IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.Rev.Pet.No. 550 of 2002() ----------------------------------------- CRA.65/1996 of SESSIONS COURT, THODUPUZHA CC.131/1989 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA . .................... REVN. PETITIONER: APPELLANT/ ACCUSED ------------------------- K.D.NARAYANAN NAIR, S/O.DAMODARAN NAIR, THAZHAPPILLIL VEEDU, VENGALLOOR KARA, KUMARAMANGALAM VILLAGE. BY ADV. SRI.K.C.PETER RESPONDENT: RESPONDENT/ COMPLAINANT ----------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR (SUB INSPECTOR OF POLICE, THODUPUZHA IN CRIME NO.217/87). BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.3558/2002 IN CRL.RP. NO.550/2002 DISMISSED 25.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.550 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June 2008 ORDER Petitioner was tried for the offence punishable under Section 380 of the Indian Penal Code on the charge that he had committed theft of about 2,000 weeklies/magazines/periodicals from Thodupuzha Head Post Office during the period between August 1985 to May 29, 1986. The trial court found the petitioner guilty. He was accordingly convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for three months. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence this revision petition. 2. As indicated above, the charge against the petitioner was that he had committed theft of about 2,000 weeklies/magazines from Thodupuzha Head Post Office. According to the prosecution, these periodicals were addressed to PWs1, 3 and 4. But the accused had committed theft of these Crl.R.P.No.550 OF 2002 :: 2 :: postal articles and kept them for sale at the outlet of Sasthra Sahithya Parishad along with the periodicals and books that were being published by the said Parishad. 3. Prosecution had examined PWs 1 to 9 and marked Exts.P1 to P4 and M.O.1 to 17 (series) on its side. 4. PW6 was the prime witness on the side of the prosecution. He stated that he was working as Complaint Inspector in the Postal Department between June 2, 1986 and July 14, 1987 in Idukki Postal Division. He further stated during the relevant period, he had been officiating as Assistant Postal Superintendent. According to this witness, PW1 had approached him on May 29, 1987 and orally complained that several parcels addressed to him containing weeklies and magazines were found in the shop of the accused. Therefore, PW6 went to the shop of the accused along with PWs1 and 3. PW1, was the proprietor of K.N.G. Book stall and PW3 was running K.V. Baby stores. PW6 deposed before the court that he had seized the periodicals/magazines addressed to PWs1 and 3 from the shop of the accused. Ext.P1, seizure mahazar was prepared by him. Crl.R.P.No.550 OF 2002 :: 3 :: Thereafter, he had filed Ext.P2 complaint before the police, pursuant to which, the above crime was registered against the petitioner. Curiously, the First Information Report was not seen marked in the case. Ext.P2, complaint preferred by PW6 did not bear any date. The said complaint is seen to have been received along with the FIR by the court on June 18, 1987. Though a copy of the FIR is available in the file, it was not marked. FIR was registered on June 17, 1987 at about 9.30 a.m. 5. As mentioned earlier, PW6 had prepared Ext.P1 inventory or seizure list. Later, police had prepared Ext.P4 seizure mahazar at the Police Station on the basis of the inventory (Ext.P1) produced by PW6. Police had prepared Ext.P3, scene mahazar on June 17, 1987. PW6 deposed before the court that going by the provisions contained in Rule 322 of volume 8 of P&T Manual, he was empowered to conduct investigation on receipt of a complaint. But he conceded in cross examination that he had no authority or power to effect seizure of any articles. Not only PW6 but PWs1 and 3 also had admitted that the alleged stolen periodicals/magazines were seized and Crl.R.P.No.550 OF 2002 :: 4 :: taken into custody after conducting a search at the petitioner’s premises. They were taken by PW6 to the Police Station. PW6 however admitted before the court that the wrappers of the magazines containing the address of PWs1 and 3 were not available in the court when the seized materials were shown to him while he was being examined in the case. 6. It is significant to note that PW6 and other witnesses had admitted that Thodupuzha Police Station was about 10m away from the shop of the petitioner. Surprisingly, PW6 had not chosen to report the matter to the Police, when PW1 went to him and lodged an oral complaint. Similarly, PWs1 and 3 had also no explanation why they did not choose to approach the police. Stranger still, the police had accepted the alleged stolen articles from PW6 without any demur or verification. The police had proceeded as though seizure was effected by PW6 as authorised under law. Admittedly, the police had not effected any seizure. PW1, who was in fact the aggrieved person, had not bothered to give any complaint to the police nor had he given any complaint in writing to PW6. Ext.P2 complaint was lodged by PW6 before Crl.R.P.No.550 OF 2002 :: 5 :: the Police. Strangely in Ext.P2 complaint, PW6 had stated that the accused on his questioning had admitted to have taken periodicals from Thodupuzha Post Office without the knowledge of the staff. But curiously in the course of cross examination, PW6 had admitted that the then Assistant Post Master and Delivery clerk in the Post Office were also suspected to have been involved in the crime. The evidence of PW6 undoubtedly shows that it would not have been possible for an outsider like the accused to have free access to the section concerned in the Post Office and walk away with parcels without the aid or assistance of the employees of the postal department. I have carefully gone through the deposition of PW6 apart from that of PWs1 and 3. In my view, the courts below were not justified in holding the petitioner guilty in the case. The entire procedure adopted by the investigating agency was thoroughly irregular. Therefore, the order of conviction and sentence passed against the petitioner is set aside. Revision Petition is allowed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.550 OF 2002 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.550 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 25th June 2008