IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 Crl.MC.No. 1145 of 2010() -------------------------------------- (CRIME NO.185 OF 2007 OF PULPALLY POLICE STATION,WAYANAD) PETITIONER(S): ACCUSED NO.1: ------------------------------------------------ V.K.ASOKN, S/O. VILAMPATH KUNJIKUTTAN, SREELAKSHMI, BENNAT ROAD, CHEMPUKAVU, TRISSUR. BY ADVS. SRI.B.RAMAN PILLAI, SRI.R.ANIL, SRI.ANIL K.MOHAMMED, SRI.SUJESH MENON V.B., SRI.JOSEPH P.ALEX, SRI.SHYAM ARAVIND, SRI.T.ANIL KUMAR. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.RAMKUMAR, J. ------------------------------------- Crl.M.C.No.1145 of 2010 -------------------------------------- Dated this the 16th day of June, 2010 ORDER In this petition filed under Section 482 of Code of Criminal Procedure the petitioner who is the first accused in Crime No.185/2007 of Pulpally Police Station and re-numbered by the Crime Branch Police as Crime No.172/Cr/2007 of CBCID, SIG, Kozhikode for offences punishable under Section 55(a) of Abkari Act, Rules 3 and 8 of the Rectified Spirit Rules and Sections 465, 468, 471 and 472 read with Section 120B of I.P.C. seeks to quash AnnexureA charge and all further proceedings in S.C.No.294/2009 on the file of the Sessions Court, Kalpatta. 2. The case of the prosecution can be summarized as follows:- Pursuant to the criminal conspiracy hatched by A3 (Surendran) with A4 to A12 and A15, the said Surendran brought a lorry bearing a false registration No.TN 59-AB-2443 to Thaliparamba and from there it was taken by A4 (Shinod) and A5 (Sajeevan) with the assistance of A7 (Aneesh) and A9 Crl.M.C.No.1145/2010 : 2 : to A12 (Nazar, Binu, Shaji & Basheer) to Pulpally and with the assistance of A6 (Mohandas), A8 (Suresh), A13 to A15 (Jineesh, Ummer & Kuriakose) parked the said lorry at Padichira-56 in the early morning of 29/6/2007 for the sale of 8540 litres of spirit which had been brought by Josy Sebastian and Surendran (A2 and A3) from Vapi, a place in Gujarat to Kasaragod on 28/6/2007 and which was entrusted by A3 with A2 at 8.40 a.m. on 28/6/2007. The Circle Inspector of Police, Pulpally seized the lorry together with spirit and registered a case as Crime No.185/2007 of Pulpally Police Station for the aforesaid offences. A1 who was subsequently implicated on 28/1/2008 as per Annexure –B report which reached the Court on 4/2/2008 had also entered into the Criminal conspiracy with A2 and A3. 3. After the filing of the final report before the Judicial Magistrate of the First Class Court-II, Sulthan Bathery the case was committed to the Sessions Court, Kalpatta where it has been registered as S.C.No.294/2009. 4. According to the petitioner there is absolutely no material to connect the petitioner with the alleged offence and Crl.M.C.No.1145/2010 : 3 : that petitioner who has been implicated in the case had nothing to do with the Abkari business or the transportation of spirit from Gujarat to Kasaragod or to the place of detection. 5. The learned Public Prosecutor opposed the petition and made the following submissions before me in support of the prosecution case:- The statements of CWs.34 and 37 positively contain reference to the name of the petitioner besides the reports submitted by CWs.84 & 85 who are the officers who conducted the investigation. That apart Josy Sebastian (A2) who was arrested on 28/12/2007 by CW.83 has confessed that he is the owner of the lorry bearing registration No.KL 7 G 4768 containing the false No.TN 59 AB 2443 and while he was taken on police custody on 31/12/2007 he has confessed that he purchased spirit from one Sathish Bai (A16) at Vapi in Gujarat and that the spirit was brought for the purpose of A1, the petitioner herein. When there is the above material to connect the petitioner with the offence, it is not advisable to quash the final report as well as the proceedings pending before the Sessions Court. Crl.M.C.No.1145/2010 : 4 : 6. I am afraid that I cannot agree with the above submission by the learned Public Prosecutor. The name of the petitioner does not figure in the FIR on 29/6/2007 when the lorry and the spirit were seized. As mentioned earlier the petitioner was implicated in the case originally as A17 as per Annexure-B report dated 28/1/2008 which itself reached the court only on 4/2/2008. No reasons are stated in Annexure-B report as to how the petitioner is involved in the case. The petitioner was not arrested by any of the officers conducting the investigation. On the contrary, he surrendered before the DYSP, CBCID (CW 84) at 10 am on 10/4/2008. He was taken to the committal Magistrate in the evening of 10/4/2008 along with Annexure-D remand report and Annexure-M report was filed for police custody for the purpose of finding out from him as to who was the person for whom the large quantity of spirit was brought to Kasaragod. Annexure-E is the report dated 11/4/2008 filed after producing him back from police custody with a request for remanding him for 14 days. This report does not reveal anything about the person for whom the spirit was allegedly brought