State of Kerala vs Wolf Hang Kannad Finert

K.P. Balanarayana Marar, J.—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 Konard 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 u/s 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substance 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. S.C. 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 Grey was registered as S.C. 210/94. During the trial of S.C. 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.O. in S.C. 210 of 1994 as the M.O. in S.C. 161 of 1994 and the M.O. produced in S.C. 161 of 1994 as the one in the other case. In the meantime the accused in S.C. 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 offence involved are distinct and separate and Section 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. Heard Public Prosecutor for petitioner and counsel for the respondent.

by annexure A5 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 mistakes 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.

On hearing Public Prosecutor and counsel for respondent and on a perusal of annexures A5 and A9 orders I am of the view that. Additional Sessions Judge has not committed any illegality or error requiring interference by this Court. The request for joint trial is seen to have been made u/s 223 (a) of the Criminal Procedure Code which enables joint trial of persons accused of the same offence committed in the course of the same transaction. In order to attract that section the accusation should be that each of the accused had committed the offence in the same transaction. The same offence mentioned therein means an offence arising out of the same act or series of action. That is clear from the phrase "committed in the course of the same transaction". That implies that the accused should have acted in concert. The section cannot be applied to a case where the allegations against the accused are exclusive.

The phrase "in the course of the same transaction" has been interpreted to mean that the acts should have been committed during the period when the first act forming the series was committed and commission of the last act ended. "Transaction" was defined by Sir James Stephen as "a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue". The test to be applied is therefore where the offences alleged are related to one another in point of purpose so as to constitute a continuous action. In other words, continuity in action is an important test in the matter. Different persons accused of having committed offences of the same kind cannot regarded as having committed those offences in the course of the same transaction unless there is an intimate connection between the different acts.

In the light of the principles enunciated above the offences charged against the two accused cannot be said to have been committed in the course of the same transaction. Learned Public Prosecutor has attempted to make out that there is continuity of action and community of purpose, both the accused having been found sitting close to each other in the Airport Terminal and they were found to have resided in the same hotel earlier. That the accused were found sitting close to each in the terminal by itself is not sufficient to find community of action. The material objects were recovered from the bags possessed by each. Their destinations are different. One is a German national and the other an Englishman. That they had resided in the same hotel earlier cannot also be taken as a factor to show that the offences were committed in the course of the same transaction. In these circumstances, the Additional Sessions Judge was right in directing the prosecution to split up the charge against second accused which had in fact been done and a separate case registered against him. On that basis trial of the respondent herein commenced and witnesses were'' examined. The noticing of a mistake in putting the mark on the material object is no reason to hold that the offence were committed in the course of the same transaction. Public Prosecutor would then point out that the articles were recovered by the same mahazar, a copy of which is annexure A1. The preparation of a joint mahazar in respect of recovery of material objects from two persons cannot also be taken as a circumstance in favour of the prosecution that the offences were committed in the course of the same transaction. Presumably a common mahazar was prepared since both the accused were seen sitting side by side in the Airport Terminal. But the fact that the contraband articles were seized from the bags possessed by each has to be taken note of. The preparation of a joint mahazar is therefore of no assistance to the prosecution to contend that the offences were committed in the course of the same transaction. On an overall view of the matter the learned Additional Sessions Judge has not committed any illegality or error in rejecting the request for joint trial of the two sessions cases. The Judge had earlier directed the prosecution to split up the charge against the 2nd accused and that has been done and the trial proceeded with separately against each of the accused. Annexures A5 and A9 are not therefore liable to be interfered with.

For the aforesaid reasons the criminal miscellaneous case is dismissed.