Sulochana v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.A.No.2113 OF 2006** **SC 1043/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** ## **APPELLANT/S:** **SULOCHANA, D/O. NESAMMA, THOTTUVARAMBU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA.** **BY ADV. SRI.G.SUDHEER** **RESPONDENT/S:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SMT. V. SREEJA, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 2113/2006** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 58 of the Abkari Act. 2. The prosecution allegation is that on 1.8.1999 at about 9 a.m., the appellant was found in possession of eight litres of arrack, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellant has argued that since no forwarding note was marked or proved in this case, the appellant is entitled to benefit of doubt. 5. It appears that no forwarding note was marked or proved in this case. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: ## **Case No. Crl.A 2113/2006** -3- “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 7. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. 8. Since no forwarding note was marked and proved in this case, the prosecution could not establish the tamper - proof despatch of the sample to the laboratory. In the **Case No. Crl.A 2113/2006** -4- said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. Consequently, there is no link evidence to connect the appellant with the sample analysed in the laboratory In the said circumstances, the appellant is entitled to benefit of doubt. 9. There is yet another reason to grant benefit of doubt to the appellant. The prosecution allegation is that the appellant was arrested from the spot. However, the arrest memo was not proved by the prosecution. This court in Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC 308] held that the arrest memo is a crucial document **Case No. Crl.A 2113/2006** -5- to be prepared at the time of arrest and the non-production thereof is fatal to the prosecution case. The Court further held in Ramankutty (supra) that if the arrest is not proved beyond reasonable doubt, the entire case built up by the prosecution would fall to ground. In this case, the prosecution allegation is that the appellant was arrested along with the contraband. However, the arrest memo was not proved by the prosecution. The Woman Police Constable, who allegedly arrested the appellant, was also not examined. Therefore, the prosecution could not establish the arrest of the appellant beyond reasonable doubt. In this case, since the basis of the prosecution case rests on the allegation that the appellant was arrested along with the contraband, the prosecution was duty bound to prove the arrest of the appellant beyond reasonable doubt to **Case No. Crl.A 2113/2006** -6- establish the production case. Since the arrest is not proved beyond reasonable doubt, the entire case built up by the prosecution in this case, would fall to ground. In the said circumstances also, the appellant is entitled to benefit of doubt. 10. It is also to be noted that the offence was detected by the Assistant Sub Inspector of Police. He also seized the contraband and registered the crime. As per S.R.O. No.321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of the Abkari officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer as per S.R.O. No.321/96. The learned Public Prosecutor ## **Case No. Crl.A 2113/2006** -7- has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Abkari Act. 11. The Division Bench of this Court in Subash v. State of Kerala [2008(2) KLT 1047] held that the Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Abkari Act. In the above said case, the Division Bench directed the final report to be returned for representation after curing the defects, if the trial was not commenced. In this case, the Assistant Sub Inspector of Police seized the contraband and registered the crime. He was not examined before the court as he was no more during the period of trial. However, since the Assistant Sub Inspector of Police was not an Abkari Officer, the seizure effected and the registration of ## **Case No. Crl.A 2113/2006** -8- the crime by the Assistant Sub Inspector of Police, were without authorisation and jurisdiction and in the said circumstances, the conviction and sentence passed by the court below on the basis of the said seizure and registration of the crime, cannot be sustained. In the said circumstances also, the appellant is entitled to benefit of doubt. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. ## **sd** ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/