Jayan vs The State Of Kerala on 22 October, 2021


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Supreme Court of India

Jayan vs The State Of Kerala on 22 October, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                    1


                                                                  NON-REPORTABLE

                                   IN THE SUPREME COURT OF INDIA

                                 CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.             OF 2021
                             (Arising out of SLP (Criminal) No. 6767 of 2016)


             JAYAN                                                ..… APPELLANT

                                              v.

             STATE OF KERALA                                      ..... RESPONDENT

                                                   WITH

                                 CRIMINAL APPEAL NO.             OF 2021
                             (Arising out of SLP (Criminal) No. 6769 of 2016)

             VIJAYAN AND ANR.                                    ...…APPELLANTS

                                              v.

             STATE OF KERALA                                     ......RESPONDENT



                                          J U D G M E N T

ABHAY S. OKA, J.

1. Leave granted.

2. The appellants in these appeals have been convicted for the

offence punishable under Section 55(a) of Kerala Abkari Act (The
Signature Not Verified
Abkari Act). The appellant/petitioner in Special Leave Petition
Digitally signed by
NEETU KHAJURIA
Date: 2021.10.22
17:24:43 IST
Reason:

2

No.6767/2016 is the accused No.1. The petitioners/appellants in

Special Leave Petition No. 6769/2016 are the accused Nos.2 and 4.

3. The allegation of the prosecution in brief is that the accused (the

accused Nos.1 to 4) without any licence transported total quantity of

6090 litres of spirit in 174 plastic cans. The allegation of the prosecution

is that the accused No.1 was the owner of the truck by which the spirit

was transported. The case is that the said truck bearing registration

number KLB-7589 was fitted with fake number plates bearing

registration number KLY-730. At the time of the commission of the

offence, the truck was being driven by the accused No.2 and that the

accused Nos.3 and 4 were accompanying the accused No.2 in the

truck.

4. The case of the prosecution is that on 25 th July 1999, around

12:30, the said truck was stopped at Mandapathin Kadavu check post

for checking. When the truck was stopped and while it was being

checked, the accused No.2 suddenly started the truck and drove ahead

by damaging the barricade put on the road near the check post. One

Shri Balachandran Nair, a peon working at the check post had climbed

on the top of the truck for inspecting the goods inside the truck. As the

accused No.2 started the truck and went ahead after damaging the
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barricades, the said Shri Balachandran Nair jumped from the truck and

saved himself. The sub-inspector of police at Kattakkada Police Station

was alerted about the incident. The said sub-inspector Shri R.

Prathapan Nair (PW12) along with the police party proceeded to search

the truck. When they located the truck and stopped the same, the

accused No.2 who was in the driver’s seat in the truck and the accused

Nos.3 and 4 who were present in the truck ran away. The police party,

however, apprehended the accused No.2 who allegedly disclosed to

them that spirit was loaded in the truck in plastic cans. He also

disclosed to the police that the accused No.1 was the owner of the

truck who was his brother-in-law. He disclosed that the accused No. 1

was a shop contractor. Even the accused No.4 was apprehended by

the police. The police party inspected the truck and seized 6090 litres

of spirit which was stored in 174 plastic cans having a capacity of 35

litres each. The police party also found two name plates in the truck

bearing registration number KLB-7589. A seizure mahazar was drawn

and the truck, the plastic cans and the spirit therein were seized by the

police. Thereafter, PW12 returned to the police station and recorded

the First Information Report.

5. According to the prosecution case, the accused No.1 was a toddy

shop contractor and the other accused were his relatives. It is alleged
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that the accused No.1 purchased a truck from PW3, Shri Rajendra

Prasad and after removing the original number plates on the truck, he

fitted number plates bearing registration number KLY-730. The truck

was used by the accused No.1 for illegally transporting the spirit from

Umasamudram in the State of Tamil Nadu. It is alleged that the

samples of the spirit seized by the police were sent for chemical

analysis. It is stated that out of 174 samples, sample Nos.1 to 158 and

167 contained a certain percentage of Ethyl Alcohol. Sample Nos. 159

to 166 and 168 to 174 contained spirit and a poisonous substance

known as “organophosphorus compound” which is used for pest

control.

6. The police could not trace the accused No.3 and therefore, a

charge sheet was filed against the accused Nos.1, 2 and 4. The

prosecution examined 13 witnesses. The learned Additional Sessions

Judge convicted the accused Nos.1, 2 and 4 for the offence punishable

under Section 55(a) of the Abkari Act. They were sentenced to undergo

rigorous imprisonment for a period of three years and to pay a fine of

Rupees one lakh each. In default of payment of fine, they were

sentenced to undergo a simple imprisonment for a period of 6 months

each. The Accused Nos.1, 2 and 4 preferred an appeal against the
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order of conviction. The appeal has been dismissed by the learned

Single Judge of the Kerala High Court by the impugned judgment.

