Murukadas @ Murukan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** **Crl.Rev.Pet.No.1179 OF 2018** **AGAINST THE ORDER IN SC 723/2016 DATED 31-10-2017 OF THE ASSISTANT SESSIONS COURT, MAVELIKKARA** ## **REVISION PETITIONER/PETITIONER/ACCUSED NO.4:** **MURUKADAS @ MURUKAN AGED 39 YEARS S/O.LATE DHARMAJAN, MIDHUN BHAVANAM, PALLICKAL P.O., PALLICKAL MURI, ADOOR TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA)** ## **RESPONDENTS/COMPLAINANT STATE:** **THE STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, NOORANAD EXCISE RANGE, ALAPPUZHA DISTRICT THROUGH PROSECUTOR, HIGH COURT OF KERALA.** **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.01.2020, THE COURT ON THE 12.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1179 OF 2018** **2** **“C.R”** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.1179 of 2018** **--------------------------------------------** Dated this the 12[th] day of March, 2020 ## **O R D E R** The petitioner is the fourth accused in the case S.C No. 723/2016 on the file of the Assistant Sessions Court, Mavelikara. 2. The prosecution case is as follows: On 08.12.2014, at about 09:00 hours, the Excise Circle Inspector of Excise Enforcement and Anti-Narcotic Special Squad, Alappuzha conducted search of house No. V/95 of the Nooranad Grama Pachayat wherein the second accused was residing. 3570 litres of spirit, which was contained in 102 cans of 35 litres capacity, was found in one of the rooms in that building. The Excise Circle Inspector seized the spirit and arrested the first and the second accused from the spot. 3. After investigation, the Assistant Excise Commissioner (Enforcement), Alappuzha filed final report against four persons for **Crl.Rev.Pet.No.1179 OF 2018** **3** committing the offences punishable under Sections 55(a), 55D and 64A of the Abkari Act, 1077. 4. The prosecution has alleged that the four accused persons had entered into a conspiracy to store and sell spirit and pursuant to such conspiracy, the first and the second accused stored the spirit in the house in which the second accused was residing. It is also alleged that the third accused had brought the cans containing the spirit to the aforesaid house in a lorry and that the fourth accused had permitted that lorry to be parked in the building of the workshop owned by him which is situated adjacent to the aforesaid house. 5. The petitioner, who is the fourth accused in the case, filed an application under Section 227 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for discharge. As per the impugned order, the learned Assistant Sessions Judge dismissed the aforesaid application. The legality and propriety of the aforesaid order are challenged in this revision petition. 6. Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 7. Learned counsel for the petitioner contended that the prosecution has not produced any material to prove that the petitioner has committed the offences alleged against him. Learned counsel **Crl.Rev.Pet.No.1179 OF 2018** **4** would submit that the petitioner has been implicated in the case solely on the basis of the confession made by the third accused to the investigating officer. Learned counsel would contend that the confession made by a co-accused is not sufficient to frame charge against the petitioner for the offences alleged against him. 8. _Per contra_ , learned Public Prosecutor has contended that the prosecution has produced sufficient materials to prove the offences alleged against the petitioner. 9. Section 55(a) of the Abkari Act provides the punishment for import, export, transport, possession etc. of liquor in contravention of the provisions of the Abkari Act and the rules made thereunder. Section 55D of the Act prescribes the punishment to a person who is a party to any criminal conspiracy hatched for committing an offence under the Abkari Act. Section 64A of the Abkari Act provides the punishment for the owner or occupier or a person having control of, any land, building, room etc. for permitting manufacture, sale or storing for sale of liquor in such place in contravention of the provisions of the Act. 10. At the stage of framing the charge, the court does not act as a mere post office. The court must indeed sift the material before it. The materials to be sifted would be the materials which are **Crl.Rev.Pet.No.1179 OF 2018** **5** produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial. The question is not whether the prosecution has made out a case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be of a nature which can be translated into evidence at the stage of trial. Strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the _prima facie_ view that the accused has committed the offence (See **Dipakbhai Jagadishchandra Patel v. State of Gujarat : AIR 2019 SC 3363** ). 11. Admittedly, no spirit or any other liquor was seized from the possession of the petitioner or from the workshop owned by him. The prosecution has no case that the petitioner had transported the spirit. In such circumstances, the offence punishable under Section 55(a) of **Crl.Rev.Pet.No.1179 OF 2018** **6** the Abkari Act is not attracted against the petitioner. There is also no specific allegation against the petitioner that he has committed such offence. 