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2023 Supreme(Online)(KER) 20525
HIGH COURT OF KERALA
VIJU ABRAHAM, J
R.ABDUL RAHIMAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 3762 2010
SRI.T.SETHUMADHAVAN, SRI.K.JAYESH MOHANKUMAR, SRI.PUSHPARAJAN KODOTH, SRI. RENJIT GEORGE
Strict compliance with arrest and seizure procedures is essential in criminal prosecutions under the Abkari Act; violations can result in acquittal.
Headnote:
Abkari - Criminal Procedure - Section 55(a) of the Kerala Abkari Act - Section 50 of the Abkari Act - The court emphasized strict compliance with statutory formalities in alcohol-related offenses, interpreting that lapses in arrest procedures and investigation delays could render the prosecution's case untenable, leading to acquittal.
Fact of the Case:
The accused was charged under the Kerala Abkari Act for possession of illegal alcohol. Trials found him guilty, but he revisited issues of arrest procedure, delays in investigation, and the absence of crucial evidence linking the contraband to the accused.
Issues: Whether the prosecution adhered to statutory formalities regarding arrest and seizure, and whether delays in investigation fatally affected the case credibility.
Ratio Decidendi: Mandatory procedures for arrest and evidence collection must be strictly followed, and significant delays in investigations can undermine the prosecution's case. Breaches in these areas lead to a lack of proof regarding the accused’s guilt.
Final Decision: The court acquitted the accused of all charges.
O R D E R
The revision petitioner herein is the accused in S.C. No.
444 of 2007 alleging commission of offence punishable under Section 55 (a) of the Abkari Act.
2. The prosecution allegation is that, on 28.01.2003 at about 12.30 pm, the accused was found transiting 10 bottles (each containing 750 ml) of colombia whisky and 24 bottles (each containing 375 ml) of colombia whisky in a scooter bearing registration No.BLC-1353 near the Bankara-Manjeshwar check post in contravention of the provisions of the Kerala Abkari Act and thereby the accused has committed the alleged offence.
3. The prosecution in support of their case examined PWs 1 to 4 and Exts P1 to P9 were marked and MOs 1 to 4 were identified. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. The trial Court also allowed set-off.
4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.293 of 2009 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld.
5. The revision petitioner has raised the following contentions. Though arrest memo has been produced, no arrest intimation is produced and marked and no evidence was adduced on behalf of the prosecution to show that the arrest has been intimated to any near relative of the petitioner. Another contention raised by the revision petitioner is regarding the delay in completing the investigation. The occurrence was on 28.01.2003, but the investigation was started only on 19.10.2006. Ext P8 chemical analysis report was ready on 26.08.2003, but the complaint was filed only on 15.11.2006. The learned Counsel for the revision petitioner would submit that there is an unexplained delay of almost three and half years to complete the investigation, which is fatal to the case of the prosecution. It is the further contention of the learned Counsel for the revision petitioner that in Ext P1 seizure mahazar there is no specimen seal afÏxed nor the description of the seal afÏxed on the samples is mentioned in the seizure mahazar. In the cross-examination of PW 1, it is admitted that in MO3 to MO4 series of contraband produced before the Court, no label is seen afÏxed, but without the label, the PW 1 identified the material objects. The learned Counsel for the revision petitioner submitted that without the label, the identification of the material objects by PW 1 is highly doubtful.
6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court inBaburaj v. State of Kerala, 2021 (6) KLT 416, has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of ofÏcial acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if ofÏcial acts are not shown to be performed properly, as held inSathi v. State of Kerala, 2007 (1) KLT SN 57. In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt.
7. As regards the contention of the revision petitioner that the arrest itself is doubtful due to the non-production of necessary documents to prove the same, it is to be taken note that the Apex Court inD.K.Basu v. State of West Bengal (1997) 1 SCC 416, has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court inBaburaj’s case cited supra has held that th
