IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.MC.No. 1905 of 2009() ------------------------- CP.223/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... (CRIME NO.109/2002 OF THE KOVALAM POLICE STATION, THIRUVANANTHAPURAM) PETITIONER(S): 1ST ACCUSED: ------------------------------------------------ A.SURESH KUMAR, S/O. APPU, REVATHY NIVAS, PANDAKASHALA, CHIRAYINKIL,THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KOVALAM POLICE STATION, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1905 OF 2009 =========================== 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. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006