Kerala High Court
N.A.Balraj vs Superindent Of Police, Cbi/Spe Cochin on 20 May, 2025
2025:KER:34602
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Crl.Appeal Nos.64 of 2008 and conn.cases
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.A NO. 64 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.2:
K.P.BENNY ROHAL
S/O LATE K.N.PRABHAKARAN, MANAGING DIRECTOR, RON
MARITIME LTD.(PVT. LTD), ERNAKULAM.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY CBI,SPE,COCHIN,R.C.7(A)2000/CBI/KER,
REPRESENTED BY, PUBLIC PROSECUTOR, CBI,
ERNAKULAM, HIGH COURT OF, KERALA, ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED
CASES, THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 86 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.1:
NATARAJA IYER
DEPUTY MANAGER (REFINERY CO-ORDINATOR), INDIAN
OIL CORPORATION LTD., ERNAKULAM.
BY ADVS.
SOORAJ T.ELENJICKAL
SRI.M.CHANDRA BOSE
RESPONDENTS/COMPLAINANT & STATE:
1 CENTRAL BUREAU OF INVESTIGATION,
KOCHI.
2 STATE OF KERALA,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.64/2008, 88/2008 AND
CONNECTED CASES, THE COURT ON 20.05.2025 DELIVERED THE
FOLLOWING:
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Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 88 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.4:
AMMU
AGED 55 YEARS
S/O KUNJUMOHAMMED,16/688, THOPPUMPADY, KOCHI.
BY ADVS.
R O MUHAMED SHEMEEM RANDUTHAIKKAL OOSMAN
NASEEHA BEEGUM P.S.
RESPONDENTS/COMPLAINANT & STATE:
1 CENTRAL BUREAU OF INVESTIGATION/SPE, COCHIN,
KERALA.
2 STATE ,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED CASES,
THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
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Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 91 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.5:
KURIAKOSE P.MANI
S/O P.J. MANI,DIRECTOR, RON MARITIME PVT. LTD.,
ERNAKULAM.
BY ADVS.
SRI.SHAIJAN C.GEORGE
SRI.JOHN VIPIN
SMT.S.A.SHERLY
SMT.SAJITHA GEORGE
RESPONDENTS/COMPLAINANT:
1 SUPERINTENDENT,CBI/SPE COCHIN
REP.BY STANDING COUNSEL FOR CBI,HIGHCOURT OF
KERALA,ERNAKULAM.
2* STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
*ADDL.RESPONDENT NO.2 IS IMPLEADED AS PER THE
ORDER DATED 16.01.2008 IN CRL.MA 431/2008.
SRI.SREELAL WARRIAR, SC, CBI
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Crl.Appeal Nos.64 of 2008 and conn.cases
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED
CASES, THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
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Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 106 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.3:
N.A.BALRAJ (DIED)
AGED 1 YEARS
S/O M.K.ARJUNAN,PROPRIETOR, M/S. BAVA
ENTERPRISES,, FISHERIES HARBOUR, THOPPUMPADY,
KOCHI.
BY ADVS.
SMT.M.R.ANUPAMA
SRI.V.DIPU
SRI.P.LEAN JOSE
RESPONDENT/COMPLAINANT:
SUPERINDENT OF POLICE, CBI/SPE COCHIN
REPRESENTED BY STANDING COUNSEL, FOR C.B.I, HIGH
COURT OF KERALA.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED CASES,
THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal Nos.64 of 2008 and conn.cases
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.64, 86, 88, 91 and 106 of 2008
-----------------------------------------------------------
Dated this the 20th day of May, 2025
JUDGMENT
Accused Nos.1 to 5 in C.C.No.3 of 2001 on the files of the
Special Court (SPE/CBI-II), Ernakulam are the respective
appellants. They were convicted and sentenced for the offences
punishable under Section 120B read with Sections 409 and 411
of the Indian Penal Code, 1860 (IPC) and Section 13(1)(c) read
with Section 13(2) of the Prevention of Corruption Act, 1988 (PC
Act). They were sentenced for various terms of imprisonment
and to pay fine for each of the said offences. Challenging the
said judgment of conviction and sentence, these appeals under
Section 374(2) of the Code of Criminal Procedure, 1973 (Code)
are filed.
2. The case of the prosecution is the following:
Accused No.1 was the Deputy Manager, Refinery Coordination,
Indian Oil Corporation (IOC) at the South Tanker Jetty,
Foreshore Road, Ernakulam. Accused Nos.2 and 5 owned a
barge named "Dolphin". Accused Nos.3 and 4, based on a
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partnership arrangement, were running a petrol pump near
Thoppumpady Fishing Harbour under the name and style M/s
Bava Enterprises. High Speed Diesel (HSD) was brought to the
South Tanker Jetty on three occasions during April and May
against the invoice of the Hindustan Petroleum Corporation Ltd.
(HPCL) and the IOC in oil tankers, namely, M.T.Prathibha
Krishna, Sampurna Swarajya and Suvarna Swarajya. During the
night intervening 22nd and 23rd of April, 2000, accused No.1 was
on duty of Refinery Coordinator at South Tanker Berth and while
discharging HSD from M.T.Prathibha Krishna, he in furtherance
of a criminal conspiracy hatched with the other accused, pilfered
and loaded 30,000 litres of HSD to Dolphin Barge, which was
eventually delivered to M/s.Bava Enterprises with the dishonest
intention of its misappropriation. Similarly, during the night
intervening 15th and 16th of May, 2000, pilfered 30,000 litres of
HSD while pumping HSD from the vessel Sampurna Swarajya
and delivered to M/s.Bava Enterprises. Again, during the night
intervening 28th and 29th of May, 2000, pilfered 41,000 litres of
HSD, while pumping out HSD from oil tanker Suvarna Swarajya,
to Dolphin barge and delivered the same to M/s.Bava
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Enterprises. Thus, 1,01,000 litres of HSD belonging to HPCL and
other oil companies was stolen and misappropriated by the said
accused.
3. Accused No.1 allegedly had the deal for illegal sale of
HSD to M/s.Bava Enterprises through accused Nos.6 to 8, who
were local scrap dealers. The said accused turned approvers.
4. Accused Nos.1 to 5 denied the charge and at the trial, the
prosecution has examined PWs.1 to 51 and proved Exts.P1 to P130.
MOs.1 to 16 were identified as well. After the close of the prosecution
evidence, the accused were questioned under Section 313(1)(b) of
the Code. Besides denying the incriminating circumstances against
them appeared in evidence, they filed written statements. Accused
No.1 maintained that considering the complexity in pumping out oil
from the oil tankers using installations at the South Tanker Berth,
pilferage as alleged was impossible. Each line is closed by hammer
blinds and valves. The pumping speed along a line from the tanker is
1000 metric tons (MT) per hour. If any blockade; however little it is,
the result is disasterous and therefore there was no possibility for
pilferage of oil by partially opening the blinds and valves. It is further
averred by accused No.1 that he was compelled to be an approver by
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the CBI officials and on his refusal, he was falsely implicated in the
case. He thus claimed to be innocent.
