Kerala High Court
Joyal Abraham vs State Of Kerala on 26 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
CRL.MC NO. 791 OF 2022
CRIME NO.0026/2017 OF Kumily Police Station, Idukki
[AGAINST S.C. No.160/2021 PENDING ON THE FILE OF THE ADDITIONAL
SESSIONS COURT-IV, THODUPUZHA]
PETITIONERS/ACCUSED NOS.2 & 3:
1 JOYAL ABRAHAM
AGED 29 YEARS
K.A.ABRAHAM, KAIPUZHA HOUSE,
PAZHAVANGADI.P.O., RANNY VILLAGE,
RANNY TALUK, PATHANAMTHITTA, PIN-689673
2 ARUN BABU
AGED 29 YEARS
SON OF BAHULEYAN, MINI VILASAM HOUSE,
NELLICKAMON.P.O., ANGADI, RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN-689674.
BY ADV M.REVIKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, HIGH COURT. P.O.
ERNAKULAM-682 031.
BY ADV RANJIT GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.03.2022, THE COURT ON 26.04.2022 PASSED THE FOLLOWING:
CRL.MC No.791 of 2022 2
O R D E R
The petitioners herein are accused Nos.2 and 3 in S.C.No.160/2021 on the file of the Additional Sessions Court, Thodupuzha. The aforesaid case arises from Crime No.26/2017 of Kumily Police Station. The offences alleged against the petitioners are under Sections 9(B)(I)(b)of Explosives Act, 1884 and under Sections 4 and 5 of Explosive Substances Act, 1908. There were altogether nine accused persons in which the 1st accused passed away on 06.01.2022.
2. The prosecution case is as follows:
On 10.01.2017 at about 11 a.m., when the Excise party was conducting their routine inspection at the check post at Kumily, they checked one KSRTC bus. During the said process, a bag containing 25500 ordinary detonators and 3000 electric detonators were found unattended CRL.MC No.791 of 2022 3 on the KSRTC bus. Immediately thereafter, the Excise party seized the aforesaid articles after preparing a mahazar, and the matter was informed to the police. Later, the articles were entrusted to the police, and the aforementioned crime was registered. Annexure-1 is the FIR. During the process of investigation, accused Nos.2 to 5 were arrested on 24.02.2107. After completing the investigation, the police filed Annexure-A2 final report. The specific case of the prosecution is that accused Nos. 1 to 5, 8 and 9 have purchased the contraband articles from Tamilnadu from accused Nos.6 and 7 and the same were transported in an Innova car owned by the 4th accused up to Kambam. Later, the articles were transported in a KSRTC bus and during the process of which, the contraband articles were seized by the Excise party. This Crl.M.C. is filed by the petitioners seeking to quash the aforesaid proceedings.CRL.MC No.791 of 2022 4
3. Heard Sri. M.Revikrishnan, the learned counsel appearing for the petitioners and Sri.Ranjit George the learned Public Prosecutor for the State.
4. The specific contention put forward by the learned counsel for the petitioners is that, the allegations in Annexure-A2 final report and the materials produced along with the same do not make out the offences alleged. One of the main reasons for raising the said contention is that the seizure of the aforesaid articles was admittedly made by the Excise officers who were not having the authority to do so. Hence, the seizure of the contraband article is vitiated. Another contention is that, apart from the CCTV footage indicating that the petitioners herein had alighted from the bus during the time when the inspection was conducted, there were no other materials showing that the aforesaid articles were being transported by the CRL.MC No.791 of 2022 5 petitioners herein. Even though the specific case of the prosecution is that, the aforementioned articles were purchased from accused Nos.6 and 7 and the same were transported by the petitioners herein along with accused Nos.1 to 5, 8 and 9 in the vehicle owned by the 4th accused, the prosecution against A4, A5, A8 and A9 were quashed by this Court as per Annexures 4 and 5 orders. It was pointed out that, in the light of the aforesaid orders, the substratum of the case itself is lost, and hence the prosecution against the petitioners herein has become unwarranted.
5. On the other hand, the learned Public Prosecutor would oppose the said contentions and points out that, the question of involvement of the petitioners herein is a matter of evidence and the same cannot be adjudicated in a proceeding under Section 482 of the Cr.PC. In CRL.MC No.791 of 2022 6 such circumstances, the learned Public Prosecutor sought for dismissal of the Crl.M.C.
6. The first and foremost contention put forward by the learned counsel for the petitioners is regarding the discrepancies in the seizure effected by the Excise party. The above Crime was registered based on the information submitted by the Preventive Officer, Excise check post, Kumily. Immediately after the seizure, he prepared the mahazar. While effecting the seizure and preparing mahazar as above, the police officers were not present. The crucial contention of the learned counsel for the petitioners is that, the Preventive Officer was not competent to seize an article to initiate prosecution under the Explosives Act and Explosive Substances Act.
7. The power of seizure available to the aforesaid officers is confined to certain contraband articles to which the provisions of CRL.MC No.791 of 2022 7 certain other enactments are applicable. The Explosives Act or Explosive Substances Act are not the enactments coming within their area of operation. Therefore, I find some force in the contentions put forward by the learned counsel for the petitioners. Since the seizure was effected without any legal authority, the prosecution cannot rely upon the same.
8. It is true that, even if it is found that the seizure was not affected in the manner permitted under law, it cannot be concluded that the entire prosecution case is liable to be quashed on that ground. The only consequence of an illegal seizure is that the articles detected through such an unlawful seizure cannot form the basis of conviction. In other words, in such cases, the accused can be convicted only if there are other materials apart from the materials collected from such illegal seizure. In this case, the crucial aspect to be noticed CRL.MC No.791 of 2022 8 is that the very basis of the prosecution case is the detection of articles through such seizure. Hence, if the search and seizure were not conducted through legally acceptable means, the entire prosecution would be shattered. I have already found that, the seizure made in this case was not in tune with the law, as the officer who effected the seizure lacked competence. Therefore, the articles recovered from such illegal seizure cannot be used to substantiate the prosecution case, and the same cannot form the basis of the conviction of the accused. In such circumstances, the prosecution cannot survive, and it has become an abuse of the process of the court.
9. There is yet another aspect that warrants interference of this court under Section 482 of the Cr.PC. As pointed out by the learned counsel for the petitioners, the specific case of the prosecution is that, the petitioners herein have CRL.MC No.791 of 2022 9 purchased the explosive articles from Tamilnadu and transported the same along with accused Nos.1 to 5, 8 and 9 in the vehicle owned by 4 th accused. By virtue of Annexures 4 and 5 orders passed by this Court, the prosecution against A4, A5, A8 and A9 were already quashed. In such circumstances, the crucial link connecting the accused with the act of purchasing articles from Tamilnadu and transporting the same up to the point it was seized, is now missing. Apart from the above, the prosecution does not have any material to show that it was the petitioners herein along with 1st accused who were transporting the contraband articles in the aforesaid bus. The crucial material that is being relied on by the prosecution is CCTV footage which would indicate that the petitioners were alighting from the bus during the inspection. When the discrepancies mentioned above are taken into consideration, I am of the CRL.MC No.791 of 2022 10 view that the evidence of CCTV footage alone is not sufficient to make out a case and ensure the conviction of the petitioners. To be precise, based on the entire materials available on record, the chances of a successful prosecution against the petitioners herein are very bleak. In such circumstances, further proceedings in the matter will be a futile exercise. In Madhavrao Jiwajirao Scindia and Ors. V. Sambhajirao Chandrojirao Angre and Ors. [(1988)1 SCC 692], the Hon'ble Supreme Court was pleased to observe in paragraph 7 of the said judgment in the manner as follows:
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the CRL.MC No.791 of 2022 11 proceeding even though it may be at a preliminary stage."
10. In my view, when the materials placed before me are appreciated in the light of the above principles, I find merit in the contentions put forward by the learned counsel for the petitioners. Thus, it leads me to the conclusion that, this is a fit case in which the powers of this Court under Section 482 Cr.PC can be invoked.
In the result, this Crl.M.C. is allowed, and Annexure-A2 final report in Crime No.26/2017 of Kumily Police Station and all further proceedings in S.C.No.160/2021 on the file of the Additional Sessions Court-IV, Thodupuzha are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.791 of 2022 12 APPENDIX OF CRL.MC 791/2022 PETITIONER'S ANNEXURES:
Annexure1 F.I.R IN CRIME NO. 26/2017 OF KUMILY POLICE STATION, IDUKKI DISTRICT Annexure2 FINAL REPORT IN CRIME NO. 26/2017 OF KUMILY POLICE STATION, IDUKKI DISTRICT Annexure3 LOCATION MAHAZAR DROWN UP BY CW24 PURSUANT TO THE ALLEGED DISCLOSURE MADE BY ACCUSED NO.6 Annexure4 ORDER PASSED BY THIS HONOURABLE COURT IN CRL.M.C.NO. 4512 OF 2020 DATED 29.07.2021 Annexure5 ORDER PASSED BY THIS HONOURABLE COURT IN CRL.M.C.NO. 4806 OF 2021 DATED 04.01.2022 //TRUE COPY// SD/- P.S. TO JUDGE