While taking serious note and strong exception to the callous manner in which two persons were falsely implicated and detained for many days, the Kerala High Court in a very courageous, calibrated, composed and creditworthy judgment titled Anil Kumar A.B. v. State of Kerala & Ors. in WP (C) No. 32519 of 2010 & 24692 of 2011 that was pronounced finally on April 5, 2022 has asked the State government to pay an amount of Rs 2.50 lakhs each to two persons who were falsely implicated in two separate Akbari cases and thereby were confined for over 50 days. The Court thus made it amply clear that “jail is jail” and has very rightly taken the State to task for falsely implicating and jailing two persons as stated above. The single Judge Bench of Justice PV Kunhikrishnan observed that if it is subsequently found that confinement was illegal and the person was falsely implicated, it is a clear case of infringement of the fundamental right guaranteed under Article 21 of the Constitution and that in such situations, the Court should step in and compensate the aggrieved party.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Justice PV Kunhikrishnan of Kerala High Court first and foremost sets the pitch by observing in para 1 that, “Mahatma Gandhi shared his jail experience in these words: “Men in prison are “civilly dead” and have no claim to any say in policy” Mahatma Gandhi shared his jail experience in different issues of Young India. Also available in : Mahatma Gandhi, “The Collected Works of Mahatma Gandhi”, New Delhi : Publication Division, Ministry of Information and Broadcasting, Government of India (1969). Nelson Mandela, the great fighter against apartheid, described his prison life in the following words: "No one truly knows a nation until one has been inside its jail. A nation should not be judged by how it treats its highest citizens, but its lowest ones” Nelson Mandela in his book, “Long Walk to Freedom”. Citation : Nelson Mandela, Long Walk to Freedom, Little Brown and Company, (1994), p.23 . An American journalist by name Mumia Abu Jamal said the following about his prison life: “Prison is a second-by-second assault on the soul, a day-to-day degradation of the self, an oppressive steel and brick umbrella that transforms seconds into hours and hours into days.” Mumia Abu Jamal in his book, “Live from Death Row”. Citation : Mumia Abu Jamal, Live from Death Row, ed. Addison Wesley Publishing Company, (1995).”
Simply put, the Bench then discloses in para 2 that, “Petitioners in these cases were admittedly arrested and were in confinement for more than 50 days in connection with two separate Abkari cases. It is also an admitted fact that they were subsequently found to be innocent and were exonerated by the investigating agency by filing subsequent reports before the Court concerned. The petitioners are claiming compensation from the State for the infringement of their fundamental rights under Article 21 of the Constitution of India. Since common issues are coming for consideration in these two cases, I am disposing of these two writ petitions by a common judgment.”
Facts of the case
W.P.(C). No.24692 of 2011
To put things in perspective, the Bench then envisages in para 3 that, “Petitioner was the accused in Crime No.45/2006 of Karunagapally Excise Range, Kollam District. The allegation in the above case was that on 25.02.2006 at 5.15 P.M, the petitioner was found in possession of 4 litres of arrack in a 5 litre bottle near Pavumba Thekkum Muri in Karunagapally Taluk by the Excise party headed by the Preventive Officer one Mr. Vasudeva Kurup. The petitioner was arrested on the spot, and he was in judicial custody for 76 days; and later, he was enlarged on bail. According to the petitioner, the above case is registered at the instance of the 7th respondent, who is also an officer of the Excise Department, because of some personal enmity with him. Subsequently, an enquiry was conducted by the 6th respondent, and it was found that the petitioner was falsely implicated. The 2nd respondent ordered re-investigation of the crime which resulted in Ext.P3 final report, by which it is concluded by the 3rd respondent that the petitioner is innocent. In such a situation, the above writ petition is filed with the following prayers:i. To issue a writ of mandamus or any other writ or order directing the 1st and 2nd respondents to implement Exhibit P1 and P3 reports and to take appropriate action against the 7th respondent.
ii. To grant compensation of Rs. 5,00,000/- to the petitioner for having kept him in the prison on the basis of a false and vexatious case and by misusing the official machinery.
iii. To issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.”