5. Accused Nos.2 to 5 also claimed to be innocent.
Accused No.2 raised a plea of alibi stating that during the relevant
period he was in Kannur undergoing Ayurvedic treatment in
connection with his shoulder fracture. Accused No.1 got examined
DWs.1 and 2 and got marked Exts.D8 to D10. In total, Exts.D1 to
D10 were marked on the defence side. After hearing both sides and
considering the evidence on record, the trial court believed the
evidence tendered by the prosecution, including that of the
approvers, who are PWs.1 and 2, resulted in conviction of accused
Nos.1 to 5. The findings of the trial court are vehemently assailed
by each of the accused in the respective appeals.
6. Heard the learned Senior Counsel Adv.(Dr) S.
Gopakumaran Nair, who appeared on instructions for accused No.1,
Advocate Nirmal Kumar for accused No.2, Advocate R.O.Muhamed
Shemeem for accused No.4, Advocate Shaijan C.George for accused
No.5 and the learned Standing Counsel for the CBI. The appellant in
Crl.Appeal No.106 of 2008-accused No.3 expired and the death was
reported as early as on 21.10.2020. Nobody has come forward yet
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to get impleaded and pursue the appeal. Since fine also forms part
of the sentence, the appeal does not abate and hence the records in
Crl.Appeal No.106 of 2008 are consigned to the records room.
7. The case was originated following receipt of information
on 29.05.2000 by the CBI as well as IOC regarding illegal sale of
HSD to M/s.Bava Enterprises transported using Dolphin Barge.
PW39 was the Senior Divisional Manager of IOC, Kochi Divisional
Office. He received the information. PW51 who was the Deputy
Superintendent of Police, CBI Central, Cochin Branch also received
the information. That ensued a joint inspection of M/s Bava
Enterprises. At around 1.30 p.m. PW51 along with other officials of
the CBI and officials of the IOC reached the Petrol Pump. PWs.19,
21 and 23 were the officials of the IOC. In the inspection, they
found more HSD than the stock as per the records. 8,435 litres of
HSD was the official stock. Whereas, the HSD found in Tank No.1
was 13402 litres, in Tank No.2 was 14853 litres, in Tanker Lorry
bearing Reg.No.KL-I-3289 was 12000 litres, in two barrels 400 litres
and in two plastic cans 200 litres. Thus a total of 40755.68 litres of
HSD was found in that petrol pump. The search was conducted in
the presence of accused Nos.3 and 4 as well as PW5, the
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tanker lorry driver and PWs.30 and 32, employees of the petrol
pump. Ext.P49 is the mahazar prepared in that regard.
8. Since the excess quantity of about 32,320.68 litres of
HSD was found, PW51 with the help of IOC officials prepared
samples from the HSD from various tanks and containers. From
the ensued enquiry it was revealed that HSD was illegally
supplied to the petrol pump using Dolphin Barge. It was on the
basis of the said information a crime was registered as per Ext.
P106 FIR.
9. PW39 deposed that accused No.3 was the dealer
conducting M/s Bava Enterprises under IOC. He asserted that
supply of diesel to M/s Bava Enterprises was by IOC in tank
trucks alone and each consignment was against invoice or
challan. Ext.P51 proved by this witness is a monthly statement
in respect of supply of HSD. Based on the said statements, he
maintained that the stock found in M/s Bava Enterprises in the
search on 29.05.2000 was far exceeding the supply by the IOC.
The further version is that the density of the diesel was not in
conformity to the standard density; the permissible density
variation was plus or minus 0.0030 while the density variation
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of HSD found in M/s.Bava Enterprises was more than 0.0040.
That led to the conclusion that the stock was unauthorised and
obtained in violation of the dealership agreement. That resulted
in initiation of action against the dealer, which culminated in
termination of the dealership.
10. As regards Ext.P51 objection was raised that it was
not a primary evidence being only a computerised statement of
accounts. PW39 being the Senior Divisional Manager in charge
of sales of petroleum products deposed in court about the
entries in Ext.P51 statement. It may be true that this statement
of accounts was not prepared by him personally. But it is a
statement prepared in the ordinary course of business and as
such a document covered by Section 34 of the Indian Evidence
Act. When the same is produced before the court by its
custodian and deposed endorsing its contents, it is admissible in
evidence and relevant.
11. Two facts are proved by the above. That, as a dealer
of IOC, M/s.Bava Enterprises could obtain HSD from IOC only;
that too supplied using truck tanks, and there was 32,320.68
litres of HSD in excess of the lawful stock. Being a dealer under
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the IOC, M/s.Bava Enterprises could act only in accordance with
the terms of the dealership agreement. But, violation occurred
and in the absence of any explanation about such an
unauthorised stock, the irresistible conclusion shall be that M/s
Bava Enterprises obtained the excess stock illegally.
12. The learned counsel for accused No.3 would submit
that the possible action concerning excess stock is only
departmental and therefore the criminal prosecution is illegal. It
may be noticed that the prosecution is not for the unauthorised
possession of stock, but for receiving stolen property which was
in furtherance of a criminal conspiracy to commit
misappropriation of HSD. When it took place at the instance of a
public servant, accused No.1, the action for unauthorised stock
by the IOC is not a bar for the criminal prosecution. If the
allegations regarding misappropriation and illegal sale are
proved, the prosecution is bound to succeed.
13. In regard to the genesis of the prosecution, two-fold
contentions were raised by the learned Senior Counsel for
accused No.1 and also the learned counsel for others. Firstly, no
crime was registered based on the source information, which
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was not disclosed by the prosecution even. Secondly,
statements of the witnesses to the search were recorded in the
mahazars and when the crime was registered thereafter, it
became illegal. Admittedly, the search was conducted on the
basis of a source information. Section 125 of the Evidence Act
provides immunity to a police officer from disclosing any
information received by him as to the commission of an offence.
Therefore, PW51 did not have any obligation to mention the
source of information in the mahazar or the FIR.
14. Inferably, the information was relating to receipt of
HSD by M/s.Bava Enterprises by illegal means. Howsoever
reliable was that information has not been sure then. It lacked
necessary details also. Therefore, registration of a crime based
on that information was not possible. Insistence on registering a
crime by Section 154 of the Code on an officer in charge of a
police station receiving an information relating to the
commission of a cognizable offence does not mean that every
cryptic and unverifiable information should result in registration
of a crime. The officer is obliged to get necessary details before
registering a crime. This is such a case. PW51 registered the
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crime only after verifying the genuineness of the information by
conducting a search and after collecting the details. Therefore,
the contention of the accused in this regard cannot be accepted.
15. Simultaneous to the search of the petrol pump, a
search was conducted by PW42, an Inspector of the CBI, in the
Dolphin Barge. The mahazar prepared in that regard is Ext.P6.
In the said mahazar, information given by the crew members of
that barge was stated. Information revealed by the persons
present at the time of search of the petrol pump were added in
Ext.P49 mahazar also. It is contended that the said act is illegal
and the statements inadmissible. Those statements were not
recorded during investigation inasmuch as the crime was
registered only later. Technically it was so, but those remain to
be the statements recorded by the police officer who conducted
the investigation. There can be no doubt therefore that such
statements come within the mischief of the proviso to Section
162 of the Code. That does not, however, mean that the said
mahazars or the FIR registered in sequel to the said mahazars
are illegal.
