Ramankutty v. The Excise Inspector

K. Harilal, J.:— The Revision petitioner is the accused in C.C No. 383/1997 on the files of the Judicial First Class Magistrate's Court, Kunnainkulam, as well as the appellant in Criminal Appeal No. 152/2000 on the files of the Additional District and Sessions Judge, Fast Track (Adhoc II), Kozhikode. He was charge sheeted and prosecuted for the offence punishable u/s 55(a) of the Abkari Act. After trial, the Revision petitioner was found guilty of the offence punishable u/s 55(a) of the Abkari Act and convicted thereunder. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 25,000/- (Rupees Twenty five thousand only) and in default, to undergo rigorous imprisonment for two months. Being aggrieved by the conviction and sentence, though he had preferred an appeal, the appellate court also confirmed the conviction entered and sentence imposed by the trial court as such. This revision is filed challenging the concurrent findings of conviction and sentence, on various grounds.

2. It is the case of the prosecution that on 24/05/1997 at 5.30 p.m when the Preventive Officer attached to Chelannur Range and party were on patrol duty through Kunnamangalam-Peruvattiparamala public road, they saw the accused coming with a black plastic can through the eastern side of the said road. On seeing the excise party, the accused tried to hide the plastic can. On examining the contents of the plastic can, it was found containing about 2 litres of illicit arrack. The accused was arrested from the place of occurrence. Thus, the accused had committed the offence punishable u/s 55(a) of the Abkari Act. The learned counsel for the Revision petitioner canvassed two points in his arguments. The counsel firstly pointed out that the ‘arrest memo’ had not been prepared or produced so as to prove the alleged arrest of the Revision petitioner with contraband as alleged by the prosecution. Similarly, the evidence of PWs.1 and 2 regarding the place of arrest is contradictory and the same is mutually destructive. Therefore, the arrest itself is suspicious and unbelievable as it is not proved beyond reasonable doubt.

3. Per contra, the learned Public Prosecutor submits that the arrest with contraband is proved by Exts. P1 to P3, which were prepared contemporaneously at the time of arrest. Therefore, absence of arrest memo is not fatal to the prosecution case. Secondly, there is a delay of one day in producing the contraband articles seized before the Magistrate court, and that delay is also fatal. These are the two points urged before me in this revision.

4. Going by the records, it could be seen that PWs.1 to 4, 6 and 7 are the occurrence witnesses. PW1 is the Preventive Officer who detected the incident of this case. He deposed that no particular information was obtained at the time of detection. His evidence is corroborated by the evidence of PW7 and PW2 who accompanied PW1 at the time of patrol duty and the detection of the offence. Ext. P4 is the chemical analysis report which shows that the contraband seized from the Revision petitioner contains ethyl alcohol. Thus, the seizure of the arrack is seen, beyond reasonable doubt.

5. Coming to the points raised by the Revision petitioner, the learned counsel strongly contended that the place of arrest is contradictory and mutually destructive. Going by the deposition of PW1, it could be seen that PW1 testified that the Revision petitioner was arrested when he was standing on the eastern side of the mud road and that the mud road was lying on the left side of the tar road. While going through the deposition of PW2, he deposed that the Revision petitioner was arrested when he was standing in the northern side of the road which leads to a place known as “Peruvattippara” and that place was far away from the tar road. Thus, it is seen that the place of arrest deposed by PWs.1 and 2 is distinct and different.

6. 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 [(1997) 1 SCC 416]. 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 the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.”

7. 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.

8. Coming to the second point that there is a delay of one day in producing the contraband before the court, the counsel for the Revision petitioner submits that the said delay is crucial in view of the decision in Alex v. State [2003 (1) KLT SN 12 at page 9]: The gist of the above decision is that unexplained delay in producing the contraband before the court after seizure is fatal to prosecution case. In the instant case, though the seizure of the contraband was on 24/05/1997 at 5.30 p.m, Ext. P3 shows that the same was produced before the Magistrate court and the court accepted it on 26/05/1997. In whose custody and where the contraband was kept on 25/5/1997? No satisfactory explanation was forthcoming from the prosecution explaining the cause of delay and custodian of the contraband. Normally one day's delay is not fatal. But in the instant case though the delay is too short, the non compliance of the mandatory requirements to be followed at the time of arrest and non-disclosure of the custodian of the contraband during the delayed period make the delay decisive and fatal to the prosecution case. On a marshalling of evidence, I find that the prosecution failed to prove the prosecution case beyond reasonable doubt so as to bring home guilt of the accused, alleged against him. Consequently, the conviction entered and sentence imposed concurrently on the Revision petitioner by the courts below are set aside and the Revision petitioner is acquitted of the offence.

9. In the result, this Revision petition is allowed.