Sreedharan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 13TH DAY OF OCTOBER 2014/21ST ASWINA, 1936 WP(C).No. 24234 of 2014 (D) ---------------------------- PETITIONER : -------------------------- SREEDHARAN, 'SREENILAYAM', THENGAMOM.P.O., ADOOR PATHANAMTHITTA DIST. BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU RESPONDENTS : ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE HOME SECRETARY, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. DIRECTOR GENERAL OF POLICE, OFFICE OF THE DGP, THIRUVANANTHAPURAM-695001. 3. SRI.R.SREEKUMAR, ASSISTANT COMMISSIONER OF POLICE, FORT THIRUVANANTHAPURAM-695005. 4. CIRCLE INSPECTOR OF POLICE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD KOLLAM-691001. 5. EXCISE INSPECTOR, INTELLIGENCE BUREAU, THIRUVANANTHAPURAM-695001. R1-R2,R4-R5 BY STATE ATTORNEY SRI.P.VIJAYARAGHAVAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24234 of 2014 (D) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1: COPY OF THE JUDGMENT IN WPC.13865/2011 DT.31.5.2011 OF THIS HON'BLE COURT. P2: COPY OF THE APPLICATION DT.20.4.2011 BY PETITIONER TO THE HUMAN RIGHTS COMMISSION. P3: COPY OF PAPER REPORT DT.11.9.2014 PUBLISHED BY MALAYALA MANORAMA. P4: COPY OF PAPER REPORT DT.11.9.2014 PUBLISHED BY MATHRUBHOOMI. P5: COPY OF PAPER REPORT DT.12.9.2014 PUBLISHED BY MATHRUBHOOMI. P6: COPY OF THE NOTICE AFFIXED ON THE OUTER DOOR OF THE PETITIONER'S HOUSE. P7: COPY OF PETITION DT.NIL. FILED BY THE PETITIONER BEFORE THE VIGILANCE DIRECTOR. RESPONDENT(S)' EXHIBITS : NIL --------------------------------------- /TRUE COPY/ P.A TO JUDGE AV ## **K.SURENDRA MOHAN, J.** **------------------------------------** W.P.(C) No.24234 of 2014 **-----------------------------------** Dated this the 13[th] day of October, 2014 ## **J U D G M E N T** The petitioner has filed this writ petition seeking the following reliefs : - “(a) issue writ of certiorari or other writ or order and quash Ext.P6 notice summoning the petitioner to appear before the police or excise authority in connection with the transport of 7000 litter of spirit; - (b) issue a writ of prohibition or other writ or order or direction directing to respondents not to include the petitioner as an accused in the above spirit case and not to arrest him till the competition of the investigation mentioned in Ext.P1 judgment; - (c) issue writ of mandamus or other writ of order or direction directing the respondents to conduct an independent and fair enquiry as directed by this Hon'ble Court in the judgment Ext.P1 for initiating appropriate action against the 3[rd] respondent; - (d) issue writ of mandamus or other writ or direction directing the respondents not to arrest the petitioner on the allegation of his involvement or participation in the transport of 7000 litter spirit which was actually transported by M/s.Manoj, Anilkumar and their men; - (e) issue such other orders as this Hon'ble Court may deed fit and necessary in the facts and circumstances of the case.” The case of the petitioner is that, he is an agriculturist and a law abiding citizen. He is not involved in any offence under the Abkari W.P.(C) No.24234 of 2014 2 Act or under the Indian Penal Code. However, out of personal animosity nurtured by the 3[rd] respondent against him, it is alleged that, he is being implicated in a number of crimes. He was implicated in Crime No.128/2011 by the 3[rd] respondent who demanded a fanciful amount for removing him from the array of accused. Since the petitioner did not accede to his demands, it is alleged that he has implicated the petitioner in various other criminal cases. The petitioner had approached this Court by filing W.P.(C).No.13865/2011 with a prayer that the crime in the said case be investigated by any officer other than the 3[rd] respondent. This Court had by Ext.P1 judgment directed the case to be investigated by an officer senior in rank to the 3[rd] respondent. 2. At present, there has been a case where 7000 litres of illicit spirit has been seized by the Police and excise authorities on 10.09.2014. The petitioner was not involved in the said incident in any manner. In spite of the above, the petitioner has come to know from Ext.P3, issue of the Malayala Manorama Daily dated 11.09.2014 that his name has been included in the array of accused. Though the petitioner has not committed any offence, his name has been included with the oblique motive of harassing and damaging his reputation. The petitioner has filed this writ petition apprehending that he would be W.P.(C) No.24234 of 2014 3 arrested at any time. It is also stated in the writ petition that, Ext.P6 notice has been affixed on the outer door of the petitioner's house directing him to attend the office of the 4[th] respondent. It is contended by the petitioner that, the action of the 4[th] respondent in summoning the petitioner is illegal and without any authority. Though he had submitted complaints to various authorities, no investigation was conducted into the allegations made by him. Nor has any action been taken against the 3[rd] respondent. The petitioner has therefore sought for the issue of appropriate directions in the matter. 