Subin Mathew Varghese v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 CRL.MC NO. 1132 OF 2021 ``` ``` CP 10/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THIRUVALLA CRIME NO.628/2020 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA ``` ## **`PETITIONER/ACCUSED NO.3:`** ``` SUBIN MATHEW VARGHESE AGED 32 YEARS S/O. MATHEW VARGHESE, KODHAVAERIL VEEDU, THOTTUMADA, MANNAR P.O, NIRANAM, PATHANAMTHITTA. ``` ``` BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682031, (CRIME NO. 628/2020 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT). ``` ``` BY ADV. ``` ``` SMT. NIMA JACOB – PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1132 OF 2021 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 3[rd] accused in Crime No.628/2020 of Thiruavalla Police Station which is now pending as C.P.No.10/2021 pending before the Judicial First Class Magistrate Court, Thiruvalla. The aforesaid crime was registered for the offences punishable under Sections 118(e) of Kerala Police Act, Section 4(2)(d) read with Section 5 of Kerala Epidemic Diseases Ordinance 2020, Section 55A(i) of Kerala Abkari Act and also under Section 188 and 269 of Indian Penal Code. 2. The prosecution case is that, on 03.04.2020, during the lockdown the 1[st] accused was found transporting Indian Made Foreign Liquor in excess quantity, in a car, and the 2[nd] accused was waiting on a scooter for receiving the said articles. Both accused persons were apprehended by the officers concerned, and upon questioning the 1[st] accused, it was revealed that the aforesaid articles were being transported as per the instructions of the petitioner herein. Annexure I is the First Information Report and after completing the investigation Annexure II Final Report was ``` CRL.MC NO. 1132 OF 2021 ``` ``` 3 ``` submitted and cognizance thereon was taken by the Judicial First Class Magistrate Court, Thiruvalla as C.P. No.10/2021. This Crl.M.C. is filed by the petitioner for quashing all further proceedings against him pursuant to Annexure II. 3. Heard Sri.Vinay V., learned counsel appearing for the petitioner and Smt.Neema, learned Public Prosecutor appearing for the State. 4. The specific case of the petitioner is that the materials produced by the prosecution along with Annexure II and averments contained therein, even if accepted for its face value, would not attract any of the offences alleged. According to him, as far as the offences under the provisions of Section 118(e) of Kerala Police Act, Section 4(2)(d) read with Section 5 of Kerala Epidemic Diseases Ordinance 2020 and the offences under Section 188 and 269 of Indian Penal Code are concerned, the aforesaid offences can be deemed to have been committed only if the physical presence of the petitioner is established. However, on going through the prosecution case it is evident that, the petitioner was not present in ``` CRL.MC NO. 1132 OF 2021 ``` ``` 4 ``` the place of occurrence and the articles were seized from a public place from the possession of the 1[st] and 2[nd] accused. The only allegation against the petitioner is that transportation was conducted as instructed by the petitioner. Therefore, the physical presence of the petitioner was not there even according to the prosecution case. 5. The other crucial offence is under Sections 55A(i) of the Kerala Abkari Act. The aforesaid offence is in relation to the allegation of transportation of sale of Indian Made Foreign Liquor, without any permit for the same. In this case, as pointed out by the learned counsel for the petitioner, the only material on which the petitioner was implicated is the confession statement of the 1[st] accused. The contention is that, petitioner cannot be implicated as accused on the basis of the confession of the other accused alone, as it is not an admissible piece of evidence. The learned counsel relies on a judgment rendered by this Court on **Murukadas @ Murukan v. State of Kerala** [2020(2) KHC 451], wherein the aforesaid question was explicitly considered by this Court. In the said judgment it was observed as follows: ``` CRL.MC NO. 1132 OF 2021 ``` ``` 5 ``` _“19. In Suresh Budharmal Kalani v. State of Maharashtra: (1998 KHC 1188 : AIR 1998 SC 3258 : 1998(7) SCC 337 : 1998 SCC (Cri) 1625 : 1998 CriLJ 4592), the Apex Court has held that confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against him. It has been held that only on the basis of the statement of the co-accused, no case would be made out, for framing a charge against another accused. The dictum laid down in Suresh Budharmal Kalani (supra) has been re-iterated by the Apex Court in Dipakbhai (supra)._ _20. In this context, it is pertinent to note that in Joseph v. State of Kerala (2009 (4) KHC 537 : 2009(2) KLD 