Kerala High Court
Megha Murali vs State Of Kerala on 11 August, 2021
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
BAIL APPL. NO. 5422 OF 2021
CRIME NO.571/2021 OF PULIKEEZHU POLICE STATION, PATHANAMTHITTA
PETITIONER/S:
ALEX P ABRAHAM
AGED 56 YEARS,S/O.ABRAHAM, PULIMOOTTIL HOUSE, CHAMBAKARA
P.O., KARUKACHAL, KOTTAYAM (GENERAL MANAGER, TRAVANCORE
SUGARS AND CHEMICALS, PULIKEEZHU, PATHANAMTHITTA,KERALA).
BY ADVS. SRI.S.RAJEEV
K.K.DHEERENDRAKRISHNAN
V.VINAY
M.S.ANEER
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM (CRIME NO.571/2021 OF PULIKEEZHU POLICE
STATION), PATHANAMTHITTA DISTRICT - 682 031.
2 STATION HOUSE OFFICER
PULIKEEZHU POLICE STATION,(CRIME NO.571/2021 OF PULIKEEZHU
POLICE STATION), PATHANAMTHITTA DISTRICT - 689 649.
SR.PP - SMT. SREEJA V.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.7.2021,
ALONG WITH Bail Appl..4160/2021 & 5419/2021, THE COURT ON 11.08.2021
DELIVERED THE FOLLOWING:
BA.4160,5419 & 5422 of 2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
BAIL APPL. NO. 4160 OF 2021
CRIME NO.571/2021 OF PULIKEEZHU POLICE STATION, PATHANAMTHITTA
PETITIONER/6TH ACCUSED:
MEGHA MURALI,
AGED 32 YEARS
W/O.NIDHEESH, RESIDING AT JSQ2, TRAVANCORE SUGAR AND
CHEMICALS, VALANJAVATTAM P.O., PATHANAMTHITTA DISTRICT =
689 104.
BY ADVS.
P.K.VARGHESE
BRIJESH MOHAN
K.R.ARUN KRISHNAN
SANJANA RACHEL JOSE
K.JAJU BABU (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
SR.PP - SMT. SREEJA V.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.7.2021,
ALONG WITH Bail Appl..5422/2021 AND B.A.5419/2021, THE COURT ON
11.08.2021 DELIVERED THE FOLLOWING:
BA.4160,5419 & 5422 of 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
BAIL APPL. NO. 5419 OF 2021
CRIME NO.571/2021 OF PULIKEEZHU POLICE STATION, PATHANAMTHITTA
PETITIONER/5TH ACCUSED:
P.U.HASHIM
AGED 59 YEARS
SON OF M.USMANKUTTY, RESIDENT OF PANACHAMOOTTIL HOUSE,
NIRANAM NORTH P.O., THIRUVALLA - 689 621.
BY ADVS.
ANIL S.RAJ
K.N.RAJANI
RADHIKA RAJASEKHARAN P.
ANILA PETER
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI - 682031.
2 THE STATION HOUSE OFFICER
PULIKEEZHU POLICE STATION - 689 104.
