STATE OF KERALA Vs. WOLF HANG KANNAD FINERT

JUDGEMENT

(1.) Two foreign nationals, one a German and the other an Englishman were waiting at the terminal of the International Airport, Trivandrum for security check. They were found possessing hashish. Search of their bags was done. Eighty seven grams of hashish was recovered from the German national Wolf Gang Konrad and 136 grams of hashish from the Englishman Andrew Simon Gray. A mahazar was prepared. Crime was registered against both of them. They were produced before the Judicial Magistrate of First Class II, Trivandrum. Samples were taken and sent for chemical analysis. The case was taken on file as SC 161/94 by Sessions Judge, Trivandrum under S.20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act and it was made over to the 2nd Additional Sessions Judge. On a perusal of the records the Additional Sessions Judge felt that the offence committed by the accused are distinct and that each of them should be charged separately. By Annexure A5 order dated 21-6-1994 the Sessions Judge directed that the accused will be tried separately. SC 161/94 was directed to be proceeded with against the first accused Wolf Gang Kannad Finert and the case against Andrew Simon Gray was directed to be split up. The prosecution was directed to file a split charge against him before 24-6-1994. In pursuance to that order the charge was split up and case against Andrew Simon Gray was registered as S.C. 210/94. During the trial of SC 161/94 the material object, viz. the packet containing the hashish to be marked in that case was found to be the one intended in the other case. A report was filed by the Circle Inspector of Police before the Additional Sessions Court as Annexure A6 seeking permission to treat the M.C. in S.C.210 of 1994 as the M.O. in SC 161 of 1994 and the M.O. produced in SC 161 of 1994 as the one in the other case. In the meantime the accused in SC 161/94 moved this Court by Criminal M.C. 1358/94 complaining that the trial of that case was stayed indefinitely. This court by order dated 7-9-1994 directed the Additional Sessions Judge to continue with the trial and pass judgment in accordance with law expeditiously. It was thereafter that petitioner, the State of Kerala moved the Additional Sessions Court by Criminal M.P.875 of 1994 seeking joint trial of the two sessions cases. By annexure A9 order dated 28-9-1994 the Sessions Judge dismissed that petition and directed the prosecution to produce the witnesses for trial holding that the offences involved are distinct and separate and S.223 Criminal Procedure Code is not attracted. Mention is also made therein about the rejection of the request made by the Sub Inspector of Police to mark the material object involved in S.C. 210 of 1994 as the one in S.C.161 of 1994. The State has filed the present criminal miscellaneous case seeking to quash annexures A5 and A9 orders.

(2.) Heard Public Prosecutor for petitioner and counsel for the respondent.

(3.) By annexure A4 order dated 21-6-1994 the Additional Sessions Judge found the two accused having committed distinct and separate offence and hence the reason for directing the prosecution to file a split charge against Andrew Simon Gray, the second accused and in directing sessions case 161 of 1994 to be proceeded against the first accused, respondent herein. The split charge was directed to be filed before 24-6-1994. The prosecution has complied with that direction and a split charge was filed and the case against the second accused was registered as S.C.210 of 1994. The prosecution has not chosen to challenge annexure A5 order earlier. On the other hand, they acted in accordance with the directions. It was thereafter that mistake regarding the identity of the material object was noticed at the time of trial. Since the contraband articles were seized from both the accused and since the same were taken into custody by one mahazar there is possibility of a mistake being committed by the detecting officer in making note on each of them regarding the name of the person from whom it was seized. This was sought to be corrected by making a request to the Additional Sessions Judge. But that request was rejected. That order is also not seen to have been challenged before this Court and no direction was also sought to be obtained from this Court regarding the same. It was thereafter that request was made for a joint trial of the two cases which resulted in annexure A9 order.