Brijesh v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933** **Crl.MC.No. 3576 of 2011()** **------------------------------------** **SC.970/2010 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), THRISSUR** **....................** ## **PETITIONER(S): ACCUSED** **--------------------------------------** **BRIJESH, S/O. GOPI, AGED 31 YEARS, PONNARASSERY HOUSE, MANATHALA VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENT(S): COMPLAINANT** **-------------------------------------------------** **THE STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, CHAVAKKAD POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **CRMC. 3576/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **A1:-CERTIFIED COPY OF CHARGE SHEET IN CRIME NO.436/03 OF CHAVAKKAD POLICE STATION.** **A2:-CERTIFIED COPY OF JUDGMENT DATED 8/7/10 IN S.C. NO.694/08 OF FAST TRACK COURT-I, THRISSUR.** ## **RESPONDENTS' EXHIBITS** **NIL:-** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.M.C.No.3576 of 2011 ---------------------------------------------------Dated this the 17[th] day of November, 2011** ## **Order** The petitioner was the first accused in Sessions Case No.694 of 2008 of the Additional Sessions Judge (Fast Track Court No.I), Thrissur. There were altogether five accused. The offence alleged against them was under Section 55(a) of the Kerala Abkari Act. A5 in that case was absconding and his case was spilt up. The petitioner and A2 to A4 were appeared before the court. Four witnesses were examined on the side of the prosecution as P.W.1 to P.W.4 and Exts.P1 to P7 were marked. M.O.1 and M.O.2 were identified and marked. When the case was posted for examination under Section 313 Cr.P.C., this petitioner did not appear. Though warrant was issued, his presence could not be secured. Hence case against A2 to A4 was taken up for disposal. After analysing the evidence, A2 to A4 were found not guilty of the offence and they were acquitted of the offence under Section 58 of the Kerala Abkari Act by the learned Sessions Judge (The charge was framed by the court only under Section Crl.M.C.3576/2011 2 58 of the Act). 2. The learned counsel for the petitioner submits that Annexure A2 judgment deals with the evidence in entirety and since it is a comprehensive judgment touching upon all aspects, it can be found that the said judgment is in respect of this petitioner as well and as such further proceedings as against this petitioner may be quashed. The learned counsel would further submit that the Full Bench decision of this court in **Moosa v. Sub Inspector of Police** (2006(1) KLT 552) is not applicable to the facts of this case since the entire evidence was discussed by the learned trial judge. Paragraphs 6 and 7 of the judgment deal with the discussion of the evidence adduced. But the contention that the finding entered by the court below is touching upon the complicity of the petitioner herein (the original first accused) and so, that judgment itself is a full and complete disposal of the case against this petitioner cannot be accepted. It is mentioned in paragraph 6 that the first accused and the second accused were arrested then and there. It is submitted that this petitioner was only one of the three passengers and so unless there is evidence to show that this petitioner was actually the person who was Crl.M.C.3576/2011 3 carrying the can containing two litres of arrack, it cannot be said that he was transporting the same. When three or four persons travel in an autorickshaw, one passenger need not know the contents of the bag carried by the other accused. The learned counsel for the petitioner would submit that the seizure mahazar as well as the deposition of P.W.1 and other witnesses will make it clear that the plastic can was kept on the platform of the autorickshaw. The petitioner was only one of the passengers. The fact that he did not ran away on seeing police party does not mean that he was the person who kept the can. On the other hand, it is reasonable to assume that he did not ran away because he was sure that he did not commit any offence. 3. It is also pointed out by the learned counsel for the petitioner that the seizure was at 19.30 hours on 3.10.2003 whereas the properties were produced before the court on 10.10.2003. The fact that there was no explanation for the delay in producing the property was taken note of in Annexure A2 judgment. The court below has also taken note of the fact that no independent witness was examined to prove the search and seizure which also was stated as fatal to the prosecution. Since Crl.M.C.3576/2011 4 two passengers ran away on seeing the police party would make it clear that one among them was responsible for keeping the plastic can, the learned counsel submits. Therefore, taking note of all those aspects, I find that the judgment of acquittal passed by the court below is clear on the point that there is no clear evidence against this petitioner also. Hence, in the light of the evidence and circumstances, I find that further proceedings as against this petitioner in S.C.No.870 of 2010 on the file of Additional Sessions Judge, Fast Track Court-I, Thrissur is to be quashed. Hence, this Crl.M.C. is allowed ordering quashment of the further proceeding in SC No.870 of 2010 of Sessions Court (Fast Track -I), Thrissur. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.M.C.3576/2011 5 Crl.M.C.3576/2011 6