Karuvangadan Mukthar @ Muthu v. The Deputy Superintendent of Police, Narcotic Cell, Malappuram and The State of Kerala represented by Public Prosecutor, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 3[RD] DAY OF JUNE 2021 / 13TH JYAISHTA, 1943** **CRL.MC NO. 2631 OF 2021** **AGAINST THE ORDER DATED 05.05.2021 IN CMP 982/2021 IN** **S.C.NO.99/2013 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE- III,** ## **MANJERI** **PETITIONERS/ACCUSED 1 TO 18, 20 & 21:** - **1 KARUVANGADAN MUKTHAR @ MUTHU, AGED 38 YEARS, S/O.UMMERHAJJI, CHEMBRAKATTUR, AREEKODE, MALAPPURAM.** - **2 RASHID @ VAVA, S/O.UMMER, AGED 31, KOZHISSERIKUNNATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **3 RASHEED @ SUDANI RASHEED, S/O.ABDUL HAMEED, AGED 31, MUNDASSERI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **4 CHOLAYIL UMMER, S/O.IBRAHIM, AGED 43, THAZHATHEYIL HOUSE, KEEZHIPARAMBA AMSOM, KUNIYIL.** - **5 MUHAMMED SHAREEF @ CHERRI, S/O. MARAKKARUKUTTY, AGED 41, VILANGOTH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **6 KURUMADAN ABDUL ALI, S/O. MUHAMMED, MADATHIL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **7 FADALU RAHMAN, S/O. ABDULLA, AGED 29, ERUMANKUNNATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **8 MUHAMMED FATHEEN, S/O. ABDUL RAZAK, AGED 29, KIZHAKKETHODI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **9 MADHURAKUZHIYAN MAHSOOM, S/O. ALIMON, AGED 36, MADURAKUZHIYAN HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **10 EDAKANDDI SANIZ @ CHERUMANI, S/O. MARAKKARUKUTTY, AGED 38, VILANGOTH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **11 PILAKKALKANDI SHABEER @ INNIKUTTAN, S/O. PAREETHKUTTY, AGED 30, MATHANATHULCUZHI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **12 ANASMON, S/O. MAMUKKUTTY, AGED 29, KOLOTHUMTHODI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** **Crl.M.C.Nos.2631 & 2639 of 2021** **2** - **13 NIYAS, S/O. MUHAMMED, AGED 31, ERUMANKADAVATHU HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL** - **14 NAVAS SHAREEF @ THONNIPPA, S/O. AHAMMEDKUTTY, AGED 31 ALUNGAL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **15 MUJEEB RAHMAN, S/O. KUNCHIRAYIN, AGED 45, METHAL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **16 KURUVANGADAN SHARAFUDHEEN, S/O. UMMER HAJJI, AGED 46, KURUVANGADAN HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **17 ABDUL SABOOR KOTTA, S/O. AHAMMEDKUTTY KOTTA, AGED 45, SRAMBIKKAL HOUSE, KEEZHUPARAMBA AMSOM, OTHUPALLIPURAZHA.** - **18 ERUMAKADAVATH SAFARULLA, S/O. MUHAMMED, AGED 39, ERUMANKADAVATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **19 YAZIR, S/O. MUHAMMED, AGED 34, ERAMANKADAVATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **20 KUTTIPURATHCHALI RIYAS, S/O. SIRAJUDHEEN, AGED 39, CHEEKULATH HOUSE, AREEKODE AMSOM, PERUMBARAMBA.** - **BY ADV SUNNY MATHEW** ## **RESPONDENTS:** - **1 THE DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, MALAPPURAM-676509.** - **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **BY SRI.M.R.DHANIL, PUBLIC PROSECUTOR** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **03.06.2021, ALONG WITH Crl.MC.2639/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.Nos.2631 & 2639 of 2021** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 3[RD] DAY OF JUNE 2021 / 13TH JYAISHTA, 1943** **CRL.MC NO. 2639 OF 2021** **AGAINST THE ORDER DATED 06.05.2021 IN CMP 989/2021 IN** **S.C.99/2013 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-III,** ## **MANJERI** **PETITIONERS:** - **1 KARUVANGADAN MUKTHAR @ MUTHU, AGED 38 YEARS S/O.UMMERHAJI, CHEMBRAKATTUR, AREEKODE, MALAPPURAM.** - **2 RASHID @ VAVA, AGED 31,** - **S/O.UMMER, KOZHISSERIKUNNATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **3 RASHEED @ SUDANI RASHEED,S/O.ABDUL HAMEED, AGED 31, MUNDASSERI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **4 CHOLAYIL UMMER, S/O.IBRAHIM, AGED 43, THAZHATHEYIL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **5 EDAKKANDI MUHAMMED SHAREEF @ CHERRI, AGED 41, S/O.MARAKKARUKUTTY, VILATHOTHU HOUSE, KUNIYIL, ANWAR NAGAR, KEEZHUPARAMBA AMSOM.