IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3905 of 2009()
1. SARAFUDEEN,S/O.ABDURAHMAN,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,POTHUKALLU
... Respondent
2. THE STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/01/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 3905 OF 2009
===========================
Dated this the 11th day of January,2010
ORDER
Petitioner is the fourth accused in Crime
No.70/2009 of Pothukallu Police Station
registered for the offence under section 3 read
with section 25(i) of Arms Act. Prosecution
case is that on 23.7.2009 during night getting
information that meat of the wild animal shot
dead from the reserve forest is being
transported in an autorikshaw, forest officials
reached there and an autorikshaw was found
parked nearby the house and finding the forest
officials, the person who was driving the
autorikshaw ran away. On inspecting the
autorikshaw, it was found that on the back seat
of the autorikshaw there was partially cooked
meat of a wild animal. On inspection of the
house, 25 kgms of partially cooked meat of wild
Crl.M.C.3905/2009 2
animal battery case, headlight, chopper,catridge of
gun etc. were found and seized. It is also found
that autorikshaw belongs to the petitioner as its
R.C stands in his name. Crime No.70/2009 is
therefore registered against four accused based on
Annexure A mahazar prepared by the Forest Range
Officer. This petition is filed under section 482
of Code of Criminal Procedure to quash the
proceedings as against him contending that
petitioner is not involved in the offence at all
and for the sole reason that he is the owner of the
autorikshaw, he cannot be prosecuted. It is
pointed out that Bail Applications 4256/2009 and
4257/2009 were filed by accused 1 and 2 before this
court under section 438 of Code of Criminal
Procedure, and by Annexure B order anticipatory
bail was granted to the sixth accused who was
subsequently implicated as the driver of the
autorikshaw, on the allegation that he was the
person who ran away from the autorikshaw finding
Crl.M.C.3905/2009 3
the forest officials and therefore when
Investigating Officer has no case that petitioner
was there in the autorikshaw or was armed with any
gun he cannot be prosecuted.
2. In view of the contentions raised, learned
Public Prosecutor was directed to make available
the material if any to show that petitioner was
present in the autorikshaw on that night and if he
was present, whether he was armed with a gun.
Learned Public Prosecutor on instruction submitted
that petitioner was implicated only for the reason
that the registration certificate of the
autorikshaw shows that petitioner was the owner of
the autorikshaw. There is no other material to
connect the petitioner with the offence.
3. Even if the autorikshaw was used for the
purpose of carrying the meat of a wild animal shot
dead from the forest, unless there is material to
show that the owner of the autorikshaw was aware
of the intended transport, or was a party to a
Crl.M.C.3905/2009 4
conspiracy, he cannot be prosecuted for the
offence under the Arms Act on the ground that he is
the owner of the autorikshaw. Moreover Annexure A
mahazar shows that no arms were seized from the
autorikshaw.
4. When prosecution has no case that
autorikshaw owned by the petitioner was used for
carrying any arms and no arms were seized from the
autorikshaw and there is no case that petitioner
was armed with a gun, he cannot be prosecuted for
the offence under section 3 read with section 25(i)
of the Arms Act. In such circumstances, F.I.R as
against the petitioner can only be quashed.
Petition is allowed. Annexure C F.I.R as
against the petitioner in Crime 70/2009 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