12. The prosecution proposes to prove the allegation against the petitioner that he permitted to park the lorry which contained the spirit in his workshop and also that he was a party to the criminal conspiracy to store and sell spirit on the basis of the following materials. (1) The statements of the witnesses by name Pardhan (CW10) and Anil Kumar (CW11). (2) The confession allegedly made by the third accused to the investigating officer. 13. The statement given to the investigating officer by Pardhan (CW10) is only to the effect that the property wherein the petitioner is conducting the workshop had been sold by him (CW10) to Anil Kumar (CW11) and Sudarsanan and that the petitioner and the first accused are close friends. The statement of the witness Anil Kumar (CW11) is only to the effect that he had sold the aforesaid property to the petitioner and that the petitioner and the first accused are close friends and that they have got some transactions between them. 14. There is nothing in the statements of the aforesaid two witnesses to prove that the petitioner has committed the offences punishable under Section 55D or 64A of the Abkari Act. These **Crl.Rev.Pet.No.1179 OF 2018** **7** witnesses have only given statements regarding the sale of the property, where the workshop is situated, to the petitioner and also the friendship between the petitioner and the first accused. 15. There is no statement of any witness to the effect that he had seen the lorry containing the spirit being parked in the workshop of the petitioner. 16. Now, the only remaining material to prove the offences alleged against the petitioner is the confession statement allegedly made by the third accused to the investigating officer. 17. The question arises whether confession of a co-accused is sufficient to frame charge against another accused in the case. 18. At the stage of framing of charge, the court is required to confine its attention to only those materials collected during the investigation which can be legally translated into evidence. The requirement in law is to have legally admissible materials for framing charge. The materials collected during the investigation and produced before the court by the prosecution should be capable of being legally translated into evidence to form the basis of framing charge against an accused. 19. In **Suresh Budharmal Kalani v. State of Maharashtra:** **AIR 1998 SC 3258** , the Apex Court has held that confession by a co- **Crl.Rev.Pet.No.1179 OF 2018** **8** accused containing incriminating matter against a person would not by itself suffice to frame charge against him. It has been held that only on the basis of the statement of the co-accused, no case would be made out, for framing a charge against another accused. The dictum laid down in **Suresh Budharmal Kalani** (supra) has been re-iterated by the Apex Court in **Dipakbhai** (supra). 20. In this context, it is pertinent to note that in **Joseph v. State of Kerala: 2009 (4) KHC 537,** this Court has held that, after the amendment of Section 50 of the Abkari Act, Abkari Officers can only file a final report in accordance with Section 173(2) of the Code and the status of the Abkari Officers has been transformed to that of police officers. It has been held that, any confession made to an abkari officer after the date 03.06.1997, the date on which the amendment of the Abkari Act came into force, will be deemed to be a confession made to a police officer within the meaning of Section 25 of the Evidence Act and will stand interdicted by the said provision. In other words, after the Abkari Officers have been invested with the powers of the police officers, confession made to an Abkari Officer is not admissible in evidence. 21. The discussion above leads to the conclusion that confession made by a co-accused to the investigating officer, which **Crl.Rev.Pet.No.1179 OF 2018** **9** comes within the interdiction under Section 25 of the Evidence Act, is not sufficient to frame charge against another accused in the case. 22. Learned Assistant Sessions Judge has committed a grave error apparent on the face of the record in dismissing the application filed by the petitioner for discharge. Learned Assistant Sessions Judge did not make any attempt to sift the materials produced by the prosecution and to find out whether such materials were sufficient to proceed against the petitioner and to compel him to undergo the trial of the case. There is merit in the contention raised by the petitioner that there is absolutely no material, which can be legally translated into evidence, to connect him with the offences alleged against him. 23. Consequently, the revision petition is allowed. The impugned order is set aside. The application filed by the petitioner for discharge is allowed. The petitioner will stand discharged in the case. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.Rev.Pet.No.1179 OF 2018** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 THE TRUE COPY OF THE OCCURRENCE REPORT ALONG WITH MAHASAR IN CRIME NO.128/2014 OF EXCISE INSPECTOR , NOORANADU EXCISE RANGE OFFICE, ALAPPUZHA DISTRICT ANNEXURE-A2 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.128/2014 OF NOORANADU EXCISE RANGE NOW PENDING AS S.C.NO.723/2016 ONT HE FILES OF LEARNED ASST.SESSIONS JUDGE, MAVELIKARA** **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**