Kerala High Court
Mathai vs State Of Kerala on 15 January, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 25TH DAY OF MAY 2015/4TH JYAISHTA, 1937
CRL.A.No. 115 of 2005 ( )
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AGAINST THE JUDGMENT IN SC 352/2003 of ADDITIONAL DISTRICT & SESSIONS
COURT (ADHOC,FAST TRACK-I, PATHANAMTHITTA DATED 15-01-2005
(CP 73/2002 of J.M.F.C., ADOOR)
APPELLANT(S)/1ST ACCUSED:
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MATHAI, S/O.MARKOSE,
CHELLAKOTTU VEEDU, ARUKALICKAL PADINJARU MURI
ENADIMANGALAM VILLAGE, ADOOR TALUK.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.PRASUN.S
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
R1 BY ADV. SRI. GITHESH.R., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25-05-2015, ALONG WITH CRA. 212/2005, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
acd
C.R.
P.D. RAJAN, J.
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Crl.Appeal Nos.115/2005 & 212/2005
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Dated this the 25th day of May, 2015
JUDGMENT
These appeals are preferred against the conviction and sentence in S.C.No.352/2003 of Additional District and Sessions Judge (Adhoc), Fast Track-I, Pathanamthitta for offence punishable u/s.55(a) and (g) of Abkari Act. The appellants are accused 1 to 3 in the above case and they were sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of 1 lakh in default, simple imprisonment for two years each for the offence punishable u/s.55(a) of the Abkari Act, and to undergo rigorous imprisonment for two years and to pay fine of 1 lakh, in default, simple imprisonment for two years each for Crl. Appeal Nos.115/2005&Con.case 2 the offence punishable u/s.55(g) of the Abkari Act.
2. The facts necessary for the indictment were that on 13.8.1999 at 1 p.m., when the Excise Inspector and Party of Adoor Excise Range Office were on patrol duty, they got reliable information that the appellants were manufacturing illicit arrack in Chellakottu Veedu, House No.XI/454 of Ezhamkulam Panchayath. On the basis of that information, they arrived at the place of occurrence and detected the offence. After completing investigation, they laid charge before Judicial First Class Magistrate Court, Adoor, from where it was committed to Sessions Court, Pathanamthitta for trial.
3. To prove the offence, the prosecution examined PWs 1 to 5 and admitted Exts.P1 to P10 in evidence and marked Mos 1 to 4 series as material objects. The incriminating circumstances brought out in evidence were Crl. Appeal Nos.115/2005&Con.case 3 denied by the accused while questioning u/s.313 Cr.P.C. Appellants were heard u/s.232 Cr.P.C. DW1 and DW2 were examined in support of their defence and Ext.D1 was marked while cross examination of PW1. The trial Court, after analysing the oral and documentary evidence, convicted the accused.
4. The learned counsel appearing for the appellants contended that the search and seizure were conducted by the Excise Inspector, violating the benevolent provisions of Code of Criminal Procedure. Two respectable independent witnesses of the locality had not participated in the search. Their presence is necessary, because the ownership and possession of the searched house is vested in another person. The offence was detected in a place where large number of people reside. In such a situation, presence of independent witnesses is Crl. Appeal Nos.115/2005&Con.case 4 necessary to prove search and seizure. There is no evidence to show that the house was in possession of the first accused (appellant in Crl.Appeal No.115/2005). Actually, the house was in possession of one Markose, who was not arrayed as an accused in this case. There was no independent evidence to prove search and seizure.
5. While dealing with search and seizure, it is clear that PW5 conducted search on 13.8.1999, at 1 p.m., on the basis of reliable information, while conducting patrol duty. His evidence shows that he conducted an urgent search in Chellakottu Veedu, house No.XI/454 of Ezhamkulam Panchayath with the Excise party, at that time 2nd and 3rd appellants were found distilling arrack in the kitchen and they seized 15 litre of boiling wash and 500ml of illicit arrack. The house was in the possession of the first accused for which they prepared Ext.P1 mahazar. After Crl. Appeal Nos.115/2005&Con.case 5 seizure of the arrack and wash, he registered a crime and occurrence report. Ext.P8 is the occurrence report. Ext.P9 is the property list and Ext.P6 is the search list. Appellants were arrested and Exts.P7, P7(a) and P7(b) are the arrest memos prepared in this case. They were produced before Court as per Ext.P10 remand application. PW1, who was the Assistant Excise Inspector, accompanying the Excise Inspector throughout the search and seizure, supported the evidence of PW5. Analysing the oral evidence of PW1 and PW5, it is found that after recording the reasons and ground of belief, they seized arrack and wash from house No.XI/454 of Ezhamkulam Panchayat, without obtaining a warrant from Magistrate.
