Moilaricha @ Abdulrahiman vs The Excise Inspector on 3 August, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2232 of 2010()


1. MOILARICHA @ ABDULRAHIMAN,
                      ...  Petitioner

                        Vs



1. THE EXCISE INSPECTOR,
                       ...       Respondent

2. STATE OF KERALA REP. BY PUBLIC

                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :03/08/2010

 O R D E R
                          V.K. MOHANAN, J
                        -------------------------------
                    Crl.R.P.No.2232 OF 2010
               --------------------------------------------------
            Dated this the 3rd day of August, 2010

                                O R D E R

The sole accused in CC. No.374/2008 on the file of Assistant

Sessions Judge, Kasargod preferred this revision petition

challenging the order dated 5.6.2010 in Crl.M.P.782/09 by which

the learned Sessions Judge declined the request of the petitioner

to discharge him from the above case.

2. Mr. T.G. Rajendran, learned counsel for revision petitioner

vehemently submitted that even going by annexure-1 report, no

offence will lie against petitioner u/s.55 (a) and 65(A) of the

Abkari Act. The learned counsel took me through annexure-1,

wherein it is stated that driver of the vehicle was already

absconding and he was not identified. No person was implicated

as accused at that time and nobody was arrested. Thus according

to learned counsel, the prosecution has no case that the

petitioner is the person who was transporting the contraband

article in the vehicle, which allegedly seized by Excise

department. Therefore, according to learned counsel, in the

absence of any material or evidence to show that the petitioner

was the person who drove the vehicle at the time of seizure of the

Crl.R.P. No.2232/10 2

same or he was a person found inside the vehicle or near the

same, no offence will lie against petitioner and therefore he is

entitled to get a discharge.

3. On the other hand, learned public prosecutor submitted

that though at the time of seizure of the vehicle nobody was

arrested along with the vehicle, through subsequent investigation

undertaken by Excise Inspector, Kasaragod, it is revealed

especially through witnesses examined by him and other

documents collected, petitioner is the sole person involved in the

transportation of the contraband article, in the vehicle, which

bearing registration No. KA 04/M/3894. Learned public prosecutor

further pointed out that the vehicle was confiscated by

proceedings dated 30.6.2004 and finally it was sold for an amount

of Rs.10,16,000/- and now the petitioner is absconding.

4. I have carefully considered the arguments advanced by

the learned counsel for the petitioner and the public prosecutor

and also perused the impugned order as well as other materials

furnished by the revision petitioner. The specific case of the

prosecution is that on 1.5.2000 at about 11.30 pm the Excise

department officers detected the vehicle in question in which 500

packets of arrack each containing 100 ml in 12 white plastic sacks

and another 35 litres of spirit in a white plastic can were found

and seized and consequently crime No.23/2000 was registered

Crl.R.P. No.2232/10 3

for the offence punishable u/s.55(a) and 65 (A) of Abkari Act. So

altogether 600 litres of arrack and 35 litres of spirit recovered

from the vehicle which belongs to the complainant. True, no RC

book is mentioned in annexure-1 to show that vehicle is in the

name of the petitioner. But as per the documents relied on by the

prosecution, there is a delivery note, register extracts and an

agreement for sale which are in the name of the petitioner.

Further as per annexure -1 report, it is stated that petitioner is the

person who was handling the vehicle and he was the owner as

well as driver of the same. It is on the basis of the above

materials and 161 statement of PW6 and 7 the trial court rejected

the petition of the revision petitioner for the discharge. The trial

court after elaborated consideration of the materials came into a

conclusion that statement of witnesses and the documents relied

on by prosecution prima facie prove the case against accused.

At this stage, while exercising th revisional jurisdiction, this court

is not in a position to say that the above prima facie finding of the

trial court is illegal, improper or incorrect.

Therefore, there is no merit in the revision petition and

accordingly the same is dismissed.

V.K. MOHANAN, JUDGE.

Sou.