16. At the time of search of the petrol pump, accused
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No.3 and 4 were also present. Even the information collected
from them is stated in Ext.P49. It is equally trite that the
statements of accused and witnesses recorded at the time of
search are inadmissible in evidence for, the same amount to only
hearsay information. Be noticed, the rest of the facts narrated in
those mahazars are what have been noticed by PWs.42 and 51
respectively. Those facts cannot have any such vice.
17. As pointed out above, at the time of search by PW51
on 29.05.2000 an excess stock of 32,320.68 litres of HSD was
found. PW5, 30 and 32 have deposed about the source of such
excess stock. PW5 was the driver of the tanker lorry bearing
Reg.No.KL-I-3289. He deposed that the lorry was usually used
to carry furnace oil, but on three occasions, the lorry was
availed by the owners of the IOC pump at Thoppumpady for
collecting HSD, and Rs.1,250/- was paid as rent for each day.
His further version is that on two such occasions, HSD was
stored in the tanker lorry which was parked in the said petrol
pump. He identified accused No.3 as the owner of that petrol
pump. He added that besides in the tanker lorry, HSD was
collected in two barrels and two containers on the third
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occasion. It is also his version that the HSD brought in a barge
was stored in the petrol pump, tanker and containers.
18. PWs.30 and 32 were the employees of M/s Bava
Enterprises. They deposed almost in similar terms, particularly
in regard to bringing of HSD to M/s. Bava Enterprises on three
occasions. These witnesses categorically stated that accused
Nos.3 and 4 together were conducting the said petrol pump and
both of them were present at the time of search of the petrol
pump by the CBI on 29.05.2000. They stated that at the time of
search, excess diesel was in stock. Of course, PW30 did not fully
support the prosecution in regard to the allegation that he was
also present at the time of bringing HSD in Dolphin Barge and
pumping to the tanks in the petrol pump, M/s.Bava Enterprises.
But he endorsed that it was in his handwriting the endorsements
about bringing of diesel by Dolphin Barge in the stock register
was written. He tacitly admitted before the court that diesel was
brought to the petrol pump unauthorisedly using a barge and
there are endorsements in that regard in Ext.P52 series bill
books maintained in M/s.Bava Enterprises.
19. PW30 also stated before the court that accused Nos.3
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and 4 together were running the said petrol pump. Although he
admitted that the CBI inspected the petrol pump and seized
unauthorised stock of HSD from there, he did not endorse the
fact that such an excess quantity of HSD was brought to the
pump using Dolphin Barge. To that extent he turned hostile to
the prosecution. The evidence of these three witnesses, namely,
PWs.5, 30 and 32, would prove that excess quantity of HSD was
seized from M/s Bava Enterprises on 29.05.2000 by the CBI and
on two earlier occasions also HSD was unauthorisedly obtained
in that petrol pump. Their evidence also proved that accused
Nos.3 and 4 were the persons running M/s.Bava Enterprises.
Despite turning hostile to the case of the prosecution concerning
a few facts, aforesaid versions of PWs 30 and 32 can be relied
on.
20. Wife of accused No.4 is PW26. She proved Exts.P43
and P58 as deeds she had entered into with accused No.3.
These documents would show that a partnership firm was
constituted between herself and accused No.3 in regard to the
running of M/s Bava Enterprises. Accused No.3 is the dealer, a
fact which is unassailable. PW26, however, denied that her
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husband had any role in conducting the petrol pump and the
said documents were executed when an amount of Rs.4 lakhs
was advanced as loan to accused No.3. Thus, she deposed
against the case of the prosecution by resiling from her previous
statement. Her deviant statement is against contents of
Exts.P43 and P58 and also her previous statement. Hence the
same cannot be given any heed to hold that accused No.4 did
not have any role in conducting the said petrol pump.
21. None other than his employees, PWs.30 and 32
deposed in court that accused No. 4 in participation with
accused No.3 was conducting the petrol pump. His presence
during discharge of HSD from the Dolphin Barge on the three
occasions was deposed to by PW30 as well as the crew
members of the Dolphin Barge, namely, PWs.3 and 49. When
the said evidence sufficiently proved that accused No.4 also had
active participation in conducting M/s.Bava Enterprises, it can
certainly be held that both accused Nos.3 and 4 were involved in
the business of M/s Bava Enterprises.
22. I may now consider whether there occurred
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transportation of HSD from South Tanker Jetty in Dolphin Barge
to M/s Bava Enterprises at Thoppumpady on three occasions as
alleged by the prosecution. The prosecution relies on the
evidence of PWs.3, 31 and 49, the crew members of the barge,
PWs.1 and 2, the approvers, and PWs.5, 30 and 32, the lorry
driver and employees of the petrol pump in this regard. Of
course, other circumstances are also placed reliance on.
23. PWs.3, 31 and 49 were the members of the crew in
Dolphin Barge during the relevant period. PW3 was the Barge
Master. PW31 was the Engine Driver and PW49 was the Engine
Operator. The facts that they were the employees and on duty
on the dates in question are reflected from Ext. P5, the log book
maintained in the Barge. All of them stated that accused Nos.2
and 5 were the owners of Dolphin Barge and they were giving
instructions concerning the operation of the Barge.
24. PW3 explained in detail about the bunkering for
which the said Barge was being used. It was under a contract
with the IOC and being used for bunkering oil to ships. On the
basis of the intent from ships instructions would be issued from
the Karshaka Road office of the IOC for bunkering and oil would
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be loaded from South Berth Jetty. He added that besides such
usual bunkering operations, the Barge was used thrice to
transport HSD from South Barge Jetty to M/s Bava Enterprises
at Thoppumpady. He explained that the three incidents were on
22.04.2000, 15.05.2000 and 28.05.2000. All were during night.
25. Regarding the first incident, PW3 stated that on
24.04.2000 accused Nos.1, 2 and 5, whom he had identified
before the court, told him at Barge Jetty about such a bunkering
operation. Accordingly, on 22.04.2000 at about 8.00 p.m. he
was told over telephone by accused No.5 that the Barge should
be taken to Thoppumpady with HSD. Accordingly, he reached
the Jetty at about 8.45 p.m. and took the Dolphin Barge which
was filled with HSD to Thoppumpady. He, along with other crew
members among whom were PWs.31 and 49, took the Barge to
M/s Bava Enterprises at Thoppumpady where the HSD was
discharged. It is also the version of PW3 that while they reached
Thoppumpady, owners of M/s.Bava Enterprises, whom he
identified as accused Nos. 3 and 4, the Operation Manager of
the Barge Sri.Sainuddin (who expired before the
commencement of the trial) and staff members of the Petrol
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Pump were present. It was in their presence, HSD was pumped
into the tanks in the petrol pump.
26. PW3 added that the second time on realising that
there was something unusual in transporting HSD to the petrol
pump, he resisted the act. However, accused No.2 insisted that
he was employed for such activities. The third time when HSD has
been transported, PW3 was told about the operation after filling
HSD in the Barge. He resisted, but he was compelled to take the
Barge to Thoppumpady stating that on his failure to do so, his
employment will be lost for, the Barge was already filled with
HSD. It is his version that he therefore obliged the direction of
accused Nos.2 and 5 and reached Thoppumpady with the Barge at
about 2.30 in the night. At that time also, the Operation Manager
Sri.Sainuddin, accused No.3 and staff members of M/s.Bava
Enterprises were present. The HSD was pumped into the
underground tanks and a tanker lorry, two barrels and two cans.
PW3 added that on the first two occasions, 30,000 litres each and
on the third occasion, 41,000 litres of HSD was pumped to M/s
Bava Enterprises from the Dolphin Barge.
27. The version of PW31 regarding transportation of HSD
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from South Barge Jetty to M/s.Bava Enterprises is almost the
same. Except for a few minor contradictions as to the timing
and presence of persons at M/s Bava Enterprises at the time of
pumping HSD, his version goes in tandem to that of PW3.
Presence of accused Nos.1, 2 and 5 while bunkering to the
Dolphin Barge from the South Terminal Jetty on all the three
occasions is also consistent. However, PW49 did not support the
case of the prosecution insofar as the transportation of HSD
from South Terminal Jetty to M/s.Bava Enterprises using
Dolphin Barge. He feigned ignorance regarding those matters
and in doing so he resiled from his statement to the
investigating officer. He was allowed to be cross-examined, but
the learned Prosecutor could not bring out much evidence from
him. His version that he was employed in Dolphin Barge by
accused Nos.2 and 5 was, however, remains unassailed.
Accused No.2 tried to bring out from PW49 his case that he was
in Kannur during the relevant period. That aspect, which is to
support the plea of alibi by accused No.2 will be dealt with
later.
28. Evidence of PWs.3 and 31 has been strongly assailed
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by the accused. It is alleged that these witnesses stated
falsehood in court. Their versions, however, withstood the
searching cross-examination. Their assertions that they were
given tips after each voyage and Rs.30,000/- after the second
trip to be adjusted against arrears of salary add credibility to
their oral testimony. It is pertinent to note that these witnesses
deposed so against their masters. Nothing is brought out to
substantiate that either of them had enmity towards their
employers. If so, there is no reason to disbelieve these
witnesses.
29. Further, there are other circumstances to lend
support to their evidence. As stated, an excess quantity of HSD
was found in M/s.Bava Enterprises while the search was carried
out on the afternoon of 29.05.2000. The versions of PWs.30 and
32 and to a certain extent that of PW5 are to the effect that
such excess quantity was the HSD brought to M/s.Bava
Enterprises using Dolphin Barge. Although no tangible evidence
is available, versions of PWs.3 and 31 get sufficient support
from the other evidence including from the oral testimonies of
PWs.30 and 32 that on earlier two occasions also Dolphin Barge
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was used to transport HSD from South Terminal Berth to
M/s.Bava Enterprises, Thoppumpady.
30. The case of the prosecution is that the Dolphin Barge
belonged to a partnership firm, named M/s Ocean Bunkers,
which was constituted under the aegis of M/s Ron Maritime
Agency. Accused Nos.2 and 5 were the Managing Director and
Director of that company. By constituting that partnership firm
with accused Nos.2 and 5 and PWs.6 and 50 as partners, the
Barge was acquired. PW6 deposed before the court that she was
also a partner and the deed of partnership is Ext.P15. She
claimed to have invested Rs.2.5 lakhs in the business, but she
was not paid any return. She identified Ext.P16 as the specimen
signature she had furnished to the investigating officer. A report
identifying the signatures in Ext. P16 was obtained from PW18,
who was the Assistant Government Examiner of Questioned
Documents. His report is Ext. P41 and reasons thereof is
Ext.P42. That evidence confirmed the authorship of signatures
of accused Nos. 2 and 5 and also that of PWs 6 and 50 in
Ext.P15.
31. PW50 is none other than the mother-in-law of
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accused No.1. She is also a signatory to Ext.P15 as a partner.
But she feigned ignorance about such a transaction while
examined before the court. Therefore, her evidence has no
much use for the prosecution. While confronting the signature in
Ext.P15, she did not deny, but feigned ignorance. However,
from the evidence of PWs.6 and 18, the recitals in Ext.P15 and
the report of PW18 vide Ext. P41, it is obvious that PW50 was
also a partner to M/s Ocean Bunkers, which owned Dolphin
Barge.
32. The above fact gets corroboration from the evidence
of PW20. She was the accountant in M/s Ron Maritime Agency
till 05.08.1999. She deposed before the court that accused
Nos.2 and 5 were the Managing Director and Director of the said
company. Under that company, a partnership firm was
constituted and PW20 proved Ext.P15 as the deed of
partnership. She is an attestor to it and her unassailable
evidence proves beyond doubt that such a partnership deed was
executed for the constitution of M/s Ocean Bunkers and PW50,
who is the mother-in-law of accused No.1, was a partner to it.
Her evidence further would prove that the share of PW50 in the
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partnership was paid by accused No.1. Although she was unable
to remember and state every transaction, based on the entry
contained in Ext.P53, which is the statement of accounts
concerning M/s Ocean Bunkers, she asserted that an amount of
Rs.4 lakhs was received from accused No.1 on behalf of PW50
towards the share in the partnership. On 12.07.1999 an amount
of Rs.1,02,500 was also received. When the said entries were in
the statement, which could be duly proved by PW20, who was
none other than the accountant, there can be little doubt that
PW50 was a partner of M/s Ocean Bunkers and the investment
on behalf of her was made by accused No.1.
33. The evidence tendered by the prosecution would not
show that PW6 or PW50 had any role in running of the Dolphin
Barge. On the other hand, accused Nos.2 and 5 were the
persons in control of the affairs. Their employees deposed in
court substantiating their active participation in operating the
Dolphin Barge. Also, the transportation of HSD from the Barge
Jetty at South Tanker Berth to M/s.Bava Enterprises at
Thoppumpady Fishing Harbour on all the three occasions were
carried out as instructed by accused Nos.2 and 5. In that
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context the contention of accused No.2 that he was not
available in station during the relevant period and he was falsely
implicated needs consideration. In this regard, accused No.2
essentially relies on the oral testimony of PW49.
34. As pointed out above, PW49 is a hostile witness. His
credibility is quite at stake. His version in court is totally against
the testimonies of PWs.3 and 31, who were his co-workers in
the Dolphin Barge. I found above that both PWs.3 and 31
deposed truth in court about transportation of HSD from South
Terminal Berth to M/s.Bava Enterprises. When such a witness,
PW49 stated in court as an answer to a pointed question that
accused No.2 was undergoing treatment at Kannur during the
relevant period, the same can be termed as an incredible
statement alone. Further, it may be noted that he stated so not
from his personal information, but as stated by Sri.Sainuddin only.
Being a hearsay information, that is an inadmissible piece of
evidence rather. Therefore, the case of accused No.2 that he was
away in Kannur and not available at Kochi during April and May
2000 cannot be countenanced. The plea of alibi is thus not proved.
35. The learned Senior Counsel for accused No.1 would
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submit that no sufficient evidence is brought forth to establish
the source of unauthorised stock of diesel found in M/s.Bava
Enterprises on 29.05.2000. Not only that there is no evidence to
prove that the diesel brought in the tanker Suvarna Swarajya
was transported using Dolphin Barge, but also the evidence
tendered by the prosecution has discredited any such relativity.
