CRL.A Nos. 393/655 of 2017 (Vijayan S/o Bhargavan; Lalu S/o Ragavan) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **CRL.A.No.393 of 2017** **AGAINST THE JUDGMENT IN SC 954/2013 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOLLAM CRIME NO.8/2005 OF Karunagappally Excise Range Office , Kollam** ## **APPELLANT/ACCUSED NO.3:** **VIJAYAN S/O. BHARGAVAN, AGED 49, THRIPTHIYIL (DAS HOUSE), KAZHAKOOTTAM VILLAGE, CHIRYANKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE C.I OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KOLLAM.** **SRI SANTHOSH PETER-PP SR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2019, ALONG WITH CRL.A.655/2017, THE COURT ON 29.07.2019 DELIVERED THE FOLLOWING:** **CRL.A.Nos.393/655 of 2017** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** **CRL.A.No.655 of 2017** **AGAINST THE JUDGMENT IN SC 954/2013 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOLLAM** **CRIME NO.8/2005 OF Karunagappally Excise Range Office , Kollam** ## **APPELLANT/2ND ACCUSED:** **LALU AGED 38 YEARS, S/O.RAGHAVAN, KOLLAMPARAMBIL VEEDU,'CHIRAKKADAVU, KANJIRAPPILLY VILLAGE,KANJIRAPPILLY TALUK, KOTTAYAM DISTRICT** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENT/STATE** **:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031(NDPS CRIME NO 08/2005 OFKARUNAGAPPALLY EXCISE RANGE, KOLLAM DISTRICT** **BY PUBLIC PROSECUTOR SRI.SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.7.2019 ALONG WITH CRL.A.393/2017, THE COURT ON 29.7.2019 DELIVERED THE FOLLOWING:** **CRL.A.Nos.393/655 of 2017** **3** ## **JUDGMENT** **The appellant in Crl.A No.655/2017 is the 2[nd] accused in SC 954/2013 of the Court of Session, Kollam and the appellant in Crl.A No.393/2017 is the 3[rd] accused therein. They are respectively the accused Nos.2 and 3 in Crime No.8/2005 of the Karunagappally Excise Range, involving the offence under Section 21 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short the NDPS Act). The case against the 1[st] accused was split up and refiled at the initial stage itself. The appellants faced trial before the learned IV Additional Sessions Judge, Kollam, as the Special Judge for the trial of cases under the NDPS Act on the allegation that at about 2.30 p.m on 26.9.2005, the accused Nos.1 & 2 were found possessing and transporting 1.015 kgs of Brown Sugar on the Motorcycle No.KL01/AD-7248 and that the accused Nos.1 and 2 brought the said quantity** **CRL.A.Nos.393/655 of 2017** **4** **of Brown Sugar from Goa for supply to the 3[rd] accused who had provided all facilities for the transportation of Brown Sugar from Goa. Only the accused Nos.1 and 2 were arrested on the spot by the Excise Inspector, but the 3[rd] accused was later added on the basis of the statements given by the accused Nos.1 and 2.** **2. The prosecution allegation is that when the Excise Inspector of the Karunagapplly Excise Range inspected the Motorcycle No.KL01/AD-7248 at about 2.30 p.m on 26.9.2005, he saw a bag containing something being carried on the motorcycle. The 2[nd] accused was the rider of the motorcycle and the 1[st] accused was the pillion rider. The bag was seen on the seat in between the rider and the pillion rider, and practically it was in the possession of the pillion rider. On seeing the Excise party from a distance, the rider tried to escape, but within no time, the vehicle was obstructed. When asked why the 2[nd] accused attempted to escape, he stated** **CRL.A.Nos.393/655 of 2017** **5** **that he had no driving licence and he thought that the persons in uniform were Police Officers. When the Excise Inspector interrogated the pillion rider and asked about the contents of the bag possessed by him, he kept mum and he did not say anything as he doesn't know Malayalam. The 2[nd] accused then replied that it contained Brown Sugar. When the Excise Inspector opened and examined the bag found in the possession of the pillion rider, he found a quantity of 1.015 kgs of brown sugar therein, and also a bottle of Indian made Foreign Liquor. The Excise inspector arrested the rider and the Pillion rider on the spot and seized the contraband articles. Enquiry revealed that the motorcycle belonged to the 3[rd] accused. The rider and the pillion rider also gave a statement indicating that the quantity of brown sugar was meant for supply to the 3[rd] accused, that the motorcyle was provided by him for travel, and that other arrangements were also made by the 3[rd] accused. Accordingly, the** **CRL.A.Nos.393/655 of 2017** **6** **owner of the motorcyle was arraigned as 3[rd] accused during investigation on the allegation of abetment.