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T.Y. SEDHUMADHAVAN v. S.CRL OF POLICE, KASBA POLICE STATION - Crl Rev Pet No. 876 of 1996(C)  RD-KL 952 (29 September 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 876 of 1996(C)
1. S.CRLOF POLICE,KASBA POLICE STATION
For Petitioner :SRI.C.VATHSALAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.PADMANABHAN NAIR
O R D E R
K. PADMANABHAN NAIR ,JCrl.R.P.NO.876 of 1996 Dated, this the 29th day of September, 2006
ORDERThe second accused in C.C.No.308 of 1993 on the file of the Judicial First Class Magistrate III, Kozhikode is the revision petitioner. He was found guilty of an offence punishable under Section 292 (2)(a) of the Indian Penal Code, convicted and sentenced to undergo simple imprisonment for six months. Criminal Appeal No.298/1993 filed by the petitioner challenging the conviction and sentence imposed on him before the Sessions Court, Kozhikode was dismissed. That appeal was heard along with Criminal Appeal No.281/1993 filed by the first accused who was the printer and publisher of the magazine.
2. The prosecution case in brief is as follows: Reliable information was received that in Sreelekha Book Stall situated on the side of Indira Gandhi Road, Kozhikode obscene magazines were publicly exhibited for sale. A search was conducted in the shop at 9.30 a.m. on 10.6.1992. At that time the revision petitioner who was alleged to be the person who was engaged in running and selling magazines was present in the shop. The magazine by name ....................................................................... which exhibited for sale was found to be obscene and seized by PW3, the Sub Inspector of Police. The Crl.R.P.NO.876/1996 -:2:- petitioner who was present in the shop had been arrested and subsequently produced before the Magistrate and released on bail. The case was registered and investigated. During investigation it was revealed that the magazine was edited, printed and published by the first accused. So he was also arrayed as an accused. After the investigation was over the final report filed. When the accused appeared before the learned Magistrate copies of the relevant documents were furnished to them. Particulars of offence were read over and explained to them. They understood the same and pleaded not guilty. On the side of the prosecution PWs 1 to 9 were examined. Exts.P1 to P7 proved and marked. MO1 series identified. After the prosecution evidence was over accused were questioned under Section 313 of Criminal Procedure Code. They denied all the incriminating circumstances brought against them. On the side of the defence Exts.D1 to D7 were marked but no oral evidence was adduced. The learned Magistrate after trial found the petitioner as well as the other accused guilty of the offences alleged, convicted and sentenced them as aforesaid. Challenging the conviction and sentence imposed the first accused filed Criminal Appeal No.281/1993 before the learned Sessions Judge, Kozhikode. Petitioner filed Criminal Appeal No.298/1993 before the learned Sessions Judge, Kozhikode. The learned Sessions Judge heard both the appeals together. He also concurred with the findings of the learned Magistrate and dismissed both the appeals. Challenging the conviction and sentence imposed Crl.R.P.NO.876/1996 -:3:- on the first accused he filed Criminal Revision Petition No.840/1996,. The petitioner filed this Criminal Revision Petition.
3. It is seen that the Criminal Revision Petition filed by the first accused was disposed of on 8.2.2006 confirming the conviction but modifying the sentence of six months simple imprisonment to one month. This Court in Crl.R.P.No.840/1996 had found that the MO1 series publications are actually obscene. The fact that the first accused was the editor, printer and publisher of that magazine was also established. The fact that those magazines were exhibited for sale in Sreelekha Book Stall situated on the side of Indira Gandhi Road at Mavoor, Kozhikode is also established. The only limited question arising for consideration in this Criminal Revision Petition is that whether there are materials to show that the prosecution version that the petitioner was found selling those MO1 series magazines in the Book Stall.
4. The learned counsel appearing for the petitioner argued before me that there is absolutely no material available on record to connect the revision petitioner to the sale of the magazines. It is argued that on the other hand the evidence adduced by the prosecution itself shows that the licensee of the shop is one T.V.Vijaya Krishnan as could be seen from the evidence of PW6. The learned Crl.R.P.NO.876/1996 -:4:- Magistrate convicted the petitioner finding that though there is material to show that the licence stands in the name of T.V.Vijaya Krishnan the petitioner was the person who was found to be engaged in the sale of magazines.
