SUNEER v. STATE OF KERALA

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 ``` ``` CRL.REV.PET NO. 527 OF 2021 ``` ``` [AGAINST THE ORDER DATED 2.9.2021 IN CMP NO.4960 OF 2019 IN ``` ``` C.C.NO.1065/2013 ON THE FILES OF THE JUDICIAL FIRST CLASS ``` ``` MAGISTRATE-II, KOLLAM] ``` ## `REVISION PETITIONER/PETITIONER/ACCUSED NO.2:` ``` SUNEER AGED 40 YEARS S/O. MUHAMMED KUNJU YUNUS KUNJU, PAYATTUVILA VEEDU, SANTHI NAGAR, VADAKKEVILA, AYATHIL P.O., KOLLAM, KERALA-691 010 BY ADV BIJU C. ABRAHAM ``` ## `RESPONDENTS/COUNTER PETITIONER/STATE:` ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2THE SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM ``` ## `OTHER PRESENT:` ``` BY ADV VIPIN NARAYAN, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.RP No.527/2021 2 ## `O R D E R` The petitioner is the 2nd accused in Crime No.1904/2012 of Kollam East Police Station, which is now pending as C.C.No.1065/2013 on the file of the Judicial First Class Magistrate Court-II, Kollam. 2. The aforesaid crime was registered for the offences punishable under Sections 3 & 7 of the Essential Commodities Act, 1955 and clause 5(a) of the Kerala Rationing Order, 1966. 3. The prosecution case is that on 27.9.2012 at about 1.20 p.m., on inspection, it was found that 32 bags of wheat, 122 bags of white rice and 20 bags of rice which were transported to the Ration Shop of the 1st accused and intended to be supplied to the public through the supply system maintained by the Civil Supplies Corporation, were unloaded from the lorry bearing Registration No.KL-02-L-5199 belongs to the 5th accused in the godown taken on rent by the 4th accused with the help of the 6th accused, the driver of the lorry. According to the prosecution, the unloading of the said articles were for the sale for the benefit of the petitioner/2nd accused. The Police submitted a final report against six accused persons referred to above, and the Judicial First Class Magistrate Court-II, Kollam, has taken cognizance thereon as CRL.RP No.527/2021 3 C.C.No.1065/2013. 4. The petitioner/2nd accused submitted C.M.P.No. 4960/2019 before the learned Magistrate seeking discharge under Section 239 of Cr.PC and the said application was dismissed by the learned Magistrate as per the order dated 2.9.2021. This Crl.M.C. is filed challenging the said order. 5. Heard Sri.Biju C. Abraham, the learned counsel for the petitioner and Sri. Vipin Narayan, the learned Public Prosecutor for the respondents. 6. The contention put forward by the learned counsel for the petitioner is that the materials placed on record along with the final report would not make out any of the offences as against the petitioner as there is nothing to indicate the role of the petitioner in the commission of the Crime. It is further pointed out that, even though those contentions were specifically raised before the learned Magistrate, the same was rejected without considering the materials placed on record and without application of mind. 7. On the other hand, the learned Public Prosecutor would oppose the prayer sought by the petitioner by highlighting that the question as to the role of the petitioner is a matter which requires to be adjudicated based on evidence to be adduced during the course of the trial. According to the learned Public Prosecutor, there are CRL.RP No.527/2021 4 sufficient materials indicating the role of the petitioner, and hence the Revision Petition is only to be dismissed. 8. The final report, along with the statement of witnesses recorded under Section 161 Cr.PC were produced before me for perusal. I have carefully gone through the contents of the same. Even though in the gist of the charge it is specifically alleged that the transportation of the articles was done on behalf of the petitioner also, on going through the statement of witnesses and the other materials produced along with the final report, it can be seen that there are not much evidence to substantiate the same. In support of the prosecution case, 16 witnesses are cited, out of which only two have referred to the petitioner herein. The statement of CW1, a head load worker, is one among them. According to him on 27.9.2012 at 1.30 p.m., he had seen that some employees went to the godown to unload wheat and rice. By 3.40 p.m., he could see that the police party inspected the said premises, and when he went to the godown, he could see that the articles were being unloaded from the vehicle bearing Registration No.KL-02-L-5199. He also stated that, upon seeing the police, the persons who were at the scene of the occurrence took their heels. According to him, he understood that the activity that was going on there, was unloading the articles which were brought to the said godown in gunny bags and the contents of CRL.RP No.527/2021 5 the gunny bags were being filled up in plastic sacks. He further stated that, the godown was taken on rent by one Mahin Shah, the 4th accused. He further stated that, he is aware the petitioner and the 3rd accused used to bring the articles to the godown in similar fashion on various occasions. 