Shino John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **Crl.MC.No.59 OF 2020(F)** **AGAINST THE ORDER IN CRIMINAL MP NO.706/2019 IN SC NO.(NDPS) 35/2018 DATED 17.10.2019 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **PETITIONER/3RD ACCUSED:** **SHINO JOHN, AGED 38 YEARS S/O.JOHN, PANTHANAL HOUSE, VAKKODAN CITY BHAGOM, SANTHANPARA KARA, PARATHODU VILLAGE, KATTAPPANA, IDUKKI DISTRICT.** **BY ADV. SRI.P.K.SAJEEVAN** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SRI.C.K.PRASAD PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.02.2020, ALONG WITH Crl.MC.8274/2019(D), THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **Crl.MC.No.8274 OF 2019(F)** **AGAINST THE ORDER IN CRIMINAL MP NO.735/2019 IN SC NO.(NDPS) 35/2018 DATED 07.11.2019 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **PETITIONER/3RD ACCUSED:** **SHINO JOHN, AGED 38 YEARS S/O.JOHN, PANTHANAL HOUSE, VAKKODAN CITY BHAGOM, SANTHANPARA KARA, PARATHODU VILLAGE, KATTAPPANA, IDUKKI DISTRICT.** **BY ADVS. SRI.T.K.AJITHKUMAR (VALATH) SRI.P.K.SAJEEVAN SRI.V.M.BIJUMON** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SRI.C.K.PRASAD PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.02.2020, ALONG WITH Crl.MC.59/2020(F), THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** Crl.M.C.Nos.8274/2019 & 3 59/2020 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.Nos.8274 of 2019 and 59 of 2020 ----------------------------------------Dated this the 2[nd] day of March, 2020 ## **O R D E R** The petitioner is one of the accused in the case S.C.No.35/2018 on the file of the Special Court for the trial of NDPS Act Cases, Thodupuzha. 2. The prosecution case is that, on 20.08.2017, at about 04.00 hours, near Edassery Junction in Kattappana Village, the Sub Inspector of Kattappana police station intercepted the car KL-08-AS/7436 and on inspection of the car, it was found that 17.200 kilograms of hashish oil was transported in the car. The Sub Inspector arrested accused 2 to 4 who were travelling in the car. The first accused who was travelling in the car could not be arrested at the spot of the occurrence as he ran away and Crl.M.C.Nos.8274/2019 & 4 59/2020 escaped. He was subsequently arrested. Investigation of the case revealed the involvement of the other accused in the production and manufacture of the hashish oil which was seized by the police. 3. After completing the investigation, the Deputy Superintendent of Police, District Crime Branch, Idukki filed final report against 12 accused persons for the offences punishable under Sections 21(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 4. When the trial of the case reached the stage of defence evidence, the petitioner filed an application as Crl.M.P.No.706/2019 for examination of two witnesses on his side and also filed a schedule of witnesses containing the names of the two witnesses. One witness was the Nodal Officer of BSNL and the other witness was the Reporter of Manorama News, Kottayam. 5. As per the order dated 17.10.2019, the learned Special Judge dismissed the aforesaid application filed by the Crl.M.C.Nos.8274/2019 & 5 59/2020 petitioner. The order of the learned Special Judge reads as follows: _“The witness No.1 sought to be summoned is to prove the call details for the period from 18.08.2017 to 19.08.2017 of Mobile No.9446926742 and Mobile No.9447980375. So, the document sought to be produced is a document prior to the date of occurrence. The second witness sought to be summoned is a reporter, Manorama news. The documents sought to be produced is digital video regarding the interview of Idukki District Police Chief in connection with seizure of Hashish oil on 20.08.2017 which was broadcast in Manorama News Channel. According to me, the evidence sought to be adduced through the witnesses is not relevant and it is only to drag the matter. Hence, the petition is dismissed.”_ 6. Subsequently, the petitioner filed another application as Crl.M.P.No.735/2019 for examination of two witnesses on his side and also filed a schedule of witnesses containing the names of the two witnesses. The first witness cited by the petitioner was Sri.Venugopal, District Police Chief, Idukki and the second Crl.M.C.Nos.8274/2019 & 6 59/2020 witness cited by the petitioner was the Nodal Officer of BSNL. 7. As per the order dated 07.11.2019, the aforesaid application was disposed of by the learned Special Judge stating as follows: _“Petition is allowed in part. Issue summons to witness No.2 (Nodal Officer, Legal) to produce the call details with tower location of 9446926742, 9447980375 pertain to 20.08.2017.”_ 8. It is pertinent here to note that the aforesaid order passed by the learned Special Judge does not speak anything about the examination of the first witness cited by the petitioner. The order does not disclose whether the prayer for examination of the first witness was allowed or rejected. The prayer in that regard is neither allowed nor rejected. The petition has been allowed only in part by the learned Special Judge. It means that the prayer for examination of the first witness stands rejected by the learned Special Judge but without assigning any reason at all. 9. The order dated 17.10.2019 passed by the learned Special Judge rejecting the prayer for examination of the Reporter of Manorama News is challenged in Crl.M.C.No.59/2020. Crl.M.C.Nos.8274/2019 & 7 59/2020 The order dated 07.11.2019 passed by the learned Special Judge rejecting the prayer for examination of the District Police Chief, Idukki is challenged in Crl.M.C.No.8274/2019. 10. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 11. Section 233(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') states that, if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 12. The Sessions Court can reject an application under Section 233(3) of the Code only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. When an application filed under Section 233(3) of Crl.M.C.Nos.8274/2019 & 8 59/2020 the Code is rejected, the court has also to record the reasons for such rejection. 13. The right given and recognized in the Code under Section 233(3) is not a mere formality. It is an essential part of the criminal trial. Every opportunity has to be given to the accused to adduce evidence which he wants to produce in his defence. It is for the accused and not for the Judge or the prosecution to say what evidence would be useful for proving the case of the accused. Right of the court to deny an opportunity for defence evidence is only limited to cases where the court is satisfied, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 14. The provision contained in Section 233(3) of the Code not only safeguards the right of the accused but it also ensures that the accused gets a fair trial. The court has to ensure that the accused gets a fair and proper opportunity to defend himself. The application of the accused for issue of process for compelling the attendance of any witness or the production of any document or Crl.M.C.Nos.8274/2019 & 9 59/2020 thing cannot be rejected by the court as unnecessary. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is for the accused to decide how to prove his defence. ## 15. In **Ronald v. State of West Bengal: AIR 1954 SC** **455** , a Constitution Bench of the Apex Court has held as follows: _“It must be conceded that the evidence on record tends to establish a strong case for the prosecution. It must be conceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, has deprived the appellants of an opportunity of rebutting it. Whatever one may think of the merits of the appellants' contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been no fair trial. ............ But it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts_ Crl.M.C.Nos.8274/2019 & 10 59/2020 _should be jealous in seeing that there is no breach of them”._ 16. Of course, the court will have to consider whether the witnesses are proposed to be examined by the accused with a view to procrastinate the proceedings. In deciding whether it will delay the process, the court will have to look into the purpose for which the witness is sought to be examined. When frivolous and vexatious petitions are filed, a Judge is not powerless. He should then use his discretionary power and should refuse examination of witnesses on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 17. The prayer for examination of the Reporter of Manorama News is rejected by the learned Special Judge on the ground that the evidence sought to be adduced through that witness is not relevant and it is only to drag the matter. 18. It cannot be certainly found that the prayer for examination of the witness was made by the petitioner with a view to drag the proceedings in the court. The petitioner is said to be in judicial custody. He would get no advantage by dragging Crl.M.C.Nos.8274/2019 & 11 59/2020 the proceedings in the court. 19. The purpose of examination of the Reporter of Manorama News is stated in the witness schedule. The purpose stated is to prove the recording of the interview of the District Police Chief, Idukki regarding the seizure of hashish oil in the case which was broadcast in the television channel Manorama News on 20.08.2017. Prayer was made to issue summons to the Reporter of Manorama News to produce the original video of the interview before the court. If the District Police Chief had given any interview to the news channel and if it was recorded and broadcast, it eludes comprehension how the learned Special Judge could reject the prayer for examination of the reporter of the news channel as a witness on the side of the defence on the ground that the evidence of that witness would not be material. Even assuming that the evidence of the reporter is not material but only the evidence of the person who gave the interview would be material, even then summons should have been issued to the reporter to produce the original video. The question whether the original video would be in the custody or possession Crl.M.C.Nos.8274/2019 & 12 59/2020 of the news reporter concerned is a different matter. If the original video is not in his custody or possession, it is for the witness to appear before the court and to state so. 20. Learned counsel for the petitioner submitted that the District Police Chief had stated in the interview given by him to the news channel that it was on prior information that hashish oil was seized. The prosecution case is that the Sub Inspector of Police, on interception of a car, seized the hashish oil. If the seizure of the hashish oil was not a chance recovery but one made on the basis of prior information obtained by the police, it would make material difference with regard to the procedural formalities to be complied with under the Act in respect of the search and seizure. 