to Kasaragod. Annexure-F is the report filed Crl.M.C.No.1145/2010 : 5 : by the investigating officer opposing the bail application of the petitioner. In this report, it is stated that the petitioner who was then A17 had not revealed anything. Annexure-G is the remand extension report in which also there is an admission that the remand of the petitioner is to be extended as it had not been found out as to the source from which the spirit was brought and the person for whom it was brought. Annexure-A2 is the remand report dated 14/12/2007 pertaining to Surendran who was A8 at that point of time and who is presently A3. Eventhough Surendran had been questioned while in custody there was not disclosure as to the alleged complicity of the petitioner nor any information revealed regarding the place to which the spirit was being brought or the person from whom it was procured. Similarly, Annexure-L is the report submitted after the police custody of A2 (Josy Sebastian). This report also does not implicate the petitioner. 7. Regarding the reports submitted by investigating officers (CWs.84 and 85) except mentioning the name of the petitioner in those reports, there is no material to connect the petitioner with the procurement or the destination of the spirit Crl.M.C.No.1145/2010 : 6 : seized in this case. 8. What now remains to be considered is the statement given by CWs.34 and 37. In Annexure-H memorandum of evidence what is stated against CW.34 (P.M.Sethunadh) is that he is cited for proving the Trip Sheet of the taxi car bearing registration No.KL 13 KL 466. But in Annexure-J statement this witness is alleged to have stated that while in the car he heard A5 (Sajeevan) telling others that the spirit was brought for the purpose of Asokan of Thrissur. Apart from the fact that the said statement itself is hearsay, there is nothing to show that the said Asokan of Thrissur is none other than the petitioner. As mentioned earlier Annexure-H memorandum of evidence does not say CW34 is being cited for stating the complicity of the petitioner. 9. Annexure-I is the statement of CW.37. The relevant statement in Annexure-I is that while this witness was proceeding to the Pariyaram Hospital to meet a friend of his undergoing treatment there, he met A3 Surendran standing near the rear wheel of a lorry and asked him as to why he was standing there and Surendran is alleged to have told him that Crl.M.C.No.1145/2010 : 7 : he was standing there since the wheel drum had burst. Thereupon CW.7 enquired Surendran with whom he was working. To that query, Surendran allegedly replied that for the time being he was working in the lorry of Asokan, the abkari contractor of Thrissur and that the lorry was carrying manure. This witness proceeds to say that he subsequently came to know that it was not manure, but it was spirit which was carried in the lorry. I fail to see how CW.37 also implicates the petitioner because his statement also suffers from the same vice as that of the statement of CW.34. This is also a hearsay statement. Even assuming that it could be treated as a confession made by A3 Surendran to CW.37 (who in turn was making a statement to the investigation officer) it is well settled that confession by a co-accused can only constitute a corroborative piece of evidence which presupposes the existence of other substantive evidence against the first accused (AIR 1964 SC 1184). When there is no substantive evidence incriminating the petitioner, the confession by a co-accused by itself cannot be used against the petitioner. Crl.M.C.No.1145/2010 : 8 : 10. The last item of evidence relied on against the petitioner is the confession allegedly made by A2 (Josy Sebastian) on 31/12/2007 to the investigating officer to the effect that he purchased the spirit from one Satheesh Bai (A16 who even now continues to be elusive) of Vapi in Gujarat for the purpose of Asokan. This piece of evidence, assuming it is admissible, was not produced along with the charge sheet nor a copy furnished to the petitioner so far. Hence, it cannot be used against petitioner unless Section 207 Code of Criminal Procedure had been complied with so far as this item is concerned. Moreover, this statement is also a confession by a co-accused which suffers from the same vice as that of A3 (Surendran) and there is no substantive evidence forthcoming to connect the petitioner with the offence. A corroborative piece of evidence by itself cannot constitute evidence to convict the accused unless there is other substantive evidence. 11. After giving my anxious consideration to the entire materials produced by the prosecution, I find that the petitioner cannot be justifiably arrayed as an accused in this case. Accordingly, I am of the opinion that this is a fit case for Crl.M.C.No.1145/2010 : 9 : exercising the inherent power of this Court to quash Annexure- A charge as well as S.C.No.294/2009 of the Sessions Court, Kalpatta so far they relate to the petitioner (A1) and I do so. This Criminal M.C. is allowed as above. V.RAMKUMAR, JUDGE skj