J U D G M E N T

Dated this the 26th day of February 2021 Appeal is preferred against the judgment dated 30.03.2007 in S.C No.1622/2001 on the files of the Additional Sessions Judge for the trial of Abkari cases, Neyyattinkara.

2. By the impugned judgment, the accused was found guilty for the offence under Section 58 of the Abkari Act and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months.

3. The prosecution case was that on 17.07.2000 the accused was found holding a glass tumbler and a 5 litre can containing 4 litres of arrack. The accused was arrested on the spot and the contraband along with the material objects seized. Since the final report revealed a case exclusively triable by a Court of Session, the case was committed to the Sessions Court, where the trial was conducted. The trial ended up in conviction of the accused and the sentence of imprisonment and fine, as stated earlier, were imposed on the accused.

4. Adv.C.Rajendran the learned counsel for the appellant raised a sole point for argument. He pointed out that the arrest memo is conspicuously omitted from the record as an evidence before the trial court, which creates doubt on the very genesis of the prosecution story. The learned counsel submitted that the accused is entitled to be acquitted on that ground alone.

5. The learned Public Prosecutor Sri.D.Chandrasenan, on the other hand, submitted that the arrest memo is not a document which is mandatory in every criminal cases. According to him, the arrest was carried out properly in the instant case and the witnesses had also spoken to about the arrest. He also invited the attention of the Court to Section 114 of the Indian Evidence Act, 1872, to justify his argument that there is a presumption that all official act are performed regularly.

6. I have considered the rival contentions. The question whether the absence of arrest memo in a case relating to Abkari offence is fatal or not, is already covered by the decision of this Court in Vijayan @ Pattalam Vijayan and another v. State of Kerala, [2018 (2) KHC 814] as well as Ramankutty v. Excise Inspector, Chelannur Range [ILR 2013 (3) Ker. 535].

7. In Vijayan @ Pattalam Vijayan and another v.

State of Kerala, [2018 (2) KHC 814], it has been held that:

“Arrest memo is required to be prepared contemporaneously at the time of arrest to show the genuineness of the arrest. Therefore, as rightly put forth by the learned counsel, it is a crucial document and with the availability of the same in evidence alone, the propriety and the regularity of the arrest could be ascertained. What is envisaged by the preparation of an arrest memo is only to ensure that the accused was arrested and taken into custody at a place, at a particular point of time, and based on a specific and clear allegation of the accusation against him. Only to ensure that these particulars were observed by the official at the time of arrest that the preparation of arrest memo is insisted. Therefore, the dictum laid down in the decision cited supra, which is relied on by the learned counsel, would squarely be applicable in the case on hand.”

8. The case propounded by the prosecution is that the accused was found in possession of the contraband holding a glass tumbler with a 5 litre can containing 4 litres of arrack. The person who arrested the accused, the manner in which the accused was arrested, are all crucial matters in cases relating to Section 58 of the Abkari Act. When the aforesaid matters are crucial, as held by this Court in the decisions mentioned above, absence of arrest memo becomes fatal. In the said circumstances, the prosecution story does not inspire confidence and the accused is entitled to the benefit of doubt.

9. Accordingly, the conviction and sentence imposed by judgment dated 30.03.2007 in S.C No.1622/2001 on the files of the Additional Sessions Judge, for th