Kerala High Court

Madhu vs State Of Kerala on 8 April, 2021

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR. JUSTICE T.R.RAVI

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       CRL.A.No.1334 OF 2006

  AGAINST THE JUDGMENT IN SC.NO.55/2005 DATED 14.06.2006 OF THE
    COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA


APPELLANT/ACCUSED:

              MADHU,
              S/O. PONNAPPAN PILLAI
              PANTHALANGAYIL VEETTIL,
              VENGALLOOR, PURAPUZHA KARA,
              THODUPUZHA TALUK.

              BY ADVS.
              SRI.K.K.CHANDRAN PILLAI (SR.)
              SMT.S.AMBILY

RESPONDENT:

              STATE OF KERALA
              REP. BY PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM.

              BY SMT.S.L. SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1334 OF 2006

                                     2


                          JUDGMENT

Dated this the 8th day of April 2021

The accused in SC.No.55/2005 on the file of the Court of

Additional Sessions Judge (Adhoc-I), Thodupuzha has filed this appeal

being aggrieved by the judgment dated 14.06.2006 whereby he was

found guilty of offence under sections 8(1) and (2) of the Abkari Act

and has been convicted and sentenced to undergo rigorous

imprisonment for 1 year and to pay a fine of Rs.1 lakh and in default

of payment of fine, to undergo simple imprisonment for a period of

six months.

2. The case of the prosecution is that on 11.10.2001 at 7 pm,

PW1 the Excise Range Inspector who was on patrol duty at Vazhithala

area, found the accused in possession of a white plastic cover

containing a white can of 2½ litres capacity filled with contraband

arrack. According to the prosecution, the accused abandoned the

plastic bag and attempted to run away, but he was chased and

apprehended at a distance of about 30 feet. It is stated that the

accused was arrested on the spot, sample of the contraband articles

were taken in a 375 ml capacity bottle, which was sealed and

recovered as per mahazar. It is further stated that the remaining

arrack was also sealed. MO1 produced is the can with the arrack and CRL.A.No.1334 OF 2006

MO2 is the plastic cover in which the can was kept. The Court below

examined PW1 to PW5 and Exts. P1 to P5 were marked. On the basis

of the evidence on record, the Court below found the accused guilty of

the offence and convicted him and imposed on him the sentence

referred above.

3. Heard Smt.S. Ambily, learned counsel on behalf of the

appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the

State.

4. The counsel for the appellant contended that the prosecution

has failed to prove the arrest of the accused as well as the seizure of

the contraband articles, beyond any reasonable doubt. According to

the counsel, no arrest memo has been produced and marked by the

prosecution, which casts doubt about the arrest. Apart from that, it is

submitted that according to PW1, the accused was chased and

apprehended but he has stated that the persons who chased were the

guards who accompanied. The counsel points out that the guards were

not examined in the case and apart from the statement of PW1, there

is nothing else to support the said version, particularly since the arrest

memo has not been produced and marked in the case. It is further

stated that PW1 admitted during the cross examination that the

accused has not been identified properly. The counsel points out that CRL.A.No.1334 OF 2006

in the cross examination, PW1 has stated that the mahazar does not

mention about identification of the accused and that it also does not

state the persons who chased the accused. He further says that he

does not remember whether the accused had signed MO1. He admits

that MO1 does not show the signature of the accused. It is the case of

the counsel for the appellant that the above circumstances add to

doubts regarding the arrest and since the arrest memo is not

produced, the accused is entitled to the benefit of doubt. I find

considerable force in the contentions put forward by the counsel for

the appellant. This Court in Ramankutty v. Excise Inspector [2013

(3) KHC 308] held that the failure to produce the arrest memo is

fatal for the prosecution case and that if the arrest was not proved

beyond reasonable doubt, the entire case of the prosecution will fall.

The dictum laid down in Ramankutty (supra) was later followed by

this Court in the judgment dated 22.02.2021 in Raju @ Poten Raju

v. State of Kerala (Crl.A.No.1993/2006).

5. The counsel also relies on the judgment in Sumathy V.

State of Kerala 2016 (4) KHC 225. Particular reference is made to

paragraph 7 of the judgment, which reads thus;

"7. Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence, after taking sample. They failed to affix label in MO 1.

Affixing label in the contraband articles and obtaining signature in the presence of the independent witnesses CRL.A.No.1334 OF 2006

ensure the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime - Detection, enquiry trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW 2 admitted that no label was found in the seized articles when he was examined before Court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon such evidence."

6. Reliance placed by the counsel for the appellant on the

above judgment is justified, since the facts of this case are almost

similar to the facts in the judgment referred above. Apart from the

above discrepancies, on a perusal of the records, I find that Ext.P4

which is the forwarding note which has been marked in the case does

not show the name of the Excise guard with whom the sample is to be

sent. Even though the forwarding note is seen to have been counter

signed by the Magistrate, the is no date written along with the initial

so as to show the date on which the Magistrate had countersigned the

document. Apart from this, the forwarding note says that the sample

of arrack which is to be sent for chemical analysis bears the seal of the

Court. There is no case for the prosecution that the seal which was put