IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.MC.No. 3836 of 2007 --------------------------------------- CP.16/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI IN CRIME NO.127/2004 OF PALLURUTHI POLICE STATION .................... PETITIONER / ACCUSED --------------------------------------- BENNY ANTONY, PARAYIL HOUSE, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA. BY ADV. SRI.P.S.BIJU RESPONDENTS / COMPLAINANT & STATE ------------------------------------------------------------------- 1. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. CIRCLE INSPECTOR OF POLICE, PALLURUTHY. PUBLIC PROSECUTOR SRI.P.RAVIND RABABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.3836 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September 2009 ORDER Petitioner who has been arraigned as accused No.5 in Crime No.127/04 of Kochi Cusba Police Station, has filed this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against him. The offences alleged against the petitioner and the co-accused are punishable under Sections 8(2) and Section 55(a) (g)(i) of the Abkari Act read with Section 34 IPC. 2. The prosecution case may be briefly noticed. 3. On May 14, 2004 at about 5.20 a.m. while the Circle Inspector of Police, Palluruthy Police Station and some police personnel were on patrol duty, they intercepted a Maruti Omni Van bearing registration No.KL 5 E 1517 and recovered about 150 litres of spirit from 5 plastic cans having a capacity of 35 litres each. Large quantity of bottle caps Sealing Machine, plastic cans and other paraphernalia were also found inside the car which was being driven by accused No.1. After completing the statutory formalities of sampling, seizure, etc. the Circle Inspector had registered the above crime. Annexure B is stated to be the First Information Report and Annexure A is the charge sheet laid by the police after completing investigation. Crl.M.C.No.3836 OF 2007 :: 2 :: 4. It is not in dispute that petitioner was arraigned as accused No.5 in the above crime only on April 29, 2006, after a lapse of about 2 years from the date of registration of the crime in question. It is revealed from Annexure B First Information Report that accused No.1 had informed the detecting officer (Circle Inspector) that the contraband was loaded in the van by three identifiable persons from the precincts of the residence of some employees working in Ocean King bar. Accused No.1 further revealed to the detecting officer that the contraband was to be unloaded at Parayi hotel in Moovattupuzha. 5. In the charge sheet laid before the trial court in September 2006, it is alleged that the residential building in which the employees of Ocean King Bar had been residing was owned by the petitioner and it is therefore that the petitioner has been implicated in the above crime. 6. It is contended by learned counsel for the petitioner that the action of the investigating agency to implicate the petitioner is totally illegal, malafide and vitiated in as much as there is absolutely no material whatsoever to connect the petitioner with the alleged crime. It is totally mysterious and baffling as to why the investigating agency took so long to implicate the petitioner in the above crime and that too after apprehension of the accused in the crime along with the seizure of Crl.M.C.No.3836 OF 2007 :: 3 :: the contraband and arrest of the other three accused shortly thereafter. It is further contended that the investigating officer who laid the charge sheet before the court had an axe to grind against the petitioner, since he did not agree to the demands made by the said officer after he took over the investigation of the crime. Anyhow, I do not propose to deal with that aspect of the matter in the absence of any material to substantiate the above contention raised by the petitioner. 7. The fact remains that petitioner was brought on the array of accused two years after the registration of the above crime. The only material which is now sought to be pressed into service against the petitioner is the title deed in respect of the building in which some of the employees working in Ocean King Bar were allegedly residing at the time of the commission of the crime. According to the prosecution, accused No.1 had informed the detecting officer that it was from the precincts of this building that the three identifiable persons had allegedly loaded the contraband in the van. The short question that arises for consideration is whether on the basis of the materials now available before this court the petitioner can be allowed to be prosecuted. Crl.M.C.No.3836 OF 2007 :: 4 :: 8. As mentioned earlier, accused No.1 was apprehended with the contraband on May 14, 2004. He informed the detecting officer that three identifiable persons had loaded the contraband in his vehicle from the precincts of the building where some of the employees of Ocean King Bar were residing. However, according to the prosecution, accused No.1 had informed the detecting officer that the contraband article was to be unloaded at Parayi Hotel premises in Moovattupuzha. No material has been produced along with the charge sheet to show that petitioner had any connection with any of these two establishments namely, Ocean King Bar or Parayi Hotel. Thus, the only link that allegedly connects the petitioner with the crime appears to be that the building in which the three identifiable persons were residing (and who allegedly loaded the contraband in the van of accused No.1) was owned by the petitioner. 9. There is yet another aspect of the matter. It is the admitted position that the detecting officer had conducted a search of the residential premises referred to above at about 12.30 p.m. on the same day of the detection of the crime. It is seen from the records that two plastic cans with a capacity of 35 litres each were recovered from beneath the stair case in the residence. However, only one litre each of Crl.M.C.No.3836 OF 2007 :: 5 :: spirit was found in the two cans referred to above. But surprisingly no seizure mahazar is seen to have been prepared. Further, from the description of the premises as noted in the case diary, it appears that the place from where the alleged recovery had been effected was an open area with free access to all. There is nothing to indicate that the premises were being occupied by anybody. More importantly there is nothing on record to indicate that petitioner was in control or occupation of the above premises. 10. In this context, I may refer to the contention raised by the learned counsel for the petitioner that the said building had been let out by the petitioner a long time ago to one Joe Antony for running a small scale industrial unit. In the absence of any material to show that the said residential building was in the possession and control of the petitioner or that the persons who allegedly loaded the contraband in to the vehicle were engaged by the petitioner, it cannot be said that the liability to offer an explanation about the recovery of the alleged contraband will fall on the petitioner. I am afraid, it will be unjust and improper to ask the petitioner to face the prosecution on the basis of this tenuous piece of material which is sought to be pressed into service by the prosecution. Crl.M.C.No.3836 OF 2007 :: 6 :: 11. As mentioned earlier, recovery of the contraband was effected from the possession of accused No.1 while he was carrying it in an omni van. Accused No.1 had informed the detecting officer that the contraband was loaded in the vehicle by three identifiable persons. Those three persons were apprehended shortly thereafter. Though the alleged incident took place in May 2004, petitioner was implicated in the case two years after the alleged incident and that too on the basis of the extremely flimsy piece of evidence referred to above. 12. I have carefully perused the case diary which was called for. I have also perused entire materials available on record. Having done so, I am totally satisfied that the prosecution initiated against the petitioner cannot be sustained. Therefore, the prosecution launched against the petitioner is quashed. Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) jes