JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C. No.94/2003 on the file of the Additional Sessions Judge (Adhoc-I), Kasargod, for an offence under Section 55(a) of the Abkari Act.

2. Gist of the prosecution case is that on 27.08.2002, the appellant/accused was found in possession of 47 packets, each containing 100 ml of arrack packed in the State of Karnataka, in contravention of the provisions of the Abkari Act and that the appellant/accused imported arrack from the State of Karnataka to the State of Kerala for the purpose of sale.

3. Following the investigation, the final report was filed before the Judicial First Class Magistrate-II, Hosdurg which was committed for trial to the Court of Sessions. The Additional Sessions Judge (Adhoc-I) framed charges under Section 55(a) of the Abkari Act and on an analysis of the evidence tendered by the prosecution through the oral testimony of PWs 1 to 3 and the documentary evidence contained in Exts.P1 to P6 and on identification and marking of the material objects as MOs 1 to 4, found the accused guilty of the aforesaid offence and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default to undergo rigorous imprisonment for a further period of one month.

4. Perusal of the exhibits marked for the prosecution shows that the arrest memo recording the details of the arrest of the appellant/accused was not produced or marked during the trial of the case. Though the learned Public Prosecutor contends that, that by itself may not be a flaw in the prosecution case, I am compelled to take a different view in the light of two judgments of this Court namely, the judgments in Ramankutty V. Excise Inspector, Chelannur Range [2013 (3) KHC 308] and Vijayan @ Pattalam Vijayan and Another V. State of Kerala [2018(2) KHC 814]. In Ramankutty (supra), this Court held as follows:-

'' 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 vs. State of West Bengal [1197(1) SCC 416]. 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 a