Sreejith Babu B.U. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.REV.PET NO. 1406 OF 2019 ``` ``` AGAINST THE ORDER DATED 28.11.2019 IN C.M.P.NO.748/2019 IN S.C.NO.417/2019 ON THE FILES OF ADDITIONAL ASSISTANT SESSIONS ``` ## **`COURT-I, KOZHIKODE`** ## **`REVISION PETITIONER/PETITIONER/ACCUSED:`** ``` SREEJITH BABU B.U., S/O.BABU, AGED 33 YEARS, LAKSHMI BHAVAN, AKARATHINVILA, SIVAN KOVIL ROAD, BALARAMAPURAM P.O., THIRUVANANTHAPURAM -695 501. ``` ``` BY ADVS.SRI.SRINATH GIRISH SRI.P.JERIL BABU ``` ## **`RESPONDENT/RESPONDENT/STATE:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031. ``` ``` BY SRI.M.P.PRASANTH, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.R.P.No.1406 of 2019 ``` ``` 2 ``` ## **`ORDER`** ``` Dated this the 21[st ]day of October, 2021 ``` This revision is filed against an order dismissing an application filed as C.M.P.No.748/2019 in S.C.No.417/2019 seeking discharge of the revision petitioner. 2. C.M.P.No.748/2019 was filed before Additional Assistant Sessions Court I, Kozhikode (for short ‘the court below’). The impugned order was passed on 28.11.2019, paragraph 4 of which reads : “The prosecution case is that the petitioner provided his vehicle for illegal transportation of spirit. Apart from the evidence that the petitioner is the RC owner of the vehicle, there are no 161 statements directly connecting the petitioner with the offence. The RC particulars are produced. The rulings produced by the petitioner shows that in order to frame charge against the accused a primafacie case has to be made out. When the materials produced disclose grave suspicion against the accused, the court could frame charge against the accused. In the rulings produced by the petitioner Sony Mathew Vs. State of Kerala 2007 KHC 4187, the offence against the RC ``` Crl.R.P.No.1406 of 2019 ``` ``` 3 ``` owner alleged was under Section 55 (a). The intention of the accused therein to possess and transport the liquor was not there on record available from any material and so the petitioner was acquitted. But here the question is of discharge and not acquittal after trial. The offence against this petitioner is under Section 61 only. As earlier said the production of RC particulars shows a grave suspicion and a prima facie case against the accused in his involvement as an abettor. He could adduce contra evidence during trial of the case. The petitioner is not entitled for discharge. Hence, the petition is dismissed.” The allegation of the revision petitioner was that he was arraigned as accused No.2 in S.C.No.417/2019 on the files of the court below alleging commission of offences punishable under Sections 55(a) and 61 of the Kerala Abkari Act, 1077 (for short ‘the Act’). The allegation of the prosecution was that at about 13.50 hours on 21.09.2017, the Sub Inspector of Chevayur Police Station obtained an information that the highway patrol team had chased and stopped a vehicle bearing Registration No.KL-20-J9183 in a suspicious circumstance at Karkamkullam, Florican Road, Kozhikode. The vehicle at the relevant time was driven by one Mr.Aji, S/o. Rajamani. On examination of the vehicle 35 jerry cans containing 1190 litres of spirit was found concealed. ``` Crl.R.P.No.1406 of 2019 ``` ``` 4 ``` Thereupon crime was registered against Mr.Aji alleging commission of offence punishable under Section 55(a) of the Act. Thereafter, investigation was proceeded with and on concluding the same, the revision petitioner who was the RC owner of the vehicle was also arraigned as the 2[nd] accused and the final report was laid chargesheeting Mr.Aji and the petitioner for commission of offences punishable under Sections 55(a) and 61 of the Act. 3. The contention of Sri.Srinath Girish, the learned counsel for the revision petitioner was that though the final report was filed and the materials proposed to be relied on by the prosecution were appended thereto, the involvement of the revision petitioner in the alleged offence is not made out from any of those materials. According to him not even a single scrap of paper is there forming basis for arraigning him as accused in the case and chargesheeting him. According to the learned counsel, circumstances being so, C.M.P.No.748/2019 was filed by the petitioner in S.C.No.417/2019 before the court below seeking for his discharge by invoking jurisdiction under Section 227 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). But, the court below was declined to grant the relief sought and ``` Crl.R.P.No.1406 of 2019 ``` ``` 5 ``` accordingly dismissed the application. The court below had also observed in the impugned order based on records of the prosecution made available to it that the involvement of the petitioner is not indicated therefrom. The dictum in **Sony C.Mathew vs. State of Kerala** [2007 KHC 4187] was relied on by the court below while passing the impugned order and observed that from the records available, the intention of the petitioner to possess and transport liquor was not made out. The court below has also observed that the prayer in the petition on hand is to get a discharge and the trial is yet to start. 