S. Gopalakrishnan and others v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929** **CRL.A.No. 339 of 2008()** **----------------------AGAINST THE ORDER DATED 22/01/2008 IN MC.8/2008 IN SC.997/2006 of ADDL. SESSIONS COURT ( FAST TRACK COURT-I), THIRUVANANTHAPURAM** **....................** ## **APPELLANTS/ACCUSED:** **----------------------------** **1. S.GOPALAKRISHNAN, S/O. SUNDARA PARIPURNAM, TC 40/366, SECOND PUTHEN STREET, MANACAUD P.O., THIRUVANANTHAPURAM.** **2. A.RADHA, D/O. RAJAN, TC 40/311, 2ND PUTHEN STREET, MANACAUD P.O., THIRUVANANTHAPURAM.** **3. S.M.HUSSAIN, S/O. SULTHAN PILLAI, TC 41/111 (1), ATTAKULANGARA, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.N.KRISHNA PRASAD** ## **RESPONDENT/COMPLAINANT:** **-----------------------------------** **STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K.P.BALACHANDRAN,J ======================= Crl.A.No.339 of 2008 ========================== Dated this the 14[th] day of February, 2008 ## JUDGMENT This is an appeal under Section 449 of the Criminal Procedure Code. 2. The appellants are the counter petitioners in M.C.No.8/2008 in S.C.No.997/2006 on the file of the Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram. The challenge in this appeal is against the order passed by the Additional Sessions Judge in M.C.No.8/2008 aforesaid directing them to remit Rs.3 lakhs each by way of penalty that being the bond amount agreed to be forfeited in the event of forfeiture of the condition for production of the articles received from court by way of interim custody on Moonamsthanam by the 1[st] appellant executing bond with appellants 2 and 3 as sureties. Technically speaking it is a case where the condition of the bond stood violated and the bond stood forfeited. But, certain circumstances also deserve to be stated for a proper appreciation of this appeal. Crl.A.No.339/2008 2 3. Crime No.370/2002 of Fort Police Station, Thiruvananthapuram was registered for the brutal murder of a watchman, who had been employed by the first appellant in his institution run under the name and style “Sree Krishna Distributors” at Thiruvananthapuram. This was in the morning on 9.08.2002. The body of the watchman was being found fastened to a post tying his limbs to the post and stuffing cloths into his mouth. There were seven accused in the case. On account of immediate action taken by the police they could recover the goods looted from the institution by the culprits doing away with the watchman engaged by the first appellant. The articles so recovered inter alia took in 52 cameras and around 3,500 camera films, two numbers of computer CPU hard disk, one goods autorikshaw, one Bajaj M.80 scooter etc. First appellant moved for release of those items on Moonnamsthanam by way of interim custody filing C.M.P.7155/2002. In paragraph 9 of the affidavit filed by the first appellant before the committal court, it was stated as follows: “ The photographic camera consists of a very sensitive lens. By the slightest exposure of lens, it will be affected by fungus and its utility gets reduced substantially. Any fungus infected lens will totally destroy the value of the Crl.A.No.339/2008 3 camera and therefore it is necessary that the cameras are protected without the lens getting exposed or undergoing any damage to it. To put up precisely, extreme care is necessary for the upkeep of the cameras before it is sold.” He has again stated in the affidavit “ the materials have to be kept under controlled condition and that too in the dark room.” ## 4. In paragraph 12 of the affidavit filed along with C.M.P.No.7155/2002 it was further stated as follows: “ The facility in the court being limited and the fact that the materials require extreme care, proper and extreme precaution, it is necessary to release these materials on Moonam Sthanam so that the material may not totally lost its value.” 5. In paragraph 13 of the affidavit it was further stated: “ the owner of the company has no objection to abide by the conditions prescribed by this Hon'ble Court (committal court) for the release of the materials on Moonamsthanam.” 6. The committal court, after hearing the counsel for the first appellant and the Assistant Public Prosecutor as also the counsel for the accused in the case released those items on Moonamsthanam to the first appellant on his executing bond Crl.A.No.339/2008 4 with appellants 2 & 3 as sureties for Rs.3 lakhs each with the following further conditions: “The petitioner shall undertake to retain the articles now released to him in the same condition shall not be transferred or sold by him and that the same will be produced by him as and when directed by the court of ” Sessions or any appellate or revisional court . 7. Accused Nos. 1 & 4 to 7 faced trial in S.C.No.940/2002 before the Sessions court and they were acquitted after trial vide Annexure-I judgment. Annexure-I judgment shows that Kodak films, hundred in number were identified and marked as MO1 series, one printer was marked as MO2, one UPS was marked as MO3, three cameras were marked as MO4 series, one small camera and two films were marked as MO5 series, two films were marked as MO6 series and so on. Thus, no doubt, those were being produced from out of the articles received on Moonamsthanam by the first appellant. At the time of trial of Accused Nos.1 and 4 to 7 in S.C.No.940/2003 the rest of the articles were not desired to be identified and marked and such of the items marked were specimens from several items of that series received on Moonamsthanam by the Crl.A.No.339/2008 5 first appellant. This means that the first appellant had been directed to produce the entire articles in S.C.No.940/2003 which he was having possession of and was capable of producing them in compliance with the conditions of the bond. Subsequently, on production of the absconding A3, who was remanded in connection with another case in another court, the case against him was refiled as S.C.No.997/2006. In that case when the first appellant appeared as a witness he did not produce the rest of the articles and sought for time. He also moved this Court filing Crl.M.C.No.135/2008 and that was disposed of by this Court granting 10 days time to the first appellant to submit his explanation to the show cause notice issued from the court below as to why he should not be ordered to pay the bond amount as penalty, consequent on his failure to produce the articles received on Moonamsthanam. However, the first respondent later on filed an affidavit in the court below reporting his inability to produce the cameras and films entrusted on Moonamsthanam which is stated as follows: “ I respectfully state that if on any account, the camera and the films could not be sold, except in cases of manufacturing defects, the company Kodak India Private Ltd will not compensate the loss suffered by Sree Krishna Crl.A.No.339/2008 6 Distributors Private Ltd on account of the cameras and films not being sold.” “I respectfully state that the decision to sell the cameras and films was one taken due to unavoidable and compelling reasons.” 