Jobin Joseph, Reni K.T., Lenju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** **CRL.MC NO. 4806 OF 2021** **AGAINST SC 160/2021 PENDING ON THE FILES OF IV ADDITIONAL SESSIONS** **COURT, THODUPUZHA** ## **PETITIONERS/ACCUSED NOS.5,8 & 9:** **1 JOBIN JOSEPH AGED 29 YEARS S/O. P.V. JOSEPH, PUTHENPARAMBIL HOUSE, ETTICHUVADU P.O, ANGADI VILLAGE, RANNI TALUK, MANNARATHARA, PATHANAMTHITTA DISTRICT, PIN - 689675. 2 RENI K.T. AGED 36 YEARS S/O. THANKAPPAN, KARIMKUTTY LAKSHAM VEEDU HOUSE, NELLICKAMON P.O, ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN - 689674. 3 LENJU AGED 26 YEARS S/O. MONCY, MEPPURATHU HOUSE, SEETHATHODU P.O, ANACHANDA, KONNI TALUK, PATHANAMTHITTA DISTRICT. PIN-689 667 BY ADV M.REVIKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. BY ADV GOVERNMENT PLEADER** **PP - SRI. M.C.ASHI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **04.01.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4806 of 2021 2 ## **ORDER** Petitioners are accused Nos.5, 8 and 9 respectively in S.C.No.160/2021 on the file of the Additional Sessions Court-IV, Thodupuzha which arose from the final report in Crime No.26/2017 of Kumily police station. The crime was registered on 10.01.2017 on the basis of the information furnished by one Happy Mon, Preventive Officer in Excise check post, Kumily. The prosecution allegation is that on 10.01.2017 at 11.00 a.m, while the Excise party headed by the Preventive Officer had inspected KSRTC bus bearing Reg.No.KL.15-A-503 which was plying between Madurai and Thiruvalla, at Kumily check post, they came across 25,500 ordinary detonators and 3,000 electric detonators which were found kept beneath the seat of the bus. When the Excise Preventive Officer and party started inspecting the vehicle, accused Nos.1 to 3 who were travelling in the bus who had allegedly carried the items and transported it through the bus, left the scene. Thus the Excise Preventive Officer found it in an abandoned position. The matter was intimated to the police Crl.M.C.No.4806 of 2021 3 and on that basis the crime was registered by Additional Sub Inspector, Kumily police station alleging offence under Sections 4 and 5(i) of the Explosive Substances Act, 1908. On the basis of C.C.T.V footages, it came out that it was accused Nos.1 to 3 who had left the scene when the Excise officials had started inspecting the bus. Later they were identified and arrested and on their confession, it came out that the items were procured by accused Nos.4 to 9 and thus their names were also incorporated as accused persons. On conclusion of investigation, charge sheet was laid against accused persons, nine in number alleging offence under Sections 9 B (1) (b) of the Explosives Act, 1884 and Sections 4 and 5 of the Explosive Substances Act, 1908. The charge sheet was laid before the Judicial First Class Magistrate’s Court, Peerumedu and then the case was committed and thus it came before the Additional Sessions Court–IV, Thodupuzha. Now the petitioners have moved this Court for quashing the proceedings against them. According to them they are totally innocent. There is absolutely no material to connect their involvement in the Crl.M.C.No.4806 of 2021 4 alleged crime, their names have been incorporated on the basis of the confession statement given by Accused Nos.1 to 3 alone which is totally unacceptable and illegal; further relying on Annexure-E order of this Court in Crl.M.C.No.4512/2020, they submit that the case against the fourth accused already stands quashed and therefore, they are in a better position and that they are also entitled to get the very same treatment. Therefore, entire proceedings are sought to be quashed. 2. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor. 3. The learned counsel for the petitioners submitted that the petitioners are better placed than the fourth accused who stands exonerated, that the allegations are raised against them merely on the basis of the confession statements given by coaccused persons which are not admissible in evidence and therefore there is no meaning in proceeding against them. The learned counsel also placed reliance on the decisions reported in **Suresh Budharmal Kalani @ Paapu Kalani v. State of** Crl.M.C.No.4806 of 2021 5 **Maharashtra [AIR (1998) SC 3258], Dipakbhai Jagdish Chandra Patel v. State of Gujarat and another [AIR (2019) SC 3363]** and also **Murukadas @ Murukan v. State of Kerala** . **[2020 (2) KLT 503]** 4. I heard the learned Senior Public Proseutor also. He has caused to file a statement by the Investigating Officer, Dy.SP District Crime Branch, ‘C’ Branch, Idukki. 5. It is the common case that the crime was registered on 10.01.2017, after seizing 25500 ordinary detonators and 3000 electric detonators, which were being illegally transported in KSRTC bus No.KL.15-A-503 which was plying between Madhura and Thiruvalla. The seized items were found when the Preventive Officer and party were inspecting the vehicle at the check post, Kumily. When the Preventive Officer and party started inspecting the vehicle, accused Nos. 1 to 3 alighted from the bus and vanished from the scene. That was noticed from the C.C.T.V footages and thereafter, they were identified and arrested. In the FIR, no one has been named but only stated that the crime Crl.M.C.No.4806 of 2021 6 was committed by three identifiable persons. After identifying them, they were shown as accused Nos.1 to 3. All of them were arrested and their confession statement led to the incorporation of the names of other accused. Some of them have already been arrested and released on bail and some others obtained anticipatory bail from the court. 