Prassanan @ Many v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 CRL.APPEAL NO. 264 OF 2012** **AGAINST THE JUDGMENT DATED 22.07.2009 IN SC 415/2007 OF I ADDITIONAL SESSIONS COURT, KOLLAM CP 171/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** ## **KOTTARAKKARA** ## **APPELLANT/ACCUSED NO.1:** **PRASSANAN @ MANY AGED 42 YEARS, S/O. CHELLAPPAN, SHERIF MANZIL KOTTAPURAM, THAZHUTHALA MURI, ADICHANALLOR FROM VADAKKEKKARA PUTHEN VEEDU, KARUVELIL MURI, EZHUKONE VILLAGE.** **BY ADVS. SRI.M.K.CHANDRA MOHANDAS K.DHRUV KUMAR** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 31.01.2024, THE COURT ON 15.02.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.264 of 2012 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.264 of 2012 ----------------------------------------------------------Dated this the 15[th] day of February, 2024** ## **JUDGMENT** Accused No.1 in S.C.No.415 of 2007 on the files of the Sessions Court, Kollam is the appellant. He was convicted for the offence under Section 489C of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment for a period of four years. The 2[nd] accused in the case was also convicted and he was sentenced to undergo rigorous imprisonment for a period of three years. In this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code), the appellant assails legality and correctness of the judgment dated 22.07.2009 by which he was convicted and sentenced. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. The incident was on 14.02.2002. PW5 was the Sub Inspector of Police, Chadayamangalam Police Station. He 3 Crl.Appeal No.264 of 2012 received information that Ganja was being transported in an autorickshaw. He recorded the information and sent a report to his immediate superior. While waiting at Chadayamangalam Junction, an autorickshaw came at an enormous speed and disregarding the direction of PW5 to stop, the autorickshaw went on. Hence, PW5 along with his colleagues followed in the jeep and intercepted the autorickshaw near MGHS Chadayamangalam. Since presence of Gazetted Officer was insisted on by accused Nos.1 and 2, who were the passenger and driver respectively, PW3, the Tahsildar, Kottarakkara was brought. In his presence, body of the accused and the vehicle were searched. 1.1 kgs. of Ganja was found from the backside of the rear seat. Forty-five (45) counterfeit currency notes of 100 rupee denomination were found underneath the rear seat where the appellant was sitting. Seizure was effected in the presence of PWs.1 and 2, persons from the locality and PW3. On the said facts, prosecution was initiated against both the accused. 4. The prosecution has examined PWs.1 to 8 and proved Exts.P1 to P9. Ext.C1 was also marked. MO1 series 4 Crl.Appeal No.264 of 2012 was also identified. The appellant took the stand that he was innocent. He stated that after arresting him from his house, the case was foisted against him. The court below after analysing the evidence found that the arrest and seizure were duly proved through the evidence of PWs.3 to 5. From the circumstances in which the appellant and the 2[nd] accused were arrested, the trial court found that they in furtherance of their common intention possessed the counterfeit currency notes. The appellant would contend that the findings of the trial court are against evidence and hence his conviction is totally wrong. 5. The learned counsel for the appellant would submit that when PWs.1 and 2, who are the President and Member of the local authority, did not support the case of the prosecution, the evidence of PWs.3 to 5 cannot be placed reliance on to find the appellant guilty. The appellant was a passenger in the autorickshaw and when MO1 series notes were not seized from his possession and the evidence does not show that he had domain over the said article, no 5 Crl.Appeal No.264 of 2012 conscious possession of that currency notes could be attributed to him. Apart from contending that there is total lack of evidence, the learned counsel would submit that even accepting the case of the prosecution, the appellant cannot be found guilty inasmuch as the evidence brought on record does not prove that he possessed the currency notes for the purpose of using it as genuine. The learned counsel in that regard placed reliance on the decisions of this Court in **Muhammed Koya v. State of Kerala [2020 (3) KLT 441]** . 6. True, PW1, the President and PW2, a Member of Chadayamangalam Grama Panchayat, did not state before the court that they witnessed the police intercepting the autorickshaw driven by the 2nd accused with the appellant as a passenger. PW1 is a local resident. While she was talking to PW2 in front of her house the autorickshaw was stopped by the police. To that extent they admit. But they denied having seen the seizure of currency notes or Ganja from the autorickshaw. Their version is that after stopping the autorickshaw the police entered inside and went away with 6 Crl.Appeal No.264 of 2012 the autorickshaw. Both witnesses had admitted their signatures in Ext.P1 mahazar. Its contents are to the effect that in the presence of PW3, the search was conducted and seizure of counterfeit notes and Ganja was effected. PW1, who is a teacher and also the Panchayat President and PW2, a member of the Panchayat, having signed Ext.P1 deposed before the court feigning ignorance of its contents. It is obvious that they stated falsehood before the court. The contradictions brought out in their evidence confirms that view. The question is whether the evidence of PWs.3 to 5 proved the search and seizure. 7. As stated, PW5, the Sub Inspector of Police deposed in detail regarding the circumstances in which the accused were arrested and currency notes seized. PW4, a constable in the police party, also stated in detail about the said matters. It was after PW3 reaching the place, the search was conducted. PW3 confirmed the testimonies of PWs.4 and 5 concerning the search and seizure. No serious inconsistencies have been brought out in their evidence. 7 Crl.Appeal No.264 of 2012 Having had an anxious consideration, I find no reason to disbelieve the version of the said witnesses. 8. The currency notes were found underneath the seat on which the appellant was sitting. There were 45 currency notes of 100 rupee denomination. The said currency notes were proved to be counterfeit ones. Ext.P8 and P8(a) are the reports obtained from the Indian Security Press, Nashik certifying that the said currency notes, MO1 series, were counterfeit notes. From the said evidence, it stands proved that the appellant and the co-accused were in possession of MO1 series, which were counterfeit notes. 9. When such a quantity of counterfeit notes were carried in concealment, no further evidence is required to enter a finding that such notes were possessed with the knowledge that they were counterfeit ones and the possessor had the intention to use the same as genuine. Therefore, the requirement of law to enter a conviction for an offence under Section 489C of the IPC as laid down in **Muhammed Koya** (supra) are established. 8 Crl.Appeal No.264 of 2012 10. The further contention of the learned counsel for the appellant is that since the accused were questioned under Section 313 of the Code not in an appropriate way, the conviction cannot be sustained. 11. Section 281 of the Code describes how examination of accused shall be recorded. Sub-section (4) reads,- “The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.” 12. The record of examination of the accused shows that all the questions were prepared in English. Answers were recorded in Malayalam. It obliviates an inference that the accused were not persons conversant with English language. It is not certified in the record of examination under Section 313 of the Code that the questions were interpreted in Malayalam. In the absence of such a certification by the Judge, it cannot be assumed that the accused were made to understand the contents of the questions put to them. 9 Crl.Appeal No.264 of 2012 Therefore, there is non-compliance of sub-section (4) of Section 281 of the Code. 13. The Apex Court in **Kalicharan and others v. State of Uttar Pradesh [(2023) 2 SCC 583]** held that if the examination of the accused under Section 313 of the Code was defective and thereby prejudice has been caused to him, that would be a serious infirmity. As pointed out above, from the record of examination of the appellant, it is not able to say that appellant were apprised of the purport of the questions which are put to them. So much so, it can only be said that the incriminating circumstances in the evidence were practically not put to the appellant. That necessarily caused prejudice to them, making their conviction illegal. Therefore, the said conviction is liable to be set aside. Accordingly, this appeal is allowed and the appellant is acquitted. He is set at liberty. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr