IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.MC.No. 3661 of 2010() ------------------------------------- CC.1063/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... PETITIONERS/ACCUSED 1 TO 4 ----------------------------------------------- 1. SHAJI, S/O. SAYED MOHAMMED, AGED 35 YEARS, VIRUVUTHARA VEEDU, NEAR KUNNUMMAL KARA MUSLIM JAMA-ATH, THAKAZHI PANCHAYAT, ALAPPUZHA DISTRICT. 2. SHARAFUDEEN, S/O. POOKUNJU, AGED 32 YEARS, SAJINA MANZIL VEEDU, PERUMANATHUDIKARA, VALATHUNGAL PANCHAYAT, ERAVIPURAM VILLAGE, KOLLAM. 3. SANTHOSH KUMAR, S/O. GOPALAKRISHNAN, AGED 32 YEARS, SANTHOSH BHAVAN, WARD NO.11, VADAKKU PANCHAYAT, ALAPPUZHA. 4. MOHAMMED RAFI, S/O. LABBAKUNJU, AGED 51 YEARS, THANDASSERIL VEEDU, ERAVIPURAM VILLAGE, KOLLAM TALUK. BY ADV. SRI.R.SATISH KUMAR RESPONDENTS/STATE & COMPLAINANT ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, MARARIKULAM POLICE STATION, ALAPPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3661 OF 2010 --------------------------------------------- Dated 15th September, 2010 O R D E R Petitioners, the accused 1 to 4 in C.C.1063/2007 on the file of Judicial First Class Magistrate's Court-I, Alappuzha filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-A3 final report and Annexure-A4 charge framed by the learned Magistrate for the offence under Section 16 of Kerala Kerosene Control Order 1968 read with Section 3 and 7 of Essential Commodities Act. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel Crmc 3661/10 2 appearing for the petitioners is that lorry containing kerosene was seized by the police on a mistaken impression that kerosene is being taken for sale in black market, when in fact it was being transported for the purpose of fishing by the permit holders. It is pointed out that by Annexure-A2 order District Collector, Alappuzha released the kerosene finding that kerosene was being transported by the poor fishermen, as fishing was feasible only at Kollam at that time. 4. Learned Public Prosecutor pointed out that the final report include statements of Cws.5 to 9 recorded under Section 161 of Code of Criminal Procedure and the statements establishes that the kerosene seized from the lorry was not being Crmc 3661/10 3 transported by the respective permit holders but were sold by the respective permit holders to the accused for higher value to be released and in such circumstances, the case cannot be quashed as sought for. 5. On going through the statements recorded under Section 161 of Code of Criminal Procedure and in the light of Annexure-A3 final report, I cannot agree with the submission of the learned counsel that in view of Annexure-A2 order passed by the District Collector the proceedings is to be quashed. Question whether kerosene seized from the lorry was being transported by the respective permit holders for the purpose of fishing or was sold by the respective permit holders to the respective accused is a Crmc 3661/10 4 matter for evidence and cannot be decided based on Annexure-A2 order. Granting liberty to the petitioners to raise all the contentions raised herein before the learned Magistrate, the petition is dismissed. Judicial First Class Magistrate-I, Alappuzha is directed to dispose the case expeditiously. M.SASIDHARAN NAMBIAR, JUDGE. uj.