It is submitted that no sample was taken from the tanker
Suvarna Swarajya or the lines in the Exchange Pit. Samples
were taken from the Dolphin Barge, but the same did not
conform to the sample taken from M/s Bava Enterprises. It is
also urged that the samples taken from the petrol pump were
prepared not in accordance with the accepted norms and were
not homogeneous. Thus, it is contended that a qualitative
comparison with reference to the samples collected by the
prosecuting agency is not helpful at all to prove the charge.
36. In the circumstances of the case, there was no
possibility for a comparison of samples from the diesel pilfered
and sold to M/s Bava Enterprises on the first two occasions with
the source samples. By the time, the malpractice was detected,
which was on 29.05.2000, the previous two loads were already
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exhausted. Hence, the other evidence alone could be relied on
by the prosecution concerning those incidents.
37. PW38 was the DGM, Quality Control in IOC. He
examined the samples collected by PWs.42 and 51 in this case.
Two samples were collected from the Dolphin Barge and in
samples from the contraband found at M/s.Bava Enterprises.
MOs.1 to 16 were the samples. In terms of Ext.P82, PW38 was
requested to do scientific examination. PW83 is the forwarding
note. He, after conducting necessary tests, issued Ext.P84
report. He is sufficiently experienced and his report can certainly
be acted upon. Going by his version and the report contained in
Ext.P84 the samples satisfied the qualitative requirements of
diesel. A few samples were answering to the standard of HSD,
whereas the others were of LSHF HSD. It is seen that the
samples collected from the Dolphin Barge were of LSHF
standard HSD. Of course, PW38 did not venture to classify each
of the samples as LSHF HSD or HSD. But the parameters and
data furnished in Ext.P84 would indicate that the samples
collected as per Ext.P6 from the Dolphin Barge were LSHF HSD.
The reason furnished by the investigating officer for not
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collecting samples from the tanker Suvarna Swarajya is that it
was empty. It is urged by the learned senior counsel for the 1 st
accused that at least from the line inside samples could have
been collected. Whether that was possible or not is not able to
be ascertained from the available evidence. It remains that no
such sample was collected.
38. Version of PW3 in the above context is relevant. He
stated that on 29.05.2000 there was a legal bunkering to an
Irish Ship subsequent to transportation of HSD to M/s Bava
Enterprises. If so, the sample collected from it could only be
LSHF HSD. It is alleged that had there been such a bunkering,
the documents pertaining to it could have been produced. But
the prosecution did not. That also is highlighted to contend that
the charge could only fail.
39. It is indisputable that the legal use of Dolphin Barge
was to bunker oil to ships. So the version of PW3 that on
29.05.2000 there was such a bunkering cannot be said unusual.
No oblique motive for PW3 to state so is brought out or
substantiated. Therefore, there is no reason to disbelieve the
said version of PW3. In the circumstances the mismatch of the
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samples collected from M/s.Bava Enterprise and Dolphin Barge
cannot fail the prosecution altogether. The question may be
even in the absence of such confirmatory evidence, would the
prosecution succeed?
40. One of the facts tried to be proved by the prosecution
is that there was short discharge from all the three tankers,
namely, M.T.Prathibha Krishna, Sampoorna Swarajya and
Suvarna Swarajya. The fact that those ships were chartered to
bring HSD to Tanker Jetty, Foreshore Jetty, Ernakulam is
beyond dispute. Sufficient evidence; both oral and
documentary, has been let in by the prosecution regarding
chartering of the said vessels, invoicing and despatching of oil
from various ports. M.T.Prathibha Krishna was loaded with HSD
from Bahrain, a part of which was discharged at Mumbai and the
remaining quantity of 20771.570 MT of HSD was discharged at
Tanker Jetty, Ernakulam. The evidence of PWs.13, 22 and 23
together with Exts.P24 to P30 established that fact. It is seen
that there was a short discharge by 37.604 MT (a calculation
error that the shortage was 137.604 MT is noted in the records).
Be that as it may, short discharge of atleast about 37 MT of HSD
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is borne by records.
41. In the case of Sampoorna Swarajya, which reached
Tanker Jetty, Ernakulam was loaded with 19985.814 MT of HSD
from Mangalore Port and the entire load was discharged at
Ernakulam. Going by the evidence of PW16, the Surveyor and
Exts.P38 and P55, there was a short discharge of 39.466 MT of
HSD. Similarly, the tanker Survarna Swarjya was loaded with
16230.188 of MT of HSD to be discharged at Tanker Jetty,
Ernakulam. Discharge was completed on 28.05.2000. Going by
the evidence of PW16, the Surveyor and relevant pages in
Exts.P37 and 55, there was a short discharge of 49.044 MT of
HSD. The fact that there was shortage in the discharge of HSD
on all the said three occassions is unassailable in the light of the
clinching evidence brought on record. The contention of the
learned counsel for the accused in the above regard is that
shortage in quantity is a natural phenomenon occurred during
voyage and therefore that cannot be a circumstance, which can
be banked upon by the prosecution. It is further urged that no
serious action was taken by the respective oil companies
pertaining to such shortage in the quantity.
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42. As is seen from the evidence, HSD brought by
various vessels was used to be distributed among the oil
companies namely IOC, HPCL and BPCL. Complaints were seen
raised regarding the shortage. But no evidence was brought in
by the prosecution concerning result of such complaints and
action, if any, taken in that regard. From the oral testimony of
PW16 shortage of HSD as occured in the instant cases has not
been usual. Therefore, the same is an aspect which has to have
due reckoning, although that independently will not help to
prove the charge, especially when no convincing data
concerning normal or standardised shortage is available. What
emerges from the above is that HSD brought by the aforesaid
three vessels were discharged at Tanker Jetty, Foreshore Road,
Ernakulam on the days including the respective dates in
question such as, 22.04.2000, 15.05.2000 and 28.05.2000, and
that on each of the said occasions there was shortage in
discharge.
43. The procedure for discharge of HSD from the vessel
has been stated by the officers of IOC, HPCL and BPCL. PWs.17
and 37 were the officers of the IOC. PWs.24 and 25 were the
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officers of HPCL. PWs.41 and 47 were the officers of BPCL.
These witnesses deposed about the respective role of the
officers of the oil companies while a tanker loaded with
petroleum product arrived at Tanker Jetty. The consistent
version is that the boarding officer, who shall be from the
respective oil company to which the consignment or part of the
consignment is arrived, along with Surveyor reaches the vessel.
Quality of the consignment is tested by preparing a sample and
sending it to the Cochin Refineries Ltd., which is an organ of
IOC. The Surveyor then prepares an ullage report. By
measuring the empty space, the quantity of the oil in the tank is
quantified. After thereby confirming the quality and quantity,
instructions would be obtained from the oil company concerned.
On communicating the instructions, the Refinery Coordinator at
the Tanker Jetty takes steps for lining up to ensure discharge of
oil to the oil company concerned. When the Refinery Coordinator
confirms the due lining up the discharge commences.
