Vidyadaran v. State of Kerala

# **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.2034 OF 2005** **AGAINST THE JUDGMENT IN SC NO.319/2001 DATED 29-10-2005 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-1), THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT IN CP NO.177/2000 OF THE JUDICIAL FIRST CLASS MAGISTRATE-1, ATTINGAL** ## **APPELLANT/ACCUSED:** **VIDYADARAN, S/O BHASKARAN, MANACATTUVILAKAM VEEDU, CHIRAKKAL, CHIRAKKAL DESOM, KADINAMKULAM VILLAGE.** **BY ADV. SRI.J.JAYAKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, 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.2034 OF 2005 2 ## **JUDGMENT** ## **Dated this the 3rd day of July, 2020** .. The above appeal is filed by the accused in Sessions Case No.319 of 2001 on the file of the Additional District & Sessions Court (Fast Track Court-1) Thiruvananthapuram. 2. The Sub Inspector of Police, Kadinamkulam Police Station charge sheeted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that, on 4.5.2000 at 11.30 a.m., the accused was found in possession of 2 litres of arrack filled in 20 plastic covers each cover containing 100 ml. of arrack near the hut standing on the northwestern compound of the house bearing No.8/527 standing in the northern side of the Panchayath Road leading to Java Cottage. 4. On appearance of the accused, the trial court framed charge under Section 55(a) of the Abkari Act. 5. To substantiate the case, the prosecution CRL.APPEAL NO.2034 OF 2005 3 examined PW1 to PW4. Exhibits P1 to P4 are the documents marked on the side of the prosecution. MO1 and MO2 are the material objects. 6. After going through the evidence and documents, the trial found that, the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for 1½ 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 learned Counsel for the appellant submitted that, there is no forwarding note marked in this case. Moreover, property list is also not marked in this case. In addition to this, the Counsel submitted that, arrest memo is not marked in this case to prove the arrest of the accused and seizure of the contraband article. The Counsel also submitted that, there is three days delay in producing the CRL.APPEAL NO.2034 OF 2005 4 contraband article before the court. There is no explanation for the prosecution regarding this delay. 9. The learned Public Prosecutor submitted that, there is oral and documentary evidences to prove the case. The submission of the Public Prosecutor is that, this Court may not interfere with the conviction and sentence imposed on the appellant based on technical grounds. 10. The point for consideration in this case is whether the appellant committed the offence punishable under Section 55(a) of the Abkari Act. 11. Admittedly, forwarding note is not marked in this case. 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** CRL.APPEAL NO.2034 OF 2005 5 **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) is 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 a ground for acquitting the accused. CRL.APPEAL NO.2034 OF 2005 6 12. It is also an admitted fact that, the property list is also not marked in this case. Usually, the contraband article seized will be produced before the Magistrate Court with a property list. The trial court can gather the date on which the contraband reached in the court from the entries in the property list. There is no property list produced in this case. In such circumstances, the court is handicapped in finding out the date on which the property reached in the court. Simply because the police/excise witnesses deposed that, the property reached in the court on such and such date, unless the documentary evidence like property list is there to verify, the oral evidence adduced by those witnesses can't be believed. In this case the property list is not marked. There is no documentary evidence before the court to find out when exactly the property reached in the court. Moreover, even according to the prosecution, three days delay is there in producing the contraband articles before the court. In such circumstances, on this ground also the accused is entitled the benefit of doubt. CRL.APPEAL NO.2034 OF 2005 7 13. Admittedly, the 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. 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_ CRL.APPEAL NO.2034 OF 2005 8 _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._ _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_ CRL.APPEAL NO.2034 OF 2005 9 _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. 14. Another contention of the appellant is that, the seizure of the contraband in this case was on 4.5.2000. But, the oral evidence in this case will show that three days have taken to reach the contraband article in the court. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT** CRL.APPEAL NO.2034 OF 2005 10 **920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi's** case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”_ Since there is no explanation from the part of the prosecution for the delay in producing the contraband CRL.APPEAL NO.2034 OF 2005 11 article before the court, the benefit of doubt in this case will go in favour of the accused. 15. In view of the above discussions, I am of the opinion that, the accused is entitled an order of acquittal in this case. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 29.10.2005 in S.C. No.319 of 2001 by the Additional District & Sessions Court (Fast Track Court-I),Thiruvananthapuram 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**