4. The learned Public Prosecutor has submitted that the petitioner has abetted commission of the offence by the 1[st] accused. According to him, since the prosecution has such an allegation against the petitioner, there is every reason for the court below to frame charge against him and to hold the trial for it. The learned Public Prosecutor has gone through the statements recorded from the witnesses under Section 161 Cr.P.C and proposed to be relied on by the prosecution and submitted that, culpability of the revision petitioner to commit the offences alleged are not disclosed. ``` Crl.R.P.No.1406 of 2019 ``` ``` 6 ``` 5. Section 61 of the Act was incorporated in the final report based on the allegation of the prosecution that the petitioner abetted the commission of the offence by the 1st accused. Section 61 of the Act reads: **“ 61. For abetment of escape of persons arrested, etc** . -Any officer or person who unlawfully releases or abets the escape of any person arrested under this Act, or abets the commission of any offence against this Act, or acts in any manner inconsistent with his duty for the purpose of enabling any person to do anything whereby any of the provisions of this Act may be evaded or broken or the Abkari Revenue may be defrauded; and any officer of any other Department referred to in section 37 who abets the commission of any offence against this Act in any place; shall, on conviction before a competent court, for every such offence, be punished with fine which may extend to twenty five thousand rupees, or with imprisonment for a term which may extend to three years or with both.” What is contemplated by the above provision was that if any officer empowered by the Act or person unlawfully releases or abets the escape of any person arrested under this Act or abets the commission of any offence against this Act, he shall be punished on conviction by a competent court with fine which may ``` Crl.R.P.No.1406 of 2019 ``` ``` 7 ``` extend to Rs.25,000/- or with imprisonment for a term which may extend to three years or with both. Therefore in order to make a person liable to be punished under Section 61 of the Act, the prosecution must furnish materials to establish that he has taken part in abetting the commission of any of the offences alleged under the Act, by some other person. 6. In the case on hand the 1[st] accused was found driving the vehicle wherefrom the contraband alleged was seized. Investigation was proceeded against him based on a crime registered for an offence under Section 55(a) of the Act and when investigation reached at its fag end, the revision petitioner was also added as the 2[nd] accused in the case. The final report was filed before the court and it was taken on it’s file. The materials proposed to be adduced in evidence and relied on by the prosecution are the statements recorded from it’s witnesses under Section 161 Cr.P.C. In the final report, the matters proposed to be proved through the witnesses are also stated in specific terms. None of the witnesses are found meant to adduce evidence about abetment of the petitioner of the 1[st] accused in the commission of the offence under Section 55(a) of the Act by the petitioner. In ``` Crl.R.P.No.1406 of 2019 ``` ``` 8 ``` the Final Report a sentence was found incorporated that the petitioner has abetted the commission of the offence by the 1[st] accused. But the statements of witnesses cited by the prosecution in the Final Report and sought to be relied on by the prosecution did not incorporate anything indicative of that. The Regional Transport Officer alone is cited as a witness related to the vehicle seized in the case and the evidence proposed to be brought on record by the prosecution through him was that the vehicle was registered in the name of the revision petitioner. For the sole reason that the petitioner is holding the registered ownership of the vehicle at the relevant time of commission of the offence by the 1[st] accused, he cannot be made liable for abetting the commission of the offence by the 1[st] accused. For attracting the offence of abetment, ingredients decisive of that must be brought on record by the prosecution. In **Sony C. Mathew** supra for want of any materials suggestive of the involvement of the registered owner that the chargesheet laid against him was quashed by an order passed by this Court. In the case on hand also, materials supportive to justify the involvement of the petitioner in abetment of the commission of the offence by the 1[st] accused are totally ``` Crl.R.P.No.1406 of 2019 ``` ``` 9 ``` lacking. The court below without applying it’s mind to the materials available to it, dismissed the application. Indisputably the order suffers for reasons stated above. Sufficient grounds are not made out to proceed against the accused and therefore, the impugned order will not sustain and is liable to be reversed. In the result, Crl.R.P. is allowed. The impugned order is set aside. C.M.P.No.748/2019 is allowed. The revision petitioner is discharged of the offences alleged by the prosecution in the final report laid, as committed by him. ## **`Sd/-`** ``` MARY JOSEPH JUDGE ``` ## **`NAB`** ``` Crl.R.P.No.1406 of 2019 ``` ``` 10 ``` ## **`APPENDIX OF CRL.REV.PET 1406/2019`** ``` PETITIONER’S ANNEXURES: ``` ``` ANNEXURE A1A CERTIFIED COPY OF THE FIR NO. 580/2017 DATED 21.09.2017 OF CHEVAYUR POLICE KOZHIKODE. ANNEXURE A2A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.580/2017 OF CHEVAYUR POLICE. ANNEXURE A3A CERTIFIED COPY OF THE MEMORANDUM OF EVIDENCE. ANNEXURE A4A CERTIFIED COPY OF THE STATEMENTS OF WITNESSES. ANNEXURE A5A TRUE COPY OF THE ORDER OF THE ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT) KERALA, THIRUVANANTHAPURAM DATED 19.02.2019. ``` ## `RESPONDENT'S ANNEXURES: NIL` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```