SR.PP - SMT. SREEJA V.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.07.2021, ALONG WITH Bail Appl..5422/2021 AND B.A.4160/2021, THE
COURT ON 11.08.2021 DELIVERED THE FOLLOWING:
BA.4160,5419 & 5422 of 2021 4
ORDER
These are applications filed under Section 438 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., by accused Nos.6, 5 and 4 respectively in crime 571/2021 Pulikeezhu police station in Pathanamthitta district. That crime was registered on 01/07/2021 alleging offence under Section 379 read with 34 of IPC. There are seven accused in the FIR. The substance of the crime is that accused Nos.1 and 2 who are drivers of tanker lorry Nos.KL- 42-S 6822 and KL-42-S-9322 respectively were engaged in transporting spirit from Barua in Madhya Pradesh to Travancore Sugars and Chemicals Ltd., hereinafter referred to as the company, at Pulikeezhu, Thiruvalla. They reached the company on 30.06.2021 at 12:15 hours. When the defacto complainant Vinod G. Krishna, who is the Excise Inspector, had examined the contents of the lorries there was shortage of 20,386 litres of spirit, that is 12687 litres from KL- 42-S-6822 and 7699 litres from KL-42-S-9322; that means large quantity of spirit was dishonestly thieved by accused Nos.1 and 2. When questioned, accused Nos.1 and 2 confessed that they had pilfered so much quantity of spirit at a place by name Sendwa in Madhya Pradesh with the connivance of the 3 rd accused and sold it to the 7 th accused and caused a loss of Rs.12 lakhs. On the BA.4160,5419 & 5422 of 2021 5 basis of the information furnished by the said Circle Inspector, the crime was registered alleging offence under Section 379 read with 34 of the IPC against seven persons. Accused Nos.1 and 2 are drivers of lorries, accused Nos.3 to 6 are officials of the company and the 7th accused is the said person to whom spirit was sold. It has also come out that during the course of investigation offences under Section 55(a) of the Abkari Act and Section 120B of IPC also have been incorporated. Now apprehending arrest the petitioners have approached this Court.
2. Petitioner in B.A.No.4160/2021 is the 6 th accused who is the the Deputy Manager (Production). She has pleaded that she is totally innocent and has been made accused at the instance of the 3rd accused storekeeper, who was not going on well with her. There are reasons for the 3 rd accused to be sore at her, she has no knowledge about the said commission of the crime.
3. Similarly, the 5th accused who is the applicant in B.A.5419/2021, filed on 16.07.2021, is the Manager (Personnel and Administration) of the company. According to him, he has put in blemishless service in the company for the last about 22 years, that he is retiring in July, he has no knowledge of the alleged crime and that he has been implicated in the crime without any basis.
4. The 4th accused is the applicant in B.A.5422/2021 who is the General BA.4160,5419 & 5422 of 2021 6 Manager of the company. According to him, he does not have any acquaintance with transporting, loading and unloading of raw materials which is brought to the company, other persons are employed for the purpose. He has also pleaded totally innocent of the crime; according to him, his name has been dragged unnecessarily.
5. I heard Sri. Jaju Babu, Senior counsel for the 6 th accused, Smt. Radhika Rajesekharan for the 5th accused, Sri. S. Rajeev, counsel for the 4th accused and Smt. Sreeja V., Senior Public Prosecutor, for the respondents.
6. According to the learned Senior counsel Sri. Jaju Babu, the name of his client has been incorporated without any basis, on the basis of the confession statement of the 3rd accused, which is not admissible. Petitioner had been on maternity leave from September 2020 to March 2021. The 3 rd accused is not going on well with her. She had occasion to file various complaints against the 3rd accused, so that he has an axe to grind against her. She is working in the production wing and employees in the production wing have no access in the affairs of the marketing wing. Petitioner is a lady. According to the learned Senior counsel, there is no need for custodial interrogation of the petitioner.
7. According to Smt. Radhika Rajasekharan, the petitioner has been implicated without any basis at all. When the consignment reaches the company BA.4160,5419 & 5422 of 2021 7 premises, it is for the Excise Officials and other clerical staff of the company together to ensure that the item reached the company intact, without tampering the seal. They should ensure the quantity and quality of the goods and it is not known as to why the Personnel and Administration Manager has been implicated in the crime. The learned counsel also referred to various provisions of the Kerala Foreign Liquor (Compounding, Blending and Bottling) Rules and the Kerala Distillery and Warehouse Rules, under the Abkari Act. According to her, the officials inside the company receive the quantity as certified by the Excise officials; pilferage, if any, happened outside the premises of the company cannot be attributed to them. Such pilferage is not possible without the knowledge of the Excise officials.
