Crl.R.P. No. 775 of 2007 (In SC 1306/2004, Addl. Sessions Court (Fast Track II), Thalassery)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **Crl.Rev.Pet.No.775 of 2007** ## **IN SC 1306/2004 of ADDITIONAL SESSIONS COURT (FAST TRACK II), THALASSERY** ## **REVISION PETITIONERS/ACCUSED NOS.6 & 7:** **1 P.T.YESUDAS, S/O.THOMAS, PARAPPURATH HOUSE, VAYATHUR AMSOM, NELLIKAMPOYIL. 2 K.C.JOHN, S/O.CHACKO, KOVILAKATH VEEDU VAYAATHUR AMSOM, ULIKKAL. BY ADV. SMT.K.V.RASHMI** ## **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **P.P. SRI C.K. PRASAD** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.775/2007 2 ## **O R D E R** The petitioners are accused Nos.6 and 7 in S.C.No.1306/2004 on the files of the Additional Sessions Judge (Fast Track II), Thalassery (for short 'the trial court'). The case was taken on file by the trial court based on a final report filed by the Circle Inspector of Police, Mattannur in Crime No.122/1999 of Mattannur Police Station, true copy of which is produced along with the petition on hand as Annexure A. The offences for which the petitioners were charged with in Annexure A are those punishable under Section 55(a) of the Abkari Act (for short 'the Act') and Rule 6 of the Kerala Rectified Spirit Rules, 1972 (for short 'the Rules, 1972'). 2. As per the allegations of the prosecution in Annexure A on 9.5.1999 the accused alongwith other accused in the crime transported rectified spirit from M/s.Gemini Solvents at Elambara in violation of the provisions of the license issued to them under law. The further allegation was that petitioners who are Excise Guards deployed therein to restrain the unauthorised transport of spifit therefrom abetted the co-accused to do accordingly. 3. On the basis of the allegations, Crime No.122/1999 was registered at Mattannur Police Station. The lorry allegedly used Crl.R.P.No.775/2007 3 for transportation of the spirit was seized and the accused were arrested. In S.C.No.1306/2004 a charge was framed by the court against the petitioners alleging that they abetted the commission of the offence under Section 55(a) of the Act by the other accused and therefore is guilty of the offence under Section 109 IPC r/w Section 55(a) of the Act and liable to be tried for that. The true copy of the charge framed by the court as above is appended to the petition on hand as Annexure B. 4. It is contended by Smt.Rashmi.K.V, on behalf of the revision petitioners that they were on duty at M/s.Gemini Solvents at Elambara on 8.5.1999 and 9.5.1999. But, with their consent no single drop of spirit had gone out of the company. The Circle Inspector of Excise was the custodian of the keys of the spirit tanks and is duty bound to open the tanks on the requirement of the officials of M/s.Gemini Solvents, but, he was not implicated as an accused in the crime. In the inspection conducted in the spirit store tank on 5.5.1999, it was revealed that the tank contained 30681 litres of spirit. During the course of inspection on 9.5.1999, in the spirit store tank a loss of 280 liters of spirit was found, making the total quantity of spirit available as 30401 litres. According to her, the petitioners are implicated without basis and Annexure B is liable to be quashed. Crl.R.P.No.775/2007 4 5. Raising the grounds as aforesaid, the learned counsel seeks to quash Annexure B and all further proceedings so far initiated against the petitioners in S.C.No.1306/2004 pending on the files of the trial court to secure the ends of justice. Annexure B charge is extracted heredunder: “That on 9.5.1999 at 4.30 pm at the place Elampara, the 1[st] and 2[nd] accused among you were found to be transported spirit in 61 cannases of 35 liters each in violation of Rule 6 of the Kerala Rectified Spirit Rules and thereby the accused Nos.1 and 2 committed the offence u/s 55(a) of the Abkari Act. That accused Nos.6 and 7 among you abetted intentionally aiding by illegal omission to prevent the transport of spirit and thereby accused Nos.6 and 7 committed offence u/s 109 IPC r/w Sec. 55(a) of the Abkari Act which are within the cognizance of this court. And is hereby directed that you be tried for that offence before this court.” 