JUDGMENT :

1. Aggrieved by the judgment dated 07.07.2008, passed by the Additional Sessions Court (Adhoc-I), Pathanamthitta in S.C.No.4/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 25.08.2003 at 5.30 p.m, the appellant was found in possession of 5 litres of arrack in a black can at Poozhikadu muri.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Adoor. The case was committed to the Sessions Court, Pathanamthitta 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 8(2) 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 5 and proved Exts.P1 to P4 and MO1.

5. After the closure of the prosecution evidence, the 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. On the side of the defence DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.

6. Heard Sri. V.Sethunath, 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 challenged the judgment of conviction and sentence on the following grounds:

(i) The arrest of the accused is doubtful.

(ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory.

8. According to the prosecution, on 25.08.2003 the accused was arrested from the place of occurrence along with the contraband substance.

9. The learned counsel for the appellant contended that the prosecution failed to prove the alleged arrest as the arrest memo has not been produced before the Court.

10. I have gone through the materials placed before this Court. No arrest memo has been produced. The detecting officer has no case that the arrest memo was prepared but not produced before the Court.

11. In D.K.Basu v. State of West Bengal [1997 (1) SCC 416], the Apex Court directed that in all cases of arrest, preparation of 'arrest memo' is a mandatory requirement. The Apex Court directed 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 arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

12. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the court. The prosecution has no case that the 'arrest memo' and 'arrest intimation' were prepared, but they could not be produced before the court