Prosecution must establish the validity of arrests and maintain a proper chain of custody for seized contraband to sustain a conviction under the Abkari Act.

JUDGMENT

Aggrieved by the judgment dated 27.10.2006, passed by the Additional Sessions Court (Adhoc-I), Thodupuzha in Sessions Case No.235/2005, the two accused have preferred this appeal. The appellants/accused were convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years each and pay a fine of Rs.1 Lakh each.

2. The prosecution case is that on 06.01.2003 at about 1.45 p.m., the accused were found in possession of 140 litres of illicit liquor at Adimaly, in violation of the provisions of the Abkari Act . 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55 (a) and 55(g) of the before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 55 (a) and 55 (g) of the . The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences.

4. The prosecution examined PWs 1 and 5 and proved Exts. P1 to P8 and MOs 1 to 11 series.

5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of defence, Exts. D1 and D2 were marked. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 55 (a) of the Abkari Act and convicted them thereunder.

6. Heard Sri.K.C.Peter, the learned counsel appearing for the appellants/accused and Sri.N.R.Sangeethraj, the learned Senior Public Prosecutor appearing for the respondent.

7. The judgment of conviction and sentence is challenged on the following grounds:-

(1) The arrest of the appellants/accused as pleaded by the prosecution is doubtful.

(2) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

8. The prosecution case is that on 06.01.2003, the accused were arrested and the contraband substances were recovered.

9. The learned counsel for the appellants submitted that the arrest as pleaded by the prosecution is doubtful due to the non-

production of the arrest memo and the arrest intimation as required.

10. In D.K.Basu v. State of West Bengal [ (1997) 1 SCC 416 ], the Apex Court directed that in all cases of arrest, preparation of ‘arrest memo’ is a mandatory requirement. The Apex Court directed that the Police OfÏcer 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.

11. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the court. The prosecution has no case that the 'arrest memo' and 'arrest intimation' were prepared, but they could not be produced before the court. The nece