44. One of the contentions raised on behalf of accused
No.1 is that lining up for discharge of oil to the designated
destination was not the sole obligation of the Refinery
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Coordinator, but also of the Discharge Officer, who is deputed
by the company concerned. Serious contentions were raised in
this regard and the evidence of DW2 was relied on to
substantiate that contention. However, the cogent and
consistent version of the aforesaid witnesses, who are senior
officers from all the three oil companies is that the lining up
operation at South Tanker Jetty by opening the respective
valves and blinds has been the duty of Refinery Coordinator
alone and none else. Although the contrary was suggested to
PWs.24 and 25 during cross-examination they duly denied
them.
45. The Refinery Coordinators were deputed from IOC.
That fact cannot be disputed in the light of the oral testimonies
of not only PWs.17 and 37, but also PWs.4 and 45. It is
pertinent that PWs.4 and 45 were the other two Refinery
Coordinators deputed by IOC along with accused No.1 at the
Tanker Jetty, Ernakulam. Both PWs.4 and 45 stated in
unequivocal terms that they along with accused No.1 were
performing the said duty in turn, ordinarily in eight hours' turn.
Duty time may have change depending upon availing of leave
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by/absence of any one among them. From the said evidence, it
is well proved that accused No.1, PW4 and 45 were in charge of
lining up operations in the Tanker Berths. The installations there
have been used to pump oil brought by vessels to the
designated destination. Therefore, the case of the prosecution
that distribution of oil from vessels was through the Exchange
Pit in the South Tanker Berth and North Tanker Berth, and lining
up operation for the same was the sole responsibility of accused
No.1, PWs.4 and 45 stand proved.
46. As stated, the prosecution has let in direct evidence
to prove transportation of HSD from South Barge Jetty using
Dolphin Barge to M/s Bava Enterprises on three occasions. The
charge is that accused No.1 being the Operation Coordinator at
South Tanker Berth in connivance with accused Nos.2 to 5
diverted HSD from South Exchange Pit for such pilferage and
they thereby committed the offences. In order to prove the
complicity of accused No.1 and also the conspiracy the said
accused allegedly had hatched, there is no direct evidence. The
prosecution can rely only on circumstances, especially when
PWs.27 to 29 and 48, the casual labourers, who were involved
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in undertaking the lining up operation under the instructions of
the Operation Coordinators turned hostile to the prosecution.
Besides them, one Mr.Reynold was also a casual labourer, but
he was not examined. Of course, evidence of the approvers,
PWs.1 and 2 also is relied on in the above regard. The question
therefore is whether the prosecution succeeded in establishing
with the aid of circumstantial evidence, the complicity of
accused No.1 and also the conspiracy.
47. It is the fundamental principle of criminal law that
the guilt of the accused has to be proved beyond a reasonable
doubt. Its corollary is that in a case that rests on circumstantial
evidence, the proved circumstances should form a complete
chain so as to prove the guilt beyond doubt. Whether each of
the circumstances is to be proved beyond a reasonable doubt,
has been a debated question. In M.G.Agarwal v. State of
Maharashtra [AIR 1963 SC 200], a Constitution Bench of the
Apex Court held that every primary fact constituting the
circumstances based on which the prosecution proposes to
establish the guilt of the accused, need not be proved beyond a
reasonable doubt. Therefore, the circumstances proposed by the
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prosecution need to be proved by the ordinary standard.
48. The Apex Court in Sharad Birdhichand Sarda v.
State of Maharashtra [(1984) 4 SCC 116] held that the
following must be fulfilled before the case against an accused
can be said to be fully established on circumstantial evidence:
"(1) the circumstances from which the conclusion of guilt is to
be drawn must or should be and not merely "may be" fully
established.
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability, the act must have been done by the
accused."
49. A three-Judge Bench of the Apex Court after referring
to the earlier decisions on the point right from Hanumant
Govind Nargundkar and another v. State of Madhya
Pradesh [AIR 1952 SC 343] held in Munikrishna @ Krishna
v. State by Ulsoor PS [2022 SCC OnLine SC 1449] that in a
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case where circumstantial evidence is relied on, the chain of
evidence must be complete and the conclusion which is arrived
after examining the chain of evidence must point towards the
culpability of the accused and not to any other conclusion. It
was also held that in a case of circumstantial evidence, the court
has to scrutinize each and every circumstantial possibility, which
is placed before it in the form of evidence and the evidence must
point towards only one conclusion, which is the guilt of the
accused. Therefore, the evidence on record should prove beyond
doubt that the proven circumstances lead to the only conclusion
that the accused had committed the offence.
50. Accused No.1, PWs.4 and 45, were refinery
coordinators at South Tanker Berth. I have already mentioned
about their duty arrangements. PWs.4 and 45 deposed in detail
about their performing duties during the relevant period. PW4
has proved Ext.P10, the attender register (muster roll), Ext.P11,
the file containing log details of discharge of HSD from vessels,
Ext.P12, shift day book and Ext.P14, tanker log book. PW45 also
deposed substantiating the entries in those registers, besides
the duty details. Their categorical assertions are that accused
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No.1 was on duty from 7.00 a.m. to 7.00 p.m. on 22.04.2000.
He was on duty from 3.00 p.m. to 11.00 p.m. on 15.05.2000.
He was also on duty from 7.00 p.m. on 28.05.2000 till 7.00 a.m.
on 29.05.2000. The said oral statements are fully supported by
the entries in Exts.P10, P11, P12, P14 and also Ext.P96. The
question now is whether accused No.1 can be attributed with
liability for loading HSD in Dolphin Barge on the said dates.
51. The learned Senior Counsel for accused No.1 would
submit that even if he was on duty till 7.00 p.m. on 22.04.2000
bunkering to the Dolphin Barge and transportation of HSD to
M/s Bava Enterprises took place thereafter, and therefore, he
cannot be roped in. It is also submitted that the oral testimonies
of PWs.4 and 45 in the above regard cannot be believed
inasmuch as they are interested witnesses being the real culprits
and their version is to shirk the responsibility. Certainly, when
the evidence fully substantiates that either of the said three
officers should always be on duty at South Tanker Berth and
such officer will be in absolute domain of the lining up
operations, any one of them can be the person behind such
pilferage. It is to be noted that PWs.4 and 45 were categoric
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concerning the fact that by opening valves concerned in the
South Exchange Pit, HSD can be pumped to a barge berthed at
South Barge Jetty. PW45 added that while pumping HSD to the
designated destination, namely; IOC, HPCL or BPCL, it is
possible to divert HSD to the Barge Jetty by loosening one or
two threads of the valves concerned.
52. In the above regard, the learned Senior Counsel
raised a contention that any such diversion is dangerous for,
pumping of oil from the tanker is in such a high pressure and
any diversion would blow up the installations. Such a suggestion
was put to PWs.4 and 45. When they were the persons who
operated the South Exchange Pit for years together, their
definite assertion that diversion of HSD to Barge Jetty is possible
while pumping to the designated designation is in progress,
cannot be doubted. The said version has to be considered in the
light of the oral testimonies of PWs.3 and 31, who were the crew
members of Dolphin Barge, that on all the three occasions HSD
was pumped to the Barge from South Exchange Pit. I found
above that the aforesaid version of PWs.3 and 31 was reliable
and there occurred transportation of HSD from South Barge
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Jetty to M/s Bava Enterprises. When that is the evidence, there
can be any doubt about the assertion of PWs.4 and 45 that HSD
could be diverted through the designated line to the Barge Jetty
by partially opening the valves and blind concerned.
