JUDGMENT

Aggrieved by the judgment dated 26.09.2008, passed by the Additional Sessions Court (Adhoc – II), Thalassery in Sessions Case No.401 of 2007, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs. One Lakh.

2. The prosecution case is that on 17.03.2006 at

6.30 pm the accused was found in possession of two litres of illicit arrack at Sivapuram in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act 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 charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs. 1 to 4 and proved Exts P1 to P8.

5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder.

6. Heard Sri. Sunny Mathew., the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- (1)The arrest of the accused as pleaded by the prosecution is doubtful.

(2)The prosecution failed to show that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory.

8. The alleged seizure and arrest were effected on

17.03.2006 by Sub Inspector of Police, Maloor Police Station, PW1. According to the prosecution, the petitioner was arrested from the place of occurrence along with the contraband substance. The learned counsel contended that the arrest of the accused as pleaded by the prosecution is doubtful in view of the presence of the crime number in Ext.P2 arrest memo. I have gone through Ext.P2 arrest memo which contains the crime number registered against the petitioner.

9. While dealing with a similar fact situation this Court in Santhosh v. State of Kerala [2021(5) KHC

214], held thus:- “14.The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration.

15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See :Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020(3) KHC 715)].”

10. In the absence of any satisfactory explanatio