W.P.(C). No.32519 of 2010
While elaborating, the Bench puts forth in para 4 that, “According to the petitioner in this case, the 7th respondent in this writ petition was the leader of a gang of illicit liquor traders. It is the definite case of the petitioner that the 7th respondent had close nexus with some of the officials in Anchal Excise Range and with some local political leaders. It is contended by the petitioner that all the activities done by the 7th respondent and his gang were with the connivance of the officials in the Excise Range Office, Anchal. The petitioner claims to be an agriculturist, and according to him, he is conducting a rubber nursery and also cultivating pineapple and banana in 3 acres of land taken on lease. It is the case of the petitioner that the 7th respondent, his wife Mallika and one Mani alias Auto Mani, S/o.Sadasivan, was engaged in the distillation of illicit arrack near the petitioner's farm. Their illicit distillation of arrack caused troubles to the cultivation of the petitioner. The petitioner submitted several complaints to Anchal Excise Range Office, but there was no response. He then filed a complaint before Eroor Police Station and the Police party raided the area and arrested the 7 th respondent. An FIR was registered against him as Crime No.81/2004 on 20.04.2004, under Section 55(g) of the Abkari Act. The petitioner was a signatory to the mahazar in that case, and in the final report, the petitioner was cited as the 5 th witness. Exhibit P1 is the final report submitted in Crime No.81/2004. Consequently, the 7th respondent was put in jail in connection with the said case. In vengeance to the same, after the release of the 7th respondent from jail, respondents 5 and 7 colluded together and manhandled the petitioner. The 4 th respondent was the Preventive Officer and respondents 5 and 6 were Excise Guards in Anchal Excise Range Office at that point of time. It is the case of the petitioner that on 13.06.2004, the 7th respondent and the 5th respondent Excise Guard, with the assistance of one Suresh, S/o.Sundareshan and Thulaseedharan Pillai, S/o.Chellappan Pillai, wrongfully restrained the petitioner by force while traveling on his motorbike by putting a jeep across and assaulted him, and even attempted to kill him. The petitioner further contended that he somehow escaped from the scene and made a complaint before Eroor Police Station. Subsequently, on 18.06.2004, respondents 3 to 6, along with 3 other excise guards, namely Satheesan K, C.L. Sunil and Soman Pillai, came to the farmhouse of the petitioner and arrested him, saying that it was based on the order of the Minister. He was implicated in Crime No.31/2004 of Anchal Excise Range. It is the case of the petitioner that respondents 5 and 6 had brutally assaulted the petitioner while he was in custody at the Excise Range, Anchal and demanded bribe to release him from the case. The petitioner refused the demand, and it is the case of the petitioner that he was produced before the Court concerned and was remanded. The petitioner was released on bail only on 12.08.2004, i.e., after 55 days of imprisonment. Subsequently, on enquiry with the Eroor Police Station, the petitioner came to know that no case was registered on the incident that occurred on 13.06.2004. Then he filed a private complaint before the Judicial First Class Magistrate Court – I, Punalur on 03.09.2004 and the same was forwarded to the Police and subsequently Crime No.174/2004 was registered. After investigation, the final report was submitted in the above case and the same is pending as C.C.No.100/2005. Ext.P2 is the final report dated 30.05.2005.”
Quite significantly, the Bench then very aptly stipulates in para 42 that, “If the Public Prosecutor or Assistant Public Prosecutor opposed the bail application, the Court can grant bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. How the Court can decide whether an accused will or will not commit the offence in future or how the Court can decide at the stage of bail, that the accused has not committed the offence? Therefore once an allegation is raised against the accused in an Abkari case, the jurisdiction of the Court to release the accused is very limited. This Court and the Sessions Court invoke the powers under Section 438 Cr.P.C only rarely in Abkari cases. Of course these restrictions were imposed because of the serious nature of the offence and to eradicate the illicit manufacture of liquor. But in such situation, there cannot be any false implications against innocent persons due to private disputes. Now, if an abkari officer is having enmity with a person, he can easily implicate that person as an accused if there is a bottle and small quantity of illicit liquor. These two cases are the classic examples in which two innocent citizens were implicated falsely in an Abkari case. In the Narcotic Drugs and Psychotropic Substance Act cases, the search is necessary in certain situations in the presence of a gazetted officer. But as per Section 36 of the Abkari Act, while conducting the search the same is to be made in accordance to the Code of Criminal Procedure, provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer. If a study is conducted in the disposed cases in Abkari matters, it can be seen that in 70% to 90% of cases, the independent witnesses are turned hostile. There may be several reasons for the hostile attitude of the independent witnesses. But when the independent witnesses turning hostile in almost all cases, this is a serious concern which is to be looked into by the Government and legislature. Therefore the manner in which the search, seizure and investigation of the Abkari cases is conducted in the State is to be revisited by the Government/Legislature by conducting an appropriate study or enquiry and based on the same, if necessary, should make appropriate amendment in the Abkari Act. Of course this Court cannot direct to make legislation by the Legislature but can observe that it is a serious concern to be looked into by the Government and Legislature. Therefore a copy of this judgment is to be forwarded to the Chief Secretary to Government for a detailed study/enquiry and an action taken report should be submitted before this Court by the 1st respondent within six months.”
Conclusion
Finally and far most significantly, the Bench then while continuing in the same vein and in the same para goes on to hold in the final para that, “In the light of the above discussion, these two writ petitions are disposed of in the following manner:i. The petitioners in W.P.(C)Nos.32519/2010 and 24692/2011 are entitled Rs.2,50,000/-(Rupees Two lakhs fifty thousand only) as compensation for their illegal arrest and detention by the Excise Officials.
ii. The 1st respondent will pay the above compensation amount of Rs.2,50,000/-(Rupees Two lakhs fifty thousand only) each to the petitioners in these writ petitions, within a period of two months from the date of receipt of a copy of this judgment.
iii. The State will recover the above amount from the persons responsible for the illegal arrest and detention of the petitioners after giving them an opportunity of hearing.
iv. The State Government will conduct a study/enquiry about the search, seizure, arrest and investigation made in Abkari cases for the last five years by appointing an appropriate person and will do the needful in accordance with law. v. The action taken report based on this direction should be submitted by the 1st respondent before this Court within six months. vi. Registry will forward a copy of this judgment to the Chief Secretary, State of Kerala, forthwith.”
All told, the Kerala High Court has taken the most commendable decision to take jail term of two persons who were falsely implicated most seriously. It also rightly asked the State Government to pay Rs 2.5 lakhs per person to the two persons who were falsely implicated and detained for over 50 days as this was totally unjustified. So the State Government had to pay through its nose as this is what the Kerala High Court so sagaciously decided for it! No denying! Sanjeev Sirohi,