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.
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CRL.M.C.No. 1905 OF 2009
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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
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JUDGMENT
SEPTEMBER,2006