9. The other reference is made by CW3. The only statement he gave with reference to the role of the petitioner is that he used to visit the godown from which the seizure was affected, occasionally. CW3 is the person conducting a stationery shop near the godown. 10. A careful examination of the materials placed on record, it can be seen that, apart from these two statements, there is nothing on record, indicating the involvement of the petitioner in the commission of the crime. As far as the statement of CW1 is concerned, he does not state that the particular load which was seized by the Police was brought to the said godown for the purpose of the petitioner. Similarly, the statement of CW3 is to the effect that, the petitioner used to visit the said godown occasionally. In my view, even if the statements made by both the said witnesses with regard to the petitioner are accepted on its face value, it would not indicate the role of the petitioner in bringing the articles which is the subject matter of the prosecution. There are no other materials indicating the connection of the petitioner with the said godown, the CRL.RP No.527/2021 6 Ration shop or with the articles which were allegedly transported. 11. In **Union of India v. Prafulla Kumar Samal & Anr [1979(3) SCC 4]** it was observed that, while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. If the evidence which the Prosecutor proposes to adduce to establish the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the accused committed the offence, nothing would preclude the court from exercising the jurisdiction vested upon it under Section 239 of Cr.PC and to discharge him. The Court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on for the limited prayer of finding out whether or not a prima facie case against the accused has been made **(see State by Inspector of Police, Chennai v. S. Selvi and** ## **Another [AIR 2018 SC 81].** 12. When the aforesaid principles laid down by the Hon’ble Supreme Court are applied to the facts of this case, I am of the view that there is nothing to indicate the role of the petitioner in the CRL.RP No.527/2021 7 commission of the said Crime. As mentioned above, the only evidence sought to be adduced by the prosecution as against the petitioner is the statements given by CW1 and CW3. The aforesaid statements are vague and general in nature and under no circumstances, the same can be treated as crucial evidence connecting the petitioner with the transaction which is the subject matter of the prosecution. To be precise, both the said witnesses are referring to the conduct of the petitioner by stating that, he used to either visit the godown or used to bring loads of the articles to this godown. They do not have a case that the articles which are the subject matter of the prosecution were brought to the godown at the instance of the petitioner herein. In such circumstances, in the absence of any link being established, the petitioner cannot be prosecuted. Therefore, I find that this is a fit case in which the jurisdiction vested upon this Court under section 239 Cr.PC can be invoked. 13. On going through the impugned order, it can be seen that, the said order was passed by the learned Magistrate without specifically adverting to the statements of the witnesses and therefore it requires interference. In the result, this Crl.R.P. is allowed and since no incriminating materials as against the petitioner could be produced by the CRL.RP No.527/2021 8 prosecution along with the final report, no prosecution can be continued as against the petitioner. Accordingly, the petitioner is hereby discharged under section 239 of the Cr.P.C, from the offences alleged and the proceedings in C.C No 1065/2013 on the files of the Judicial First Class Magistrate Court -II, Kollam . Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.RP No.527/2021 9 ## `APPENDIX OF CRL.REV.PET 527/2021` ``` PETITIONER’S ANNEXURES Annexure A1TRUE COPY OF THE CHARGE SHEET IN CRIME NO.1904/2012 OF KOLLAM EAST POLICE STATION Annexure A2TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT OF THE PETITIONER Annexure A3TRUE COPY OF THE SURGICAL PATHOLOGY REPORT DATED 3.6.2011 ISSUED TO THE PETITIONER BY AMRITA INSTITUTE OF MEDICAL SCIENCES & RESEARCH CENTRE WITH REGARD TO HIS TREATMENT ```