Kerala High Court
Satheesan vs State Of Kerala on 23 October, 2013
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935
CRL.A.No. 1155 of 2011 ( )
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AGAINST THE JUDGMENT IN SC 769/2007 of SESSIONS COURT, KASARAGOD
DIVISION (ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-I, KASARAGOD
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APPELLANT/1ST ACCUSED:
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SATHEESAN, S/O. KUNHIRAMAN CHETTIYAR,
AGED 19 YEARS, DOSUVAYAL, KUNDAMKUZHI HOUSE
BEDADUKA VILLAGE, KASARAGOD DISTRICT.
BY ADV. SRI.KODOTH SREEDHARAN
RESPONDENTS/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
SHO, BADIADKA, THROUGH THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. P. MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-10-2013
ALONG WITH Crl.A. NO. 1264/2011, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SD
P. BHAVADASAN, J.
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Crl.Appeal Nos.1155 & 1264 of 2011
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Dated this the 23rd day of October, 2013
JUDGMENT
The accused two in numbers faced prosecution for the offences punishable under Section 179 of the Motor Vehicles Act and Section 8(2) of Kerala Abkari Act. They were found guilty of the offence punishable under Section 8 (2) of the Kerala Abkari Act. 1st accused was found guilty under Section 179 of the Motor Vehicles Act and Section 8(2) of the Kerala Abkari Act also. The accused were convicted and sentenced to rigorous imprisonment for 5 years and to pay a fine of `1,00,000/- each with default to undergo rigorous imprisonment for one year each. 1st accused was further sentenced to pay a fine of `500/- with default to undergo rigorous imprisonment for two weeks under Section 179 of the Motor Vehicles Act.
2.P.W.1, the investigating officer, on reliable information Crl.Appeal Nos.1155 & 1264 of 2011 2 about the transport of contraband articles was coming along the road towards Pika, when they found a vehicle coming from the opposite side. P.W.1 signaled the vehicle to stop but it did not stop and sped away. P.W.1 followed in the jeep and intercepted the vehicle 3= kms away at the place called Yethirthode. The allegation is that the accused, the driver of the car and an other person who was in the car left the vehicle and ran away. The police officers chased them and was able to catch the first accused. On inspection of the vehicle it is found that below the rear seat, they found 15 gunny bags containing 300 packets of arrack, each containing 100 ml. P.W.1 would say that all the gunny bags contained similar packets of arrack. They identified it by smell and taste. P.W.1 then speaks about the preparation of samples and arrest memo of the first accused. He would say that he prepared two samples of 300 ml. each and sealed the same. Later with the contraband articles and the first accused, they returned to the station and registered Crime No.217 of 2005 under Section 8(2) of Crl.Appeal Nos.1155 & 1264 of 2011 3 the Abkari Act and the relevant provisions of Motor Vehicles Act. Ext.P3 is the F.I.R. P.W.1 says, he has prepared the forwarding notes for sending the samples and he also says that he prepared a report for making the inventory, which was marked as Ext.P6. He speaks about having taken photographs, which produced as Ext.P6(a) originals and P6(b) negatives.
3.According to the prosecution case, the second accused who was familiar to the detecting officers as he was involved in a crime in 2001 and he was arrested and necessary report was filed before the court. Final report was laid before Judicial First Class Magistrate Court-I, Kasargod. Cognizance of the offences was taken and the case was committed under Section 209 Cr.P.C. The sessions court made over the case to the Addl. Sessions Court, (Adhoc-III), Kasargod for trial and disposal. The said court on receipt of records framed charge against 1st accused for the offences punishable under Sections 179, 184 of the Motor Vehicles Act against 1st and 2nd Crl.Appeal Nos.1155 & 1264 of 2011 4 accused for the offence punishable under Section 8(2) of the Abkari Act also. The accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 6 and had Exts. P1 to P10 marked. After the close of the prosecution evidence, the accused was questioned under 313 Cr.P.C. They denied all the incriminating circumstances and pointed out that they had been falsely implicated. They chose to adduce no evidence.
4.Mainly relying on the evidence of P.Ws.1 and 6, the court below came to the conclusion that the offences have been made out and accordingly convictions and sentences are already mentioned followed. The said convictions and sentences are assailed in this appeal.
5.The learned counsel appearing for the appellants contended that the detection of the offence was within the limits of Kasargode police station, and therefore, even assuming that the crime could have been Crl.Appeal Nos.1155 & 1264 of 2011 5 registered in the Badiadka police station, it was incumbent upon the police officer of the Badiadka police station to transfer the records to Kasargode police station and further investigation and proceedings could have been taken only from that police station and the final report could have been made only by the station head officer of that police station. Apart from the above fact, it is also pointed out that the court below has placed reliance on the evidence of P.Ws.1 and
6. There is no evidence at all to show that P.W.6 was present at all. P.W.1 does not speak about the presence of P.W.6. In the mahazar prepared by P.W.1, the identity of police officer who accompanied P.W.1 are shown. P.W.6 has no case that he was one among them. It is also significant to notice that he does not affix his signature in any of the documents prepared at the spot. It is then contended that a reading of the evidence of P.W.1 would show that the labels were fixed long after the seizure and not at the place of incident or immediately thereafter. Referring to the evidence of Crl.Appeal Nos.1155 & 1264 of 2011 6 P.W.1, it is pointed out that he has conceded that crime number was later on included in the label affixed.