SUBMISSIONS ON BEHALF OF ACCUSED NO.1

7. Shri R. Basant, the learned Senior Counsel appearing for the

accused No.1 has taken us through the evidence of the witnesses. His

basic submission is that the only evidence against the accused No.1 is

of an alleged confession made by the accused No.2. He submitted that

the prosecution has failed to establish that the accused No.1 was the

owner of the offending truck. He pointed out that PW3 Shri Rajendra

Prasad was examined by the prosecution who deposed that he sold the

truck to the accused No.1. The learned Senior Counsel pointed out that

apart from the fact that PW3 did not support the prosecution, even the

record of the Regional Transport Office (RTO) regarding the name of

the registered owner of the truck was not produced by the prosecution.

He pointed that though the offending truck was having a number plate

bearing number KLY-730, according to the prosecution case, a

photocopy of R.C book of Tata HMC Goods vehicle of registration No.

KLB-7589 was found in the truck as recorded in mahazar. He submitted

that the said photocopy of R.C book allegedly showing the name of the
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accused No.1 as the owner was not produced before the trial court. He

submitted that no investigation was carried out for ascertaining the

engine number and chassis number of the truck with a view to find out

whether the correct registration number of the truck was KLY-730 or

KLB-7589. He pointed out the notices issued by the investigation officer

to Shri Sajan Mathai, Shri Chandran and PW3 Shri Rajendra Prasad

and the response submitted by the said three persons. He pointed out

that notices were issued for inquiring about the ownership of the truck.

He submitted that the said Shri Sajan Mathai in his response claimed

that he sold the said truck to one Shri Makkar Maideen on 4th

September 1998. However, both Shri Sajan and Shri Makkar were not

examined as witnesses. He pointed out that Shri Chandran who was

served with a similar notice claimed that he purchased the truck from

one Shri Ebrahim which was registered in the name of Shri Sajan

Mathai. In the reply, the said Shri Chandran claimed that he sold a

truck to PW3 Shri Rajendra Prasad. The learned Senior Counsel

pointed out that Shri Ebrahim and Shri Chandran have not been

examined and PW3 Rajendra Prasad did not support the prosecution.

The learned Senior Counsel would urge that though the accused No.1

has been convicted on the footing that he was the owner of the truck,

there is absolutely no evidence of his ownership adduced by the
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prosecution. He would, therefore, submit that the appeal filed by the

accused No.1 deserves to be allowed.

SUBMISSIONS ON BEHALF OF ACCUSED NOs. 2 AND 4

8. The learned counsel Shri M. Gireesh Kumar submitted that the

entire prosecution case is false. He submitted that though the

prosecution alleged that when the truck was stopped at the check post

where one Shri Balachandran Nair climbed on the top of the truck for

checking the goods, the said person was not examined. He invited our

attention to the evidence of PW13 Shri Madhusudhanan Nair who was

allegedly an independent witness. He purportedly identified the

accused No.2 in the Court on 20th April 2011 when his evidence was

recorded. He submitted that his evidence was recorded nearly 12 years

after the incident. He submitted that Test Identification Parade (T.I

Parade) was not conducted and therefore, the version of PW13 Shri

Madhu that he identified the accused No.2 in the court nearly after

lapse of 12 years cannot be believed. He urged that the same is the

case with other official witnesses who identified the accused No.2 in the

Court after a gap of 11 to 12 years. He submitted that the prosecution

could not prove what was the correct registration number of the truck

and even investigation was not carried out to ascertain the correct
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registration number. He urged that the first part of the prosecution case

that when the truck was halted at the check post, the accused No.2

started the truck and took it ahead after the damaging barricade has

not been established as the government servant who had climbed over

the truck was not even cited as a witness. He would, therefore, submit

that the entire prosecution case is doubtful and, therefore, the

conviction of the accused No.2 cannot be sustained. He submitted that

there is no evidence adduced against the accused No.4. His

submission is that the conviction of both the accused Nos.2 and 4

cannot be sustained.

SUBMISSIONS OF THE PROSECUTION

9. Shri Abraham C. Mathew, the learned counsel appearing for the

respondent stated that identification of the accused No.2 by the

prosecution witnesses in the Court cannot be disbelieved only on the

ground that T.I Parade was not conducted. He submitted that PW13 is

an independent witness whose version has not been shaken in the

cross examination. He submitted that considering the quality of

evidence of PW13 which is supported by the evidence of PW6 Shri

A.S. Krishnan, the Courts below have rightly held that the accused

No.2 was the driver of the offending truck. He submitted that the
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quantity of liquor containing injurious substances found in the truck has

not been disputed. He, therefore, submitted that the accused No.2 was

clearly guilty of transporting liquor without permission which is a

punishable offence under Section 55(a) of the Abkari Act.