8. On the other hand, Sri. S. Rajeev, the learned counsel representing the 4th accused submitted that spirit which was drawn from Madhya Pradesh was to be supplied by the contractor who had struck the deal with the company. But the contractor is not made an accused in the case. He supported the other arguments of the learned counsel for the 5 th and 6th accused. According to him, there are Excise officials on duty attached to the company and it is for them to certify the quantity and quality of the spirit taken inside the company. According to him, here the officials of the company are being proceeded against, leaving the BA.4160,5419 & 5422 of 2021 8 Excise officials who are mainly responsible for certifying the correctness of the quantity and strength. Moreover, the crime was launched by one of the Excise officials who himself is responsible for verifying the quantity and quality. He also found fault with the prosecution in the Enforcement officer who had detected the crime not launching the prosecution himself and entrusting the Excise Inspector attached to the company in doing the same. According to him, the first information statement itself is hit by Section 162 of the Cr.P.C., that there is absolutely no evidence to prove the conspiracy alleged against the petitioners. The alleged incident had happened at Sendwa Madhya Pradesh for which the petitioner and other officials cannot be held criminally responsible.
9. On the other hand, Smt. Sreeja, the learned Senior Public Prosecutor has submitted that petitioners are the officials of the Company. The 4 th accused is the General Manager, others are Manager and Deputy Manager; confession statements given by accused Nos.1 and 2 clearly indicate that even before, similar pilferages had happened and money was handed over to the 3 rd accused. The 3rd accused has also indicted these petitioners. The report given by the Legal Metrology Department also was highlighted by the learned Public Prosecutor to say that machinery to measure the consignment taken into the company remains defective for long and petitioners have not taken steps to rectify the same. BA.4160,5419 & 5422 of 2021 9 According to the learned Public Prosecutor, even though accused Nos.1 to 3 were arrested, their custodial interrogation could not be done since they had tested covid positive. She submitted that the 7 th accused also has been arrested by the prosecution.
10. Travancore Sugars and Chemicals Ltd. in Pulikkeezhu, Thiruvalla is a Government owned company, which manufactures Indian Made Foreign Liquor. Its main raw material is Extra Neutral Alcohol, ENA, that is spirit. The ENA is procured from other sources, which is accomplished by inviting tenders. From the records produced by the parties and also on verification of the case diary, it is evident that such tender for supply of raw materials was invited through e-tender and period of the tender is six months. Annexure-A2 document produced along with B.A.5422/2021 indicates that the period of tender for the first half of 2021 is from 01.01.2021 to 30.06.2021. That means, such a pilferage had happened in the last consignment of the period of Annexure-A2 tender. In the tender, lowest tenderers were Thomsi K.A. of Vadakkumpuram, Ernakulam and Som Distilleries Pvt. Ltd. Madhya Pradesh. As per the tender conditions, they have to assign the job to the lowest two tenderers and these two persons/company were authorised to supply spirit for the period from 01.01.2021 to 30.06.2021 for which permits were issued. The subject matter of BA.4160,5419 & 5422 of 2021 10 spirit was procured by Thomsi K.A., the lowest tenderer. The prosecution records indicate that three lorries of the lowest tenderer were sent to Indore in Madhya Pradesh and the task was to procure spirit in three tanker lorries from Associate Beverages and Alcohol Ltd. The first two tanker lorries, that is the lorries driven by accused Nos.1 and 2, carried 40,000 litres each, whereas the third lorry that is KL-42-S-1422, which also belongs to the lowest tenderer, carried 35,000 litres of spirit. We are not concerned about the third lorry because no such pilferage had caused from that vehicle. As noticed earlier, from KL-42-S-6822, which was driven by the first accused, shortage of 12,687 litres of spirit was noticed on examination on 30.06.2021, whereas from the second lorry, that is KL-42-S-9322 driven by Sijo Thomas, the 2 nd accused, shortage of 7,699 litres of spirit was found; altogether 20,386 litres were found pilfered from the two lorries. The case diary produced for verification by the learned Senior Public Prosecutor indicates that on getting reliable information about said pilferage, the Excise Enforcement observed them and they followed the lorries from Manjeshwaram onwards; when the contents of the tankers were verified, that much quantity of spirit was found less in the two tankers and on that basis the Excise Enforcement and Anti Narcotic Special Squad came to the conclusion that huge quantity of spirit was missing. Inspector Anil Kumar also BA.4160,5419 & 5422 of 2021 11 questioned the two drivers and the 3 rd accused and their confession statements were recorded; on the basis of the confession statements, a report was given to Vinod G Krishna, who is the Excise Circle Inspector attached to the company. The said Vinod G Krishna in turn gave a report to the Station House Officer, Pulikkeezhu police station and on that basis the crime was registered and investigation was commenced. Accused Nos. 1 to 3 and 7 were arrested and now they are in custody.
