Kerala High Court
Kaikalam vs The State Of Kerala on 22 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.1044 OF 2006
AGAINST THE JUDGMENT IN SC 1006/2004 DATED 14-03-2006 OF
ADDITIONAL SESSIONS JUDGE (ADHOC-I), KASARAGODE
APPELLANT/ACCUSED:
KAIKALAM, AGED 59 YEARS
S/O MOTHIRA,POODAMKALLADUKKAM COLONY, PANATHADY
VILLAGE, HOSDURG TALUK,, KASARAGODE DISTRICT.
BY ADV. SRI.JAWAHAR JOSE
JAISON ANTONY
RESPONDENT/COMPLAINANT:
1 THE STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF, KERALA, ERNAKULAM.
2 STATION HOUSE OFFICER
PAJAPURAM POLICE STATION.
BY SMT.S.L.SYLAJA, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.1044/2006
2
P.V.KUNHIKRISHNAN, J.
Crl.A.No.1044/2006
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Dated this the 22nd day of February 2021
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JUDGMENT
The appellant is the accused in S.C.No.1006/2004 on the files of
the Additional Sessions Judge (Adhoc-I), Kasargode. The above case is
charge sheeted against the appellant alleging offence under Section
55(a) of the Abkari Act.
2. The prosecution case is that on 27.11.2002 at 1.20 pm, the
accused was found in the courtyard of his house with 2 litres arrack in
contravention of the provisions of the Abkari Act.
3. To substantiate the case prosecution examined PW1 to PW5
and Exts.P1 to P7 were also marked on the side of the prosecution.
MO1 is the material object. After going through the evidence, the trial
court found that the accused committed offence under Section 55(a) of
the Abkari Act. He is sentenced to undergo rigorous imprisonment for
three months and to pay a fine of Rs.1,00,000/- and in default of the
payment of fine, the accused is directed to undergo rigorous
imprisonment for a further period of one month. Aggrieved by the
above conviction and sentence this criminal appeal is filed.
4. Heard the counsel for the appellant and the Public
Prosecutor.
Crl.A.No.1044/2006
5. The counsel for the appellant submitted that the conviction
and sentence imposed on the appellant is unsustainable for the simple
reason that the prosecution has not proved any documents to show
the arrest of the accused from the spot. The arrest memo is not
produced. The counsel also submitted that there is a delay of 5 days
in producing the contraband before the court. For these two reasons
the accused is entitled for the benefit of doubt, submits the counsel.
6. The Public Prosecutor submitted that there is oral and
documentary evidence to prove the case and there is nothing to
interfere with the conviction and sentence.
7. The point for consideration is whether the accused
committed the offence under Section 55 (a) of the Abkari Act.
8. Admittedly, the alleged seizure in this case was on
27.11.2002. The property was produced before the court only on
2.12.2002. There is a delay of 5 days in producing the property before
court. There is absolutely no explanation from the side of the
prosecution, except a vague sentence in the evidence of PW1 to the
effect that all the Sub Inspectors were on leave. This is not an
explanation for the delay in producing the contraband articles before
court. If there is no explanation for delay in producing the contraband
article before court, that itself is a ground to acquit the accused. 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,
Crl.A.No.1044/2006
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 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."
9. Similarly arrest memo is not produced in this case. To prove
the arrest, the arrest memo is a vital document to be produced by the
prosecution. The relevancy of arrest memo in Abkari cases is
considered by this Court in several judgments. 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. The relevant
paragraph in Ramankutty (supra) is extracted hereunder.
Crl.A.No.1044/2006
"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 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 the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee."
10. The prosecution has no case that they have complied the
Crl.A.No.1044/2006
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 light of the above discussion, I think that the appellant in this case
is entitled to the benefit of doubt.
This criminal appeal is allowed. Conviction and sentence
imposed on the appellant as per judgment dated 14.3.2006 in
S.C.No.1006/2004 on the file of the Additional Sessions Judge (Adhoc-
I), Kasaragod is set aside. The appellant is set at liberty. The bail
bond, if any, executed is cancelled.
Sd/-
P.V.KUNHIKRISHNAN
kp True copy JUDGE
P.A. To Judge