21. The other witness sought to be examined by the petitioner on his side is Sri.Venugopal, who was the District Police Chief of Idukki District. According to the petitioner, the District Police Chief had given an interview to the news channel on 20.08.2017 regarding the seizure of the hashish oil. For the reasons stated earlier, it cannot also be found that the petitioner Crl.M.C.Nos.8274/2019 & 13 59/2020 sought examination of this witness for the purpose of vexation or delay or to defeat the ends of justice. 22. As noticed earlier, the learned Special Judge has neither allowed nor rejected the prayer for examination of Sri.Venugopal as a witness on the side of the petitioner. The order passed by the learned Special Judge is silent in that regard. At the same time, the order shows that the application filed by the petitioner was allowed in part. It means that the prayer for examination of the witness Sri.Venugopal was rejected by the Special Court, that too, without assigning any reasons. 23. In this context, it is also to be noted that, there is no material to show that the prosecution had opposed the examination of the witnesses cited by the petitioner in the trial court. Before this Court also, the learned Public Prosecutor has not been able to give any convincing reasons for rejecting the prayer made by the petitioner for examination of the aforesaid two witnesses. 24. It is also relevant here to note that the offence under Section 22(c) of the Act is punishable with rigorous imprisonment Crl.M.C.Nos.8274/2019 & 14 59/2020 for a period of not less than ten years but which may extend to twenty years and fine which shall not be less than Rs.1,00,000/-. If the accused are convicted, chances of getting bail during the appellate stage are also very remote in view of the fact that commercial quantity of the contraband article is involved. In such circumstances, it is all the more necessary that all reasonable and possible opportunities have to be given to the accused persons to prove their defence. Otherwise, it will amount to negation of the concept of fair trial. 25. In the aforesaid situation, in the normal course, this Court should have remanded the aforesaid applications to the Special Court for consideration afresh. However, considering the fact that two accused persons in the case have been in jail for more than two years, I find that the matter can be decided by this Court itself and it is unnecessary to remand the applications to the trial court for fresh consideration. 26. In the aforesaid circumstances, the orders impugned in these petitions, as far as they pertain to rejection of the prayer for examination of the two witnesses cited by the petitioner, are Crl.M.C.Nos.8274/2019 & 15 59/2020 liable to be set aside. 27. Consequently, the petitions are allowed and it is ordered as follows: i) The order dated 17.10.2019 passed by the learned Special Judge in Crl.M.P.No.706/2019 in S.C.No.35/2018, as far as it pertains to rejection of the prayer made by the petitioner for examination of witness No.2 (Reporter, Manorama News), is set aside. ii) The prayer made by the petitioner for issuing summons to the aforesaid witness (Reporter, Manorama News) to produce the document/article (video) and to give evidence in the court is allowed. The trial court shall take necessary steps in this regard. iii) The order dated 07.11.2019 passed by the learned Special Judge in Crl.M.P.No.735/2019 in S.C.No.35/2018, as far as it pertains to rejection of the prayer made by the petitioner for examination of the witness Sri.Venugopal, District Police Chief, Idukki, is set aside. Crl.M.C.Nos.8274/2019 & 16 59/2020 iv) The prayer made by the petitioner for issuing summons to the aforesaid witness (Mr.Venugopal) to give evidence in the court with reference to the interview allegedly given by him to the news channel is allowed. The trial court shall take necessary steps in this regard. v) It is made clear that, if the petitioner wants any video to be played in the court at the time of examination of the witness Sri.Venugopal, it is for the petitioner to make necessary arrangements in that regard in the court hall after obtaining prior permission from the trial court. vi) If the petitioner proposes to produce any copy of the video to be viewed by the aforesaid witness (Mr.Venugopal) or if the petitioner has already produced any such video, copy of the same shall be furnished to the prosecution well in advance. The petitions are disposed of with the aforesaid directions. ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.Nos.8274/2019 & 17 59/2020 ## **APPENDIX OF Crl.MC 59/2020** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE**|**1**|**THE COPY OF THE FINAL REPORT IN CRIME**| |---|---|---| |||**NO.1103/17 OF KATTAPPANA POLICE STATION.**| |**ANNEXURE**|**2**|**TRUE COPY OF THE PETITION**| |||**CRL.M.P.706/2019.**| |**ANNEXURE**|**3**|**TRUE COPY OF THE ORDER DATED 17.10.2019**| |||**IN CRL.M.P.NO.706/2019.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE WITNESS LIST IN**| |||**S.C.NO.35/2018.**| ## **RESPONDENT'S EXHIBITS : NIL** Crl.M.C.Nos.8274/2019 & 18 59/2020 ## **APPENDIX OF Crl.MC 8274/2019** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE**|**1**|**THE COPY OF THE FINAL REPORT IN CRIME**| |---|---|---| |||**NO.1103/17 OF KATTAPPANA POLICE STATION.**| |**ANNEXURE**|**2**|**TRUE COPY OF THE PETITION CMP**| |||**NO.735/2019.**| |**ANNEXURE**|**3**|**TRUE COPY OF THE ORDER DATED 7/11/2019**| |||**IN CMP NO.735/2019.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE WITNESS LIST IN**| |||**S.C.NO.35/2018.**| |**ANNEXURE**|**5**|**TRUE COPY OF THE ADDITIONAL WITNESS**| |||**LIST IN S.C.NO.35/2018 DATED 5.11.2019.**| ## **RESPONDENT'S EXHIBITS : NIL** TRUE COPY PS TO JUDGE