Allowed

Thaha @ Anzari v. State of Kerala

Kerala HC8 Jul 2019Crl.MC/8055/2017

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition filed under Section 482 Cr.P.C., the Kerala High Court quashed a split-up prosecution case against the second accused. Relying on a prior High Court acquittal of co-accused due to failure of material witnesses to identify any accused, the Court held that prosecuting the remaining accused would be a waste of time as the case suffered from the same lack of identi

What did the court decide?

The split-up case against the petitioner in S.C. No. 445 of 2013 and L.P. No. 17 of 2016 has been quashed under Section 482 Cr.P.C.

Thaha @ Anzari Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.UBAID

¶4

MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

¶5

Crl.MC.No.8055 of 2017

¶6

AGAINST THE ORDER/JUDGMENT IN LP 17/2016 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PATHANAMTHITTA

¶7

CRIME NO.557/2013 OF Konni Police Station , Pathanamthitta

¶8

PETITIONER/ACCUSED:

¶9

THAHA @ ANZARI S/O. BASHEER, THAHAMANZIL, MOOLAKKADA PAZYAPALLI, PATHANAMTHITTA VILLAGE.

¶10

BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN

¶11

RESPONDENT/COMPLAINANT:

¶12

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶13

BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION

¶14

OTHER PRESENT:

¶15

SRI SANTHOSH PETER-SR PP

¶16

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶17

-2-

¶18

Crl.MC.No.8055 of 2017

¶19

O R D E R

¶20

The petitioner herein is the second accused in S.C. No. 445 of 2013 of the Court of Session, Pathanamthitta. The accused Nos. 1, 3 and 4 faced trial before the learned Additional Sessions Judge-IV, Pathanamthitta, and they were found guilty by the trial court under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act. The prosecution case is that when the Sub Inspector of Police, Konni, reached a rubber plantation at Murippu on getting secret reliable information, he saw the accused Nos. 1 and 2 at the estate, possessing and dealing with ganja at about 10.00 p.m.. On seeing the police party, they took to their heels by abandoning some articles at the rubber estate. Though the police party made an attempt to chase them, they escaped, and when the Sub Inspector examined the articles found at the estate, a big shopper was found

¶21

Crl.MC.No.8055 of 2017

¶22

-3-

¶23

containing 3.5 kgs of ganja. Investigation revealed that the ganja was brought there by the four accused jointly, and the vehicle transporting ganja was escorted by the second accused. During trial, the accused Nos. 1, 3 and 4 took up a defence that this is a false case, and that there is absolutely no material to connect them with the offence

¶24

alleged. Aggrieved by the judgment of conviction in S.C. No. 445 of 2013, the accused Nos. 1, 3 and 4 approached this Court with Crl.A. Nos. 221 of 2014 and 269 of 2014.

¶25

2. Crl.A. No. 221 of 2014 was filed by the accused Nos. 1 and 4, and Crl.A. No. 269 of 2014 was filed by the third accused. After hearing the matter in detail, and after examining the entire prosecution materials, this Court found that the prosecution has not been able to prove the case as against the accused beyond reasonable doubt, and

¶26

Crl.MC.No.8055 of 2017

¶27

-4-

¶28

that the prosecution case is really doubtful. Accordingly, by the common judgment dated 21.05.2015, this Court allowed the two appeals, and acquitted the accused Nos. 1, 3 and 4. The second accused has now approached this Court under Section 482 Cr.P.C. for quashing the split up prosecution as against him on the ground that the very substratum of the prosecution case stands lost by the findings of this Court in appeal, and by the acquittal of the accused Nos. 1, 3 and 4 on merits.

¶29

3. Of course, the case against the

¶30

petitioner was split up and refiled at the trial court, and at one stage after the compliance of all the statutory requirements, it was transferred to the register of long pending cases as L.P. No. 17 of 2016. Pending this proceeding, the petitioner was directed to surrender before the trial court. Accordingly, he surrendered before the trial court,

¶31

Crl.MC.No.8055 of 2017

¶32

-5-

¶33

and he was granted bail by the trial court. The trial court must have refiled the case as a new sessions case. For the purpose of examining whether the judgment of acquittal passed by this Court would exonerate the second accused also, or whether the finding of this Court would give benefit to the second accused also, the entire evidence including the depositions given by the material witnesses, was examined and perused by me. PW11, PW12 and PW14 are the very material witnesses. PW14 is the Sub Inspector who detected the offence, and the other two are the Police Constables who assisted him. After examining the entire evidence, this Court has already come to a finding that none of the material witnesses has been able to identify any of the accused, and that they could not even say anything about the identification features of any of the accused. I find that the evidence given by the detecting officer is worth little. His

