High Court Kerala High Court

A.Suresh Kumar vs The State Of Kerala on 29 June, 2009

Kerala High Court
A.Suresh Kumar vs The State Of Kerala on 29 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 1905 of 2009()


1. A.SURESH KUMAR, S/O. APPU,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED
                       ...       Respondent

2. THE SUB INSPECTOR OF POLICE,

                For Petitioner  :SRI.K.B.PRADEEP

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :29/06/2009

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
            CRL.M.C.No. 1905     OF 2009
            ===========================

       Dated this the 29th day of June,2009

                        ORDER

Petitioner is the third accused in C.P.223/2002 on

the file of Judicial First Class Magistrate Court-III,

Neyyattinkara. This petition is filed under section

482 of Code of Criminal Procedure to quash Annexure- I

final report submitted by the police in Crime 109/2002

that petitioner committed offence under section 55(a)

and 56(b) read with Section 10A of Abkari Act. The

prosecution case as seen in Annexure I final report is

that on 15.8.2002 at about 6 p.m finding the police

party tempo KL0-1/Q-2088 was abandoned by the second

accused and on inspection of the vehicle it was found

that the vehicle was used for transporting cans of

adulterated toddy after supply and adulteration was

committed for the purpose of first accused with the

consent of the third accused and they thereby committed

offences under section 55(a) and 56(b) read with

section 10A of Abkari Act. This petition is filed

under section 482 of Code of Criminal Procedure to

quash the case as against him contending that the can

Crl.M.C.1905/2009 2

did not contain any liquor so as to attract an offence as

against the petitioner. Case of the petitioner is that

the tempo track vehicle was hired by the licensee of toddy

shop No.1 for removing plastic cans from the toddy shop to

nearby water source for cleaning the same as the plastic

cans could not be cleaned for scarcity of water and the

empty cans were being taken in the vehicle to the nearby

water source and while so the vehicle was intercepted by

the police and the case was registered and the report of

chemical analyst does not show percentage of ethyl alcohol

except trace of alcohol and even if the entire case is

accepted, petitioner cannot be convicted for the

offences and therefore the case against the petitioner is

to be quashed.

2. Learned counsel appearing for the petitioner and

the learned Public Prosecutor were heard.

3. Annexure-I final report even if accepted would only

prove that the vehicle in which the empty cans were found

by the police party, belongs to the petitioner. There is

no material to show that the cans were being transported at

the instance of the petitioner or with his knowledge. That

vehicle is being given on hire. When the licensee of the

shop had obtained the vehicle on hire, it cannot be said

that petitioner is liable for transportation of the empty

Crl.M.C.1905/2009 3

cans having traces of alcohol as alleged by the

prosecution. Therefore as against the petitioner the

offences even if committed will not lie. The continuation

of proceedings as against the petitioner is therefore only

an abuse of process of court. Moreover, as per Annexure II

and III orders the case as against the other accused have

already been quashed.

Crl.M.C is allowed. C.P.223/2002 on the file Judicial

First Class Magistrate Court-III, Neyyattinkara is quashed.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006