JUDGMENT

The appellant is the accused in S.C.No.1006/2004 on the files of the Additional Sessions Judge (Adhoc-I), Kasargode. The above case is charge sheeted against the appellant alleging offence under Section

55(a) of the Abkari Act.

2. The prosecution case is that on 27.11.2002 at 1.20 pm, the accused was found in the courtyard of his house with 2 litres arrack in contravention of the provisions of the Abkari Act.

3. To substantiate the case prosecution examined PW1 to PW5 and Exts.P1 to P7 were also marked on the side of the prosecution. MO1 is the material object. After going through the evidence, the trial court found that the accused committed offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.1,00,000/- and in default of the payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by the above conviction and sentence this criminal appeal is filed.

4. Heard the counsel for the appellant and the Public Prosecutor.

5. The counsel for the appellant submitted that the conviction and sentence imposed on the appellant is unsustainable for the simple reason that the prosecution has not proved any documents to show the arrest of the accused from the spot. The arrest memo is not produced. The counsel also submitted that there is a delay of 5 days in producing the contraband before the court. For these two reasons the accused is entitled for the benefit of doubt, submits the counsel.

6. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence.

7. The point for consideration is whether the accused committed the offence under Section 55 (a) of the Abkari Act.

8. Admittedly, the alleged seizure in this case was on

27.11.2002. The property was produced before the court only on 2.12.2002. There is a delay of 5 days in producing the property before court. There is absolutely no explanation from the side of the prosecution, except a vague sentence in the evidence of PW1 to the effect that all the Sub Inspectors were on leave. This is not an explanation for the delay in producing the contraband articles before court. If there is no explanation for delay in producing the contraband article before court, that itself is a ground to acquit the accused. This point is also considered by this Court in Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822). Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder:

“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt.

9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”

9. Similarly arrest memo is not produced in this case. To prove the arrest, the arrest memo is a vital document to be produced by the prosecution. The relevancy of arrest memo in Abkari cases is considered by this Court in several judgments. This Court in Sathyan v. State of Kerala [2015 (1) KLT 586 and in Ramankutty v. E