marked on the side of the prosecution. MO1 to MO9 are the material objects. 6. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(g) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo Rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 7. Heard the learned Counsel for the appellant and the learned Public Prosecutor. 8. The Counsel for the appellant submitted that, there is no forwarding note marked in this case. Further, no arrest memo is marked in this case. The Counsel submitted that, there is unexplained delay in conducting the investigation of the case. The Counsel also submitted that, the ownership of the house was not proved by the prosecution. CRL.APPEAL No.501 of 2005 4 9. The learned Public Prosecutor submitted that, there is oral and documentary evidences in this case, to prove the offence under Section 55(g) of the Abkari Act. There is nothing to interfere with the well considered judgment of the trial court. 10. The point for consideration in this case is whether the offence under Section 55(g) of the Abkari Act is made out in this case. 11. PW1 is the Excise Preventive Officer attached to the Mavelikara Excise Range. He gave evidence that, on 16.12.1998 while he was conducting patrol duty with party, he got information that, at the place near Navodaya School, Chennithala, arrack and wash are kept in the house of the accused. He prepared a search memo and after sending it to the court, reached the house of the accused at 5.15 p.m. The accused was found taking plastic can from the sand collected in the courtyard of his house. PW1 and party approached the accused and found 9 plastic cans in which 10 litres of wash was seen in each can. All the contraband articles were seized and sample was CRL.APPEAL No.501 of 2005 5 taken from one of the can. 12. Admittedly, in this case, the forwarding note is not proved. 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. 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 samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal_ CRL.APPEAL No.501 of 2005 6 _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)).”_ In the light of the above authoritative judgments, it is clear that, the failure on the part of the prosecution to prove the forwarding note is fatal to the prosecution case. The prosecution has to prove that, the seized article is wash, which is a material for manufacturing illicit arrack. For this, expert opinion is necessary. In such circumstances, non production of forwarding note is fatal. That itself can be a ground for acquitting the accused. 13. Moreover, the arrest memo is not produced in this case. In **Ramankutty v. Excise Inspector, Chalannur Range** [2013 (3) KHC 308], this Court observed the relevancy of arrest memo in Abakri CRL.APPEAL No.501 of 2005 7 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 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_ CRL.APPEAL No.501 of 2005 8 _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 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_ CRL.APPEAL No.501 of 2005 9 _fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt."_ In the light of the above authoritative judge, the non production of the arrest memo in this case is fatal to the prosecution case. On this ground also, the benefit of doubt will go in favour of the accused. 14. It is further contended that, in this case, the alleged offence detected on 16.12.1998. But, the final report was filed only on 17.7.2001. There is no explanation for the delay. The delay in conducting the investigation without any explanation, is fatal to the prosecution case. This Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], **Chandran v. State** [2016(4) KLT 727] and **Mukundan v. State of Kerala** [2016(3) KLT 532] observed that, if there is an unexplained delay in investigating Abkari cases, the accused is entitled the benefit of doubt. The relevant portion of **Kumaran's case** (supra), is extracted hereunder: CRL.APPEAL No.501 of 2005 10 _“The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11)=2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In this case, there is no explanation for the delay in conducting the investigation. Hence, in the light of the above dictum laid down by this CRL.APPEAL No.501 of 2005 11 Court, the accused is entitled the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 2.2.2005 in S.C. No.60 of 2003 of the Additional Sessions Judge, Fast Track Court-II, Alappuzha, are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**