6. In urgent cases, it may not be possible for the officer to obtain warrant from a Magistrate or Excise Commissioner for conducting a search. Normally, if an Crl. Appeal Nos.115/2005&Con.case 6 Abkari officer decides to search a place u/s.31, he will record his reasons in writing. Houses must not be searched, unless there is a definite reason to believe that certain contraband articles kept in it, to which an offence is known or alleged to have committed, will be found there. The wordings of the clause contemplate that the officer himself has to be convinced with the information and it is necessary that he should record his reasons in writing and forward the same to the Magistrate, which explains that it will be a check upon irresponsible searches, since S.36 directs that all searches under this Act shall be made according to Code of Criminal Procedure. In a Criminal case, the question often arises whether the Excise and Police under the Act have acted legally in exercise of its powers or discharge of its duties. The law prescribes certain important formalities to be complied with, when a Crl. Appeal Nos.115/2005&Con.case 7 police or excise officer goes to make a search, without a search warrant issued by any Magistrate. Failure to record the reasons never vitiates the search, but that violation of the provision is a serious matter. The irregularity in search and seizure does not make the evidence in admissible. This principle was held in Pooran Mal v. Director of Inspection (investigation) of Income Tax, New Delhi and others [AIR 1974 SC 348] and Prathap Singh and another v. Director of Enforcement Foreign Exchange Regulation Act and others [AIR 1985 SC 989]. In this case, PW5 prepared Ext.P5 search memorandum and forwarded it to the Court before conducting search. Therefore, substantial procedural compliance has been done in this case.
7. The learned Public Prosecutor contended that in Ext.P6 search list, the 1st accused admitted his signature, Crl. Appeal Nos.115/2005&Con.case 8 which is sufficient to prove the alleged seizure of the articles. No enemity was alleged against the Excise officials and they had detected the offence, as a part of their official duty and therefore, there is no reason to doubt the search and seizure.
8. In this background, the second question is whether the search and seizure and the articles seized have been substantiated by any independent evidence. PW1 and PW5 are the Excise Officers. PW4 is an independent occurrence witness, who was present at the time of conducting search, deposed that on 13.8.199 at 1 p.m., he did not see the search and seizure conducted by PW5 in the house of A1. He denied the signature in Ext.P1 and Ext.P6 search list. This witness was declared as hostile by the trial Court. According to PW1 and PW5, they participated in the search and they put their signature in Ext.P1 mahazar. The Crl. Appeal Nos.115/2005&Con.case 9 mandatory direction in Cr.P.C was that before making search, the officer or other person shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. The first and foremo IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY, THE 8TH DAY OF JULY 2015/17TH ASHADHA, 1937 Crl.MC.No. 1430 of 2015 ()
--------------------------- SC.NO. 453/2011 OF SESSIONS COURT, PATHANAMTHITTA CRIME NO. 314/2007 OF PANDALAM POLICE STATION , PATHANAMTHITTA DISTRICT
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PETITIONER(S)/ACCUSED 1 & 2:
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1. BIJU,S/O.OMMEN, AGED 42 YEARS, THAZHAEMURRIYIL HOUSE, KURAMBALA VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT.
2. PONNAMMA, W/O. OMMEN CHACKO, AGED 77 YEARS, THAZHAEMURRIYIL HOUSE, KURAMBALA VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.A.C.DEVY RESPONDENT(S)/COMPLAINANT & STATE :
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1. SHEENA MATHEW, W/O.BIJU OMMEN, AGED 42 YEARS, THAZHAEMURRIYIL HOUSE, KURAMBALA VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT,PIN-689 693
2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 R1 BY ADV. SRI.LIJO VARGHESE R2 BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts Crl.MC.No. 1430 of 2015 ()
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APPENDIX PETITIONER(S)' ANNEXURES:
--------------------------------------------- ANNEX A: THE TRUE COPY OF THE RELEVANT PAGES OF FIR AND CHARGE SHEET SUBMITTED BEFOE JFCM, ADOOR IN CRIME NO.314/2007 ANNEX B: THE TRUE COPY OF THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINAT RESPONDENT(S)' ANNEXURES: NIL
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/TRUE COPY/ P.A.TO JUDGE sts K. ABRAHAM MATHEW, J.
==================== Crl. M.C.No. 1430 of 2015
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 8th day of July, 2015 O R D E R Petition filed under Section 482 Cr.P.C.
2. Petitioners are accused in Sessions Case No. 453 of 2011 on the file of the Sessions Court, Pathanamthitta. First petitioner is the husband of the first respondent and the other petitioner is his mother. Petitioners are charged with having committed the offence under Section 498A IPC. It is submitted that the matter has been settled and the proceedings in the criminal case may be quashed.
3. Heard the learned counsel for the petitioners and for the first respondent and the learned Public Prosecutor.
4. The first respondent has filed an affidavit to the effect that the matter has been settled and she has no objection to the proceedings in the criminal case being quashed. I am satisfied that no public interest is involved in this case. This is a fit case to invoke the jurisdiction of this Court under Section 482 Cr.P.C. to quash the proceedings in the criminal case.
In the result, this Crl. M.C. is allowed. The proceedings in Crl. M.C.No. 1430 of 2015 ::2::
Sessions Case No. 453 of 2011 on the file of the Sessions Court, Pathanamthitta and C.P. No. 24 of 2014 on the file of the Judicial First Class Magistrate, Adoor are quashed.
Sd/-
K. ABRAHAM MATHEW, JUDGE DST //True copy// P.A. To Judge