T.K.Jose @ Joseph, S/O. Kuriakose vs S.I. Of Police
2021 Latest Caselaw 18281 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                          CRL.A NO. 452 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 94/2003 OF ADDITIONAL DISTRICT COURT
                      (ADHOC), KASARAGOD, KASARGOD
APPELLANT/ACCUSED :

           T.K.JOSE @ OUSEPH, S/O. KURIAKOSE,AGED 56 YEARS
           AGED 56 YEARS, THADATHIL VEEDU,, ADUKKALAMPADY, WEST
           ELERI VILLAGE.

           BY ADV SRI.C.K.SREEJITH



RESPONDENT/COMPLAINANT:

           S.I. OF POLICE,
           CHITTARIKKAL POLICE STATION, REPRESENTED BY THE PUBLIC
           PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

           BY ADV PUBLIC PROSECUTOR



           SRI RANJITH GEORGE , PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 452 OF 2006                    2



                                    JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed

on the appellant/accused in S.C. No.94/2003 on the file of the Additional

Sessions Judge (Adhoc-I), Kasargod, for an offence under Section 55(a) of the

Abkari Act.

2. Gist of the prosecution case is that on 27.08.2002, the appellant/accused

was found in possession of 47 packets, each containing 100 ml of arrack packed

in the State of Karnataka, in contravention of the provisions of the Abkari Act

and that the appellant/accused imported arrack from the State of Karnataka to

the State of Kerala for the purpose of sale.

3. Following the investigation, the final report was filed before the Judicial

First Class Magistrate-II, Hosdurg which was committed for trial to the Court

of Sessions. The Additional Sessions Judge (Adhoc-I) framed charges under

Section 55(a) of the Abkari Act and on an analysis of the evidence tendered by

the prosecution through the oral testimony of PWs 1 to 3 and the documentary

evidence contained in Exts.P1 to P6 and on identification and marking of the

material objects as MOs 1 to 4, found the accused guilty of the aforesaid offence

and sentenced him to undergo rigorous imprisonment for a period of six

months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in

default to undergo rigorous imprisonment for a further period of one month.

4. Perusal of the exhibits marked for the prosecution shows that the arrest

memo recording the details of the arrest of the appellant/accused was not

produced or marked during the trial of the case. Though the learned Public

Prosecutor contends that, that by itself may not be a flaw in the prosecution

case, I am compelled to take a different view in the light of two judgments of

this Court namely, the judgments in Ramankutty V. Excise Inspector,

Chelannur Range [2013 (3) KHC 308] and Vijayan @ Pattalam Vijayan

and Another V. State of Kerala [2018(2) KHC 814]. In Ramankutty

(supra), this Court held as follows:-

'' 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 vs. State of West Bengal [1197(1) SCC 416]. 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."

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.''

5. In Vijayan (supra), this Court held as follows:-

''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 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 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.''

6. In the light of the laid down by this Court in the decisions referred to

above, I am of the view that the appeal is liable to be allowed on the short point

noticed above, without going into any other issue.

Thus, this appeal is allowed and the conviction and sentence imposed on the

appellant/accused in S.C.No.94/2003 on the file of the Additional Sessions

Judge(Adhoc-I), Kasaragod is set aside. The appellant/accused will stand

acquitted.

Sd/-

    ajt                                                          GOPINATH P., JUDGE.