3. According to the counsel for the petitioner, the petitioner has been implicated in the crime entirely on the basis of the statements made by the 1[st] accused in Crime No.99/2014 of the Excise Range Office, Pathanapuram. Apart from the statement of the 1[st] accused, there is no other evidence or circumstance connecting the petitioner to the incident. Therefore, it is contended that, the liberty of the petitioner may be protected. He apprehends that he would be taken into custody and subjected to physical torture. 4. On 19.09.2014 when this writ petition came up before me for admission, I passed an interim order directing the petitioner to appear before the Investigating Officer and to co-operate with the investigation. It was also ordered that, if the petitioner's arrest was W.P.(C) No.24234 of 2014 4 required, such arrest shall be only after obtaining further orders from this Court. 5. A statement has been filed by the 4[th] respondent. The State Attorney appears for the 4[th] respondent. With respect to the allegation that the petitioner has been implicated in the crime out of the animosity that the 3[rd] respondent has with him, it is stated in paragraph 3 as follows : “It is humbly submitted that the allegations levelled against the respondents 4 & 5 in para 1 of the writ petition are absolutely false and hence denied. The 3[rd] respondent is not a person included in the investigating team. The 4[th] & 5[th] respondent are being officers of the Excise Department are conducting the investigation independently and the allegation that the petitioner was made an accused on the basis of the standing instruction of the 3[rd] respondent, is false and hence denied. The petitioner was included in the Abkari case since he committed offences punishable under the Act.” In paragraph 4 of the statement, it is stated that there are as many as ten criminal cases charged against the petitioner under the Abkari Act and that the petitioner is a habitual offender who has amassed immense wealth by transporting and selling illicit liquor. However, the petitioner has filed this writ petition describing himself to be an agriculturist, which is palpably false. According to the statement, the investigation conducted into the crime that has been charged as Crime W.P.(C) No.24234 of 2014 5 No.99/2014 of the Excise Range Office, Pathanapuram has revealed sufficient circumstances connecting the petitioner to the crime. The petitioner has been identified by accused nos.2 and 3 on the basis of his photograph obtained from the Adoor Police Station. They have also stated that he was a frequent visitor to their workshop where conversion of the lorry was made by shortening the chassis and manipulating the tank system for transporting illicit liquor. The details of the phone calls made by the petitioner reveal that the petitioner was in constant contact with the other accused. In view of the above circumstances and evidence collected, it is contended that it is necessary to have a custodial interrogation of the petitioner. It is also necessary to take the petitioner to the State of Tamil Nadu for the purpose of effecting recoveries and for the effective completion of the process of investigation. For the above reasons, it is contended that the interim order already granted is liable to be vacated and the writ petition dismissed. Reliance is placed on the decisions in _**K.D.Sharma**_ _**v. Steel Authority of India Limited and Others [2008 (12) SCC 48]**_ and _**Khima Vikamshi and Others v. State of Gujarat [2003 (9) SCC 420]**_ to contend that, the discretionary jurisdiction under Article 226 of the Constitution may not be exercised against a person who has approached this court suppressing material facts and making W.P.(C) No.24234 of 2014 6 misstatement of facts. 6. A reply affidavit has been filed in answer to the statement made by the 4[th] respondent. 7. I have heard the Senior Counsel Sri.N.Dharmadan who appears for the petitioner as well as the State Attorney Sri.P.Vijayaraghavan. 8. I notice that, as per the Statement filed by the 4[th] respondent, there are as many as ten criminal cases charged and pending trial against the petitioner under the Abkari Act. The petitioner has an allegation that, the petitioner has been implicated in all the cases at the instance of the 3[rd] respondent who was the Circle Inspector of Police, Adoor at that time. It is however not in dispute that the 3[rd] respondent is no longer stationed there and that he is now working as the Assistant Commissioner of Police, Fort, Thiruvananthapuram. Apart from the above, as already noticed above, what is stated by the 4[th] respondent is that, the 3[rd] respondent is not a person included in the investigation team of the present crime, Crime No.99/2014 of the Excise Range, Pathanapuram. The 3[rd] respondent is a Police Officer whereas respondents 4 and 5 are Officers from the Excise Department. They are conducting the investigation of the case, independently of the Police authorities. I do not find any grounds to disbelieve the above statements. W.P.