** **3. The accused Nos.2 and 3 appeared before the learned trial Judge and pleaded not guilty to the charge framed against them. The prosecution examined 16 witnesses and proved Exts.P1 to P37 documents in the trial court. The Mo1 and MO2 properties were also identified during trial. Both the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C and projected a defence of total denial. The 2[nd] accused raised a defence that he had no knowledge of the contents of the bag carried by the 1[st] accused and that he was not a party to the possession or transportation of brown sugar by the 1[st] accused. It appears that the case against the 1[st] accused is yet to be tried. In defence, the 2[nd] accused examined a witness as DW1 and also proved Ext.D1.** **CRL.A.Nos.393/655 of 2017** **7** **4. On an appreciation of the evidence, the trial court found the accused Nos.2 and 3 guilty. On convicion the 2[nd] accused was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of 1 lakh under Section 21(c) of the₹ NDPS Act and the 3[rd] accused was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of 1 lakh under Section 21(c) read with₹ Section 29 of the NDPS Act. Aggrieved by the judgment of conviction dated 4.4.2017 the accused Nos.2 and 3 have come up in appeal.** **5. In fact, the main accused from whose possession, the brown sugar was seized by the Excise Inspector is the 1[st] accused who has not faced trial along with the others.** **6. On hearing both sides and on a perusal of the materials, I find that there is no satisfactory and definite evidence as against the 3[rd] accused who is the appellant in Crl.A No.393/2017. As regards** **CRL.A.Nos.393/655 of 2017** **8** **the 2[nd] accused, things will be discussed later to find whether the evidence adduced by the prosecution as against him is sufficient to prove the guilt alleged against him beyond reasonable doubt. First let me consider the case against the 3[rd] accused.** **7. The 3[rd] accused is being prosecuted as an abettor under Section 29 of the NDPS Act on the allegation that the quantity of brown sugar found in the possession of the accused Nos.1 and 2 was in fact brought from Goa for supply to the 3[rd] accused, and that all facilities for such transportation were made or given by the 3[rd] accused. The accused Nos.1 and 2 were seen riding on the motor cycle belonging to the 3[rd] accused. The prosecution has adduced documentary evidence to prove that the 3[rd] accused is the owner of the said motorcycle. Just because the accused Nos.1 and 2 were seen riding on the motorcycle, the owner cannot be mechanically** **CRL.A.Nos.393/655 of 2017** **9** **found guilty or convicted. There must be evidence to show that he had complicity in the commission of the offence by the others or that the accused Nos.1 and 2 used the motorcycle for transportation of brown sugar with the knowledge and connivance of the owner of the vehicle. On this aspect, the prosecution has only the statements given by the 1[st] and the 2[nd] accused. Such statements will not bind the 3[rd] accused.** **8. Yet another material against the 3[rd] accused is that the facilities for the stay of the accused Nos.1 and 2 at a lodge were provided by the 3[rd] accused. The Investigating Officer seized a register from the lodge run by PW3 and this register contains the name of the 3[rd] accused as the occupant of a room at the lodge. The prosecution would allege that on the previous night the accused Nos.2 and 3 had stayed at a room of the lodge of PW3 and the said room was booked and provided by** **CRL.A.Nos.393/655 of 2017** **10** **the 3[rd] accused. Nobody has identified the 3[rd] accused as the person who booked the room. The Manager of the lodge who could have identified the occupant or the person who booked the lodge room died pending the proceedings. PW3 is only the owner of the lodge. She could not identify anybody. Of course, she knows the 3[rd] accused personally, but she does not know whether the 