Vijayakumar, S/o. Manas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936 CRL.A.No. 1527 of 2005 --------------------------- AGAINST THE JUDGMENT IN SC 973/2000 of ADDITIONAL SESSIONS COURT (ADHOC-II), THIRUVANANTHAPURAM APPELLANT/ACCUSED:: VIJAYAKUMAR, S/O. MANAS, THADATHARIKATHU VEEDU, SAMBHUTHANGI, KOKKUDI MURI MANNORKARA VILLAGE. BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SMT.RESHMI POULOSE RESPONDENT/COMPLAINANT:: THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = =** ## **Crl.A. No. 1527 of 2005** **= = = = = = = = = = = = = = = = = = =** **Dated this the 17[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-II, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant earlier submitted that the appellant expired after filing this appeal. A memo CRA 1527/2005 2 filed by the learned Public Prosecutor along with an authenticated copy of the Death Certificate confirmed the death of the appellant on 3-10-2005, i.e., after filing this appeal. 3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW4, the Circle Inspector of Police, Aryanad, and his party were on patrol at Aniyilakadavu in Aryanad Village, at about 5.30 p.m.on 23-8-1999. While so, the appellant was seen carrying a plastic bag containing something on his head. Seeing the police party, the appellant attempted to flee away after leaving the plastic bag there. But, the police party stopped him there. On examining, after opening the CRA 1527/2005 3 bag, a black 20 litre jerrycan containing full of illicit arrack was found. PW4 had taken 180 ml. of arrack as sample in a bottle from the bulk contained in the jerrycan. The sample bottle and the jerrycan were sealed and seized by PW4 under Ext.P1 Mahazar in the presence of witnesses. The appellant was arrested by him then and there. Thereafter, PW4 and his party reached Aryanad Police Station with the appellant, contraband items and the records. PW4 had handed over them along with his Ext.P3 report to PW5, the Head Constable attached to that Police Station. PW5 registered Crime No.204 of 1999 of that Police Station in respect of the occurrence. Ext.P2 is the F.I.R. thus drawn by PW5. He had sent the F.I.R. to the court. He had produced the appellant, contraband items and the records before PW6, the Sub Inspector of Police of that Police Station. PW6 had conducted the investigation of the case. He had produced the appellant along with the Remand Report and other records before the court on 24-8-1999. CRA 1527/2005 4 He had also produced the properties including the sample before the court. But, the properties were returned to him. Later, they were produced describing them in Ext.P4 List of Property. He had questioned the witnesses and recorded their statements. PW7, the Sub Inspector of Police, Aryanad Police Station, verified the investigation conducted by PW6. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court-I, Nedumangad. 5. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Nedumangad. Later, the case was withdrawn and made over to the Additional Sessions Court (Adhoc)-II, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 55 (a) of the Abkari Act. The appellant pleaded not guilty of the CRA 1527/2005 5 charge. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P5 and Mos.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that PW4 and his party had seized a black 20 litre jerrycan containing full of illicit arrack from the appellant at 5.30 p.m.on 23-8-1999 and handed over the same to PW5 at Aryanad Police Station, on that day itself. PW6, the Investigating Officer, deposed before the court that he had produced the contraband including the sample before the court along with the appellant and the CRA 1527/2005 6 records on 24-8-1999. But, those properties were returned from the court without receiving them. Thereafter, the properties were produced describing them in 151 A Form on 31-8-1999. Ext.P4 is that List of Property. Justifying the claim so raised by PW6 before the court, the court below observed as follows: “............ So also the witness deposed that the seized articles were produced in the court on 24-8-1999 and the same was returned for reproduction. As observed by me earlier, the Mos., accused, the mahazar and other records were originally produced before Judicial First Class Magistrate Court II, Attingal who was holding the charge of Judicial First Class Magistrate Court-I, Nedumangad. So the explanation of PW6 that the material objects and the sample collected were returned for safe custody is quite natural and probable and there is no reason to doubt the veracity of his evidence.” PW6 did not say in so many words that he had produced the CRA 1527/2005 7 contraband items before the Judicial First Class Magistrate's Court-II, Attingal, on 24-8-1999. It is his definite case that after returning the properties from the court, those properties were again produced after describing them in Ext.P4 List of Property. Therefore, going by his evidence, originally the properties were not produced along with Ext.P4. But, Ext.P4 List of Property was prepared when the properties were again produced before the court on 31-81999. This cannot be true. A perusal of Ext.P4 would go to show that PW6 himself had prepared Ext.P4 List of Property on 23-8-1999 as noted by him at the right hand top of Ext.P4 and just below his designation at the right