IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3874 of 2005()
1. BALAKRISHNAN, AGED 80 YEARS,
... Petitioner
2. MONCY MOL, AGED 32 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.M.R.ARUN KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :15/02/2008
O R D E R
V.K.MOHANAN,J.
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Crl.M.C.NO. 3874 OF 2005
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Dated this the 15th day of February, 2008.
O R D E R
The above Crl.M.C.is preferred by the
petitioners who are accused Nos. 2 and 3 in S.C.No.191 of
2005 on the file of the Additional Sessions Court (Fast
Track -I, Kottayam) with a prayer to quash all further
proceedings in S.C.No.191 of 2005 pursuant to the filing
of Annexure A7 Charge Sheet or Final Report.
2. The allegation against the accused in the above
case is that on 10.8.2004 at about 1.30 p.m., when the
Excise Inspector was on duty in his office, he received an
information that the arrack, wash and utensils for the
distillation of arrack were kept in the house of the
petitioners by the first accused and as per that
information, the Excise Inspector went to the spot along
with his party and when he reached there, a person was
seen standing in the house and on seeing the Excise Party,
he ran away and he could not be intercepted. It is also
alleged that on further inspection, the third accused was
Crl.M.C.No.3874 of 2005
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seen standing in front of the house and on questioning,
she told that the father of her husband was inside the
house and on search of the house, it was found that illicit
arrack was kept in two bottles, each containing 750 ml.
of arrack, a plastic jar containing 4.5 litres and steel jar
containing 3 litres of arrack kept beneath a cot inside a
room. In another room, a plastic jerry can having a
capacity of 35 litres was found containing 10 litres of
wash and also found some utensils and apparatus used
for distillation of arrack. All these articles were taken
into custody as per the Mahazar and according to the
Excise Range Inspector, the accused 1 to 3 committed
the offences punishable under Sections 8(1), (2), 55(a)
and (g) of the Kerala Abkari Act. According to the
petitioners, the materials detected by the Excise Party
were not sufficient to attract any of the offences alleged
by them. The age of the first petitioner is stated to be 80
years at the time of the alleged incident and the second
petitioner is a lady and they are not capable of
committing any offence as alleged by the prosecution. In
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the above M.C., it is averred that the implication of the
petitioners is illegal and it is a clear abuse of process of
law. According to them, there is not even a remote
possibility for the case to end in conviction of accused
Nos.2 and 3. Therefore, according to them, the entire
proceedings are liable to be quashed. It is also averred
that the first petitioner is in a bed-ridden stage and he
was aged about 80 years and he was laid up even at the
time of search. According to the petitioners, the second
petitioner who is the third accused was implicated in the
crime only because she was standing in front of the
house when the Excise party was coming after chasing
the first accused. Therefore, it is averred that the
second accused is also implicated without any reason. It
is also the contention of the petitioners that there is
nothing in the case records to raise even a suspicion
against the present petitioners. It is averred in
paragraph 3 of the Crl.M.C. that “possession, that too
conscious exclusive possession being the essential ingredient
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of the offences punishable under Sections 55(a),(g) ,8(1) and
(2) of the Kerala Abkari Act, the detecting officer has
miserably failed to analyse the situation in the alleged place
of occurrence.” According to the petitioners, since the
detecting officer is miserably failed to analyse and come
into conclusion whether the petitioners are more
conscious and exclusive possession of the contraband
articles and therefore, the petitioners were implicated
without any basis and materials.
3. I have heard the learned counsel for the
petitioners as well as the learned Public Prosecutor.
4. The learned counsel took me through the
various records produced which are Annexures A1 to
A8. It is submitted that the allegations and averments
contained in the report are not sufficient to constitute an
offence and there is no evidence at all to direct the
petitioners/accused to undergo the ordeal of trial. The
arguments of the learned counsel for the petitioners are
mainly on the point that the first accused is connected
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with the crime, who was not taken into custody from the
house at the time of detection, and hence, the
petitioners are implicated, who have no connection with
the said crime. According to the counsel, the first
accused was not arrested from the house where the
contraband articles were searched and seized. Even
according to the prosecution, the first accused ran away
from the spot on seeing the Excise party and therefore,
he could not be intercepted and arrested. Therefore, in
the above background, if that is the case of the
prosecution, the petitioners cannot be implicated in any
manner. It is pointed out that the first petitioner, who is
the second accused, is a very old and sick person. It is
also submitted that the second petitioner is implicated
only for the reason that she stood in front of the house
even at the time when the Excise party came back after
chasing the first accused who ran away from the spot.
Therefore, the counsel submits that no prosecution will
lie against the petitioners and therefore, the
proceedings pending before the court below will amount
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to clear abuse of process of the court.
5. Per contra, the learned Public Prosecutor
submits that the prosecution, after conducting a detailed
investigation, filed a final report on the basis of which
the court has taken cognizance. The available materials
are sufficient to attract the penal provisions of the
Abkari Act. It is also submitted by the learned Public
Prosecutor that all the contentions raised by the
petitioners as well as the learned counsel for the
petitioners are to be considered only at the time of
evidence.
6. I have perused the materials available on
record produced by the petitioners along with the
Crl.M.C. On a perusal of the materials and records
available, it cannot be said that the allegations and the
documents would not be sufficient and do not disclose
the offence alleged against the petitioners. Of course,
the sufficiency of the allegations and the documents are
to be scrutinised after adducing evidence and at the time
of appreciation of evidence.
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7. In this connection, it is relevant to note that
the petitioners herein had already approached this Court
on a previous occasion by filing Crl.M.C.No.3554 of
2004 with a prayer to quash the proceedings pending
against them, on the basis of Annexure-A2 occurrence
report. But, as revealed by Annexure A1 order, this
Court was not inclined to interfere with the matter and
allow the prayer. Though several and similar
contentions were taken, this Court disposed of the above
mentioned Crl.M.C. without entering into any discussion
on the matter and directed the Judicial First Class
Magistrate Court, Vaikom to grant exemption to the
petitioners from their personal appearance except for
the purpose of completion of the trial.
8. As observed by this Court in Annexure A1
order, I am not entering into any discussion on the merit
of the submissions. All the contentions advanced against
the petitioners are to be examined only on the basis of
the evidence to be adduced at the time of trial. Any
observation or decision on the contentions raised by the
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petitioners is likely to adversely affect either the
petitioners or the prosecution and therefore, I am not
proposed to enter into any finding.
Since Annexure A1 order is in force, the
petitioners can avail of the benefit of the said order. In
the result, this Crl.M.C. fails and is dismissed.
(V.K.MOHANAN)
Judge
Mbs/