53. Pumping of HSD to Dolphin Barge occurred on three
occasions and on all the three occasions, accused No.1 was
allegedly on duty at the South Tanker Birth. Going by the
evidence, he was on duty till 7.00 p.m. on 22.04.2000. PW4
succeeded him. The handwriting of accused No.1 in Ext.P12
during his duty time on 22.04.2000 has been proved by PW4
and 45. Entries in it from 7.15 p.m. onwards were by PW4. It is
possible to contend that at the time of pumping HSD to Dolphin
Barge it was not accused No.1, but PW4 was on duty.
54. The oral testimony of PW3 assumes importance in
that context. He deposed that at around 4.00 p.m. on
22.04.2000 he was told that there would be a bunkering in the
evening. At 8.00 p.m. he was informed by accused No.5 over
telephone that the Dolphin Barge was loaded with HSD to be
taken to M/s.Bava Enterprises. Availability of accused No.2 in
the company of accused No.1 at the Jetty has also been proved.
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In the light of the said proved facts, it can only be found that
bunkering to the Dolphin Barge on that day had occurred at the
instance of accused No.1. There are other reasons for taking
such a view, which I shall mention below.
55. On 15.05.2000, accused No.1 was on duty from 3.00
p.m. to 11.00 p.m. On 28.05.2000 he was on duty from 7
O'clock in the night to 7 O'clock the next morning. From the
evidence mentioned above, there can be little doubt that
bunkering to Dolphin Barge took place on those days while
accused No.1 was on duty. From the version of PW3, it is seen
that accused Nos.2 and 5 were also found in the company of
accused No.1 not only at the barge jetty but also at his
residence, which is a pointer to their coordination in the
bunkering in question. Of course, in that regard the learned
Senior Counsel would submit that being the partners of M/s
Ocean Bunkers, which had contractual relationship with IOC,
there was nothing unusual for accused Nos. 2 and 5 meeting
accused No. 1. To a certain extent that submission is
appropriate. But there are the following fouling factors.
(1) The mother-in-law of accused No.1 was also a
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partner of M/s Ocean Bunkers;
(2) Share of his mother-in-law to the partnership firm
was contributed by accused No.1;
(3) Wages of the crew members of the Dolphin Barge
were in arrears necessitating raising of funds; and
(4) While illegal bunkering of HSD to Dolphin Barge at
the South Barge Jetty also all of them were present.
56. When accused Nos.1, 2 and 5 having had parleys in
the above circumstances cannot be said very innocent. When
the prosecution succeeded in proving that, bunkering of HSD to
Dolphin Barge on all the three occasions for being transported to
M/s Bava Enterprises occurred while accused No.1 was on duty,
the aforementioned circumstances constitute a complete chain
proving complicity of accused No.1 with the crime.
47. It is also relevant to consider how far the evidence of
PWs.1 and 2 is trustworthy and it renders support to the other
evidence against accused No.1 and others, especially concerning
the conspiracy. PWs.1 and 2 having been cited as approvers, the
law in that respect needs a mention. Section 133 of the
Evidence Act deals with the law relating to accomplice evidence,
which reads:
"133. An accomplice shall be a competent witness against
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an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of
an accomplice."
The first part says that an accomplice shall be a competent
witness. This, in fact, is only a reiteration of Section 118 of the
Evidence Act which says that all persons are competent
witnesses, except those who suffer from disqualification of an
intellectual character. The second part lays down that conviction
is "not illegal" merely because it is based on the uncorroborated
testimony of an accomplice. This again is the reiteration of
Section 134, which does not require any particular number of
witnesses for the proof of any fact. The caution placed in
illustration (b) to Section 114 of the Evidence Act, which says
that an accomplice is unworthy of credit, unless he is
corroborated in material particulars, has to be understood in the
light of the specific principle of law placed in Section 133 that a
conviction based on the uncorroborated testimony of an
accomplice is "not illegal".
58. In State of Kerala v. Anilkumar @ Jacky [2024
KHC 739], a Division Bench of this Court dilated on the law
relating to evidence of an approver. It was held,
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"15. The law relating to the manner of appreciation of the
evidence tendered by an approver is also well settled. It
recognises that an approver is very often an accomplice ie. a
person who participates in the commission of the actual crime
charged against an accused. He is a participes criminis. When he
agrees to be an approver, and to testify against an accused, he
becomes a prosecution witness. The evidence of an accomplice
therefore requires to be accepted with a great deal of caution and
scrutiny because (i) he has a motive to shift guilt from himself (ii)
he is an immoral person likely to commit perjury on occasion; and
(iii) he hopes for pardon or has secured it, and so favours the
prosecution (Lal Chand v. State of Haryana - (1984 (1) SCC
686)).
16. S.133 of the Indian Evidence Act states that an accomplice
shall be a competent witness against an accused person and a
conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. S.114 of the
Evidence Act states that a court may presume the existence of
such facts as it thinks likely to have happened, regard being had
to the common course of natural events, human conduct, and
public and private business in their relation to the facts of the
particular case. By way of illustration (b), it is clarified that the
court may presume that an accomplice is unworthy of credit
unless he is corroborated in material particulars. Reading S.133
and Illustration (b) to S.114 of the Evidence Act together, the
courts in India have held that while it is not illegal to act upon the
uncorroborated testimony of the accomplice, the rule of prudence
so universally followed as to amount to a rule of law, is that it is
unsafe to act on the evidence of an accomplice unless it is
corroborated in material aspects, so as to implicate the accused.
(Rameswar v. State of Rajasthan - (AIR 1952 SC 54);
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Dagdu v. State of Maharashtra - (1977 (3) SCC 68);
D.Velayudham v. State - (AIR 2015 SC 2506)).
17. Thus, an approver's evidence has to satisfy the double test
ie. (i) his evidence must be reliable and (ii) his evidence should be
sufficiently corroborated. If the first test of reliability is not
satisfied, there is no necessity to look for a satisfaction of the
second test. As observed by the Court in Rampal Pithwa
Rahidas & Ors v. State of Maharashtra - (1994 Supp (2)
SCC 73), it is only when the approver's evidence is considered
otherwise acceptable that the court applies its mind to the rule
that his testimony requires corroboration in material particulars,
connecting or tending to connect each of the accused to the crime
charged. This, however, is as a matter of prudence. (Sarwan
Singh v. State of Punjab - (AIR 1957 SC 637); Jnanendra
Nath Ghose v. State of West Bengal - (AIR 1959 SC 1199)).
18. On the aspect of corroboration, firstly, the court has to
satisfy itself that the statement of the approver is credible in itself
and there is evidence other than the statement of the approver
that the approver himself had taken part in the crime. For this,
the court must consider the question as to how the approver
came to be arrested, how he became a participant in the crime,
the role played by him in the crime and the circumstances in
which he decided to become an approver. Secondly, the court has
to seek corroboration of the approver's evidence with respect to
the part of other accused persons in the crime, and this evidence
has to be of such a nature as to connect the other accused with
the crime. The corroboration should be sufficient to afford some
sort of independent evidence to show that the approver is
speaking the truth with regard to the accused person whom he
seeks to implicate. (Rameshwar v. State of Rajasthan - (AIR
1952 SC 54); Sarwan Singh v. State of Punjab - (AIR 1957
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SC 637); Ranjeet Singh and Anr. v. State of Rajasthan -
(1988 (1) SCC 633)).
