IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 595 of 2007() ----------------------------- SC.335/2004 of ADDL. SESSIONS JUDGE(ADHOC-II, THODUPUZHA) .................... REVN. PETITIONER(S): ACCUSED ---------------------------- 1. P.D.DEVASSIA, EXCISE GUARD, EXCISE RANGE OFFICE, DEVIKULAM, NOW WORKING AT NARCOTIC ENFORCEMENT SQUAD, ADIMALY. 2. P.A.RADHAKRISHNAN, EXCISE GUARD, EXCISE RANGE OFFICE, DEVIKULAM NOW WORKING AT EXCISE CIRCLE OFFICE, UDUMBANCHOLA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CR.NO.28/02 OF EXCISE RANGE OFFICE, DEVIKULAM). BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ----------------------------------------------- CRL.R.P. No.595 OF 2007 ----------------------------------------------- Dated this the 12th day of December, 2008 ORDER Revision Petitioners are the accused in S.T.No.335/04 on the file of Additional Sessions Judge- II, Thodupuzha. Revision Petitioners are the two Excise Guards attached to the Excise Range Officer, Devikulam during 2002. After hearing the prosecution and defence, learned Sessions Judge, framed charge against the revision petitioners for the offences under section 8 (2) and 55(a) and 55(i) of Abkari Act and section 379 of the Indian Penal Code. The revision petitioners filed this revision petition challenging the order framing charge. 2. The argument of the learned counsel is that, when prosecution has no case that revision petitioners were in the process of transporting spirit , offence under section 55(a) or 55(i) is not attracted as held by the CRRP NO.595/07 2 Division bench of this court in Surendran Vs. Excise Inspector (2004 (1) KLT 404) and therefore charge for the offence under 55(a) and 55(i) should not have been framed. The learned counsel argued that, the room from where the spirit was allegedly seized is part of the Excise Range office and not a room exclusively occupied by the revision petitioners and therefore it cannot be said that revision petitioners were in possession of contraband article and therefore prima facie no offence under section 8(2) is made out and therefore learned Sessions Judge should have framed charge for the offence under section 8(2) of Abkari Act. It was also argued that there is no material to prima facie show that, petitioners committed any theft so as to frame a charge for the offence under section 379 of Indian Penal Code. 3. The learned Public Prosecutor submitted that, CRRP NO.595/07 3 revision petitioners were in exclusive possession of room from where spirit was seized and therefore learned Sessions Judge was justified in framing the charge for the offence under section 8(2) of Abkari Act. 4. The learned counsel appearing for petitioners submitted that, a Vigilance Enquiry was conducted and the Vigilance Enquiry revealed that, One. V.P.Salim, a Preventive Officer who seized the lorry is responsible and he was suspended and that report was suppressed from the court and if it is produced it would have revealed that revision petitioners did not committ the offence. 5. At the stage of framing charge, after hearing the prosecution and the defence under section 227 of Criminal procedure Code, the Sessions Judge cannot look into the documents produced by the defence. Court has to consider the materials produced by prosecution, which forms part of the final report filed under section CRRP NO.595/07 4 173(2) of Code of Criminal Procedure to decide whether a prima facie case is made out or not. If on such consideration, the Sessions Judge is of the opinion that there is no sufficient ground to proceed against he shall be discharged as provided under section 227. On the other hand if on consideration the Sessions Judge is prima facie satisfied that there is ground for presuming that accused has committed the offence , charge is to be framed as provided under section 228. While considering the materials as provided under section 227, the Sessions Judge is not to analyse the evidence as at the time of hearing provided under section 232 and 233 of Code of Criminal Procedure. 6. The materials produced and relied on by the prosecution.The materials produced and relied on by the prosecution primafacie show that revision petitioners were in possession of the room from where seizure was CRRP NO.595/07 5 effected. In such circumstances, framing of the charge for the offence under section 8(2) of Abkari Act is perfectly legal . Similarly when part of the spirit seized earlier was found in the room in the possession of the revision petitioners, which should not have been there, learned Session Judge was justified in framing charge for the offence under section 379 of Indian Penal Code. Question whether revision petitioners were in exclusive possession of the room and whether the spirit found in the said room can be taken as in the possession of the revision petitioners are to be decided after recording evidence in the trial. 7. There is force in argument of the learned counsel that the charge framed for the offence under section 55(a) is not sustainable. The Division Bench of this court in Mohanan Vs. State of Kerala (2007 (1) KLT 845) following the earlier Division Bench decision in CRRP NO.595/07 6 Surendran V. Excise Inspector 2004(1) KLT 404) held that offence under section 55(a) of Abkari Act, is attracted only if there was illegal import or export of liquor. In view of the Division Bench decision framing of charge for the offence under section 55(a) or 55 (i) of Abkari Act is not sustainable. The framing of the charge for the offences under section 55(a) and 55(i) of Abkari Act is set aside. The learned Sessions Judge is directed to try revision petitioners for the other offences. Sent back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE. sks/-