IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.REV.PET.NO. 3035 OF 2004(D) ---------------------------------------------- SC.427/1999 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM .................... REVN. PETITIONER(S): ACCUSED NO.2 ------------------------------------------------------ THULASI, D/O.BHARGAVI, SETHUSADANAM, NEAR BLOCK OFFICE, THAZHATHUCHERRI, MEENADU VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S) - RESPONDENTS : ---------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, CHATHANNOOR. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3035 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2009 O R D E R -------------- Order passed by learned Additional Sessions Judge (Adhoc-II), Kollam in SC No.427 of 1999 impleading petitioner as additional accused under Section 319 of the Code of Criminal Procedure (for short, “the Code”) is under challenge in this revision. 2. Case is that on 5.12.1997 police party led by P.W.4, Head Constable seized Indian Made Foreign Liquor from house No.V/1105 of Chathanoor Panchayat allegedly in the possession of the petitioner. Detecting officer drew a mahazar for the seizure and the contraband was taken to custody. Alleging that one Shaji had kept the contraband in that house case was registered against the said Shaji. After investigation final report was filed attributing to the said Shaji commission of offence punishable under Section 55(a) of the Abkari Act. Petitioner was cited as witness No.1 for the prosecution to prove the seizure. She was examined as P.W.1 but she refused to support prosecution. P.W.2 is an attester in Ext.P1 but refused to support the prosecution. P.W.4, detecting Officer and P.W.3 who is stated to have accompanied him gave evidence as to the seizure of the contraband from the residence. At that stage learned Additional CRL. R.P. No.3035 of 2004 -: 2 :- Sessions Judge invoked Sec.319 of the Code and impleaded petitioner (P.W.1) as additional accused. That order is under challenge. It is contended by learned counsel that the order is not legal or proper in that there was no material on record to implead the petitioner as additional accused. 3. On the strength of the evidence adduced before it, court has the power to implead a person who is not already made an accused in the case but only if it appears from the evidence that such person has committed the offence. In this case evidence is given by P.Ws.3 and 4 and Ext.P1 as to the alleged seizure of the contraband from house No.V/1105 which according to the petitioner stands in the name of herself and her husband. But then the question for consideration is whether the petitioner had conscious possession of the contraband. Certainly that is a defence available to the petitioner. Case of the prosecution right from the registration of the case and even in the final report submitted is that the accused making the petitioner believe that it contained electrical items, kept the cardboard box which actually contained the contraband in the house of petitioner. If that be the case of prosecution they cannot now turn round and say that petitioner has possessed the contraband and committed any offence. It cannot then be said that petitioner was in conscious possession of the contraband to make her liable for the offence under CRL. R.P. No.3035 of 2004 -: 3 :- Section 55(a) of the Abkari Act. Petitioner was summoned as a witness for the prosecution. Evidence given by her on such examination cannot be taken into account to prosecute her in view of the proviso to Section 132 of the Evidence Act. In Gangadharan v. S.I. of Police (1989 (2) KLT 448) a Division Bench of this Court held that protection of the proviso to Section 132 of the Evidence Act is available to a witness whose presence is required by the court either by issuance of summons or by other mode and that the answer given by such a witness cannot be characterised as a voluntary statement without compulsion. It is immaterial whether such witness objected to the question put to him or not. In the circumstances I am of the view that there was no evidence before the learned Additional Sessions Judge to hold that petitioner was in conscious possession of the contraband so that it could appear that petitioner committed offence as alleged. Impleading can be ordered under Sec.319 of the Code only when such a course is found to be imperative and when substantive evidence is available. Such evidence regarding conscious possession of the contraband by the petitioner is lacking. It is altogether a different matter whether petitioner has given false evidence and is open for prosecution for perjury. Hence the order of impleadment cannot be sustained. CRL. R.P. No.3035 of 2004 -: 4 :- Resultantly, this revision succeeds. Order under challenge is set aside. Trial of the case with the original accused shall be proceeded as provided under law. Criminal Miscellaneous Application No.13725 of 2004 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv