IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1392 of 2007()
1. MOHAN DAS, S/O. LATE DAMAODRAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. EXCISE INSPECTOR, RANNY RANGE,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :24/05/2007
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - - - -
Crl.M.C.No. 1392 of 2007
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of May, 2007
O R D E R
The petitioner is the first accused in a prosecution under the
provisions of the Kerala Abkari Act. The crux of the allegation is
that spirit was found to be in the illegal possession of the petitioner,
who runs a toddy shop. A crime has been registered. Investigation is
in progress. The petitioner has come to this Court at this stage with
a prayer that powers under Section 482 Cr.P.C. may be invoked to
quash all further proceedings in pursuance of the alleged recovery
effected.
2. What is the reason? The learned counsel for the petitioner
submits that the allegation that four plastic bags containing spirit
were recovered from the premises in the possession of the toddy shop
is patently incorrect. He relies on the recitals in the relevant seizure
mahazar, copy of which is produced as Annex.III. He contends that
there is nothing to assume that the contraband liquor was found to be
present in the premises of the toddy shop.
Crl.M.C.No. 1392 of 2007
2
3. Secondly the learned counsel for the petitioner contends that
Section 31 of the Kerala Abkari Act has not been observed in the conduct
of search and that is sufficient reason to discard the evidence that is sought
to be relied on by the prosecution.
4. I am afraid both contentions cannot be accepted at this stage to
justify premature termination of the proceedings initiated against the
petitioner. I must alertly remind myself of the nature of the jurisdiction that
I am called upon to exercise. The jurisdiction under Section 482 Cr.P.C. is
an extra ordinary inherent jurisdiction. It has to be invoked sparingly and in
exceptional cases, that too in aid of justice only. The mere possibility of
discharge/acquittal at later stages of trial is by itself no reason to justify
invocation of the powers under Section 482 Cr.P.C.
5. I shall carefully avoid any expression of opinion on merits or
detailed discussion of the allegations or the relevant facts, lest it might
adversely affect the interests of the parties. Suffice it to say that I have
carefully gone though the allegations in Annex.III. At the moment and
with the available inputs, it appears to be impossible for the court to sail to
the conclusion that the recovery was effected from a place which was
different and separate from the premises of the toddy shop. It is by now
Crl.M.C.No. 1392 of 2007
3
trite that the mere fact that the search has been conducted infringing the
provisions of the Statute is no reason to discard the result or outcome of
such search. In this view of the matter, the alleged non-compliance with the
provisions of Section 31 of the Act cannot also help the petitioner.
Reliance placed on the decision in Subhayya v. State of Karnataka
(AIR 1979 SC 711) cannot also be of any help to the petitioner, as that
was a case where the validity of the conviction was being considered by
the learned Judges and the learned Judges took the view that the alleged
search and seizure in that case cannot be accepted on the ground that there
was unsatisfactory infraction of the relevant provisions of the Statute.
6. The learned counsel for the petitioner submits that the petitioner
has not been arrested so far. He is willing to surrender before the learned
Magistrate or the Investigating Officer. He can, of course, do the same and
I have no reason to assume that the learned Magistrate would not consider
his application for bail on merits, in accordance with law and expeditiously.
Every court must do the same. Sufficient general directions have already
been issued. No special or specific direction appears to be necessary.
7. This Crl.M.C. is in these circumstances dismissed. I may hasten to
observe that I have not intended to express any opinion on merits on the
Crl.M.C.No. 1392 of 2007
4
facts involved and the questions must be considered by the courts on the
basis of the evidence to be adduced in the case.
(R. BASANT)
Judge
tm