The appellant was convicted by the Additional Sessions Court (Adhoc), Mavelikkara, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for one year. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer, Mavelikkara, and his party were on patrol at Thamarakkulam Mekkummuri in Thamarakkulam Village at 5.30 p.m. on 28-04-1998. While so, the appellant was seen coming from the opposite side carrying a 750 ml. bottle, fully containing some liquid, in his right hand. The excise party stopped him there. On examining the contents of the bottle by smelling and tasting, it was revealed that the bottle contained arrack. Therefore, the appellant was arrested then and there. PW1 has taken three samples of 150 ml. each of arrack in three 180 ml. bottles from the bulk of arrack contained in that 750 ml. bottle. 750 ml. bottle as well as three sample bottles were sealed and the sample bottles were marked as A, B and C. The contraband liquor was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 proceeded to the Excise Range Office, Mavelikkara, with the appellant, contraband and the records and produced them before PW4, the Excise Inspector, Mavelikkara. PW4 has registered Crime No.28 of 1998 of that Range Office against the appellant alleging the offence under Section 55(a) of the Abkari Act. Ext.P2 is the Crime and Occurrence Report thus prepared by PW4. (This document is not signed by PW4. But, his seal is seen affixed below the Report). He has prepared Ext.P3 List of Properties. He has produced the appellant along with Ext.P4 Remand Report and other records before the Magistrate on 29.4.1998. PW5, the Excise Inspector, Mavelikkara, continued the investigation. He has questioned the witnesses and recorded their statements. He has prepared the Final Report and submitted it before the Judicial First Class Magistrate's Court, Mavelikkara.
4. The learned Magistrate committed the case to the Court of Session, Alappuzha, and, from there, it was made over to the Assistant Sessions Court, Mavelikkara. Subsequently, the case was transferred to the Additional Sessions Court (Adhoc), Mavelikkara. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge.
5. The prosecution has examined PWs.1 to 5 and marked Exts.P1 to P5 and MO.1 on their side. The appellant was examined under Section 313(1)(b) of Cr.P.C.. He has denied the incriminating circumstances shown against him. The defence has examined DW1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.
6. The appellant has raised many contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that three samples of 150 ml. each of arrack in three 180 ml. bottles were drawn from MO.1 bottle. Thereafter, MO.1 as well as samples were sealed by PW1. PW4 deposed that out of the three samples so taken, one alone was produced before the court along with the requisition for chemical analysis. The prosecution does not have a case that they have sent the contraband along with the sample after describing them in a Forwarding Note and with a copy of the same to the court for forwarding the sample to the Chemical Examiner for examination. There is no evidence as to whether the sample A or B or C was produced before the court along with the requisition. The Property Clerk of the court who dealt with the sample at the time of its receipt in court and while sending it to the Chemical Examiner was not examined in this case. If he was examined, some light in that respect would have been available in evidence. But, that did not happen. Ext.P5 is the Certificate of Chemical Analysis issued by the Assistant Chemical Examiner to Government which shows that ethyl alcohol was detected in the sample and the sample liquid contained 23.53% by volume of ethyl alcohol. The statement contained in Ext.P5 that one sealed bottle containing 150 ml. of liquid alleged to be arrack involved in Crime No.28/98 of Mavelikkara Excise Range, is not sufficient for accepting the genuineness of the sample as drawn from the bulk allegedly seized from the appellant. There must be cogent evidence to show the same. If a Forwarding Note with all necessary details concerning the property was produced before the court along with the contraband and its sample and the duplicate of that Forwarding Note was marked in the case, which would have been an assurance for the fact that the contraband and sample produced before the court were seized from the appellant. Moreover, in this case, the concerned Property Clerk, who dealt with these properties has not been examined. One more aspect also has to be considered along with this. It is the specific case of the prosecution that MO.1 was sealed soon after its seizure. PW4 deposed also that MO.1 was sealed. But, during his examination in court, no such seal was seen on MO.1. In the light of these facts, it cannot be found that the sample sent for chemical analysis was the sample actually drawn from the bulk as claimed by the prosecution.
7. The prosecution case is that PW1 and his party stopped the appellant and seized the contraband at 5.30 p.m. on 28.4.1998. The appellant was also arrested then and there. But, admittedly, no arrest memo was prepared. They have also no case that they have complied with the directions issued by the Honourable Supreme Court in D.K.Basu v. State of W.B. (AIR 1997 SC 610). The significance of preparing an arrest memo at the time of arrest and complying the other directions issued by the Honourable Supreme Court in D.K.Basu's case has been considered by this Court in Ramankutty v. Excise Inspector(2013(3)KHC 308) and held as follows:
“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.”
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.”
