Kerala High Court

Prassanan @ Many vs State Of Kerala on 15 February, 2024

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                  CRL.APPEAL NO. 264 OF 2012
AGAINST THE JUDGMENT DATED 22.07.2009 IN SC 415/2007 OF I
              ADDITIONAL SESSIONS COURT, KOLLAM
 CP 171/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
                         KOTTARAKKARA
APPELLANT/ACCUSED NO.1:

            PRASSANAN @ MANY
            AGED 42 YEARS, S/O. CHELLAPPAN, SHERIF MANZIL
            KOTTAPURAM, THAZHUTHALA MURI, ADICHANALLOR FROM
            VADAKKEKKARA PUTHEN VEEDU, KARUVELIL MURI,
            EZHUKONE VILLAGE.

            BY ADVS.
            SRI.M.K.CHANDRA MOHANDAS
            K.DHRUV KUMAR


RESPONDENT/STATE:

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

            SMT.SEENA C., PUBLIC PROSECUTOR


     THIS    CRIMINAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 31.01.2024, THE COURT ON 15.02.2024 DELIVERED
THE FOLLOWING:
                                     2
Crl.Appeal No.264 of 2012



                     P.G. AJITHKUMAR, J.
    -----------------------------------------------------------
                  Crl.Appeal No.264 of 2012
    -----------------------------------------------------------
          Dated this the 15th day of February, 2024

                               JUDGMENT

Accused No.1 in S.C.No.415 of 2007 on the files of the

Sessions Court, Kollam is the appellant. He was convicted for

the offence under Section 489C of the Indian Penal Code,

1860 (IPC) and sentenced to undergo rigorous imprisonment

for a period of four years. The 2 nd accused in the case was

also convicted and he was sentenced to undergo rigorous

imprisonment for a period of three years. In this appeal filed

under Section 374(2) of the Code of Criminal Procedure, 1973

(Code), the appellant assails legality and correctness of the

judgment dated 22.07.2009 by which he was convicted and

sentenced.

2. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

3. The incident was on 14.02.2002. PW5 was the Sub

Inspector of Police, Chadayamangalam Police Station. He

received information that Ganja was being transported in an

autorickshaw. He recorded the information and sent a report to

his immediate superior. While waiting at Chadayamangalam

Junction, an autorickshaw came at an enormous speed and

disregarding the direction of PW5 to stop, the autorickshaw went

on. Hence, PW5 along with his colleagues followed in the jeep

and intercepted the autorickshaw near MGHS Chadayamangalam.

Since presence of Gazetted Officer was insisted on by accused

Nos.1 and 2, who were the passenger and driver respectively,

PW3, the Tahsildar, Kottarakkara was brought. In his presence,

body of the accused and the vehicle were searched. 1.1 kgs. of

Ganja was found from the backside of the rear seat. Forty-five

(45) counterfeit currency notes of 100 rupee denomination were

found underneath the rear seat where the appellant was sitting.

Seizure was effected in the presence of PWs.1 and 2, persons

from the locality and PW3. On the said facts, prosecution was

initiated against both the accused.

4. The prosecution has examined PWs.1 to 8 and

proved Exts.P1 to P9. Ext.C1 was also marked. MO1 series

was also identified. The appellant took the stand that he was

innocent. He stated that after arresting him from his house,

the case was foisted against him. The court below after

analysing the evidence found that the arrest and seizure were

duly proved through the evidence of PWs.3 to 5. From the

circumstances in which the appellant and the 2nd accused were

arrested, the trial court found that they in furtherance of their

common intention possessed the counterfeit currency notes.

The appellant would contend that the findings of the trial

court are against evidence and hence his conviction is totally

wrong.

5. The learned counsel for the appellant would submit

that when PWs.1 and 2, who are the President and Member of

the local authority, did not support the case of the

prosecution, the evidence of PWs.3 to 5 cannot be placed

reliance on to find the appellant guilty. The appellant was a

passenger in the autorickshaw and when MO1 series notes

were not seized from his possession and the evidence does

not show that he had domain over the said article, no

conscious possession of that currency notes could be

attributed to him. Apart from contending that there is total

lack of evidence, the learned counsel would submit that even

accepting the case of the prosecution, the appellant cannot be

found guilty inasmuch as the evidence brought on record does

not prove that he possessed the currency notes for the

purpose of using it as genuine. The learned counsel in that

regard placed reliance on the decisions of this Court in

Muhammed Koya v. State of Kerala [2020 (3) KLT 441].

6. True, PW1, the President and PW2, a Member of

Chadayamangalam Grama Panchayat, did not state before the

court that they witnessed the police intercepting the

autorickshaw driven by the 2nd accused with the appellant as

a passenger. PW1 is a local resident. While she was talking to

PW2 in front of her house the autorickshaw was stopped by

the police. To that extent they admit. But they denied having

seen the seizure of currency notes or Ganja from the

autorickshaw. Their version is that after stopping the

autorickshaw the police entered inside and went away with

the autorickshaw. Both witnesses had admitted their

signatures in Ext.P1 mahazar. Its contents are to the effect

that in the presence of PW3, the search was conducted and

seizure of counterfeit notes and Ganja was effected. PW1,

who is a teacher and also the Panchayat President and PW2, a

member of the Panchayat, having signed Ext.P1 deposed

before the court feigning ignorance of its contents. It is

obvious that they stated falsehood before the court. The

contradictions brought out in their evidence confirms that

view. The question is whether the evidence of PWs.3 to 5

proved the search and seizure.

7. As stated, PW5, the Sub Inspector of Police

deposed in detail regarding the circumstances in which the

accused were arrested and currency notes seized. PW4, a

constable in the police party, also stated in detail about the

said matters. It was after PW3 reaching the place, the search

was conducted. PW3 confirmed the testimonies of PWs.4 and

5 concerning the search and seizure. No serious

inconsistencies have been brought out in their evidence.

Having had an anxious consideration, I find no reason to

disbelieve the version of the said witnesses.

8. The currency notes were found underneath the

seat on which the appellant was sitting. There were 45

currency notes of 100 rupee denomination. The said currency

notes were proved to be counterfeit ones. Ext.P8 and P8(a)

are the reports obtained from the Indian Security Press,

Nashik certifying that the said currency notes, MO1 series,

were counterfeit notes. From the said evidence, it stands

proved that the appellant and the co-accused were in

possession of MO1 series, which were counterfeit notes.

9. When such a quantity of counterfeit notes were

carried in concealment, no further evidence is required to

enter a finding that such notes were possessed with the

knowledge that they were counterfeit ones and the possessor

had the intention to use the same as genuine. Therefore, the

requirement of law to enter a conviction for an offence under

Section 489C of the IPC as laid down in Muhammed Koya

(supra) are established.

10. The further contention of the learned counsel for

the appellant is that since the accused were questioned under

Section 313 of the Code not in an appropriate way, the

conviction cannot be sustained.

11. Section 281 of the Code describes how examination

of accused shall be recorded. Sub-section (4) reads,-

"The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers."

12. The record of examination of the accused shows

that all the questions were prepared in English. Answers were

recorded in Malayalam. It obliviates an inference that the

accused were not persons conversant with English language.

It is not certified in the record of examination under Section

313 of the Code that the questions were interpreted in

Malayalam. In the absence of such a certification by the

Judge, it cannot be assumed that the accused were made to

understand the contents of the questions put to them.

Therefore, there is non-compliance of sub-section (4) of

Section 281 of the Code.

13. The Apex Court in Kalicharan and others v.