11. As indicated earlier, right to supply raw material, namely, spirit is periodically auctioned out by the company through e-auctioning. The auction notification dated 11-12-2020 issued by the Managing Director is the Annexure- 2 which contains the tender conditions also. Among other things, clause 20 of the Tender conditions reads thus:
"20. Verification of certificates:
The verification certificate issued by the Excise Officer-in-Charge of the Company and the preliminary examination by the Deputy Manager (Production) of the company will be prima-facie considered as the basic document regarding the quantity, quality and strength of extra neutral alcohol at the time of delivery. But, the finding of the expert, i.e. the Chief Chemical Examiner of Govt. of Kerala shall be binding on the supplier regarding the quality and strength of ENA delivered."
The very condition has been reproduced in the agreement executed by the said BA.4160,5419 & 5422 of 2021 12 Thomsi K.A. in favour of the General Manager of the company. Clause 15 of the agreement deals with verification which goes pari materia with clause 20 of the tender conditions. In fact, such a clause in the tender conditions and the agreement is in tune with sub-rule(b) of Rule 47A of the Kerala Distilleries and Warehouse Rules, 1968, which insists that all consignments of ENA/Grape Spirit/Malt Spirit obtained by a licensee shall be verified by volume and strength jointly by the officer-in-charge of the distillery and the licensee or his authorised agent.
12. As rightly pointed out by Smt.Radhika Rajasekharan, this has to be considered along with Rule 6 of Kerala Foreign Liquor (Compounding, Blending and Bottling) Rules which makes it mandatory that all transactions pertaining to the receipt, transfer, storage, compounding, blending or bottling at the licenced premises or issue of spirit therefrom shall be under the supervision of the Excise department. That means, the verification certificate issued by the Excise Officer is a very important document to ascertain the quantity and strength of ENA supplied to the company. But here, as rightly pointed out by the learned counsel for the petitioners, such a verification is not forthcoming. Whatever it may be, the Excise Inspector attached to the Enforcement has, on examination, found that huge quantity of spirit was short in the tanker lorries. BA.4160,5419 & 5422 of 2021 13 This has been confirmed by the first informant, Excise Inspector attached to the company. Confession statements of accused Nos.1 to 3 clearly suggest that such pilferage had taken place numerous times in the past. Still, criminal proceedings are initiated only against the drivers and officials of the company. Of course, the purchaser of the stolen property is a party, but leaving officials of the Excise department who are attached to the Company is an aspect casting aspersions on the bona fides of the prosecuting agency, at least at this stage. Such a query remains unanswered at least at this stage.
13. As rightly pointed out by the learned counsel for the petitioners, the crime was launched by one of the Excise officials attached to the Company, against whom also accusing finger points. It was submitted that there are four Excise Inspectors attached to the Company who work in turn. At least at this stage, none of the Excise officials who are bound to give verification certificate are proceeded against. There is considerable substance in the contention that if the officials of the company are responsible, there is equal or culpability on the part of the Excise officials who are bound to supervise matters and give verification certificates.