915 : 2010 (1) KLT SN 18.), this Court has held that, after the amendment of Section 50 of the Abkari Act, Abkari Officers can only file a final report in accordance with Section 173(2) of the Code and the status of the Abkari Officers has been transformed to that of police officers. It has been held that, any confession made to an abkari officer after the date 03.06.1997, the date on which the amendment of the Abkari Act came into force, will be deemed to be a confession made to a police officer within the meaning of Section 25 of the Evidence Act and will stand interdicted by the said provision. In other words, after the Abkari Officers have been invested with the powers of the police officers, confession made to an Abkari Officer is not admissible in evidence._ _21. The discussion above leads to the conclusion that confession made by a co-accused to the investigating officer, which comes within the interdiction under Section 25 of the Evidence Act, is not sufficient to frame charge against another accused in the case.”_ Thus it was evident that, a person cannot be implicated as an ``` CRL.MC NO. 1132 OF 2021 ``` ``` 6 ``` accused merely based on a confession statement by the other accused. This is because of the reason that a confession statement given to the Police is not an admissible piece of evidence in the light of the stipulations in Section 25 of the Evidence Act. The question of the impact of a confession statement given to the Abkari Officer by a person was considered in the case of **Muruakadas** (supra) and it was held that by virtue of the provisions of the Abkari Act, the Abkari Officer is also a Police Officer within the meaning of Section 25 of the Evidence Act. In such circumstances, merely because the 1[st] accused has stated that he was transporting the articles on the instructions of the petitioner, he cannot be implicated as an accused. 6. In this case, apart from the aforesaid confession statement, there is nothing to indicate the complicity of the petitioner herein. It is true that, in the First Information Statement itself, it is clearly mentioned that the aforesaid articles were being transported based on the instructions of the petitioner herein. However, the abovementioned statement was given by CW1 based ``` CRL.MC NO. 1132 OF 2021 ``` ``` 7 ``` on information submitted by the 1[st] accused. This would mean that the implication of the petitioner is solely based on the confession statement of the 1[st] accused. Another relevant evidence which refers to the petitioner is that of CW3. I have gone through the statement of the said witness recorded under Section 161 Cr.P.C. The said statement would only indicate that the aforesaid vehicle was being used by the petitioner herein. Apart from the above, there is nothing to show the complicity of the petitioner herein, and I do not think that the said statement is sufficient to establish the petitioner's involvement. 7. Thus, even after examining the entire contents of the same, there are no admissible materials to implicate the petitioner in the offence alleged against him under the provisions of the Abkari Act. About the other offences, I am of the view that the physical presence of the petitioner is necessary and even according to the prosecution case, he was not present in the said location. Even if it is assumed that the aforesaid offence can be attributed against the petitioner even without his presence in the place of occurrence, the ``` CRL.MC NO. 1132 OF 2021 ``` ``` 8 ``` petitioner cannot be implicated for the same because of the reason that the only material indicating the role of the petitioner is the confession statement of the 1[st] accused which is already found not admissible in evidence. 8. In such circumstances, the proceedings against the petitioner pursuant to Annexure II is an abuse of process of law and hence it is liable to be interfered with. In such circumstances, this Crl.M.C. is allowed, and all further proceedings against the petitioner, who is the 3[rd] accused, pursuant to Annexure II final report submitted in Crime No.628/2020 of Thiruvalla Police Station and all further proceedings in C.P. No.10/2021 pending before the Judicial First Class Magistrate Court, Thiruvalla, as against the petitioner are hereby quashed. ## **`Sd/ZIYAD RAHMAN A.A. JUDGE`** scs ``` CRL.MC NO. 1132 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 1132/2021`** ``` PETITIONER ANNEXURES ANNEXURE ITRUE COPY OF THE FIR AND FIS IN CRIME NO. 628/2020 THIRUVALLA POLICE STATION, PATHANAMTHITTA. ANNEXURE IIA CERTIFIED COPY OF A FINAL REPORT IN CRIME NO. 628/2020 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT WHICH IS NOW PENDING AS CP NO.10/2021 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA. ```