Kerala High Court
Chandran And Ors. vs State Of Kerala on 20 November, 1987
Equivalent citations: 1988CRILJ483
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT K.G. Balakrishnan, J.
1. All these appellants have been found guilty by the Special Court for Trial of Offences under Essential Commodities Act, Trichur for the offence punishable under Section 7(i)(a)(ii) of the" Essential Commodities Act, 1955 read with Section 8(i) of the Coconut Husks Control Order, 1973.
2. The appellants in Crl. A. No. 415 of 1984 and Crl. A. No. 416 of 1984 have been sentenced to undergo simple imprisonment for a period of three months and the appellant in Crl. A. No, 420 of 1984 has been sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for a further period of one month.
3. The gist of accusation against the appellants is as follows : P.W. 1, a Coir Project Officer who had been appointed as inspector under the Coconut Husks Control Order, 1973 was doing squad work along with the local Sub Inspector of Police and a head constable in the afternoon of 11-3-1983. While so they saw a tempo van proceeding through the Chalakudy-Irinjalakuda road loaded with coconut husks. The first accused was driving the tempo van and the others were found travelling in the same. P.W. 1 intercepted the vehicle and questioned the passengers as to whether they had a valid movement permit to transport the coconut husks. The second accused was the owner of the coconut husks and as he had no movement permit with him the husks and the tempo van were seized. The report was sent to the Kodakara Police Station and on the basis of this Ext.P2 report, P.W. 5 registered a case against the accused for violation of the provisions of Coconut Husks Control Order. The husks seized from the accused were later entrusted to a Cooperative Society and the tempo van was given on kychit to its owner. Prosecution was launched against the accused.
4. On the side of the prosecution P. Ws. 1 to 7 were examined. P.Ws. 2, 3 and 4 are the attestors to the mahazar and others are the official witnesses. The accused contended that he had been transporting the husks for his domestic use and the tempo van contained only dried husks. The learned Special Judge convicted and sentenced the accused as aforesaid.
5. The learned Counsel for the accused contended that the second accused, the owner of the coconut husks has not committed any offence since the prosecution failed to prove that he transported coconut husks more than the quantity specified in the notification. P.W.1 while seizing the vehicle and coconut husks had not counted the number of the husks. He only estimated that there would be more than 2000 coconut husks in the tempo van. In the mahazar prepared by P.W. 3 it has been specifically mentioned that the tempo van contained both dried and raw coconut husks. It is not known as to how many of them were dried coconut husks. This contention was raised before the trial court but the same was repelled for the reason that the dried coconut husks also could be characterised as raw husks. It has also been observed by the court below that even if these husks were dried they had not undergone any manufacturing or refining process and therefore, they were raw coconut husks.
6. This finding is not sustainable. The word 'husk' has been defined in the Coconut Husks Control Order under Section 2(4) as "Husks means coconut husk raw or rotted". This would clearly indicate that the dried husks are not included within the purview of the definition. If the dried husks also was intended to be included in the definition, there need not have any special definition at all since the word "husks" would include all types of husks whether dried, raw or rotted. Even if the dried husks have not undergone any manufacturing process the same cannot be considered as raw husks for the simple reason that the same cannot be used as raw material for manufacturing coir products. If the husks are already dried it is common knowledge that the same cannot be rotted and used for the manufacturing coir fibres and such husks could only be used as fuel. The entire Coconut Husks Control Order and the allied notifications have been intended for the purpose of protecting the interest of the coir workers. Probably the notification was issued at a time when there was shortage of this raw material. As the dried coconut husks cannot be used for making coir yarns evidently, they may not come within the ambit of Coconut Husks Control Order. This vital aspect was lost sight of by the learned Special Judge and therefore erred in finding that the unlicenced transportation of even the dried husks would be violative of the provisions of Coconut Husks Control Order.
7. There is no evidence to show that the second accused had transported coconut husks more than the specified quantity. The mahazar and the contemporaneous documents prepared by P.Ws. 1 and 3 would only indicate that the van contained both dried and raw coconut husks, P.Ws. 1 and 3 could have counted those husks. In the absence of any specific evidence regarding the quantity of husks the accused is rightly entitled to the benefit of doubt and the conviction and sentence of A2 is not sustainable.
8. Learned Counsel for the accused Sri. C. P. Damodaran Nair further contended that the conviction and sentence of Al and A3 are not sustainable, since absolutely there is no evidence on the side of the prosecution to prove that they have abetted the offence. P.W. 1, the Coir Inspector has only deposed that Al was driving the vehicle and A4 was found travelling in the cabin of the van. There is no evidence regarding the nature of involvement of the accused Al and A2 in transporting the coconut husks. The tempo van belonged to one Mary and the first accused appears to be an employee of this Mary. So also there is no evidence regarding the complicity of A4. It seems that while questioning these accused under Section 313 Cr. P.C. he stated that he had loaded the coconut husks. That alone is not a sufficient reason to hold that he has abetted the commission of offence. "In order to constitute one an order or abettor some active steps must be taken by him by word or action with intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding or abetting. It may be intentional or unintentional. A man may unwittingly encourage another in fact by his presence, misinterpreted words or gestures, or by his silence or non-interference : or he may encourage intentionally by expressions, gestures or actions intended to specify approval. In the latter case he aids and abets; in the former, he does not." (See the Judicial Dictionary by K. J. Aiyer 8th Edn. Page 5 (reference made to 58 LJ MC 781))
9. Going by the definition and the . explanation given in Section 107 of the I.P.C. it is difficult to hold that the first accused, the driver of the vehicle and A4 the co-passenger travelling along with A2 have committed any offence as alleged by the prosecution. Only very scanty materials are furnished by the prosecution to connect this accused. That apart, in this case it is proved that what has been done by the second accused was not an illegal act and the acquittal of A2 would necessarily lead to the acquittal of Al and A4. The conviction and sentence entered against these two accused are not sustainable and they are also set aside.
The appellants in all these appeals (Al, A2 and A4) are acquitted of all the charges framed against them. The bail bond executed by those persons will stand cancelled.