** - **6 KURUMADAN ABDUL ALI, S/O.MUHAMMED, MADATHIL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **7 FADALU RAHMAN, AGED 29, S/O.ABDULLA, ERUMANKUNNATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **8 MUHAMMED FATHEEN, S/O.ABDUL RAZAK, AGED 29, KIZHAKKETHODI HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** **Crl.M.C.Nos.2631 & 2639 of 2021** **4** - **9 MADHURAKUZHIYAN MAHSOOM AGED 36, S/O.ALIMON, VADAKKECHALI HOUSE, ANWAR NAGAR, KUNIYIL, KEEZHUPARAMBA AMSOM.** - **10 EDAKANDI SANIZ @ CHERUMANI, S/O.MARAKKARUKUTTY, AGED 38, VILATHOTHU HOUSE, KUNIYIL, EEMAL NAGAR, KEEZHUPARAMBA AMSOM.** - **11 PILAKKALKANDI SHABEER @ ENNIKUTTAN, S/O.PAREETH, AGED 30, MATHANATHUKUZHIYIL HOUSE, KUNIYIL, ANWAR NAGAR, KEEZHUPARAMBA AMSOM.** - **12 ANAS MON KOLOTHUMTHODI, S/O.MAMUKKUTTY, AGED 29, ALUMKANDI HOUSE, KUNIYIL, ANWAR NAGAR, KEEZHUPARAMBA AMSOM.** - **13 NIYAS, S/O.MUHAMMED, AGED 31, ERUMANKADAVATHU HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **14 NAVAS SHAREEF @ THONNIPPA, S/O.AHAMMEDKUTTY, AGED 31, ALUNGAL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **15 MUJEEB RAHMAN, S/O.KUNCHIRAYIN, AGED 45, METHAL HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **16 KURUVANGADAN SHARAFUDHEEN @ CHERIYAPPU, S/O.UMMER, AGED 46, NADUPATTIL HOUSE, KUNIYIL, KEEZHUPARAMBA AMSOM.** - **17 ABDUL SABOOR KOTTA S/O.AHAMMEDKUTTY KOTTA, AGED 45 SRAMBIKKAL HOUSE, KEEZHUPARAMBA AMSOM, OTHUPALLIPURAZHA.** - **18 ERUMAMKADAVATH SAFARULLA @ SAFAR S/O.MUHAMMED, AGED 39 ALUMKANDI HOUSE, KUNIYIL, KEEZHUPARAMBA AMSOM.** - **19 YAZIR, S/O.MUHAMMED, AGED 34, ERAMANKADAVATH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL.** - **20 KUTTIPURATHCHALI RIYAS, S/O.SIRAJUDHEEN, AGED 39 CHEEKULATH HOUSE, AREEKODE, AMSOM, PERUMBARAMBA. BY ADV SUNNY MATHEW** **Crl.M.C.Nos.2631 & 2639 of 2021** **5** ## **RESPONDENTS:** - **1 THE DEPUTY SUPERINTENDENT OF POLICE NARCOTIC CELL, MALAPPURAM - 676 509.** - **2 THE STATE OF KERALA REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY SRI.M.R.DHANIL, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **03.06.2021, ALONG WITH Crl.MC.2631/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.Nos.2631 & 2639 of 2021** **6** ## **ORDER** **Dated this the 3[rd] day of June, 2021** These two petitions were originated from orders passed by Additional Sessions Judge III, Manjeri (for short ‘the court below’) respectively in Crl.M.P.Nos.982/2021 and 989/2021 on 05.05.2021 and 06.05.2021, filed in S.C. No.99/2013. 2. The court below has dismissed Crl.M.P.No.982/2021 filed by the petitioners herein and declined their prayer for recalling PW14 to controvert him on the veracity and admissibility of originals of certain documents got marked in evidence by the prosecution at a later point of time. The prayer was declined by the court below for more than one reasons. The first reason was that the witness was already cross examined by the counsel for the petitioners at a time when the photocopies of the documents were marked through him and brought on record by the prosecution. At the relevant time when the originals of the documents were produced and witness PW14 was recalled for examination by the prosecution the counsel for the petitioners **Crl.M.C.Nos.2631 & 2639 of 2021** **7** was absent and therefore could not cross examine the witness. According to the trial court the petitioner now seeks for an opportunity to cross examine a witness, which was already availed and exercised by him when the photocopies of the documents were marked in evidence by the prosecution through him. Yet another reason stated by the court in the impugned order while discarding the prayer of the petitioner was that, a direction had been issued by this Court for expeditious disposal of the case during the tenure of the Judicial Officer itself and therefore, grant of the relief sought would disable it to comply with that direction. 