5. PW6 is the Superintendent of Kozhikode Local Library Authority. He produced Ext.P6 agreement executed by one T.V.Vijaya Krishnan in favour of the Local Library Authority. A reading of Ext.P6 shows that Shri T.V.Vijaya Krishnan was the licensee. PW6 further deposed that without the consent of the Department no other person is entitled to use that premises or conduct sale of articles. He also deposed that Local Library Authority has not given consent to any other person and as per the records Shri T.V.Vijaya Krishnan was conducting the business. PW1 is an independent witness. He is an attester to Ext.P1 search list under which NO1 series magazines were seized. He did not support the prosecution case. He had given evidence to the effect that it was Vijaya Krishnan who was conducting Sreelekha Book Stall. No question was put to him regarding the role or the presence of the petitioner at the shop at the time of seizure. PW2 is a Head Constable who accompanied PW3, the ASI, who conducted the search and seizure. He gave evidence to the effect of search and seizure. The only statement made by PW2 during his chief-examination was that at the time of conducting search the revision petitioner was present in the shop. He had deposed Crl.R.P.NO.876/1996 -:5:- that he had seen the petitioner for the first time in his life at the time of search and seizure. He had also admitted that inside the shop racks were arranged in such a way as to exhibit the books for sale and when the search party entered into the shop the revision petitioner was standing near such a rack. He also deposed that the racks are arranged in such a way that the customers themselves can search and select books. He also admitted that he had not verified any documents regarding the purchase of the magazines and books by the shop. Even if the evidence of PW2 is accepted in toto that would only show that the petitioner was found standing near a rack kept inside the shop exhibiting books. During chief- examination PW3 had stated that search was conducted in the presence of the petitioner and witnesses. There was no statement made by PW3 to the effect that the revision petitioner was found in management of the shop during chief- examination. During cross-examination he had admitted that he had not seen any document which would establish the connection between Sreelekha Book Stall and the petitioner. According to him he did not conduct any investigation in the case. Of course during cross-examination he made a statement to the effect that he had seen the accused selling the books. But, admittedly no document was verified or seized to establish the connection of the petitioner with the shop. PWs 7 and 9 are the Investigating Officers. Evidence of PW7 shows that he had not conducted any investigation. According to him the documents show that one Vijaya Crl.R.P.NO.876/1996 -:6:- Krishnan was the licensee of the shop but he had not questioned him. According to PW7 the petitioner was the manager of the Book Stall. He had admitted that nobody had told him that the petitioner was the salesman in the shop. So the evidence of PW7 was contrary to the evidence of PW3 who says that the petitioner was the salesman of the shop. PW9 another Investigating Officer completed the investigation and filed final report. It was PW9 who seized the licence agreement executed between Shri T.V.Vijaya Krishnan and the Local Library Authority. PW9 came forward with a new case. According to him though the building was taken on lease by Vijaya Krishnan the shop was conducted by Sedhumadhavan, the revision petitioner, on the strength of the power of attorney executed by Vijaya Krishnan. According to him he had seen that document but the power of attorney was not seized. Admittedly he also did not question Vijaya Krishnan. Since the licence stands in the name of Vijaya Krishnan the power of attorney excuted by Vijaya Krishnan in the name of the petitioner was a crucial document which would prove the case against the petitioner beyond any reasonable doubt. But that document was not taken into custody by the Investigating Officer and produced before the court. Further the Case Diary does not contain any such reference also. He also did not verify the bill books of the shop. So the evidence regarding the role of the petitioner is not at all established in this case. The courts below convicted the petitioner relying on the evidences of PWs 1 to 3. As already stated Crl.R.P.NO.876/1996 -:7:- PW1 turned hostile. He does not say anything about the role of the petitioner. The evidence of PWs 1, 2 and 3 is not sufficient to hold that the petitioner was the person who was running Sreelekha Book Stall at the relevant time. So the findings of the courts below that the petitioner is guilty of the offence charged under Section 292(2)(a) of the Indian Penal Code is unsustainable and liable to be set aside. I do so. In the result, the Criminal Revision Petition is allowed. The conviction and sentence imposed on the revision petitioner are set aside. He is not found guilty of the offence alleged. The revision petitioner is set at liberty. K. PADMANABHAN NAIR
JUDGEcks Crl.R.P.NO.876/1996 -:8:-
K.PADMANABHAN NAIR, J.Crl.R.P.NO.876 OF 1996
ORDER29th September, 2006.
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