6. As rightly pointed out by the learned counsel for the petitioners, there is only the confession statement of the coaccused persons to connect the petitioner and therefore, there is substance in the arguments raised by the learned counsel for the petitioners. 7. After hearing counsel on both sides and also verifying the statement filed by the Investigating Officer, I have no doubt that absolutely no materials are available for proceeding against the petitioners. It is the settled proposition of law that if only there are legally acceptable materials produced by the prosecution, there is point in proceeding against the accused persons. There are numerous circumstances to say that the Crl.M.C.No.4806 of 2021 7 prosecution does not have tangible evidence against the petitioners. Firstly, as stated earlier, the prosecution allegation is that it was accused persons 6 and 7 who had procured the explosive substances from a place by name Kanmai near Theni and then sold it, with the intention of obtaining profit, to accused Nos.1 to 5, 8 and 9. In this connection, the following statement of the Dy.S.P is worth to be highlighted. “ From the investigation, it is revealed that the seized detonators were purchased from Tamil Nadu and the vehicle of A4 was used for the transportation of detonators from Sivakulam Kanmai to Cumbum. A5 Jobin Joseph, A8 Reny and A9 Lenchu also accompanied other accused to carry the detonators. It is mentioned in the confession statement of the A1, A2 and A3. In the confession of the A4 revealed that the seized items were purchased for selling to earn high profit.” 8. According to the prosecution, they had transported it knowing the fact that, if the items were handed over to antisocial elements it would have been used for extremist activities. That means, even the case of the prosecution is that the name of these persons, that is accused Nos.5, 8 and 9 were incorporated solely Crl.M.C.No.4806 of 2021 8 on the basis of the confession statement given by accused Nos.1 to 3. As rightly pointed out by the learned counsel for the petitioners, it is a very weak piece of evidence which cannot be used unless corroborated through independent sources. 9. Secondly, I have also carefully gone through the list of witnesses and points to be proved by them. There are 27 witnesses in the charge sheet. But none of them has stated that they have seen accused Nos.5, 8 and 9, the petitioners, were seen dealing with the items. In other words, solely on the basis of the confession statements of accused Nos.1 to 3, they have been arrayed as the accused persons. 10. Moreover, the fourth accused who had played identical or higher role stands exonerated by Annexure-E order. The prosecution allegation is that the items were carried by accused Nos.4 to 9 from Sivakulam Kanmai to Cumbum. From Cumbum only accused Nos. 1to 3 had procured it and transported up to Kumily. The items were carried in the vehicle of the fourth accused. These petitioners, who are accused Nos. 5, 8 and 9 have Crl.M.C.No.4806 of 2021 9 allegedly travelled along with fourth accused in the car when the items were transported from Sivakulam Kanmai to Cumbum. There is no material that they were privy to the transportation of such an item from Sivakulam Kanmai to Cumbum. Moreover, the fourth accused, in whose vehicle the items were transported from Sivakulam Kanmai to Cumbum stands exonerated. The role played by these petitioners is less serious compared to the fourth accused who stands exonerated. In the circumstances, in the absence of legal evidence to proceed against, the petitioners are entitled to be exonerated as done in the case of the fourth accused. In the result, the Crl.M.C will stand allowed. The case against accused Nos.5, 8 and 9 is quashed and they shall stand exonerated. Sd/- **K.HARIPAL** **JUDGE** //True Copy// P.A to Judge Jms/31.12 Crl.M.C.No.4806 of 2021 10 ## **APPENDIX OF CRL.MC 4806/2021** |**PETITIONER ANNEXURES**|| |---|---| |**Annexure A**|**TRUE COPY OF THE F.I.R IN CRIME NO. 26/2017**| ||**OF KUMILY POLICE STATION, IDUKKI DISTRICT.**| |**Annexure B**|**TRUE COPY OF THE FINAL REPORT IN CRIME NO.**| ||**26/2017 OF KUMILY POLICE STATION, IDUKKI**| ||**DISTRICT.**| |**Annexure C**|**TRUE COPY OF THE STATEMENT OF CW20 FORMING**| ||**PART OF THE FINAL REPORT.**| |**Annexure D**|**TRUE COPY OF THE LOCATION MAHAZAR DROWN UP BY**| ||**CW24 PURSUANT TO THE ALLEGED DISCLOSURE MADE**| ||**BY ACCUSED NO. 6.**| |**Annexure E**|**TRUE COPY OF THE ORDER PASSED BY THIS**| ||**HONOURABLE COURT IN CRL.M.C NO. 4512 OF 2020**| ||**DATED 29.07.2021.**| |**Annexure F**|**TRUE COPY OF THE STATEMENT FILED BY THE**| ||**DEPUTY SUPERINTENDENT OF POLICE, DISTRICT**| ||**CRIME BRANCH IN CRL.M.C NO. 4512 OF 2020 AS**| ||**DIRECTED BY THIS HONOURABLE COURT DATED**| ||**16.07.2021.**|