6. The specific allegation against the petitioners in Annexure B was that they, as Excise Guards, deputed to safeguard unauthorised transportation of spirit by their intentional omission allowed the same committed by accused Nos.1 and 2. For charging so there must be specific allegation to the effect for the prosecution in the charge sheet filed, the relevant portion of which is extracted hereunder: "ക�ഴലൂ�ർ അ�ശ� എള� പ�റ എന സലത 3-ആ� പത� മ�ന�ജ�ങ� ഡയറകറ�യ�4,5 പത�കൾ ഡയറകർമ�ര�യ� കക�ണ� റക�ഫ(ഡ� സ�ര�ട� ഉപനയ�ഗ�ച� ഈഫതൽ അസഫ1സ�എന ഉൽപന� ഉണ�കനത�ന� Crl.R.P.No.775/2007 5 ആയത�ന കറക�ഫ(ഡ� സ�ര�1� വ�ങ� വന സക�കനത�ന� ഉപനയ�ഗ�കനത�ന 1/93-94 ഫലസൻസളതമ�യ ജമ�� നസ�ളവൻസ� ഫപവ1� ല�മ�1ഡ എന സ�പ�ത�ൽ സ�ര�1�ക? ഉപനയ�ഗ� ദർവ���നയ�ഗ� കAയ�കത ന��ക� സ�രക�കനത�ന നവണ� എ ക�സ� ഗ�ർഡമ�ര�യ 6, 7 പത�കൾ കമ��യ�ൽ ഗ�ർഡ� ഡട� ഉണ�യ�ര�കക 3 മതൽ പത�കളകട അറ�നവ�ട� സമതനത�ട� അനവ�ദകത�ട� കട� നമൽ പറഞ കമ��യ�ൽ ��ന സ�ര�1� ദർവ���നയ�ഗ� കAയ 9.5.99 ത�യത� 35 ltr വ�ത� കക�ളന 61 പ�സ�ക� കന�സകള�ൽ സ�ര�1� ��റച യ�കത�ര വ�ധ നരഖകളമ�ല�കത കടത�കക�ണ നപ�കനത���യ� KL 10 C – 6010 �മ മ��� നല�റ�യ�ൽ കയ1� ഒന�� പത� ഫ\വറ�യ� കമ�� നമന�ജര�യ രണ�� പത� KL 11 – 3954 �മ ജ�പ�ൽ വഴ�ക�മമ�ല�യ� ��യന�ച കക�ണ� മന�ല�യ� ഓട�ച കടത�കക�ണ നപ�കനത�യ� 9.5.99 ത�യത� പലർകച 4.30 മണ� സമയത� ക�ഴലർ അ�ശ� എള� പ�റ എന സലതള നമൽ കമ��യ�ൽ ��ന� മടനർ കണർ നപ�കന നറ�ഡ�നലകളത�യ പലനയ�ട� ജ�ഗ�bൻ അടത��ന� പമ� നറ�ഡ�ൽ വച� സ�ക�കള�ൽ ക�ണകപട�ര�കയ�ൽ പത�കൾ ഓനര�രതര� u/s 55 (a) of Abkari Act, 16/98 of Abkari Amendment Act and 6 of Kerala rectified spirit Rule 1972 എന� വകപകൾ പക�ര� ശ�ക�ർഹമ�യ ക1� കAയ�ര�കന.” 7. There is nothing in the above extract to show that the petitioners by their omission intentionally aid in the commission of the offence under Section 55(a) of the Act by accused Nos.1 and 2 under Section 107 IPC, what would constitute abetment is Crl.R.P.No.775/2007 6 described. Therefore, Section 107 IPC is extracted hereunder: **“107. Abetment of a thing-** A person abets the doing of a thing, who- First - Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or ThirdlyIntentionally aids, by any act or illegal omission, the doing of that thing.” 8. In order to constitute abetment, the abettor must instigate any person to do a thing or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or intentionally aids, by any act or illegal omission, the doing of that thing. Therefore, acts either affirmative or negative would tantamount to abetment. But there must be evidence to show that the person abetted has done something or omitted to do something with intention to aid in the commission of offence by co-accused. It has been held by the Apex Court in **Praveen Pradhan v. State of Utharanchal & another** (2012(10) JT 478) that the offence of abetmet by instigation depends upon the intention of the person who abets and not upon the act which the person has done. Therefore, in order to establish abetment, Crl.R.P.No.775/2007 7 the prosecution must plead that the alleged abettor has done something or omits to do something intentionally to drive the main culprits to commit the offence. 9. As revealed from the extract of Annexure A above, petitioners were on guard duty at M/s.Gemini Solvents and with the knowledge and connivance of accused Nos.3 to 5, rectified spirit was unauthorisedly transported in 61 plastic cannas each having the capacity of 35 liters on 9.5.1999 in a lorry bearing registration No.KL/10-6010. The 1[st] accused was the driver of the mini lorry and the 2[nd] accused was the driver of the jeep, which was plied ahead of the lorry so as to direct and control its movement. 10. As per the allegations no accusation was levelled against accused Nos.6 and 7 apart from a statement that the offences alleged was committed while the petitioners were on guard duty at the premises of the company. There is no allegation that spirit was unauthorisedly transported in a mini lorry bearing registration No.KL/10-6010 by accused Nos.1 and 2 as instigated by petitioners or pursuant to conspiracy of the petitioners with the main culprits or by intentionally aiding the main culprit by any act or illegal omission. In the absence of an allegation of the nature in Annexure A, the trial court is unjustified in passing Annexure B Crl.R.P.No.775/2007 8 order framing charge against the petitioners under Section 109 IPC r/w Section 55(a) of the Act. In the said circumstances Annexure B charge, to the extent it charges petitioners, who are accused Nos.6 and 7 for an offence punishable under Section 109 IPC r/w 55(a) of the Act is liable to be set aside. In the result, Crl.M.C is allowed. Annexure B charge to the extent it charges accused Nos.1 and 2 for the offence punishable under Section 109 IPC r/w 55(a) of the Act is set aside and the same to the extent it charges accused Nos.1 and 2 for the offences punishable under Section 55(a) of the Act is maintained. Consequently accused Nos.6 and 7 are discharged. Sd/- **MARY JOSEPH** **JUDGE** ab Crl.R.P.No.775/2007 9 PETITIONERS ANNEXURES: ANNEXURE A : COPY OF THE RELEVANT PORTION OF THE FINAL REPORT ANNEXURE B : COPY OF THE CHARGE FRAMED ON 3.10.2006 IN S.C.NO.1306/2004 RESPONDENTS ANNEXURE: NIL //TRUE COPY// P.A TO JUDGE ab