IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 8TH DAY OF OCTOBER 2009/16TH ASWINA, 1931 Crl.MC.No. 1520 of 2007 ( ) --------------------------- CC.97/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, KOCHI. CRIME NO.199/2005 OF FORT KOCHI POLICE STATION. ................ PETITIONER/2ND ACCUSED:: ------------------------------------------- STEPHEN, S/O. POULOSE, KUNNEL HOUSE, HOUSE NO.CC.1/2239, BISHOP GARDEN LANE, PATTALAM DESOM, FORT KOCHI VILLAGE. BY ADV. SRI.P.V.JYOTHI PRASAD. RESPONDENTS/STATE & DE FACTO COMPLAINANT:: ------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, FORT KOCHI POLICE STATION, FORT KOCHI. BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-10-2009, ALONG WITH CRMC. NO. 1242 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 1520 of 2007 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE I COPY OF THE F.I.R. IN CRIME NO.199/2005 OF FORT KOCHI POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI. ANNEXURE II COPY OF THE FINAL REPORT IN CRIME NO.199/2005 OF FORT KOCHI POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs. K.HEMA, JUDGE. ---------------------------------- Crl. M.C. No.1520 of 2007 & Crl.M.C. No.1242 of 2007 ---------------------------------- Dated this the 8th day of October, 2009 ORDER The first accused is a petitioner in Criminal M.C No.1242/07 and the second accused is the petitioner in Criminal M.C.No.1520/07. A crime was registered against the petitioners under section 55(a) of The Abkari Act. After investigation a final report was also made against them for the same offence. These petitions are filed to quash Annexure-1 FIR and Annexure–2, Final Report. 2. According to the prosecution, on getting information, the police party went to the house of the first accused and found the second accused to be present in the said house. First accused was not present in the house. On seeing the police, second accused attempted to run away and he was apprehended and questioned. Referring to the first accused, second accused stated that he is the owner of the house and that he calls him 'Daddy'. From the said house, 25.5 litres of Indian made foreign liquor, mineral water, wine, glasses, bottles etc were seized. A Crl.M.C.No.1520/2007 & 1242/2007 2 crime was registered against the petitioners under section 55(a) of The Abkari Act for possession of foreign liquor, in contravention of the provisions of the Act. 3. Learned counsel for the petitioner submitted that even if the entire case is accepted, second accused cannot be held liable for any offence under the Abkari Act. Second petitioner has only stated to the police that he was helping first accused to unload the liquor bottles etc from the vehicle to the house. The second accused is a distant relative of the first accused, he being the first accused's sister-in-law's son-in-law. The final report shows that the second accused was also made liable for offence under section 55(a) of The Abkari Act. 4. As far as the first accused is concerned, the allegations made by the prosecution is that he is the owner of the house, but he was not even present there at the time of seizure of the articles from the house. There are other members in the house and hence the liability cannot be saddled on him for exclusive possession of liquor. Learned counsel for the petitioner also argued that in the light of the decisions of the Division Bench of Crl.M.C.No.1520/2007 & 1242/2007 3 this Court reported in Mohanan V. State of Kerala (2007 (1) KLT 845), the offence attracted will be under section 63 of The Abkari Act. 5. Learned Public Prosecutor argued that the second accused was present in the house and he had admitted before the police that he was the person who had transited the liquor from the vehicle to the house. Therefore he is liable under section 55(a) of The Abkari Act. As far as the first accused is concerned, there is a specific allegation that he is the owner of the house. Owner of the house will be liable for the offence U/s.55(a) of The Abkari Act, since he was keeping in possession of Indian made foreign liquor in contravention of the prevention of the said Act and hence, the proceedings cannot be quashed either against the first or second accused, it is submitted. 6. On hearing both sides, and on going through the records available, I find that the seizure of contraband articles was effected from the house, which according to the prosecution belongs to the first accused. Though the first accused was not present at the scene, he is stated to be the owner of the house. Crl.M.C.No.1520/2007 & 1242/2007 4 From the house, 25.5 litres of Indian made foreign liquor were seized along with other articles. The accused has no explanation for such possession. At any rate, the records disclose some offence against the second accused. Hence, proceedings against him cannot be quashed. 7. The question whether the offence is U/s. 55(a) or 63 of the Abkari Act is a matter to be decided by the trial Court and hence I am not making any observation in respect of the same. However, the second accused cannot be held liable for possession of the article. According to the prosecution, the article was seized from a house, and hence, the owner of the house can be held liable for constructive possession of the article. The police has no case that second accused was found handling the liquor or he had anything to do with the liquor at the time when the search was made. The only evidence available against the second accused is alleged confession statement to the effect that he had unloaded the bottles of liquor from the vehicle to the house of the first accused who is his relative. 8. There is nothing on record to show that he was in Crl.M.C.No.1520/2007 & 1242/2007 5 possession of the liquor which was seized from the house. No evidence is collected during the investigation to establish that the second accused was in any way connected with the possession, transport or transit of the articles seized. In such circumstances to the interest of justice, it is necessary that the proceedings against him are quashed, failing which it will amount to abuse of process of Court. In the result, the following order is passed: 1 Criminal M.C 1242/07 is dismissed. 2. The proceedings initiated against the second petitioner by virtue of Annexure-I and II, so far as it relates to second accused are hereby quashed. 3. Crl.M.C.No. 1520/07 is allowed. Sd/- K. HEMA, JUDGE ss