Shailesh Kumar.G vs Station House Officer
2021 Latest Caselaw 11508 Ker

             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.2060 OF 2006(B)

  AGAINST THE JUDGMENT IN SC.NO.682/2004 DATED 28-09-2006 OF THE
     COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), KASARAGOD

     CP.NO.330/2002 DATED 04-12-2003 OF JUDICIAL FIRST CLASS
                  MAGISTRATE'S COURT, KASARAGOD


APPELLANT/ACCUSED NO.1:

             SHAILESH KUMAR.G.,
             S/O. KRISHNAPPA,
             AGED 28 YEARS
             SAFALIA, SREEDEVI KRIPA,
             NEAR S.L.TEMPLE, UPPINANGADI.

             BY ADV. SRI.BALU TOM

RESPONDENTS/COMPLAINANT & STATE:

      1      STATION HOUSE OFFICER
             MANJESHWAR POLICE STATION,
             KASARAGOD.

      2      STATE OF KERALA
             REPRESENTED BY
             ITS 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.2060 OF 2006(B)

                                   2

                           JUDGMENT

Dated this the 8th day of April 2021

The 1st accused in SC.No.682/2004 on the file of the Court of

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

being aggrieved by the judgment dated 28.09.2006 whereby he was

found guilty of offence under sections 55(a) of the Abkari Act and

convicted and sentenced to undergo rigorous imprisonment for 2½

years and to pay a fine of Rs.1 lakh and in default of payment of fine,

to undergo rigorous imprisonment for a further period of six months.

2. The case of the prosecution is that on 09.09.2001 at about

10.15 pm, the appellant along with accused Nos. 2 and 3 were found

in possession of 480 bottles each containing 375 ml of Indian Made

Foreign Liquor meant for sale in the state of Karnataka, which were

being transported in a car along the public road in front of the

Ammeri Post Office, Chippar Village. The Court below examined PW1

to PW4 and Exts. P1 to P6 were marked. On the basis of the evidence

on record, the Court below found the 1st accused guilty of the offence

and convicted him and imposed the sentence referred above. Accused

Nos.2 and 3 were found not guilty of the offence. The appeal is hence

filed by the 1st accused challenging the conviction and sentence.

3. Heard Shri.Balu Tom, learned counsel on behalf of the

appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the CRL.A.No.2060 OF 2006(B)

State.

4. The counsel for the appellant submits that even according to

the detecting officer who was examined as PW1, the incident took

place in Karnataka State and the prosecution itself could not have

been maintained. It is also submitted that the arrest memo which is

the crucial document to prove the arrest of the 1 st accused has not

been produced and marked by the prosecution which casts doubt of

the arrest as pleaded by the prosecution. Counsel hence submits that

the accused is entitled to the benefit of doubt and acquitted.

5. I find considerable force in the contentions raised by the

counsel for the appellant. This Court in Ramankutty v. Excise

Inspector [2013 (3) KHC 308] held that arrest memo is a crucial

document which is to be prepared at the time of arrest and non

production of the arrest memo is fatal for the prosecution case. The

Court further held that if the arrest has not been proved beyond any

doubt, the entire prosecution case is liable to fail. On a perusal of the

records, I find that arrest memo has not been produced and marked

by the prosecution. As a matter of fact, the lower court records do not

even have the arrest memo. Hence this is not even a case where

there was a mere failure to prove it formally before the Court, but the

arrest memo is not even available on file. I find that the dictum laid

down by this Court in Ramankutty (supra) applies to the facts of this CRL.A.No.2060 OF 2006(B)

case. Under the circumstances, it is not necessary to go into the

question whether the offence was committed beyond the borders of

Kerala.

6. In the result, the judgment dated 28.09.2006 in SC.No

682/2004 on the file of the Court of Additional Sessions Judge (Adhoc-

I), Kasargode is set aside. The appellant is acquitted and set at

liberty. Bail bonds if any executed by the appellant or on his behalf

are cancelled. On 27.10.2006, this Court had directed the appellant to

pay a sum of Rs.25,000/- out of the fine amount before the Court

below. The appellant is entitled to refund the said amount deposited,

on filing proper application before the Court below.

The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Sn