hand bottom. The folly of the argument that he had produced the contraband before the court on 24-8-1999 can further be elucidated by showing another fact. PW6 had produced Ext.P1 Seizure Mahazar, Ext.P2 F.I.R., Ext.P3 Report of PW4 and Remand Report on 24-8-1999 as specifically endorsed by the learned Magistrate on them. No such endorsement CRA 1527/2005 8 was made on Ext.P4. Going by the case of PW6, Ext.P4 must be a document prepared by him after returning the properties from the court on 24-8-1999. As already seen, Ext.P4 was prepared by PW6 on 23-8-1999. Therefore, there was absolutely no reason for PW6 to produce the contraband before the court on 24-8-1999 along with some other List of Property or document. Moreover, no such different List of Property or document has been produced in this case. All these facts lead to the irresistible conclusion that the contraband was produced before the court by PW6 only on 31-8-1999. The case otherwise pleaded by PW6 is only to be rejected and hence, it is rejected. The contraband was produced before the court by PW6 only on 31-8-1999 as noted by the learned Magistrate as well as the office of the court on Ext.P4. 7. What was the reason for not producing the contraband before the court without delay? Obviously no explanation is available in respect of that matter. A Division CRA 1527/2005 9 Bench of this Court in **Ravi v. State of Kerala(2011(3) KLT 353)** has laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reasons stated in that judgment, that an unexplained delay of a single day as fatal to the prosecution case. In the case on hand, none of the police officials examined has offered any valid explanation for the delay occurred in producing the contraband before the court. Therefore, this unexplained delay occurred in producing the properties before the court is fatal to the prosecution. 8. It is the prosecution case that PW4 had drawn a sample of 180 ml. of arrack from the bulk contained in the 20 litre jerrycan in a sample bottle and sealed the same. What happened to that sealed sample? PW4 deposed that it was impressed with his personal seal. A sample of that impression was affixed on Ext.P1 as well. PW6 specifically CRA 1527/2005 10 stated that that sample was not produced before the court. But, requested to take sample from the court and to send the same for chemical analysis. No evidence is forthcoming as to what happened to the sample allegedly drawn by PW4 at the time of detecting the offence. As already noted, the contraband along with Ext.P4 List of Property was produced before the court on 31-8-1999. That List was prepared on 23-8-1999. That means Ext.P4 was prepared on the same day the sample was drawn by PW4. The sample does not find a place in Ext.P4. The property is described in Ext.P4 as 20 litre jerrycan with full of arrack kept in a plastic bag. If the sample was actually drawn, the jerrycan cannot contain full of arrack. It can contain arrack less the quantity taken as sample. All these facts throw shadow of doubt on the prosecution case. 9. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample CRA 1527/2005 11 and the sample of liquid contained 18.74% by volume of ethyl alcohol. Also noted in Ext.P5 that the seal on the bottle was intact and found tallied with the sample seal provided. Admittedly, no sample has been produced by the Investigating Agency before the court. Instead, requested the court to take sample and subject the same to chemical analysis. Who has taken the sample? If taken, whether it was from the jerrycan contained arrack allegedly seized from the appellant? Unless the property clerk dealing with such matters in the court is examined, such facts cannot be proved. In this case, the property clerk of the court was not examined. So, there is no assurance that the sample taken was from the bulk allegedly seized from the appellant. Therefore, Ext.P5 cannot advance the case of the prosecution. 10. Ext.P1 Seizure Mahazar is silent as to whether Arrest Memo and Arrest Intimation were prepared. None of the official witnesses examined deposed that such CRA 1527/2005 12 documents were prepared at the time of arrest of the appellant. The Honourable Supreme Court issued directions in **D.K.Basu v. State of W.B. (A.I.R.1997 SC 610)** regarding preparation of Arrest Memo and its intimation. Dealing with the importance of preparation of Arrest Memo and its intimation, this Court in **Ramankutty v. Excise Inspector** ( _supra)_ has held as follows: “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 CRA 1527/2005 13 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 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 CRA 1527/2005 14 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 or arrest, beyond reasonable doubt.” Here, in the case on hand, the Arrest Memo or Arrest Intimation has not been prepared at the time of arresting the appellant. The non preparation of Arrest Memo and Arrest Intimation, in the facts and circumstances, is fatal to the prosecution case. 11. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant as directed by CRA 1527/2005 15 this Court shall be returned to the legal heirs of the appellant. Since the appellant expired during the pendency of this appeal, no further orders are required. ## **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. ## TRUE COPY P.S. TO JUDGE