Sathyan vs State Of Kerala
2021 Latest Caselaw 6847 Ker

Citation : 2021 Latest Caselaw 6847 Ker
Judgement Date : 26 February, 2021

Kerala High Court

Sathyan vs State Of Kerala on 26 February, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                          CRL.A.No.746 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 1622/2001 DATED 30-03-2007 OF
     ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA

AGAINST THE ORDER/JUDGMENT IN CP 8/2001 OF JUDICIAL MAGISTRATE OF
                 FIRST CLASS -III,NEYYATTINKARA


APPELLANT/S:

                SATHYAN, S/O. KUTTIYAPPI,
                NETTAPONGU, ROADARIKATHU VEEDU, DALUMUGHOM,
                KARIKKAMKODU DESOM, VELLARADA VILLAGE.

                BY ADV. SRI.C.RAJENDRAN

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY SUB INSPECTOR OF POLICE,, VELLARADA
                POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH
                COURT OF KERALA,, ERNAKULAM.

                R1 BY PUBLIC PROSECUTOR
                SRI. CHANDRASENAN.D. (SR.P.P.)

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.746 OF 2007

                                   -2-




                         JUDGMENT

Dated this the 26th day of February 2021

Appeal is preferred against the judgment dated 30.03.2007 in

S.C No.1622/2001 on the files of the Additional Sessions Judge for

the trial of Abkari cases, Neyyattinkara.

2. By the impugned judgment, the accused was found

guilty for the offence under Section 58 of the Abkari Act and was

sentenced to undergo rigorous imprisonment for two years and to

pay a fine of Rs.1,00,000/ and in default of payment of fine, to

undergo further rigorous imprisonment for three months.

3. The prosecution case was that on 17.07.2000 the accused

was found holding a glass tumbler and a 5 litre can containing 4

litres of arrack. The accused was arrested on the spot and the

contraband along with the material objects seized. Since the final CRL.A.No.746 OF 2007

report revealed a case exclusively triable by a Court of Session, the

case was committed to the Sessions Court, where the trial was

conducted. The trial ended up in conviction of the accused and the

sentence of imprisonment and fine, as stated earlier, were imposed

on the accused.

4. Adv.C.Rajendran the learned counsel for the appellant

raised a sole point for argument. He pointed out that the arrest

memo is conspicuously omitted from the record as an evidence

before the trial court, which creates doubt on the very genesis of

the prosecution story. The learned counsel submitted that the

accused is entitled to be acquitted on that ground alone.

5. The learned Public Prosecutor Sri.D.Chandrasenan, on

the other hand, submitted that the arrest memo is not a document

which is mandatory in every criminal cases. According to him, the

arrest was carried out properly in the instant case and the CRL.A.No.746 OF 2007

witnesses had also spoken to about the arrest. He also invited the

attention of the Court to Section 114 of the Indian Evidence Act,

1872, to justify his argument that there is a presumption that all

official act are performed regularly.

6. I have considered the rival contentions. The question

whether the absence of arrest memo in a case relating to Abkari

offence is fatal or not, is already covered by the decision of this

Court in Vijayan @ Pattalam Vijayan and another v. State of

Kerala, [2018 (2) KHC 814] as well as Ramankutty v. Excise

Inspector, Chelannur Range [ILR 2013 (3) Ker. 535].

7. In Vijayan @ Pattalam Vijayan and another v.

State of Kerala, [2018 (2) KHC 814], it has been held that:

"Arrest memo is required to be prepared contemporaneously at the time of arrest to show the genuineness of the arrest. Therefore, as rightly put forth by the learned counsel, it is a crucial document and with the availability of the same in evidence alone, the propriety and the regularity of the arrest could be ascertained. What is CRL.A.No.746 OF 2007

envisaged by the preparation of an arrest memo is only to ensure that the accused was arrested and taken into custody at a place, at a particular point of time, and based on a specific and clear allegation of the accusation against him. Only to ensure that these particulars were observed by the official at the time of arrest that the preparation of arrest memo is insisted. Therefore, the dictum laid down in the decision cited supra, which is relied on by the learned counsel, would squarely be applicable in the case on hand."

8. The case propounded by the prosecution is that the

accused was found in possession of the contraband holding a glass

tumbler with a 5 litre can containing 4 litres of arrack. The person

who arrested the accused, the manner in which the accused was

arrested, are all crucial matters in cases relating to Section 58 of

the Abkari Act. When the aforesaid matters are crucial, as held by

this Court in the decisions mentioned above, absence of arrest

memo becomes fatal. In the said circumstances, the prosecution

story does not inspire confidence and the accused is entitled to the

benefit of doubt.

9. Accordingly, the conviction and sentence imposed by CRL.A.No.746 OF 2007

judgment dated 30.03.2007 in S.C No.1622/2001 on the files of the