8. All the same he produced the goods autorikshaw, Bajaj M.80 scooter, computer CPU hard disk two in number and CPU cover one in number which were with him. For non production of the entire articles the court below proceeded to enforce the bond amount as penalty against the first appellant to whom interim custody was given of the articles and against appellants 2 and 3 who were sureties in the bond executed by the first appellant. The amount directed to be so deposited by way of penalty was Rs.3 lakhs each. It is aggrieved by the said order of the court below that this appeal is filed. 9. It is contended before me by the learned counsel for the appellant that the case is one in which theft was committed in the business concern of the first appellant committing murder of his watchman, that the first appellant has sustained huge loss on account of that, that the articles which are sold by the first appellant and which could not be produced before the court Crl.A.No.339/2008 7 below by him are several cameras and about 3,500 films which were retained for a long time and which it retained further will be rendered useless and will not be able to be put to use in any manner or sold and that there was no justification to order the first appellant to retain all those perishable items till the case against all absconding accused are over especially in view of the directions issued by the Apex Court in **Sunderbhai Ambalal Desai v. State of Gujarat ( (2002) 10 SCC 283)** and that in any event of specimens of all those material objects which are not able to be produced having already been marked in S.C.No.940/2003 and the first appellant who had produced the requisite items at the stage of trial S.C.No.940/2003 was under the bonafide impression that the other articles need not be produced, as specimen had already been produced before the court and it was under such an impression to avoid incurring of huge loss that he has disposed of the cameras and films worth several lakhs, though the bonafide impression he formed after production of the articles by him before the court in S.C.No.940/2003 was not properly highlighted before the court below and that in the circumstances the appellants may be Crl.A.No.339/2008 8 exonerated from the liability to pay the penalty as however the conditions stated in the decision of the Apex Court cited supra stands satisfied in the instant case, especially, when several number of cameras and innumerable films are looted and the samples therefrom are already produced before the court. 10. The necessity of producing the entire quantity does not arise to prove the offence as against the absconding accused, especially, after trial of such of the accused, who had already faced trial. Specimen articles were identified also in court. I am of the view that when a bond is executed and conditions are specified in the bond the party has necessarily to comply with the conditions and will have to face the consequences if the conditions are not complied with and there is a forfeiture of the bond. But in the instant case, obviously, the first appellant could not await disposal of the case as against all absconding accused and he could not be expected to preserve all the cameras and films in large quantity for such a long time without being sold and rendering it to deterioration and damage by keeping it for such a long time. He could have brought it to the notice of the court and obtained a further order to dispose of the articles by Crl.A.No.339/2008 9 sale. True, it is, that he has committed a mistake by not obtaining permission to dispose of those articles, but, all the same, it is worthy to note that directions in the matter of disposal of the material objects in a case by releasing it by way of an interim custody has been laid down by the Apex Court and the guidelines are also provided in **Sunderbai Ambalal Desai v. State of Gujarat ( (2002) 10 SCC 283)** . I have no doubt that release of the articles especially the cameras and films in such large quantity executing a bond for its production as and when called for was made by the court below(committal court) without applying its mind. The court below should have considered the aspect that goods in trade in such large quantity should not be ordered to be released with a direction that all those would be produced as and when call for. Those are goods in business and no purpose would be served by keeping those articles without being sold and there is no facility also in the courts in our state to store safely such valuable and perishable items. It is, therefore, that usually the articles are released keeping specimens thereof to be identified in court at a trial. Though that course was not adopted in this case by the Committal Court, that Crl.A.No.339/2008 10 purpose is served by marking the samples identifying them at trial of accused Nos.1, 4, 6,and 7. Those material objects can very well be used at trial of the case against the now apprehended A3 as well. Further the first appellant cannot be expected to retain the articles received by him on Moonamsthanam till disposal of the case against all the accused as even now accused Nos.2 and 5 have not been apprehended and it is not known as to whether the appellants are aware of those aspects. Courts have to adopt practical viable and feasible methods in the matter of releasing of such articles on Moonamsthanam and should not have demanded to enforce the obligation under the bond at a second trial ordering production of the entire articles on the application made by the Prosecutor without applying its mind as to the necessity to have all those items produced. Thus, I am of the view that the impugned order imposing the bond amount of Rs.3 lakhs each as penalty on the appellants who have executed the bond for having the articles belonging to the first appellant released, is unjust, unwarranted and illegal, especially as the court below has not applied its mind as to the necessity for having it produced but was acting on Crl.A.No.339/2008 11 the application filed by the Prosecutor not taking into account the fact that the 1[st] appellant produced them in court at trial of Accused Nos.1, 4, 6 and 7 and then, only specimen of such articles were required to be identified and marked and those marked items are already before court. The order therefore deserves to be set aside allowing this appeal. In the result allowing this appeal. I set aside the impugned order. ## K.P.BALACHANDRAN,JUDGE dvs