3[rd] accused had come at the lodge to book any room there and she does not say anything against the 3[rd] accused except that the register maintained in her lodge contains an entry regarding the 3[rd] accused. This is not sufficient to implicate the 3[rd] accused. It must be proved by positive evidence that the 3[rd] accused had booked such a room directly or over telephone for somebody else, and that it was in such a room, the accused Nos.1 and 2 stayed on the previous day. On this very material point, there is no evidence at all. In the absence of anything to show that the motorcycle was used with the knowledge or** **CRL.A.Nos.393/655 of 2017** **11** **connivance of the 3[rd] accused, or that the motorcyle was provided by him to facilitate transportation of brown sugar, the 3[rd] accused cannot be convicted as an abettor. I find that the prosecution has not adduced any definite and satisfactory material to prove the allegations against the 3[rd] accused that he had abetted possession, transportation of brown sugar by the accused Nos.1 and 2. Just because, he is the owner of the motorcycle used by the others for the commission of offence, the 3[rd] accused cannot be convicted by the court. Thus, I find that the 3[rd] accused is entitled for acquittal in the absence of any material as against him.** **9. Now let me see whether there is anything to connect the 2[nd] accused with the 1[st] accused or to implicate him as a partner in the commission of offence, except that the 1st accused was found travelling along with him. The prosecution case** **CRL.A.Nos.393/655 of 2017** ## **12** **is that the quantity of Brown Sugar was transported by the accused Nos.1 and 2 jointly for supply to the 3[rd] accused, and they jointly brought it from Goa. To implicate the 2[nd] accused or to allege his complicity, the prosecution would rely on certain circumstances. One is that the two accused had stayed together at a room of the lodge of PW3 during transit from Goa, the other is that when the Excise party led by the Excise Inspector intercepted the motorcycle the 2[nd] accused who was the rider made an attempt to overturn and escape, the third is that the statements regarding the contents of the bag was given by the 2[nd] accused when interrogated by the Excise Inspector on the spot and the other is the statement alleged to have been given by the 2[nd] accued under Section 67 of the NDPS Act.** **10. As regards the stay at the lodge room of PW3, I have already discussed that there is** **CRL.A.Nos.393/655 of 2017** ## **13** **nothing to prove that the said lodge room was booked or arranged by the 3[rd] accused. There is also no direct evidence to prove that the 2[nd] accused had stayed with the 1[st] accused at the said lodge room, and the prosecution has not examined anybody to say that he had seen the two accused jointly staying at the lodge room. Just because the 1[st] accused was seen travelling along with the 2[nd] accused on his motorcycle as pillion rider carrying a bag containing brown sugar, the 2[nd] accused cannot be mechanically found guilty. There must be evidence to prove that the 2[nd] accused had knowledge of the fact that the bag carried by the 1[st] accused had some quantity of Brown Sugar in it, and there must be evidence to show that the 2[nd] accused was also a conscious party to the transportation and possession of Brown Sugar by the 1[st] accused.** **11. PW10, the Detecting Officer would say that** **CRL.A.Nos.393/655 of 2017** ## **14** **when the Excise party led by him intercepted the vehicle, the 1[st] accused, on seeing the Excise party from a distance of 25 meters, tried to escape, but he was immediately caught. When asked why he tried to escape, he answered that he did not have driving licence. PW14 is the Excise Guard who had been in the party led by PW10. The evidence given by this witness is that just when the Excise party intercepted the vehicle, the rider stopped it then and there and immediately he was interrogated. This witness has no case that the rider of the motorcycle had made an attempt to escape. Thus, the two material witnesses have no consistent case on this circumstance against the 2[nd] accused. This circumstance relied on by the prosecution cannot be accepted in the absence of consistent and fool proof evidence.** **12. The case of PW10 is that when he interrogated the accused as regards the contents of** **CRL.A.Nos.393/655 of 2017** **15** **the bag seen carried by the 1[st] accused, no reply was given by the 1[st] accused, but the 2[nd] accused answered that it contained brown sugar. On this material aspect also, the material witnesses have no consistency. PW14 has no specific case that the statement regarding the contents of the bag was given by the 2[nd] accused. He does not specify who among the accused Nos.1 and 2 told the Excise Inspector that the bag contained some quantity of Brown Sugar. In fact, the evidence of PW10 is also not specific as to who exactly divulged it. Anyway, the evidence given by PW15, the other Excise Guard who assisted PW10 in the process of detection is that it was the 1[st] accused who told the Excise Party that the bag contained some quantity of Brown Sugar. This witness has given evidence regarding the seizure of the bag from the possession of the 1[st] accused and when interrogated regarding the contents, the 1[st] accused divulged that it contained some quantity of brown sugar and** **CRL.A.Nos.393/655 of 2017** **16** **a bottle of liquor. The 1[st] accused also stated that the brown sugar was being brought from Goa.** **13. As already stated, PW14 has no case that the rider of the motorcycle had made an attempt to escape. His evidence is that the rider stopped the vehicle just when the Excise Inspector intercepted it and when the Excise Inspector interrogated them, the accused stated that it contained brown sugar. He has no case that the said statement divulging the concealment of Brown Sugar was given by the 2[nd] accused. An examination of the evidence given by PW15 shows that it was really the pillion rider from whose possession the Excise Inspector seized the bag that gave statement as to what the bag contained. Thus, on an examination of the evidence given by PW10, PW14, and PW15, I find that these witnesses have no consistency as to whether the 2[nd] accused had given statement regarding the contents of the bag seized** **CRL.A.Nos.393/655 of 2017** **17** **by the Excise Inspector. The prosecution developed a case that such a statement regarding the contents of the bag was given by the rider of the motorcycle probably with the object of implicating him also as a crime partner. But the material witnesses failed to give consistent evidence proving the complicity of the rider on this aspect beyond reasonable doubt.** **14. Now let me see the statements allegedly given by the 2[nd] accused under Section 67 of the NDPS Act. Ext.P22 is the statement given by him first, and when further interrogated, he gave the Ext.P28 statement also. The prosecution would allege that these statements contain some statements of confession. PW10 is the person who recorded these statements. He is the Detecting officer too. Rather than marking these statements casually, PW10 has not given any definite evidence regarding the contents of the** **CRL.A.Nos.393/655 of 2017** **18** **statements or specifically regarding the confession portion contained therein. Regarding the value and acceptability of the statement given by an accused under Section 67 of the NDPS Act and also regarding its acceptability as a confession statement, this Court has clarified things in** _**Shameer v. State of Kerala [2019 3 KHC 245]**_ **. The statement meant under Section 67 of the NDPS Act is not in fact a statement of confession. Such a statement can be given by anybody during an enquiry or investigation. A confession can be made only by the accused. Any person having knowledge of things or about the facts of a case can give statement under Section 67 of the NDPS Act. If at all, the Ext.P22 or Ext.P28 statement contains anything amounting to confession, the confession part of it must be properly proved in evidence. In** _**Rajan v. State of Kerala [2018 (3) KLT 422]**_ **, this Court has clarified how the confession part must be proved in evidence. Merely marking a statement** **CRL.A.Nos.393/655 of 2017** ## **19** **will not suffice to prove a confession statement. PW10 who recorded the statements has not stated anything about any specific portion in the Ext.P22 and Ext.P28 statements given by the 2[nd] accused, amounting