14. After hearing counsel on both sides, in fact, it is beyond comprehension as to how the Manager (Personnel & Administration) could be BA.4160,5419 & 5422 of 2021 14 made responsible for the said pilferage. Even the prosecution does not have a case that he has any role in the production wing of the Company. Of course, responsibility can be attributed against the other accused persons, accused Nos.4 and 5, but in no stretch of imagination it could be thought that the Manager (Personnel & Administration) has any role in the verification, on receipt of consignments. Therefore, I have no doubt in my mind that the 5 th accused is eminently entitled to get pre-arrest bail.
15. Secondly, the petitioners are being proceeded against on the basis of the confession statement given by the 3 rd accused, who is a clerk working in the Company on daily wage basis. Of course, the learned senior counsel for the 3 rd accused submitted that he has an axe to grind against the petitioner since she was instrumental in launching many disciplinary proceedings against him and that they are on loggerheads etc., for which no materials are forthcoming. Whatever it may be, normally confession statement of a co-accused is not a substantive piece of evidence. Probably, at appropriate occasions, it may be used for corroborating other material pieces of evidence. But, solely on the basis of the confession statement of a co-accused, no adverse inference can be drawn against the petitioners.
16. After going through the materials on record and also the statement BA.4160,5419 & 5422 of 2021 15 of the 3rd accused, in my view, even admitting that his statement can be reckoned on its face value, still nothing is inferable that he had shared the proceeds of the stolen item, among the officials. Statements of accused Nos.1 and 2 show that they had sold the pilfered spirit to the 7 th accused and the sale proceeds were kept in the tanker lorries for handing over to the 3 rd accused. Thus, Rs.6,78,000/- was found from lorry No.KL-42-S-6822 and Rs.3,50,000/- was recovered from the 2nd accused. Both the amounts were to be passed to the 3rd accused. The confession statements of accused Nos.1 and 2 show that even on prior occasions, large scale pilferages were done and sale proceeds were handed over to the 3rd accused and the 3rd accused had given a share of the price to the drivers. In fact, that was the consideration for the drivers to indulge in successive stealing of spirit from the tankers. There are also reasons to think that even at the time when tankers are sealed at the collecting point, appropriate steps were taken to see that such pilferages are not noticed at once. Whatever it may be, as noticed earlier, such pilferages were never noticed or brought to book at the time of joint verifications.
17. We do not know at this stage, whether it was a misadventure of the 3rd accused alone with the connivance of the drivers and miscreants like the 7 th accused. No doubt, he is the master mind behind it. The confession statements BA.4160,5419 & 5422 of 2021 16 and other documents in the case diary indicate that accused Nos.1 and 2 had pilfered and sold spirit to the 7 th accused on the instructions of the 3 rd accused. If everything was done in connivance with accused Nos.4 to 6, the petitioners cannot be granted any relief. But at least at this stage, such materials are not available. There is no evidence on criminal conspiracy also. Confession statement of the 3rd accused does not suggest that he had ever shared monetary benefits with accused Nos.4 to 6. He has stated that even at the time when he had joined duty as the Warehouse-in-charge, there were shortages in stock, whenever such shortages were brought to the notice of the officials, they had not taken it seriously and had just ignored it. He has further stated that the General Manager, the 4th accused is getting commission at nearly Rs.1½ per litre from the contractor. But he has no case in the confession statement that he has shared the said money received by him from the drivers with accused Nos.4 to 6, or that there is any such secret understanding among them.
18. From the version of the prosecution, it is clear that pilferage had taken place in Sendwa in Madhya Pradesh. It is for the contractor to supply the agreed quantity of spirit in the premises of the Company maintaining its quality; the price is given to the contractor on the basis of the verification certificate issued by the Excise officials and also the Deputy Manager (Production). But BA.4160,5419 & 5422 of 2021 17 so far materials do not indicate that the petitioners had played any role in pilfering 20,386 litres of spirit or shared common intention.
