JUDGMENT

This appeal arises from the judgment passed by the Additional Sessions Court Fastrack (Adhoc) No.II, Thiruvananthapuram in Sessions Case No.2000/2001. The appellant herein is the accused No.1. During the course of proceedings, the appellant died.

2. This appeal was dismissed by this Court as per judgment dated 06.03.2014.

3. The wife of the appellant Smt. Girija A., challenged the judgment dismissing the appeal before the Supreme Court in Crl.Appeal No.77/2020. The Apex Court, as per judgment dated 21.01.2020, set aside the judgment of this Court dated 06.03.2014 and remanded the matter to this Court for hearing afresh, after giving opportunity to the legal heirs of the accused.

4. Adv. Sandhya E.S. appeared for the daughter of the accused.

5. Heard the learned counsel on both sides.

6. The prosecution case is that, on 13.12.2000 at about 11.25 p.m., the appellant/accused No.1 and the other accused were found engaged in manufacturing illicit arrack for the purpose of sale at Kaliyilthitta House owned and possessed by the appellant/accused No.1 in Kizhuvilam Village. Accused No.1 was arrested from the scene.

7. The final report was submitted against the appellant/accused No.1 and the other accused. On their appearance before the trial Court and charges were framed under Sections 55(a) and 55(g) of the Kerala Abkari Act. They pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences.

8. PWs1 to 5 were examined and Exts.P1 to P7 and MO1 to MO4 were marked on the side of the prosecution.

9. After the conclusion of the trial, the trial Court found accused No.1 guilty of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act. Accused No.2 was acquitted of the offences alleged.

10. The judgment of conviction and sentence is under challenge on the following grounds:-

(1) The arrest of the accused at the scene of occurrence is doubtful.

(2) The prosecution has not succeeded in establishing that the contraband substances allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.

11. The learned counsel for the appellant contended that the arrest of the accused, as pleaded by the prosecution, is doubtful on the ground that the crime number is found in Ext.P2 arrest memo. While dealing with a similar factual 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)].”

12. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected.

13. The properties, including the sample, remained in the custody of the property clerk of the Court till 25.04.2001. The sample was delivered in the laboratory by a Police Constable No.6095. Those officials were not examined by t