10. The learned counsel appearing for respondent submitted that

PW3 Shri Rajendra Prasad issued a reply to the notice served upon

him by the investigation officer stating that he sold the said truck to the

accused No.1 at the cost of Rupees 1,50,000/- in the year 1999. He

submitted that though PW3 may not have supported the prosecution,

his reply to the notice has been marked as an exhibit which proves that

the ownership of the truck vested in the accused No.1 at the relevant

time. The learned counsel submitted that there is no reason to interfere

with the concurrent findings of the fact recorded by the Sessions Court

and High Court especially considering the serious nature of the offence.

CONSIDERATION OF SUBMISSIONS MADE ON BEHALF OF

THE ACCUSED NO.1

11. The prosecution has firstly relied upon the mahazar drawn by the

police for recording the seizure of the truck, plastic cans, spirit stored in

plastic cans and other articles. In the mahazar, it is recorded that the

accused No.2 stated that the accused No.1 was the owner of the truck,
10

who was his brother-in-law. He disclosed that the accused No.1 was

the owner of the spirit loaded in the truck. The mahazar has been

drawn by a police officer. The statements of accused No.2 recorded

therein are not admissible in evidence being the alleged confessional

statements of the accused No. 2 made before the police officer.

Therefore, for proving the offence alleged against the accused No. 1,

the statements of the accused No.2 recorded in the mahazar will have

to be kept out of consideration.

12. The second part of the evidence relied upon against the accused

No.1 is the deposition of PW3 Shri Rajendra Prasad. He did not

support the prosecution and did not accept that he was the owner of

the truck and that he had sold the said truck to the accused No.1. The

prosecution relied upon the notice dated 26 th December 1999 served by

the investigation officer on PW3 in which it was stated that the truck

bearing registration number KLB-7589 was registered in the name of

Shri Sajan Mathai who sold it to one Shri Chandran and PW3 Shri

Rajendra Prasad purchased the same from Shri Chandran. By the said

notice, the investigation officer called upon PW3 Shri Rajendra Prasad

to respond on the ownership of the vehicle. PW3 by his reply dated 26 th

December 1999 informed the investigation officer that he had sold the

said truck to the accused No.1 on the basis of a sale deed. He claimed
11

that the sale deed has been lost. PW3 Shri Rajendra Prasad denied the

signature on the said reply. It is pertinent to note that Shri Sajan Mathai

and Shri Chandran who were the alleged prior owners of the truck were

not examined by the prosecution. Surprisingly, no investigation was

made whether the correct registration number of the truck was KLY-730

or KLB-7589. It appears that the prosecution came to the conclusion

that the correct registration number of the truck was KLB-7589 on the

basis of a photocopy of R.C book allegedly found in the seized truck.

However, as admitted by PW12 – the investigation officer, the said

photocopy of the R.C book was not produced by the prosecution.

13. A very shocking aspect of the case is that the prosecution did not

even produce the record of the RTO in respect of the registration of the

truck. Though the chassis and engine number of the truck were

recorded in the mahazar, no investigation was carried out to ascertain

the correct registration number of the offending truck. Thus, the identity

of the truck itself becomes doubtful. The most relevant evidence of the

record of RTO showing the name of the registered owner was withheld

by the prosecution. There is no documentary evidence placed on

record to show that the accused No. 1 was the owner of the offending

truck at the relevant time. There is no other evidence pressed into

service by the prosecution against the accused No.1. Therefore, we are
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of the considered view that it is a case of no evidence against the

accused No.1. Thus, there was no justification for convicting the

accused No. 1.

CONSIDERATION OF THE CASE AGAINST ACCUSED NOS.

2 AND 3

14. Now, coming to the case against the accused Nos.2 and 4, apart

from official witnesses, the prosecution has relied upon the evidence

PW13 Shri Madhu who was stated to be an independent witness. The

witness claimed that he was standing by the side of the road when he

saw a truck passing through containing coconut leaves. He claims that

after the truck passed through, a white ambassador car followed the

truck. After some time, policemen came there who enquired with him

whether he had seen a truck containing coconut leaves passing

through. The witness claimed that he followed the police and he saw

the driver running out of the truck after stopping the truck. He stated

that the driver was caught by the police. The witness purported to

identify the accused Nos.2 and 4 who were present in the Court as the

persons who ran away from the truck. In the cross examination, he

accepted that he was not able to identify all the persons whom he had

seen 11 years back. But he claimed that he could identify the accused
13

No.2 and he knew his name. He accepted that before the incident of

25th July 1999, he had not seen the accused and even any time

thereafter, he had not seen the accused. He was examined before the

Court on 20th April 2011. Thus, he deposed before the Court after 11

years and 9 months after the date of the incident. It is pertinent to note

that admittedly T.I Parade was not held and the witness never knew

accused before the incident.