19. In the above setting, the immediate question is whether there is any valid reason for custodial interrogation of the petitioners. After considering various aspects, the learned Senior Public Prosecutor could not convince me that they have to be interrogated in custody. The petitioners have offered to co- operate with investigation. They have permanent places of abode. Prosecution has no case that they would flee from justice. In the circumstances, the petitioners are at liberty to surrender before the Investigating Officer within ten days from today and will make themselves available for interrogation; in the event of arrest, they shall be released on bail on executing bond for Rs.1,00,000/- (Rupees One lakh only) each, with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer; they shall co-operate with the investigation, shall not try to contact or influence the witnesses or tamper with evidence and shall not involve in any crime during the period on bail.
20. Before parting, two aspects require to be pointed out. Firstly, I have already adverted to the fact that it is peremptory that the quantity and quality of the consignment taken inside the Company have to be certified so by the Excise BA.4160,5419 & 5422 of 2021 18 Official-in-charge and also the Deputy Manager (Production). But here, even though such a vital aspect is there, the Excise officials have been left out for which, at least for the present, there is no justification. The grievance of the petitioners is that proceedings are taken arbitrarily in the sense that the Excise officials are left scot-free. There are also reasons to think that even earlier, such pilferages in large scale had taken place. The confession statement of the 3 rd accused indicates that he used to make it up such by adding water to spirit and diluted spirit was given when spirit as such was sold or given for making sanitizer. It is doubtful that such acts could be done by the 3 rd accused alone with impunity.
21. Secondly, I have come across a communication issued by the Deputy Controller, Legal Metrology, Flying Squad, Konni, Payyanamon dated 13.07.2021, given to the Station House Officer. It is stated that as per Rule 14 of the Kerala Legal Metrology (Enforcement) Rules, 2012, it is the statutory obligation on the part of the company/user of the weight or measure to report to the Legal Metrology Officer at least thirty days in advance of the date, on which the verification falls due. After his visit to the Company, a weigh bridge was seen at their premises, which was not in working condition. According to their records, the same was not re-verified and stamped from 2005 onwards. Thus, he BA.4160,5419 & 5422 of 2021 19 has informed that the Company has deliberately failed to submit application for re-verification and calibration of the weigh bridge in its possession before the Legal Metrology Officer concerned in time. This demonstrates a very sorry state of affairs. There is criminal negligence on the part of the officials. The case diary indicates that even for the present purpose, since the weigh bridge in the company is not working, the weight of the contents was taken by taking the lorry to a private weigh bridge at Muthoor, Thiruvalla. In other words, from 2005 onwards, such verification was not done. The 3 rd accused who is only a temporary employee, cunningly took mileage of such lapses on the part of the petitioners. Here, it requires to be noted that the General Manager, the 4 th accused admits that he is the head of the institution, but he has pleaded that he does not have any acquaintance with transporting, loading and unloading of raw materials, which are brought to the company. It is a pity that such a person is kept at the helm of affairs of the company. But it has come out that it was the committee headed by him which had accepted the quotes and fixed the price quoted by tenderers.
22. Thirdly, the 3rd accused, who is the main culprit is a daily wage employee. Even though he was appointed under the dying in harness scheme, is still continuing on daily wage basis. It is not known as to how a daily wage BA.4160,5419 & 5422 of 2021 20 employee could be assigned an onerous responsibility of verifying the quantity of the consignment or kept in charge of the warehouse. He has boldly stated that such shortages were made good by adding water to spirit. This is the sorry state of affairs of the Company.
Anyhow, overwhelming reasons are not stated for custodial interrogation of the petitioners and therefore, the bail applications will stand allowed.
Sd/-
K. HARIPAL
JUDGE
okb/9.8.21
//True copy// P.S. to Judge