IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 Crl.MC.No. 245 of 2010(A) ------------------------------------ (C.P. NO. 69/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR) ............. PETITIONER/2ND ACCUSED: ----------------------------------------- MOHAMMED RAFI, S/O.ABDULLA, AGED 35 YEARS, PALLIPATH HOUSE, NUCHIYAD P.O., KANNUR DISTRICT. BY ADV. MR.C.P.PEETHAMBARAN. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTING EXCISE INSPECTOR, EXCISE RANGE OFFICE, MATTANNUR, KANNUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.245 of 2010 -------------------------- ORDER Petitioner is the second accused in C.P.No. 69/2007 on the file of Judicial First Class Magistrate's Court, Mattannur, taken cognizance for the offences under Sections 8(1) and 8(2) of Abkari Act on Annexure-A5 final report. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken or in the alternative, for a direction to the Magistrate to consider the application for bail to be moved by the petitioner on the date of surrender. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that it is for the sole reason that petitioner is the registered owner of the autorickshaw, in which 1300 packets of Karnataka arrack was transported on 5.1.2007, petitioner was implicated as an accused CRMC 245/10 2 and for the sole reason that petitioner is the registered owner of the vehicle, he cannot be prosecuted. Relying on the decision of this Court in Sooraj v. Excise Inspector (2002 (1) KLJ 739), it was argued that criminal liability cannot be fastened on the petitioner for the sole reason that he is the registered owner of the vehicle and therefore, the case is to be quashed. Learned counsel also argued that even if the cognizance taken is not quashed, petitioner may be granted an opportunity to raise all the contentions before the Magistrate and seek an order of discharge and there may be a direction to consider the application for bail to be moved by the petitioner on the date of surrender. 4. Learned Public Prosecutor submitted that brother of the petitioner is the first accused, who was driving the autorickshaw, owned by the petitioner and arrack was being transported with the knowledge of the petitioner and in such circumstances, the case cannot be quashed. CRMC 245/10 3 5. Based on the final report, it cannot be found that there is no material to proceed against the petitioner for the offences under Sections 8(1) and 8(2) of Abkari Act. Petitioner is not prosecuted only on the basis that he is the registered owner of the vehicle. Petitioner is at liberty to raise all the contentions raised herein before the Magistrate at the time of hearing under Section 227 of Code of Criminal Procedure. 6. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders on the application without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that Magistrate will not act in accordance with law. Hence, no direction is warranted. Petition is disposed. 2nd March, 2010 (M.Sasidharan Nambiar, Judge) tkv