6.These infirmities have not been noticed by the court below and the court below has mechanically accepted the evidence of P.W.1 and find the accused guilty. According to the learned counsel for the appellants, convictions and sentences are unsustainable in law and both on facts and in law.
7.The learned Public Prosecutor on the other hand contended that the court below has analysed the evidence of P.Ws.1 and 6 and came to the conclusion that their evidence is convincing and cogent and the offences have been established. There is no reason to disbelieve P.Ws.1 and 6. P.W.1, according to the learned Public Prosecutor has spoken about the procedure followed by him and there is no infirmity in the procedure adopted by P.W.1. Accordingly, he is contended that there is no ground to interfere with the Crl.Appeal Nos.1155 & 1264 of 2011 7 findings of the court below.
8.Regarding the jurisdiction, the court below seems to have taken the view that since the vehicles was attempted to be intercepted within the jurisdiction of Badiadka police station, the detection can be presumed to be within the jurisdiction of that police station. It is extremely difficult to accept that view of the court below. Detection actually has taken place within the jurisdiction of Kasargode police station because the car was intercepted at a place called Yethirthode, which definitely falls within the limits of Kasargode police station. Even assuming that a crime could have been registered within the Badiadka police station, it was obligatory on the part of the station house officer to transfer the records to the Kasargode police station from where alone subsequent proceedings could have been taken. Interception is not the criteria for detection. Detection occurred only when the car was intercepted and the articles were seized, till then it was only a Crl.Appeal Nos.1155 & 1264 of 2011 8 suspicion. It is, therefore, extremely doubtful whether the steps taken by the station head officer and the investigating officer at the Badiadka police station can be justified.
9.Even assuming the above infirmity could be overlooked, on going through the evidence of P.Ws.1 and 6, it is found wanting in many aspects. First of all P.W.1 does not speak about the presence of P.W.6 at all. P.W.6 asserts that he was present along with P.W.1 when the detection was made and the sampling procedure was done by P.W.1. It is significant to notice that in Ext.P2 seizure mahazar prepared by P.W.1, he has indicated the persons, who are with him at the time of detection. P.W.6 has no case that he is one among the persons made mention of in Ext.P2. It is also significant to notice that P.W.6 has not signed in any of the records alleged to have been prepared by P.W.1 at the spot. The learned counsel for the appellants is fully justified in his submission that it is extremely doubtful whether P.W.6 Crl.Appeal Nos.1155 & 1264 of 2011 9 was present at all. They also pointed out that there are no documents produced by the prosecution to show that P.W.6, was present at the relevant time especially when his presence was seriously challenged by the defence.
10.It is rather surprising to note that in the case on hand there was no attempt to examine the independent witnesses, who are alleged to have witnessed the detection and who singed in Ext.P2 mahazar. No reasons were also given for their cross examination. This certainly a serious infirmity.
11.Coming back to the evidence of P.W.1, he says about the sampling etc., and would say that sample was taken only from one of the gunny bags since all the gunny bags contains similar packets. He has deposed that he had sent a report for inventory i.e., Ext.P6. The court below has taken Ext.P6 as the inventory. Obviously is not so. There is no evidence in this case at all to show, who had prepared the inventory even though the court Crl.Appeal Nos.1155 & 1264 of 2011 10 below has stated that it was prepared in the presence of JFCM court concerned. None of the investigation officers are spoken about the preparation of inventory. To crown it all, P.W.1 in cross examination stated that the details of the seal said to have been affixed the samples is not mentioned anywhere and the crime number in the labels were written subsequently. He would also concede that the articles left after taking samples were not sealed. A reading of his evidence to show that except for the detection and sampling, he is unaware of the rest of the proceedings.
12.The evidence of P.W.6 has already stated is to open to serious doubts. He also says that the photographs were taken one year after the detection and he is not sure under what circumstance the photographs were taken and by whom it was taken.
13.It is true that in the evidence of P.Ws.1 and 6 could be accepted and found convincing enough, conviction can Crl.Appeal Nos.1155 & 1264 of 2011 11 be certainly based on the same. But as already noticed the evidence is found wanting to show that P.W.6 was present at all. Normally, his signature would have found a place in one of the documents prepared by P.W.1, if he was actively present. Surprisingly it is not seen in any of the contemporary document in the case on hand. Apart from the above facts, two persons who were alleged to be witnesses have not been examined. Also there is no whisper in the evidence of P.Ws.1 and 3, regarding the presence of those witnesses also are alleged to have signed in Ext.P2.
14.The court below has simply gone by the evidence of P.Ws.1 and 6 and it has come to the conclusion that the detection and sampling etc., are true. It is difficult to accept the said findings of the court below. The evidence of P.W.1 regarding the sampling and labeling is not coming and the presence of P.W.6 as already noticed can not be taken as proved.
Crl.Appeal Nos.1155 & 1264 of 2011 12
15.Under these circumstances, this Court is unable to confirm the findings of the court below that there is proper detection and sampling and also that PW6 was present at the relevant time.
For the above reasons, these appeals are allowed. The conviction and sentence passed by the court below for the offences punishable under Section 8(2) of the Kerala Abkari Act as against the 1st and 2nd accused and Section 179 of Motor Vehicles Act as against the 1st accused are set aside. They are found not guilty of the charges levelled against them. Their bail bonds shall stand cancelled and they are set at liberty. If they have paid the fine amount, the same shall be refunded to them. If any one of them is in custody, he shall be released forthwith unless wanted in any other case.
sd/-
(P. BHAVADASAN, JUDGE) AMV/ /TRUE COPY/ P.A.TO JUDGE