MUTHANIKATTIL MOHAMMEDKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Wrong approach to the relevant legal provisions alone is responsible for the convictions and sentences, which resulted in these two criminal appeals, one by accused 1 and 2 and the other by the third accused.

(2.) On 19-10-1987, at about 11 p.m. P.W. 8 Sub-Inspector at first searched Shop No. C11 of Tirur Municipality admittedly possessed by accused 1 and 2 as their business premise. Two tins of palm oil were found. A neighbouring room No. A14 in another building claimed by accused 1 and 2 as their godown was also searched as opened by them. 18 tins of palm oil were also found and seized. They were charge-sheeted and tried for contravention of Clause 3 of the Kerala Edible Oil Seeds and Edible Oils, Vanaspathi and Baby Food Dealers' Licensing Order, 1975 (for short 'the order'). P.Ws. 1 to 6 were examined. On the evidence of P.Ws. 5 and 6, third accused was also impleaded under S.319(1) of the Code of Criminal Procedure. All the three were convicted and sentenced to simple imprisonment for 18 months and to pay a fine of Rs. 5,000/- each. Third accused is none other than P.W. 6.

(3.) The Special Judge seems to go under the impression that S.319(1) of the Code is intended to book a prosecution witness, who turns hostile without any evidence regarding his involvement in the offence. Both the shop rooms are included in the shopping complex belonging to the Municipality. Accused 1 and 2 are admittedly the lessees of Room No. C11 and they are licensed dealers under the order. That is the prosecution case also. Prosecution case and its evidence is that Shop No. C11 is the business premises of accused 1 and 2 and Shop No. A-14 is their godown taken on rent from P.W. 6 (third accused). That is why accused 1 and 2 alone were charge-sheeted and the third accused made a witness. Even going by the prosecution case and its evidence, accused 1 and 2 are licensed dealers to whom the prohibition under Clause 3 of the order is not applicable. They were entitled to possess palm oil.