Vasudevan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **CRL.A.No.2089 OF 2005** **AGAINST THE JUDGMENT DATED 9.11.2005 IN S.C.NO.746 OF 2003 ON THE FILE OF THE THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT- I, ALAPPUZHA.** ## **APPELLANT/ACCUSED:** **VASUDEVAN, PLAVILAYIL HOUSE, EREZHA THEKKUM MURI,, PERINGALA VILLAGE,, MAVELIKKARA.** **BY ADV. SRI.N.SURESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2089 OF 2005 2** ## **JUDGMENT** ## **Dated this the 13th day of November 2020** ... The appellant is the accused in S.C. No.746 of 2003 on the file of the Additional Sessions Judge, Fast Track Court- I, Alappuzha. The above appeal is filed against the conviction and sentence imposed on the appellant as per the judgment dated 9.11.2005 in S.C. No.746 of 2003. 2. The prosecution case is that on 1.2.2002 at 5.30 p.m., while the Preventive Officer attached to the Excise Circle Office, Mavelikkara and excise party were in patrol duty in Peringala Village and they saw the accused coming in the opposite direction along the road carrying a plastic bag. On opening the plastic bag, two plastic bottles of 1.5 litres each capacity was found in which some liquid were seen inside. The bottles were checked. The bottles contained a ## **CRL.APPEAL NO.2089 OF 2005 3** liquid of 3 litres which on smelling and tasting ascetained as contraband arrack and the bottles were seized. Hence it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P5 are the documents marked on the side of the prosecution. M.O.1 to M.O.3 are the material objects. DW1 is the defence witness. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Sections 8(1)&(2) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for six months. 5. Aggrieved by the above conviction and sentence, this Crl.Appeal is filed. **CRL.APPEAL NO.2089 OF 2005 4** 6. Heard. 7. 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_ **CRL.APPEAL NO.2089 OF 2005 5** _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)).”_ 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. 8. Moreover, the arrest memo is also not produced and marked in this case. The arrest memo is a document which will show that the petitioner was arrested from the place of occurrence. The non-production of the arrest memo is fatal to the prosecution case. In **Ramankutty v. Excise** **CRL.APPEAL NO.2089 OF 2005 6** ## **Inspector, Chalannur Range** [2013 (3) KHC 308], this Court observed the relevancy of arrest memo in Abakri 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_ ## **CRL.APPEAL NO.2089 OF 2005 7** _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._ _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_ ## **CRL.APPEAL NO.2089 OF 2005 8** _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."_ In the light of the above authoritative judgment, 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. 9. Similarly, there is long delay in conducting the investigation in this case. 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** **CRL.APPEAL NO.2089 OF 2005 9** (supra), is extracted hereunder: _“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.”_ **==> picture [431 x 14] intentionally omitted <==** **==> picture [431 x 14] intentionally omitted <==** ## **CRL.APPEAL NO.2089 OF 2005 10** alleged search and seizure in this case was on 1.2.2002. The witnesses were questioned during the investigation was only in March 2003. Hence, in the light of the above dictum laid down by this 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 9-11-2005 in S.C.No.746 of 2003 of the Additional Sessions Judge, 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**