Vikraman Nair S/O. Parameswaran Nair; Vinod S/O. Sadanandan Achari; Babu S/O. Kittu, Kuruppam VeedU, Near Pizhayathu Junction, Uliyakovil Cherry, Kollam East Village, Kollam vs Sub Inspector of Police Kollam East Police Station, Kollam (Represented by Public Prosecutor, High Court of Kerala, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.2437 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 939/2002 DATED 12-12-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 186/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** ## **APPELLANT/ACCUSED:** **1 VIKRAMAN NAIR S/O. PARAMESWARAN NAIR, THULASIBHAVAN, NEAR AMMAN NADA, PATTATHANAM, KOLLAM.** **2 VINOD, S/O. SADANANDAN ACHARI PANAVILA VEEDU, NEAR VILAPPURATH, ANIMAL HUSBANDRY HOSPITAL, ULIYAKOVIL CHERRY,KOLLAM EAST VILLAGE, KOLLAM.** **3 BABU S/O.KITTU,KURUPPAM VEEDU, NEAR PAZHAYATHU JUNCTION, ULIYAKOVIL CHERRY, KOLLAM EAST VILLAGE,KOLLAM.** ## **BY ADV. SRI.S.SANTHOSH KUMAR** ## **RESPONDENT/COMPLAINANT:** **SUB INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KOLLAM, 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 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2437 OF 2006** **2** ## **JUDGMENT** **Dated this the 15th day of December 2020** The appellants are the accused in S.C. No. 939/2002 on the file of the Additional District and Sessions Court (AdhocII),Kollam. Above case is charge sheeted against the appellants alleging offences punishable under Section 55(i) and 15 (c) of the Abkari Act. 2. The prosecution case is that, the Sub Inspector of Police Kollam East station was on patrol duty with his Police party on 26-06-2000. At about 7.30.p.m., on that day they got information regarding the sale of liquor conducted at an open shed on the western side of Aiswarya hotel behind foreign liquor shop No. 27, Pullikada and hence they reached there by 7.30.p.m. At that time, they saw three persons standing besides a table on its western side, other peoples where standing on eastern side of the table. Some of them were consuming liquor. One of the person standing on the western side of the table was transferring liquor to a glass from a bottle. Others were also **CRL.A.No.2437 OF 2006** **3** engaged in drinking and selling liquor. It is alleged that an amount of Rs. 2,360/- was also seized from the 3[rd] accused. The prosecution case is that altogether 17.640 litres of Indian maid foreign liquor is seized from the accused, who are the appellants in this case. 3. To substantiate the case, prosecution examined PW1 to PW5. Exts. P1 to P4 are the documents marked on the side of the prosecution. Mo1 to MO6 are the material objects. 4. After going through the evidence and the documents, the trial found that the accused are guilty of the offence punishable Under Section 55(i) of the Abkari Act. They were sentenced to undergo rigorous for 5 years and to pay a fine of RS.5,00,000/- . In default of payment of fine, the accused are directed to undergo simple imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the entire prosecution is unsustainable for three reasons . The learned counsel submitted that, the alleged seizure of the **CRL.A.No.2437 OF 2006** **4** contraband article was on 26-06-2000. But contraband articles were produced before the court only on 19-07-2000. There is no explanation for the same. The learned counsel also submitted that, the forwarding note is not marked in this case. The learned counsel further submitted that, there is no evidence produced by the prosecution to prove the arrest of the appellants from the spot. The arrest memo is not produced. Therefor the learned counsel for the appellant submitted that,the appellants are entitled to the benefits of doubt on the above three grounds. 7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove this case and there is nothing to interfere with the conviction and sentence imposed by the lower Court. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence imposed by the lower Court on technical grounds. 8. The point for consideration in this case is whether the accused committed the offence punishable under Section 55 (i) of the Abkari Act. 9. To prove an offence under Section 55 (i) of the Abkari Act, the prosecution has to prove first that the accused was in **CRL.A.No.2437 OF 2006** **5** possession of liquor as defined in Abkari Act. Admittedly, the alleged seizure in this case was on 26-06-2000. But as per Ext.P3 property list, the properties were produced before the Court only on 19-07-2000. Admittedly there is no explanation from the prosecution for the delay in producing the contraband articles. As per the statute the officer concerned is bound to produce the contraband articles before the Court forthwith. In this case there is no explanation for the delay in producing the contraband articles from 26-06-2000 to 19-07-2000. 10. The seizure of the contraband in this case was on 26.6.2000. The sample reached the court only on 19-07-2000. 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 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 **CRL.A.No.2437 OF 2006** **6** 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.” 11. Similarly the forwarding note is also not marked in this case. The relevancy of a forwarding note in Abkari case is considered by this Court in several cases. It is the duty of the prosecution to prove that the seized articles reached in the hands of the analyst. For proving the above links, forwarding note is important. Admittedly, forwarding note is not produced and marked in this case, that is fatal to the prosecution. 12. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in **CRL.A.No.2437 OF 2006** **7** 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. 13. 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 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)).” **CRL.A.No.2437 OF 2006** **8** 14. More over, the prosecution has not produce the arrest memo to prove the arrest of the appellants in this case. The non production of arrest memo in abkari case is fatal. Without arrest memo the prosecution cannot prove the arrest of the appellants from the spot. Simply because there is oral evidence the same is not enough to prove the arrest. 15. Admittedly, the arrest memo is not produced in this case. 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 **CRL.A.No.2437 OF 2006** **9** 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 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 **CRL.A.No.2437 OF 2006** **10** 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." 16. In the light of the above discussion, I think the appellants are in this case is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellants as per judgment dated 12-12-2006 in S.C. No. 939/2002 on the file of the Additional District and Sessions Judge (Adhoc)II, Kollam is set aside. The appellants are set at liberty. The bail bond, if any, executed by the appellants, is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **sa**