IN THE HIGH COURT OF KERALA
Crl. A No. 149 of 1985
Decided On: 04.08.1988
Sub Inspector of Police
Hon’ble Judges/Coram: K.T. Thomas, J.
Citation: MANU/KE/0410/1988,1988(3)Crimes757(Ker.), 1988(2)KLJ389
1. The appellant stands convicted for the offences under Sec. 7(1) (a) of the Essential Commodities Act, 1955 read with Clause 3 of the Kerala Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers’ Licensing Order, 1975 (for short ‘the Order’). There were two accused in the trial court and the appellant was the first accused. The other accused was acquitted by the trial court. The sub inspector of police, Nadakkavu Police Station, received information at 10.30 p.m. on 31-5-1984 that an autorikshaw carrying palm oil was stopped and detained on the public road by some people alleging that the movement of the oil was in violation of law. The sub inspector along with the police party went to the spot and seized two barrels of oil wrapped in gunny bags and kept in the autorikshaw (KRZ 1924). When samples from the barrels, were analysed by the chemical examiner, it was revealed that the barrels contained soya bean oil. The case was charge sheeted on completion of the investigation alleging that the two accused were clandestinely transporting soya bean oil in ‘ violation of the provisions of the Order. According to the prosecution, the oil belonged to the second accused. The trial court acquitted the second accused for want of evidence. But the appellant was found guilty as the evidence proved that he was the driver of the autorikshaw. Hence he was convicted and sentenced to imprisonment for three months and also to pay a fine of one thousand rupees.
2. Under Clause 3 of the Order “a person other than a dealer shall not keep in his possession at any time more than 20 kgs. of hydrogenated vegetable oil or 10 kgs. of other notified foodstuffs in all”.. Unless there is evidence to show that the appellant was in possession of soya bean oil seized from the autorikshaw he cannot be convicted for contravention of Clause 3 of the” Order. The lower court found that the appellant was in possession of the soya bean oil as he was the driver of the autorikshaw in which the contraband articles were found. Learned counsel contended that there is no evidence to show that the appellant was the driver of the autorikshaw. It was further contended that even if the appellant was the driver, he could not be found to be in possession of the contrabands since the prosecution case is that the soya bean oil belonged to the other accused. P.Ws. 1 to 3 were the witnesses cited by the prosecution to prove that the autorikshaw was driven by the appellant. But all those three witnesses did not support the prosecution and hence they were treated as hostile. Learned Special Judge has relied on the testimony of ‘the sub inspector (P. W. 4 who deposed that the appellant admitted to him that he was the driver of the autorikshaw. The trial court also relief on an affidavit said to have been sworn to by the appellant on 5-6-1984 before the Additional Judicial Magistrate of the First Class, Kozhikode, admitting that he was the driver of the autorikshaw (KRZ 1924) which was seized by the sub inspector on 31-5-1984.
3. The affidavit referred to above has not been marked either on the Prosecution side or on the defence side. It has not been sent to this, Court along with the records of this case It is apparently a document which forms part of the records of some other casein another court. How that affidavit reached the attention of the trial court in this case is shrouded in mystery. The learned Special Judge has not stated anything in the judgment to justify his action in relying on a document which is not part of the. records in this case. Public Prosecutor could not throw any light on the aforesaid mysterious position pertaining to the affidavit alleged to have been sworn to by the appellant in another case. Learned counsel for the appellant pointed out that no copy of the said affidavit was furnished to the accused, nor did any of the witnesses refer to the said affidavit. It is not seen indexed in the appendix of the judgment of the trial court. It remains an enigma as to how the so called affidavit could have been used as an item of evidence in this case. For the aforesaid reasons. I cannot use the said affidavit as evidence in this case.
4. The appellant is said to have admitted to the sub inspector of police that be was the driver of the autorikshaw. The sub inspector in his deposition has said that the appellant told him like that when he went to the spot for seizing the contraband oil. The lower court relied on that part of the testimony of the sub inspector (P. W. 4) for concluding that the appellant was the driver of the vehicle. Learned Public Prosecutor argued that the said statement made to sub inspector is only an admission and the same could be used as evidence in this case since investigation bad not been commenced during the time when the statement was made by the appellant. If the said statement was made during investigation, is cannot be used for any purpose in view of the embargo contained till Sec. 162 of the Code of Criminal Procedure. So the question to be considered is whether the step taken by the sub inspector in proceeding to the spot was part of investigation in the case.
5. Sec. 2(h) of the Cr. P. C. defines “investigation” as including “all i the proceedings under this Code for the collection of evidence conducted by a police officer”. S. 137 of the Code says that, if, from information received “or otherwise” an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate; he shall forthwith send a report of ‘he same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case. If he does not send a report to the Magistrate, that does not mean that his proceeding to the spot is not for investigation. In order to bring such proceedings within the ambit of investigation it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards, detection etc., of the said offence, would be part of investigation under the Code. In Maha Singh v. State (Delhi Administration) ((1976) 5. C. C. 644) the Supreme Court considered a case in which a police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that “the moment the inspector had recorded the complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code.” Subba Rao, J. (as he then was) has observed in State of U. P. v. Bhagwant Kiskore (MANU/SC/0066/1963 : AIR. 1964 S. C. 221): “Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation”. It was held by a single Judge of the Gujarat High Court (Shelat, J.) in Kantilal v. State (MANU/GJ/0065/1970 : AIR 1970 Guj 218) that the police officer in charge of a police station is empowered to investigate any information received from which he has reason to suspect the commission of an offence which he is empowered to investigate. It has been observed by the learned Judge that “it makes no difference whether that information was reduced to writing or not at that particular stage”
6. I, therefore, conclude that the statement allegedly made by the appellant to the sub inspector of police was during investigation of the case.
7. The embargo contained in Sec. 162 has a wide sweep that no statement made by any person to a police officer in the course of investigation shall be used for any purpose except for the limited purpose mentioned therein. The limited purpose envisaged in the section has no application to the facts of this case. Hence the alleged statement of the appellant to the sub inspector is excluded form legal consideration in this case. When those two items are barred from consideration, there is no evidence in this case for proving that the appellant was the driver of the autorikshaw. In the light of the said finding, it is unnecessary to consider the other question, whether the driver of the vehicle can be credited with possession of the contrabands kept the vehicle in a case where the prosecution itself admits that the articles belong to another accused who was present in the same vehicle at the time of seizure.
In the result. I allow this appeal and set aside the conviction and sentence passed on the appellant. He is acquitted of the charge and is directed to be set at liberty. Fine, if collected, shall be refunded to him. His bail bond will stand cancelled.