(C) No.24234 of 2014 7 9. With respect to the complicity of the petitioner in the present case, Crime No.99/2014, the statements contained in paragraph 9 and 10 of the Statement of the 4[th] respondent reads as follows : “9. It is submitted that Transport of 7000 liters of spirit was seized by the Excise party on 03/09/2014 and Crime was registered as CR No.99/2014 of Excise Range Office, Pathanapuram, U/S 55(a) & 67B of Kerala Abkari Act. The investigation has been entrusted with the 4[th] respondent as per order no.XA3-23920/14 dt.05/09/2014 of Excise Commissioner. While conducting enquiry, the 2[nd] and 3[rd] accused had given statement regarding the involvement the petitioner herein. Though he was summoned U/s 48 of Abkari Act, for collecting evidence, he didn't appear before the investigating Officer till date. His photograph was obtained from Adoor Police Station and the 2[nd] and 3[rd] accused identified him from his photo. As part of investigation the 4[th] respondent went to Tamilnadu along with the three accused persons already arrested to collect the details regarding the conversion of vehicle and manufacturing of concealed tank. The workshop wherein the said work was carried out was identified. The owner and the workers also identified the photograph of the petitioner. They had also given statement about his frequent visit to the said workshop while the conversion work was going on for shortening of the chassis and manipulating the tank system. Again it was disclosed that the petitioner had paid the amount for conversion in the Tank system at VIJAYA TRAILORS AND TANKERS situated at Surandai, Tamilnadu. He effected payment of the amount directly by cash and also through Bank transaction. His name, address and other details including phone number were seen recorded in the W.P.(C) No.24234 of 2014 8 register kept in the above workshop. Original of the pass book of the above VIJAYA TRAILORS AND TANKERS, when verified it was disclosed that money was transferred from the Bank account of the petitioner to the account of the above workshop for the conversion work of the vehicle which was later used by the petitioner for transportation of illegal spirit and seized by the Excise authority. 10. It is submitted that the details regarding the phone calls of the petitioner when collected from Hi-tech cell, it was clearly revealed that by using his own phone and other phones used by him, he had made frequent calls to the other accused and suspected persons involved in this crime. Hence his involvement is prima facie established and more evidence is to be collected. For collecting more evidence regarding this crime, the petitioner is to be interrogated and if necessary he is to be arrested and taken in to custody to take him to the workshop at Tamil Nadu as part of investigation to get identified by the workshop owner and employees.” 10. The above statements show that, it is not merely on the statements of the persons who are already accused that the petitioner has been implicated. The investigating agency appears to have collected other evidence also. The response of the petitioner in the reply affidavit to the above statements are contained in paragraphs 8 and 9 of the reply affidavit. In paragraph 8 the following statements have been made : “The statement that I frequently visited the Vijaya Trailers and Tankers and paid money for the conversion of the W.P.(C) No.24234 of 2014 9 tank in the lorry is absolutely false and it is specifically denied. I have no connection with the above work and I never paid money for the conversion of tank in any lorry. I paid money only on 5.8.2014 and placed order for the construction of a big water tank for storing water in the field and rubber estates to spray water to plants in connection with agriculture operations and connected cultivation work when there is scarcity of water.” 11. With respect to his connection with the other accused, what has been stated in the reply affidavit in paragraph 9 reads as follows : ''With regard to the statements in para 10 to 16 it is submitted that Sri.Rajesh who is accused in this case is my neighbourers and related to me. So he used to call me occasionally. However I have no connection with him or any other accused for the transport of 7000 liters of spirit seized on 3.9.2014. ” 12. In the light of the statements made by the 4[th] respondent as well as the response indicated by the petitioner in the statements extracted above, I am satisfied that, it is necessary for the investigating officer to conduct further probing, for the purpose of ascertaining whether the petitioner has any connection with the criminal offence that has been detected. Matters would be clear only after the investigation is over. I do not want to discuss the implications of the statements extracted above or to come to any conclusion on the basis thereof. Any such attempt would only prejudice the investigation W.P.(C) No.24234 of 2014 10 as well as the trial that has to follow. 13. The facts being as stated above, I do not find any reason to restrict the investigation in any manner by continuing the interim order that I had passed on 19.09.2014. The interim order is therefore, vacated. 14. Since there is prima facie evidence justifying a further investigation into the allegations made against the petitioner, I am not satisfied that, the petitioner is entitled to any of the reliefs sought for in this writ petition. The 3[rd] respondent is not in any way connected with the present investigation. There are no allegations by the petitioner against respondents 4 and 5. Therefore, it is only appropriate that the 4[th] respondent, who is the Investigating Officer conducts the investigation and completes the same without delay. With the above observations, this writ petition is dismissed. Sd/- **K.SURENDRA MOHAN, JUDGE.** AV