3. This Court finds that at the time when the original documents were marked by the prosecution through PW14 the counsel for the petitioners was absent and therefore, the witness could not be controverted on the veracity and admissibility of the documents. As rightly pointed out by the learned counsel since the prosecution has got the photocopies of the documents marked earlier through PW14, he abstained from cross examining the witness and challenging the documents on the premise that, he could take the advantage by apprising on it's relevancy and admissibility during the course of argument. But, the prosecution **Crl.M.C.Nos.2631 & 2639 of 2021** **8** produced the originals of the documents and got those marked by recalling PW14. Since he was absent, he could not cross examine the witness on the basis of the original documents. Therefore, he applied for an opportunity for the purpose by filing Crl.M.P No.982/2021 but, to his utter dismay, it was dismissed by the court. 4. The learned counsel has relied on **Anokhilal v. State of Madhya Pradesh [2019 (2) KLD 121 (SC)]** wherein the Apex Court has stated in Paragraph 19, extracted hereinbelow: “19. In the circumstances, going by the principles laid down in Bashira, we accept the submission made by Mr.Luthra, the learned Amicus Curiae and hold that the learned counsel appointed through Legal Services to represent the appellant in the present case ought to have been afforded sufficient opportunity to study the matter and the infraction in that behalf resulted in miscarriage of justice. In light of the conclusion that we have arrived at, there is no necessity to consider other submissions advanced by Mr.Luthra, the learned Amicus Curiae. All that we can say by way of caution is that in matters where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused.” (Emphasis supplied) Thus a general direction has been issued by the Apex Court that in a case wherein it is possible to award a death **Crl.M.C.Nos.2631 & 2639 of 2021** **9** sentence as punishment, courts holding trial of such offences shall grant full opportunity to the accused to take all measures to defend the case against him. 5. The learned Public Prosecutor has submitted that the trial in the case was started in the year 2018 and it has not been completed till date. According to him 273 witnesses have already been examined and large number of documents have already been placed on record by the prosecution. According to him, in view of the large volume of evidence involved and the outbreak of the second wave of pandemic that the trial was prolonged. 6. This Court also finds from the arguments advanced that a genuine demand of the learned counsel for the accused to cross examine a witness recalled by the prosecution was denied by the court. The reasoning of the court while declining the demand is not convincing to the conscious of this Court. True that courts are bound to obey the directions issued by a higher court for expeditious disposal or time bound disposal. But, in the process, courts must be cautious to see that justice to the accused facing trial shall not be compromised. In **Anokhilal** supra, that was the message given by the Apex Court to the trial **Crl.M.C.Nos.2631 & 2639 of 2021** **10** court. This Court has no hesitation in the factual context to hold that the court below by dismissing Crl.M.P No.982/2021 has denied a valuable opportunity to the accused without sufficient reasons and expressively in it's hurry to dispose of the case, is unjustified. For the reason, the order issued by it and under challenge in this proceedings is liable to the reversed. 7. In the above circumstances, Crl.M.C.No.2631 of 2021 stands allowed and the impugned order stands set aside. The court below shall allow Crl.M.P No.982/2021 and shall permit the petitioners to recall PW14 and grant reasonable opportunity to the defence counsel to cross examine the said witness based on the original documents marked by the prosecution after recalling him. 8. The challenge in Crl.M.C.No.2639/2021 is against the order of the trial court dismissing the prayer of the petitioners to adjourn the hearing of the case to a day other than the day already scheduled. In view of the outbreak of the second wave of Covid-19 Pandemic and non-functioning of the courts itself, the impact of the order has gone. Since Crl.M.C.No.2631/2021 stands allowed by this Court and opportunity now stands granted to the **Crl.M.C.Nos.2631 & 2639 of 2021** **11** petitioners to recall PW14 and cross examine him based on the original documents got marked in evidence by the prosecution, the trial will be prolonged. The learned counsel and the prosecutor have also apprised this Court at this juncture that the Judicial Officer who was holding the trial in S.C. No.99/2013 was already transferred by orders of General Transfer and a new officer has already taken charge of the office of Additional Sessions Court-III, Manjeri. 