15. It is well settled that T.I Parade is a part of investigation and it is

not a substantive evidence. The question of holding T.I Parade arises

when the accused is not known to the witness earlier. The identification

by a witness of the accused in the Court who has for the first time seen

the accused in the incident of offence is a weak piece of evidence

especially when there is a large time gap between the date of the

incident and the date of recording of his evidence. In such a case, T.I

Parade may make the identification of the accused by the witness

before the Court trustworthy. However, the absence of T.I Parade may

not be ipso facto sufficient to discard the testimony of a witness who

has identified the accused in the Court. In a given case, there may be

otherwise sufficient corroboration to the testimony of the witness. In

some cases, the Court may be impressed with testimony of the

prosecution witnesses which is of a sterling quality. In such cases, the
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testimony of such a witness can be believed. In the present case,

PW13 accepted that he is not able to identify any persons whom he

had seen 11 years back. However, he asserted that he can identify the

accused Nos.2 and 4 though he had seen them for the first time more

than 11 years back on the date of the incident. Therefore, in the facts of

the case, the evidence of PW13 as regards the identification of the

accused Nos.2 and 4 in the Court cannot be accepted.

16. PW5 who was working as ASI at the concerned police station

identified the accused No.2. However, he has not stated that the

accused No.2 who was arrested at the spot was driving the truck. PW6

Shri A. S Krishnan was working as a Sales Tax Inspector at the

relevant time. He stated that the truck was stopped at 12:30p.m at the

check post when the cleaner of the truck claimed that it contained dry

coconut leaves. He claimed that a clerk Shri Balachandran climbed on

the top of the truck for taking search. He claimed that as the driver

started the truck, the said Shri Balachandran jumped from the truck.

The said Shri Balachandran has not been examined as a witness

though he is an employee of the department. The witness claimed that

he reached the place where the truck was stopped. He stated that the

driver of the truck was arrested who was standing there. He identified
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the driver as the accused No.2. However, the witness has not claimed

that he had seen the accused No.2 driving the truck.

17. PW7, who was head constable attached to the concerned police

station claimed that the truck was stopped and the driver and two

others ran away. He identified the accused No.2 as the person who

was driving the truck. He also identified the accused No.4 as a person

who ran away. However, the witness has not stated he had seen the

accused No.2 driving the truck.

18. PW8 was a police constable working at the concerned police

station. He claimed that after the truck was stopped, three persons in

the truck ran away. One was caught who disclosed that he was the

driver of the truck. He identified the accused No.2 in the Court.

However, he has not seen accused No.2 driving the truck. PW10 Shri

N. George was a police constable attached to the concerned police

station who claimed that after the truck was stopped, three persons

inside the truck ran away and one person who was stopped, claimed to

be the driver of the truck. However, he has not stated that he had seen

the accused No.2 driving the truck. He also identified the accused No. 4

as a person who ran away from the truck.

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19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who

was the investigation officer. He stated that on 25 th July 1999, he

received information while he was on duty in the police station that a

truck bearing number KLY-730 went passed check post causing

damage to barricades and it was transporting some illegal articles. He

along with the police party went out to locate the truck which was found

near Khadi Board at Kizhamachal and tried to stop it. He alleged that

on seeing the police party, the driver of the truck stopped the same.

According to him, the driver and two others stepped out from the truck

and ran away. The police party could get hold of the driver of the truck

who was arrested. He stated that in the mahazar, the presence of

accused No.2 was noted. He identified the accused No.2 in the Court.

In the cross examination, he stated that as a police vehicle was not

available, a private vehicle was used and the driver of the said vehicle

is not a witness. He accepted that though mahazar records that a copy

of RC book was found in the truck, it is not produced in the Court. He

admitted that though he enquired with RTO, the record of RTO is not

produced in the Court. It is pertinent to note that in the examination

chief, PW12 did not state that he had seen the accused No.2 driving

the truck. Even in this case, the evidence of PW12 has been recorded

more than 11 years after the date of the incident.

17

20. It is very difficult to believe that PW13 who was not knowing the

accused Nos.2 and 4 prior to the incident could identify them in the

Court after lapse of 11 years. That is also the case with all the official

witnesses. The prosecution has chosen not to produce evidence

regarding the correct registration number of the truck and the name of

the registered owner thereof. Therefore, the entire prosecution case

becomes doubtful.

21. In the circumstances, both the appeals must succeed and the

same are allowed. The impugned judgment and orders are hereby set

aside and the appellants are acquitted of the offences alleged against

them. Their bail bonds stand cancelled. Fine, if paid, be refunded to the

appellants.

…………..…………………J
(AJAY RASTOGI)

…………..…………………J
(ABHAY S. OKA)
New Delhi;

October 22, 2021.



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