K.V.MOHAMMED @ MONU @ CHERIAKALAN MOHAMMED v CENTRAL BUREAU OF INVESTIGATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941** **Crl.Rev.Pet.No.1062 OF 2019** **AGAINST THE ORDER DATED 06.08.2019 IN CRMP 516/2018 IN S.C.NO.602 OF 2010 OF ADDITIONAL SPECIAL SESSIONS COURT III, ERNAKULAM** ## **REVISION PETITIONER/PETITIONER/14TH ACCUSED:** **K.V.MOHAMMED @ MONU @ CHERIAKALAN MOHAMMED AGED 51 YEARS S/O. KHALEEL HAJI, MANISSERY HOUSE, HAJIARPALLI P.O., MALAPPURAM DISTRICT,PIN-676 519** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.THOMAS J.ANAKKALLUNKAL SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION COCHIN,REPRESENTED BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM-682 031** **SRI SASTHAMANGALAM S AJITHKUMAR -SC CBI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-10-2019, THE COURT ON 28-10-2019 PASSED THE FOLLOWING:** Crl.R.P.No.1062/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1062 of 2019 --------------------------------------------Dated this the 28[th] day of October, 2019 ## **O R D E R** The petitioner is the fourteenth accused in the case S.C.No.602/2010 on the file of the Court of the III Additional Sessions Judge, Ernakulam. This revision petition is filed by him challenging the order passed by the learned Sessions Judge, dismissing the application filed by him under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The offences alleged against the accused in the case are under Sections 457, 380 and 411 read with 34 I.P.C and also under Section 120B I.P.C. However, the specific allegation against the petitioner is that he has committed an offence punishable under Section 411 I.P.C. 3. According to the prosecution case, on 12.09.2002, it Crl.R.P.No.1062/2019 3 was found that the strong room of the Olavakode Forest Range Office was broke open and the sandal wood, sandal wood oil, ivory etc, worth about Rs.29,29,190/- were stolen from there. Crime No.186/2002 of Hemambika Nagar police station was registered in the matter under Sections 457 and 380 I.P.C. Subsequently, the investigation of the case was transferred to the Crime Branch and thereafter, the investigation was entrusted to the Central Bureau of Investigation (CBI). 4. According to the prosecution case, pursuant to a conspiracy hatched by the accused, the articles kept in the strong room of the Forest Range Office were stolen. The specific allegation against the petitioner, who is the fourteenth accused in the case, is that, along with the accused 1, 5, 6, 12 and 13, he dishonestly received the stolen sandal wood and sandal wood oil, knowing them to be stolen property and thereby, he committed the offence punishable under Section 411 I.P.C. 5. The petitioner filed an application as Crl.M.P.No.516/2018 in the court below, claiming discharge. The aforesaid application was dismissed by the learned Sessions Crl.R.P.No.1062/2019 4 Judge. Aggrieved by the aforesaid order, the petitioner has filed this revision petition. 6. Heard learned counsel for the petitioner and also the learned Standing Counsel for the CBI. 7. 'Stolen property' is defined under Section 410 I.P.C. Section 411 I.P.C provides that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished. 8. The allegation against the petitioner is that, along with other accused, he had received the stolen sandal wood and sandal wood oil and he had distilled and refined it and exported the same as synthetic compound perfume. 9. The materials relied upon by the trial court to find a prima facie case against the petitioner for the offence punishable under Section 411 I.P.C are: (i) the statement of the witness CW101 (ii) the statement of the witness CW103 and (iii) confession statements made by the petitioner to the Forest Officers. 10. CW101 is none other than the brother of the Crl.R.P.No.1062/2019 5 petitioner. His statement shows that he was a partner in the export business conducted by the petitioner. His statement, according to the prosecution, reveals the activities of the petitioner and his role in procuring the stolen sandal wood oil and sandal wood and distilling and refining of the same and manufacture of the perfume at the factory by name Premier Perfumery Works. The statement of CW101 is to the effect that the stolen sandal wood oil distilled at Premier Perfumery Works was exported by the petitioner. 11. Learned counsel for the petitioner would contend that when the specific case of the prosecution is that the petitioner exported synthetic perfume, it cannot be found that he had exported sandal wood oil. There is no merit in this contention. Stolen property may not be sold or exported in its original form. It may be converted into some other article. Even if such article, which is converted from the stolen property, is sold or exported or otherwise dealt with, prima facie, an inference can be made that the person who had dealt with such article had received the stolen property. If the sandal wood oil or sandal wood was stolen Crl.R.P.No.1062/2019 6 and if the same was refined and distilled and converted into a perfume and exported, then the contention that, what was sold or exported was not stolen property but only a perfume, cannot be accepted. 12. The trial court has also relied upon the statement of CW103 to find out a prima facie case against the petitioner that the petitioner was involved in the export of perfume which was converted from the stolen sandal wood oil. 13. The trial court has also pointed out that the petitioner had made confession to forest officers and that the prosecution has produced the confession statements made by him and they can be accepted as corroborative material. 14. Learned counsel for the petitioner would contend that the forest officers are vested with the powers of police officers and therefore, the confession made to forest officers is not admissible in evidence. In the instant case, the forest officers have not conducted any investigation by virtue of any power vested with them as police officers and filed any final report. The question of admissibility of the confession made by the petitioner Crl.R.P.No.1062/2019 7 to the forest officers, who have not filed final report in exercise of any powers of the police officers, if any, vested with them, need not be considered at this stage. There is no material to show that, the forest officers to whom the petitioner had made confession, are officers vested with the powers of police officers. 15. Learned Standing Counsel for the CBI would contend that, when the petitioner has given confession to forest officers in another case, it can be treated as extra judicial confession for the purpose of the instant case. This is also a question to be decided at the appropriate stage. This is a case where, even without the confession statement of the petitioner, there are sufficient materials in the form of statements of CW101 and CW103 to prove the involvement of the petitioner in the commission of an offence punishable under Section 411 I.P.C. 16. At the stage of framing the charge, what the court is expected to do is to sift the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous to find out whether the material is sufficient to convict an accused. All that is required is, that the court must be satisfied that with Crl.R.P.No.1062/2019 8 the materials available, a case is made out against the accused to compel him to stand trial. A strong suspicion suffices. Strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial and which commends itself to the court as sufficient to entertain the view that, prima facie, the accused has committed the offence. 17. At the time of framing the charge, the trial court has to consider the material before it by the investigating officer and form a prima facie opinion thereupon as to whether it is a fit case for framing of charge under a particular provision. The standard of proof test, which is to be applied at the final stage, in order to find out whether the accused is guilty or not on the basis of actual evidence produced, is not to be applied at the stage of framing of the charge. Charge can be framed even when there is a strong suspicion founded upon materials before the Court, which leads the court to form a presumptive opinion as to existence of the factual ingredients constituting the offence alleged (See **Akbar Hussain v. State of Jammu and** Crl.R.P.No.1062/2019 9 ## **Kashmir : AIR 2018 SC 4314** ). 17. In the aforesaid circumstances, I find no illegality or impropriety in the impugned order passed by the learned Sessions Judge that there are sufficient material to proceed against the petitioner for committing an offence punishable under Section 411 I.P.C. 18. Consequently, the revision petition fails and it is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge