KRISHNA PILLAI @ PERUKKAM v. STATE OF KERALA

Crl. Appeal No.136 of 2006 -2- selling arrack at Aruvikarakonam. Soon, PW5 and his party reached that place when the appellant was seen standing there carrying a 20 litre black jerrycan and a glass tumbler. Seeing the police party, the appellant attempted to flee away. But, the police party stopped him there. On examining the jerrycan, about 15 litres of arrack was found in it. PW5 has drawn 150 ml. of arrack as sample in a bottle and the sample bottle as well as the jerrycan containing the bulk of arrack were sealed. He has seized the jerrycan containing arrack and the sample bottle as also the glass tumbler under Ext.P1 Seizure Mahazar in the presence of witnesses. He has arrested the appellant then and there. Thereafter, PW5 reached Aryanad Police Station with the appellant and the properties and registered Crime No.142 of 2000 of that Police Station. Ext.P3 is the FIR thus drawn by PW5. He has produced the accused before the Judicial First Class Magistrate's Court-I, Nedumangad. He has also produced the properties before the court along with Ext.P4 List of

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Crl. Appeal No.136 of 2006 -3- Property. Ext.P5 is a copy of the Forwarding Note produced by PW5 before the court. Ext.P2 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW5 has conducted the investigation of the case. PW4, the Circle Inspector of Police, Aryanad, verified the investigation conducted by PW5 and submitted the Final Report before the court.

4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Nedumangad. The Assistant Sessions Court, Nedumangad, has framed a charge against the appellant alleging the offences under Section 55(a) and (b) of the Abkari Act. The appellant pleaded not guilty of the charge. Subsequently, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thiruvananthapuram. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P5 and M.O.1 on their

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Crl. Appeal No.136 of 2006 -4- side. CW1 was also examined. The appellant was examined under Section 313 of Cr.P.C. He denied the incriminating circumstances shown against him. He also pleaded his innocence and submitted that he was falsely implicated in this case. The defence has 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. The appellant was not found guilty of the offence under Section 55(b) of the Abkari Act and hence acquitted him of that offence. He was heard on the question of sentence and imposed the sentence on him.

5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found in possession of M.O.1 jerrycan containing about 15 litres of arrack at about 6.30 p.m. on 10-05-2000. PW5 had seized the same under Ext.P1 Seizure Mahazar. But, he has

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Crl. Appeal No.136 of 2006 -5- produced the contraband allegedly so seized only on 15-05-2000 as evident from Ext.P4 List of Property with which the properties were produced before the court. Ext.P4 clearly shows that the properties were produced before the court only on 15-05-2000. There is no dispute also with regard to the fact that the contraband was produced before the court only on 15-05-2000. PW5 deposed before the court that the properties were under his custody till they were produced before the court. But, he has not offered any explanation for the inordinate delay that occurred in producing the contraband before the court. A Division Bench of this Court in Ravi v. State Of Kerala & Anr. (2011 (3) KLT

353) 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. The Excise Inspector (2013 (3) KHC 308) found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, the

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Crl. Appeal No.136 of 2006 -6- official witnesses examined did not offer any explanation for the inordinate delay that occurred in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone the appellant is entitled to an order of acquittal.

6. It is the prosecution case that the appellant was arrested at the time of detecting the offence from the place of occurrence. Ext.P1 Seizure Mahazar does not say that he was so arrested after preparing an Arrest Memo. Also not noted that arrest intimation was given. No Arrest Memo or Arrest Notice was tendered in evidence. The Arrest Memo and the Arrest Notice are not seen among the records of the case. PW5, who claimed that he has arrested the appellant, does not have a case before the court that he has prepared an Arrest Memo or issued an Arrest Notice. No answer is forthcoming from the prosecution for not preparing or

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Crl. Appeal No.136 of 2006 -7- producing the Arrest Memo and the Arrest Notice in this case.

7. This Court in Ramankutty's case (supra) has held as follows:

"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 W.B .. 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

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Crl. Appeal No.136 of 2006 -8- 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."

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Crl. Appeal No.136 of 2006 -9- 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."

In the case on hand, the unexplained delay that occurred in producing the properties before the court and the non- preparation or non-production of Arrest Memo and Arrest Notice render the prosecution case a doubtful one. The appellant, at least, is entitled to the benefit of doubt on this ground alone.

8. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act.

9. In the result, the conviction and sentence passed by

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Crl. Appeal No.136 of 2006 -10- the court below against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled.

This appeal is allowed.

Sd/-

BABU MATHEW P. JOSEPH

JUDGE

kns/- //TRUE COPY//

P.A. TO JUDGE

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