to confession. This Court has also settled that when any statement amounting to confession is recorded under Section 67 of the NDPS Act by the Detecting officer himself, there must be independent corroborating evidence also to prove the statement containing confession. In a case where such statements were recorded by any person other than the detecting officer, such independent corroboration need not be insisted if the evidence given by the person who recorded the statement is trustworthy and acceptable. In this case, the alleged statement containing confession was recorded by the detecting officer himself. He has not specifically proved the statement amounting to confession and there is also no corroborating evidence to prove the statement. In such a** **CRL.A.Nos.393/655 of 2017** **20** **circumstance, reliance cannot be made by the court on the Ext.P22 statement and the Ext.P28 statements given by the 2[nd] accused, and on the basis of these statements, he cannot be found guilty.** **15. As discussed in the foregoing paragraphs, as regards the rôle and complicity of the 2[nd] accused, I find that the prosecution case as against him is really doubtful. The prosecution would allege that the quantity of brown sugar was brought by the accused Nos.1 and 2 jointly from Goa. During the detection process, a train ticket from Goa to Thiruvananthapuram was seized from the possession of the 1[st] accused by the Excise Inspector. It is pertinent to to note that no such train ticket could be seized from the possession of the 2[nd] accused. Had he been a party to the transportation of Brown Sugar from Goa jointly with the 1[st] accused, such a train ticket could have been found in the possession of the 2[nd]** **CRL.A.Nos.393/655 of 2017** **21** **accused also. The only evidence as against the 2[nd] accused is that the 1[st] accused was seen travelling on the motorcycle with the 2[nd] accused as a pillion rider, with a bag containing Brown Sugar. The evidence given by the material witnesses is that the bag was seen placed in between the rider and the pillion rider on the seat of the motorcyle. Evidence shows very well that the bag was in fact held by the pillion rider and that the bag was in fact seized by PW10 from the possession of the pillion rider. He is the 1[st] accused who has not faced trial along with the accused Nos.2 and 3. The 2[nd] accused can be found guilty and convicted by the court as a crime partner only if there is clear and satisfactory evidence to show his complicity, or that he was also a party to the transportation of Brown Sugar from Goa to Kerala, or that the bag containing Brown Sugar was carried by him and the 1[st] accused jointly on the motorcycle of which he was the rider. When such evidence is not there, or** **CRL.A.Nos.393/655 of 2017** ## **22** **when the evidence and circumstances relied on by the prosecution are not sufficient to prove his complicity, or when the circumstances projected against him are really doubtful, the 2[nd] accused cannot be found guilty and convicted by the court as a crime partner. There is nothing satisfactory to show that he had involvement or rôle in the possession and transportation of Brown Sugar by the 1[st] accused, and he is being prosecuted just because the 1[st] accused was seen travelling along with him as pillion rider. Thus, I find that the evidence adduced by the prosecution is not sufficient and satisfactory to find the 2[nd] accused guilty. Thus, he is also entitled for acquittal on the benefit of doubt.** **In the result both the appeals are allowed. The two appellants, who are respectively the accused Nos.2 and 3, in SC 954/2013 of the court below are found not guilty of the offence under** **CRL.A.Nos.393/655 of 2017** **23** **Section 21 (c) read with Section 29 of the NDPS Act and they are acquitted of the said offences in appeal under Section 386(b)(i) of the Cr.P.C. Accordingly, The conviction and sentence against them in S.C 954/2013 of the court below will stand set aside and they will stand released from prosecution. The bail bond if any, executed by them will stand discharged. The amount, if any, deposited by them in the court below as a condition for suspension of sentence shall be refunded.** **SD/-** /True copy/ **P.UBAID** P.S to Judge ma **JUDGE**