9. Sri.S.Rajeev, the learned counsel on behalf of the defacto complainant has submitted that since evidence of the prosecution is voluminous, it is better that the case be disposed of by the Officer who has recorded the evidence and the direction issued by this Court vide order passed in O.P.(Crl.) No.357/2020 on 21.12.2020 to the Judicial Officer was also to dispose of the case during her tenure itself. According to him, he has moved an application before the Registrar General of this Court with a view to get a favourable order and seeks for issuance of a direction to consider the same at the earliest. Since orders of transfer has already been issued and the transferee officers now stands taken charge of the courts in their respective stations on 31[st] May, 2021, **Crl.M.C.Nos.2631 & 2639 of 2021** **12** this Court is hesitant to issue the direction sought by the defacto complainant. By virtue of the order now stands passed in Crl.M.C No.2631/2021 granting opportunity to the petitioners to recall PW14 and cross examine him, passing of an order to reverse the order in Crl.M.P.No.989/2021 is found unnecessary. Consequently Crl.M.C. No.2639/2021 stands closed. **Sd/-** **MARY JOSEPH JUDGE** **NAB** **Crl.M.C.Nos.2631 & 2639 of 2021** **13** ## **APPENDIX OF CRL.MC 2631/2021** ## **PETITIONERS' ANNEXURES:** |**ANNEXURE A1**|**TRUE COPY OF THE ORDER DATED 07/04/2021 IN CRL.**| |---|---| ||**MC NO/. 1952/2021 PASSED BY THE HONOURABLE HIGH**| ||**COURT OF KERALA.**| |**ANNEXURE A2**|**TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY**| ||**THE HEAD OF THE DEPARTMENT OF UROLOGY, IQRAA**| ||**HOSPITAL, KOZHIKODE TO ACCUSED NO.11.**| |**ANNEXURE A3**|**TRUE COPY OF THE DIRECTION ISSUED BY THE**| ||**ADDITIONAL SESSIONS JUDGE TO THE COUNSEL FOR THE**| ||**11TH PETITIONER/11TH ACCUSED.**| |**ANNEXURE A4**|**TRUE COPY OF THE PETITION DATED 04/05/2021 FILED**| ||**BY THE COUNSEL FOR THE 11TH PETITIONER /11TH**| ||**ACCUSED.**| |**ANNEXURE A5**|**TRUE COPY OF THE MEDICAL CERTIFICATE DATED**| ||**04/05/2021 OF THE 11TH PETITIONER.**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER DATED 05/05/2021 PASSED BY**| ||**THE ADDITIONAL SESSIONS COURT-III, MANJERI IN CMP**| ||**NO.982/2021.**| |**ANNEXURE A7**|**TRUE COPY OF THE ORDER DATED 21/12/2020 IN**| ||**OP(CRL) NO.357/2020 PASSED BY THE HONOURABLE HIGH**| ||**COURT OF KERALA.**| **RESPONDENTS' ANNEXURES: NIL** **Crl.M.C.Nos.2631 & 2639 of 2021** **14** ## **APPENDIX OF CRL.MC 2639/2021** |P**ETITIONERS' ANNEXURES :**|P**ETITIONERS' ANNEXURES :**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE ORDER DATED 07/04/2021 IN**| ||**CRLM.C.NO.1952/2021 PASSED BY THE HONBLE HIGH**| ||**COURT OF KERALA.**| |**ANNEXURE A2**|**TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY**| ||**THE HEAD OF THE DEPARTMENT OF UROLOGY, IQRAA**| ||**HOSPITAL, KOZHIKODE TO ACCUSED NO.11.**| |**ANNEXURE A3**|**TRUE COPY OF THE DIRECTION ISSUED BY THE**| ||**ADDITIONAL SESSIONS JUDGE TO THE COUNSEL FOR THE**| ||**11TH PETITIONER/11TH ACCUSED.**| |**ANNEXURE A4**|**TRUE COPY OF THE PETITION DATED 04/05/2021 FILED**| ||**BY THE COUNSEL FOR THE 11TH PETITIONER/11TH**| ||**ACCUSED.**| |**ANNEXURE A5**|**TRUE COPY OF THE MEDICAL CERTIFICATE DATED**| ||**04/05/2021 OF THE 11TH PETITIONER.**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER DATED 21/12/2020 IN**| ||**OP(CRL) NO.357/2020 PASSED BY THE HONBLE HIGH**| ||**COURT OF KERALA.**| |**ANNEXURE A7**|**TRUE COPY OF THE PETITION DATED 05/05/2021 FILED**| ||**BY THE PETITIONERS.**| |**ANNEXURE A8**|**TRUE COPY OF THE ORDER DATED 06/05/2021 IN CMP**| ||**NO.989/2021 ON THE FILE OF THE ADDITIONAL**| ||**SESSIONS JUDGE-III, MANJERI.**| **Crl.M.C.Nos.2631 & 2639 of 2021** **15**