IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 14288 of 2009(Q) ----------------------------------------- CMP.NO.9032/2008 OF JFCM, KARUNAGAPPALLY ............. (CRIME NO.524/08 OF KARUNAGAPPALLY POLICE STATION) PETITIONER(S): ------------------------ P. THAHA, AGED 35 YEARS, S/O. POOKUNJU, PUTHEN VEETIL VADAKKETHIL HOUSE, PULIYOOR VANCHI VADAKKE MURI, THODIYOOR VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADVS. MR.B.RAMAN PILLAI, MR.R.ANIL. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. 3. SUPERINTENDENT OF POLICE, KOLLAM. 4. SUB INSPECTOR OF POLICE, KARUNAGAPPALLY. R1 TO R4 BY GOVERNMENT PLEADER MR. S.U. NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C)No. 14288 OF 2009 =========================== Dated this the 16th day of December,2009 JUDGMENT Petitioner is the second accused in Crime No.524/2008 of Karunagappally Police Station registered for the offences under section 3(d) read with section 7 of the Essential Commodities Act. Rationing Deputy Controller, South Zone, Kollam conducted an inspection at the retail Ration Shop Depot ARD No. 154 situated at Kulasekharapuram Panchayath, Karunagappally. First accused Jayaprakash is the licensee. On physical verification of the stock, shortage of rice was found out. The mahazar prepared by Rationing Deputy Controller shows that while so, first accused Jayaprakash contacted somebody over phone and after some time mini lorry KL-04-F-7270 driven by the petitioner reached the ration shop and it W.P.(C) 14288/2009 2 contained the raw rice and boiled rice which was missing in the store. The vehicle and rice were seized and petitioner being the driver was arrested. Ext.P1 F.I.R was registered with Syed Mohammed the registered owner of the mini lorry as the first accused and petitioner as the second accused. On investigation Syed Mohammed was removed from the array of the accused and in his place Jayaprakash, the licensee of the ration shop was arrayed as the first accused. A final report was submitted which was taken cognizance by the learned Magistrate as C.C. 256/2009. This petition is filed under Article 226 of the Constitution of India for a direction to the second respondent Director General of Police to appoint an officer not below the rank of Superintendent of Police, to carry out investigation in Crime 524/2008 of Karunagappally Police Station or in the alternative to constitute a team headed by a police officer not below the rank of Superintendent of Police (Vigilance) and Anti Corruption Bureau to carry out the investigation. W.P.(C) 14288/2009 3 2. Case of the petitioner is that on 6.6.2008 he was driving the Matadoor Van owned by Rasheed Kutty and Rahim, a confidant of Rasheed Kutty, was sitting nearby him and as directed by Rahim the van with rice packets transported in the van, which were collected from wholesale depot No.9 in Karunagappally taluk and taken to the ration shop ARD 154 owned by Jayaprakash at Vawakav at Kulasekaram Panchayath and by 11 a.m certain packets of rice were unloaded at the said ration shop and as directed by Rahim petitioner drove the vehicle containing the remaining rice load towards the rice godown of Rasheed Kutty situated at Chitumoola and on the way Rahim received a call on his mobile No.9388988614 from Rasheed Kutty and directed the vehicle to be taken back to the ration shop of Jayaprakash and as instructed by Rahim, the vehicle was taken to the shop of Jayaprakash and from there the authorities took custody of the vehicle and petitioner was arrested. It is contended that he was only a driver of the vehicle acting as directed by Rasheed Kutty and W.P.(C) 14288/2009 4 Rahim and he was doing similar acts of loading ration articles from the wholesale depot and unloading a portion of the same to certain ration shops and stocking the balance quantity in the godown of Rasheed Kutty and these aspects were not properly investigated. It is contended that it is because of the influence of Rasheed Kutty, Rahim and Jayaprakash and proper investigation is not being conducted. 3. Fourth respondent, Investigating Officer filed a statement stating that on the basis of the report and mahazar prepared by the Rationing Deputy Controller, Kollam Crime No.524/2008 was registered and petitioner was arrested and produced before the Magistrate and later released on bail and though Syed Muhammad was shown as the first accused finding that he was only the owner of the vehicle and not involved in the offence, he was removed from the array of the accused and Jayaprakash the licensee of the shop was substituted as first accused. After completing the investigation final report was filed which was W.P.(C) 14288/2009 5 taken cognizance by the learned Magistrate. It is contended that on the basis of the report submitted before the District Collector, the Controller of Rationing Deputy Collector heard the explanation of Jayaprakash and conducted an inquiry and found him guilty and the articles were confiscated. It is also stated that the case was properly investigated and a final report has already been filed and there is no laches or deficiency in investigating the case. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. The mahazar prepared by Rationing Deputy Controller shows that while he inspected the ration shop being run by Jayaprakash the licensee, shortage of 259 kgs of boiled rice and 500 kgs of raw rice as shown in the stock register was detected and the licensee was also satisfied about the shortage. At that time the licensee over phone contacted son and as directed by him vehicle KL-04- F-7270 reached near the ration shop which contained W.P.(C) 14288/2009 6 the ration articles and it was seized and the matter was reported to the police based on which case was registered. Strangely Ext.P1 F.I.R prepared by Sub Inspector of Police, shows that vehicle was intercepted by Deputy Controller, South Zone while it was plying without necessary documents or bill for transporting the ration articles and after preparing the mahazar crime was registered which is not as stated in Ext.P1 report. When the mahazar itself shows that after finding that there was shortage of ration articles from the stock register, the licensee contacted “somebody” over phone and thereafter the vehicle reached the ration shop with the ration articles, a proper investigation should have been made as to who was the person to whom first accused Jayaprakash contacted at that time. It is the specific case of the petitioner that while petitioner was transporting the ration articles as instructed by Rahim, a confidant of Rasheed Kutty, first accused contacted the said Rahim and it is as instructed by Rahim vehicle was taken to the ration W.P.(C) 14288/2009 7 shop. Petitioner has given the mobile number of Rahim also. It is strange to note that eventhough mahazar prepared itself shows that shortage of ration articles cannot be without the knowledge of the licensee and the ration articles reached there to cover up the shortage as instructed by licensee, he was not implicated as an accused and instead the registered owner of the vehicle was shown as an accused. 6. It is the case of petitioner that though the registered owner is Syed Mohammed the real owner is Rasheed Kutty. It is clear that there is some force in the submission because it was Rasheed Kutty who had taken the vehicle on interim custody under section 451 of Code of Criminal Procedure from the court and not Syed Mohammed. In such circumstances, a proper investigation should have been conducted as to the role of Rasheed Kutty and Rahim. Therefore considering the entire facts and circumstances of the case, it is absolutely necessary that there should be a proper further investigation of the case. It is more so because W.P.(C) 14288/2009 8 what is being diverted is the ration articles which are meant for the people below the poverty line. The officials should not have taken the matter lightly. In such circumstances, Writ Petition is disposed directing a further investigation of Crime 524/2008 of Karunagappally Police Station. Third respondent Superintendent of Police, Kollam is directed to entrust the further investigation to a competent efficient officer, not below the rank of Deputy Superintendent of Police with specific instruction to conduct a thorough investigation, which should be monitored by the Superintendent of Police and to file a further report before the court in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006