Similarly, it is an admitted case of the prosecution that Ext.P1 Seizure Mahazar allegedly prepared by PW1 at the time of arrest of the appellant and seizure of the contraband was not produced before the court along with other records produced on 29.4.1998. The evidence of PWs.1 and 4 specifically shows this fact. No explanation was offered either by PW1 or by PW4 for the non-production of Ext.P1 Seizure Mahazar soon after its preparation. Ext.P1 was marked through PW1, the Detection Officer. While he was in the witness box, Ext.P1 was taken from the C.D. file and marked. PW1 was examined before the court on 5.9.2005. The alleged detection of the offence in this case was on 28.4.1998. Therefore, a crucial document like Ext.P1 was produced before the court only after elapsing seven long years. PW1 stated that he was not aware as to whose lapse led to the non-production of Ext.P1 before the court.
8. PW1, the Excise Preventive Officer, was exercising his jurisdiction under Section 34 of the Abkari Act while arresting the appellant and seizing the contraband from him under Ext.P1. As provided under Sub-section 2 of Section 34 of the Abkari Act, the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of the Abkari Act, to all arrests, searches and seizures made under that Act. Therefore, Section 102(3) of Cr.P.C. comes into play in the case of a seizure effected by an Abkari Officer like PW1 under Section 34 of the Abkari Act. Section 102(3) mandates that the seizure of the property shall forthwith be reported to the court having jurisdiction. Therefore, Section 34 of the Abkari Act mandates that any seizure effected by an Abkari Officer under that Section shall forthwith be reported to the Magistrate having jurisdiction. A Division Bench of this Court in Ravi v. State of Kerala (2011(3) KLT 353) also considered this aspect and held that the seizure of the property should be reported forthwith to the court.
9. It is the definite case of the prosecution that PW1 and his party stopped the appellant while he was coming from their opposite side carrying a bottle containing 750 ml. of arrack in his right hand. He was arrested by PW1 and seized the contraband. The factum of arrest of the appellant and the seizure of the contraband are noted in Ext.P1 Seizure Mahazar. I have already dealt with the non- preparation of an arrest memo by PW1 while arresting the appellant. The contraband was seized under Ext.P1. Therefore, the prosecution has built up their case mainly based on the factum of arrest as well as the seizure of the contraband. In order to prove that arrest, no arrest memo has been prepared. As mandated by the statute, the seizure of the contraband shall be reported forthwith to the court. The Seizure Mahazar, Ext.P1, was seen by the court for the first time only after elapsing seven long years. There is no explanation for such a delay occurred in producing Ext.P1 before the court at a time when statutorily it was to be produced forthwith after its preparation. The failure to follow the mandatory requirements to be followed at the time of arrest and the non-production of Ext.P1 Seizure Mahazar forthwith before the court are more than sufficient for doubting the genuineness of the prosecution case in respect of the arrest of the appellant and the seizure of the contraband. Therefore, the legal flaws thus found are fatal to the prosecution case.
10. The non-production of Ext.P1 Seizure Mahazar before the court and, in turn, its non-supply to the appellant at the time of committal of the case by the learned Magistrate as well as its non-supply to the appellant by the court below before framing the charge, assume significance in this case. The defence has a right to know the allegations raised by the prosecution. The facts narrated in Ext.P1 leading to the arrest of the appellant and seizure of the contraband are the very basis of the prosecution in this case. The appellant has every right to have a copy of that document in order to defend himself against the allegations raised by the prosecution. But, such a significant document was not produced by the prosecution before the court. It was tendered by the prosecution while PW1 was being examined after elapsing more than seven years after the alleged arrest of the appellant and seizure of the contraband, for the purpose of marking the same through PW1. Definitely, the course adopted by the prosecution would have prejudiced the appellant. The prosecution has made use of such a document at such a belated stage without serving a copy of the same to the appellant and such a document has been relied on by the court below for finding the appellant guilty of a serious offence under Section 55(a) of the Abkari Act. The Honourable Supreme Court in Jahid Shaikh v. State of Gujarat [(2011) 7 SCC 762] has held as follows:
“23. However, as pointed out by Mr.Prashant Bhushan, learned counsel appearing for the petitioners, the manner in which the charges had been framed, without giving the petitioners a meaningful opportunity of meeting the allegations made against them in the charge- sheet, will ultimately have a direct bearing on the trial itself. The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 CrPC. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the charge-sheet and the other relevant documents, as indicated in Sections 207 and 208 CrPC, seriously affects the right of an accused to a free and fair trial.”
The law thus laid down by the Honourable Supreme Court is applicable to this case as well because, a material document which forms part of the basis of the prosecution case against the appellant was kept away from the court as well as from the appellant till it was marked through PW1 after elapsing seven long years. This, in fact, has prejudiced the appellant. This fact also throws shadow of doubt on the prosecution version of the occurrence.
11. For all the foregoing reasons and discussions, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act.
12. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled.
This appeal is allowed.
Sd/-
ks. BABU MATHEW P. JOSEPH JUDGE True copy P.S.to Judge