Sukumaran v. State of Kerala (Criminal Appeal)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** ## **CRL.A.No.2231 OF 2005** **AGAINST THE JUDGMENT IN SC NO.540/2003 DATED 30-11-2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-1, ALAPPUZHA** **AGAINST THE JUDGMENT IN CP NO.45/2003 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, HARIPAD** ## **APPELLANT/ACCUSED:** **SUKUMARAN AGED 54 YEARS S/O. KOCHU PILLAI, KAREETHARAYIL(VINEESH BHAVANAM), KALLIKKATTU MURI, ARATTUPUZHA VILLAGE.** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.2231 of 2005 2** ## **JUDGMENT** ## **Dated this the 3rd day of July, 2020** ... The above appeal is filed by the accused in Sessions Case No.540 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-1, Alappuzha. 2. The above case is charge sheeted by the Excise Inspector, Karthikappally Excise Range against the appellant alleging offence punishable under Sections 8(1) & (2) and 55(g) of the Abkari Act. 3. The prosecution case is that, on 22.11.1999 at about 4.45 p.m., while CW1, the Preventive Officer attached to the Excise Circle Office, Haripad and his party were on patrol duty in Arattupuzha Village, they received reliable information that, the accused was conducting manufacture of arrack in his residential house. The Preventive Officer and party proceeded to the said house. The accused was present in the house. They entered into the house and searched there. During the course of search, they ## **CRL.APPEAL No.2231 of 2005 3** found distilling of arrack in one set of apparatus on an oven from the kitchen of the said house. They also found 12 litres of wash in an aluminum pot, 600 ml. of arrack in a bottle of 750 ml. capacity and also some articles described as steel vessel and aluminum vessel with mud pot with a tube. After preparing necessary samples from the wash and the arrack and after destroying the remaining wash, the articles were seized and a search list was prepared. The accused was arrested from the place of occurrence. After investigation, final report was filed. 4. On appearance before the trial court, the trial court framed a charge under Sections 8(1) & (2) and 55(g) of the Abkari Act. The accused pleaded not guilty. 5. To substantiate the case, the prosecution examined PW 1 to PW6. Exhibits P1 to P7(a) are the documents marked on the side of the prosecution. Exhibits D1 and D1(a) are the documents marked on the side of the defence. MO1 to MO5 are the material objects. **CRL.APPEAL No.2231 of 2005 4** 6. After going through the evidence and documents in this case, the trial court found that, the accused committed the offence under Sections 8(1) & (2) and 55(g) of the Abkari Act. He is sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for a further period of six months. No separate sentence was awarded under Section 55(g) of the Abkari Act. 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 learned counsel for the appellant submitted that, no forwarding note is marked in this case. The Counsel also submitted that, the arrest memo is also not produced and marked in this case and therefore the arrest of the accused and the seizure of the contraband article itself are doubtful. 9. The learned Public Prosecutor submitted that, in the light of the oral and documentary ## **CRL.APPEAL No.2231 of 2005 5** evidences offence alleged against the accused is proved. The Public Prosecutor submitted that, it is a case in which the trial court found that, the accused is manufacturing illicit arrack. Therefore, this Court may not interfere with the conviction and sentence imposed on the appellant, on technical grounds. 10. The point for consideration in this appeal is whether the accused committed the offence under Sections 8(1) & (2) and 55(g) of the Abkari Act? 11. Altogether, six witnesses were examined on the side of the prosecution. Exhibits produced are P1 to P7. Admittedly, forwarding note is not marked in this case. Simply because materials for manufacturing arrack with utensils are seized, there cannot be a conviction under Section 55(g) of the Abkari Act. The prosecution has to prove that the seized contraband article is a material used for arrack. For that purpose, an expert opinion is necessary. At that stage the forwarding note is relevant. 12. The learned Public Prosecutor argued that, ## **CRL.APPEAL No.2231 of 2005 6** as far as the utensils are concerned, no expert opinion is necessary and the Court can presume that, if utensils for manufacturing liquor is seized, the same is used for manufacturing illicit arrack. This contention cannot be accepted. Simply because utensils for manufacturing arrack are produced, there cannot be a conviction under Section 55(g) of the Abkari Act. The prosecution has to prove that, the seized contraband article is a material used for manufacturing arrack. 13. The contention of the appellant is that, no forwarding note is marked in this case. In Aabkari 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 **CRL.APPEAL No.2231 of 2005 7** 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 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)).”_ Since the forwarding note is not marked in this case, in the light of the above authoritative judgments, it is fatal to the prosecution case. That itself can be ## **CRL.APPEAL No.2231 of 2005 8** a ground for acquitting the accused. 14. Moreover, arrest memo is not produced in this case. The relevancy of arrest memo in Abkari cases is considered by this Court in several cases. 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._ ## **CRL.APPEAL No.2231 of 2005 9** _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._ ## **CRL.APPEAL No.2231 of 2005 10** _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."_ Since no arrest memo is produced in this case, in the light of the above authoritative judgments, the benefit of doubt will go to the accused. 15.In the light of the above discussions, I am of the view that, the accused is entitled the benefit of doubt. **==> picture [412 x 13] intentionally omitted <==** **CRL.APPEAL No.2231 of 2005 11** Conviction and sentence imposed on the appellant as per the judgment dated 30.11.2005 in S.C. No.540 of 2003 of the Additional Sessions Court, Fast Track Court-1, 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**