¶34

Crl.MC.No.8055 of 2017

¶35

-6-

¶36

evidence is only that he had seen two persons running away from the estate, and he had also seized some contraband articles. Some accused were later arrested by him as instructed by the Circle

¶37

Inspector, and as regards identification, his evidence is that the accused in the dock are the persons who were arrested by him as instructed by the Circle Inspector. He did not specifically say that the accused in the dock are the persons whom he saw at the estate, or who ran off and escaped from the estate. To prove proper identification, the evidence must be that the accused in this case are the persons who ran off and escaped from the estate on seeing the police party. Such specific evidence is not there in the deposition given by the detecting officer. So is the case of PW11 and PW12. These witnesses have also not explained how they could very well see and identify the two persons in the night, at about 10 O'Clock. They

¶38

Crl.MC.No.8055 of 2017

¶39

-7-

¶40

have no case that they had seen the face and physical features of the persons who ran off and escaped. Practically their evidence is that on seeing the police party, two persons took to their heels from the estate, and despite efforts, they could not be caught. None of the witnesses has stated that any of the two persons could be seen face to face, or that they had noticed any of the features to identify the persons who ran off and escaped. It was in such a circumstance, when there

¶41

is nothing in the evidence of the material witnesses to identify any of the accused, this Court acquitted the accused Nos. 1, 3 and 4 on merits on 21.05.2015.

¶42

4. On a perusal of the entire evidence including that of PW14, I find that the prosecution cannot, in any manner, improve the case as against the petitioner, if the case against him goes to

¶43

-8-

¶44

Crl.MC.No.8055 of 2017

¶45

trial. For a successful prosecution in a case like this, there must be clear and satisfactory evidence as to how the accused could be identified. The witnesses must properly and specifically identify the accused as the persons who ran off and escaped from the estate after leaving or abandoning some quantity of ganja. Practically, the evidence of the material witnesses is only that when they reached the estate, they saw two persons there, and on seeing the police party, those two persons took to their heels. The available evidence as regards identity appears to be really artificial and unacceptable. The incident happened at about 10.00

¶46

in the night, when nobody can be properly identified without proper light and vision, and without seeing the person face to face. The material witnesses have no case at all that any of the accused was seen face to face. In such a situation, a trial process as against the second

¶47

Crl.MC.No.8055 of 2017

¶48

-9-

¶49

accused in the split up case would be a sheer waste of time. I find that to save the precious time of the court, the case against the petitioner can be quashed.

¶50

In the result, the petition is allowed. Accordingly, the split up case against the petitioner in S.C. No. 445 of 2013, and transferred to the register of long pending cases as L.P. No. 17 of 2016, and later refiled on surrender, will stand quashed under Section 482 Cr.P.C..

Sd/-

P.UBAID

Ds 09.07.2019

JUDGE

Crl.MC.No.8055 of 2017

¶56

-10-

¶57

APPENDIX

¶58

PETITIONER'S/S EXHIBITS:

¶59

ANNEXURE A1 A TRUE PHOTOCOPY OF THE MAHAZAR DATED 13/5/2013.

¶60

ANNEXURE A2 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 557/2013 OF THE PATHANAMTHITTA POLICE STATION, KONNI.

¶61

ANNEXURE A3 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO. 557/2013 OF THE PATHANAMTHITTA POLICE.

¶62

ANNEXURE A4 A TRUE PHOTOCOPY OF THE JUDGMENT IN S.C. 445/2013 OF THE ADDITIONAL DISTRICT SESSIONS JUDGE COURT-IV, PATHANAMTHITTA DATED 28/2/2014.

¶63

ANNEXURE A5 A TRUE PHOTOCOPY OF THE JUDGMENT IN CRL APPEAL 221/2014 OF THIS HON'BLE COURT, DATED 21/5/2015.

Thaha @ Anzari v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thaha @ Anzari v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.U.Eldho Vs State of Kerala

Mujeeb, Vs State of Kerala

Saju Antony Vs State of Kerala

Anandan Vs State of Kerala

Muhammed Vs State of Kerala

Ramshad v.M., Vs State of Kerala