19. To paraphrase Justice Vivian Bose in Rameshwar
(supra), the nature and extent of corroboration required of an
approver's statement has to be determined by the following
principles viz. (i) it is not necessary that there should be
independent confirmation of every material circumstance in the
sense that the independent evidence in the case, apart from the
testimony of the complainant or the accomplice, should in itself be
sufficient to sustain conviction; all that is required is that there
must be some additional evidence rendering it probable that the
story of the accomplice is true and that it is reasonably safe to act
upon it (ii) that independent evidence must not only make it safe
to believe that the crime was committed, but must in some way
reasonably connect or tend to connect the accused, with it by
confirming in some material particular the testimony of the
accomplice or complainant that the accused committed the crime
(iii) that the corroboration must come from independent sources
and thus ordinarily the testimony of one accomplice would not be
sufficient to corroborate that of another and (iv) that the
corroboration need not be direct evidence that the accused
committed the crime - it is sufficient if it is merely circumstantial
evidence of his connection with the crime."
59. The Apex Court in A.Srinivasulu v. State Rep. by
the Inspector of Police [(2023) 13 SCC 705] reiterated the
twin test as enunciated in Sarwan Singh (supra) to be satisfied
before accepting the evidence of an approver, that the approver
is a reliable witness and that his statement is corroborated with
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sufficient independent evidence. With the above in mind, I shall
consider the evidence of PWs 1 and 2.
60. The learned Senior Counsel on behalf of accused No.1
and also the counsel appearing for other accused would submit
that PWs.1 and 2, first of all, are not accomplice inasmuch as
they deposed before the court that they did not realise what
they did was an offence. It is further submitted that the
evidence of PWs.1 and 2 is totally contradictory and unreliable.
There is no tangible or independent evidence to show that they
were scrap dealers as they claimed, they ever had approached
accused No.1, there was a dilapidated shed and pump at South
Tanker Jetty proposed to be auctioned and that their claim of
entry to the Jetty to meet accused No.1 itself is quite
improbable. The learned counsel for accused No.2 further
submitted that one of the approvers Sri. Ashraf, who since
expired and not examined in court, had an oblique motive of
cancelling the contract, the Dolphin Barge had with the IOC so
as to get that contract to the Barge owned by his brother.
Pointing out those aspects, it is contended that PWs.1 and 2 are
planted witnesses.
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61. It is true that accused No.1 being a top ranking
officer in the IOC need not ordinarily have availed the help of
PW1, PW2 and Sri.Ashraf to contact a petrol pump dealer. It is
also relevant to mention that the prosecution did not bring forth
any tangible evidence to prove the scrap business of PWs.1 and
2, existence of a dilapidated shed and pump in the Tanker Jetty
premises and any permission availed by them to enter the Jetty
to meet accused No.1. Equally relevant is to consider whether
PWs.1 and 2 qualified to be accomplices for them to be treated
as approvers.
62. As held in Lal Chand [(1984) 1 SCC 686)] the first
aspect to be considered is whether the approver himself has
taken part in the crime and is a particeps criminis. What PWs.1
and 2 admitted during cross-examination is that they did not
know the act they were doing was an offence. That was only on
account of their ignorance of law and not that they did the acts
without sufficient knowledge about the nature of the act they
were doing. It is obvious that they believed so only because they
were not sure that the act was a penal one. If the versions of
PWs.1 and 2 can be believed, they were also privy to the crime.
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When they arranged a purchaser for HSD on taking commission,
that is enough to implicate them as accused, whether or not
they knew the law which made the act a crime. Therefore, their
aforementioned statement is not an exculpatory one so as to
hold them not accomplices. They thus being particeps criminis,
can only be treated as approvers. Therefore, their evidence has
to succeed the twin test as aforementioned for being relied on.
63. Even assuming that PWs 1 and 2 do not come within
the purview of accomplices, the position would not be different.
Treating them accomplices, they were granted pardon on the
condition of their making a full and true disclosure of the whole
of the circumstances within their knowledge relative of the
offence and to every other person concerned. Their statements
under Section 306(4) of the Code were recorded, which are
Exts. P2 and P4. Having pinned them down to such statements
and to a potential prosecution as contemplated in Section 308 of
the Code, their evidence could be approached with caution only
and the vice applicable to approver's evidence does apply.
64. I found above that bunkering of HSD to Dolphin
Barge on all the three occasions took place at the instance of
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accused No.1. There is concrete evidence in order to establish
his complicity in the commission of the offence. Recovery of HSD
from M/s Bava Enterprises so transported on 29.05.2000
substantiated the pilferage and sale of HSD. When such
substantive pieces of evidence are available, the version of
PWs.1 and 2 that they mediated between accused No.1 on the
one side and accused Nos.3 and 4 on the other in the sale of
HSD gets sufficient corroboration. If so, the inconsistencies and
contradictions in their evidence pointed out by the defence,
which are not very conspicuous, pale into insignificance. The
deal was a clandestine one and therefore accused No.1 availing
the help of PWs.1 and 2 and also Sri.Ashraf, who were doing
only menial businesses cannot be said to be improbable. The
learned Special Judge considered every such aspect of the
matter and held that evidence of PWs.1 and 2 can be trusted.
The other facts proved by the prosecution with the aid of
independent evidence regarding pumping of HSD from South
Exchange Pit to Dolphin Barge at the instance of accused No. 1,
transporting the same to Thoppumpady and discharging to M/s
Bava Enterprises rendered sufficient corroboration to the oral
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testimonies of PWs.1 and 2. Thus their evidence stands scrutiny
of the twin test concerning trustworthiness.
65. The finding of guilt on the part of accused Nos.1 to 5
based on the aforementioned evidence and circumstances for
the offences of conspiracy, misappropriation, receiving of stolen
property and criminal misconduct by a public servant cannot
therefore be found fault with. Accordingly, it is held that there is
no reason to interfere with the conviction of accused Nos.1 to 5
for the offences under Section 120B read with Sections 409 and
411 of the IPC and Section 13(1)(c) read with Section 13(2) of
the PC Act. Coming to the sentence, the time taken for
concluding the proceedings and the health conditions of the
accused persons, assume importance necessitating a benevolent
consideration, dehors the serious nature of the offences
committed by them.
66. Having regard to the aforementioned aspects, I am of
the view that the term of substantive sentence of three years
imposed on the accused Nos.1, 2, 4 and 5 can be reduced to
rigorous imprisonment for a period of one year. The order of the
Special Court imposing sentence on the above accused is
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modified to the above extent. Crl.Appeal Nos.64, 86, 88 and 91
of 2008 are allowed in part by confirming the conviction and
modifying the sentence as aforementioned. Crl.Appeal No.106 of
2008 is closed and the records are consigned to the Record Room
in terms of the law laid down in Pazhani v. State of Kerala
[2017 (1) KLT 341]. The trial court shall take steps to execute
the sentence and in the case of accused No.3 to realise the fine
amount in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
