IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.MC.No. 469 of 2010() ----------------------------------- S.C.233/2006 OF ADDL. SESSIONS COURT, FAST TRACK NO.I, PATHANAMTHITTA. CRIME NO.19/2003 OF PANDALAM POLICE STATION. ................... PETITIONER/ACCUSED NO.1 ------------------------------------------ SRIDHARAN, AGED 35 YEARS, S/O.RAGHAVAN, KANJIRAVILA VADAKKETHIL VEEDU, THENGAMAM MURI, PALLIKKAL VILLAGE, ADOOR TALUK. BY ADV. MR.NIREESH MATHEW RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, PANDALAM POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.469 OF 2010 ------------------------------------------ Dated 3rd March 2010 O R D E R Petitioner is the first accused in S.C.233/2006 on the file of Additional Sessions court, Fast Track-I, Pathanamthitta taken cognizance for the offence under Section 55(a) of Abkari Act. On 21/1/2003 at about 12.45 a.m, police party while on night patrol duty intercepted two Maruti cars parked at the public road and found two persons engaged in loading cans to one car from another and four persons were found standing nearby. Police party caught hold of accused 4 to 7. Accused 2 and 3 fled away from the scene. Four cans each containing 35 litres of spirit were seized. According to the Crmc 469/2010 2 prosecution on questioning accused 4 to 7, it was revealed that petitioner the first accused entrusted the Maruti car KL-9-S.6976 which was loaded with four cans of spirit, with a direction to deliver it to accused 2 and 3 and when the car reached at the place of incident there was brake failure and accused 2 to 7 were transporting cans from Maruti car KL-9-S.6976 to Maruti car No.KL- 3-H.1192 when the police party reached there and seized the articles. It is on the allegation that the contraband article was sent by the petitioner, he was implicated as first accused and after completing the investigation Annexure-A final report was filed which was taken cognizance and committed to the Sessions court and now pending trial. Petition is filed under Crmc 469/2010 3 Section 482 of Code of Criminal Procedure to quash the cognizance taken against the petitioner and the proceedings pending before the learned Sessions Judge contending that there is absolutely no material whatsoever to show that petitioner has anything to do with the contraband articles. According to the petitioner prosecution is relying solely the confession statement of the co-accused, which is inadmissible as against the petitioner and therefore, continuation of the proceedings as against petitioner is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner asserted that apart from the Crmc 469/2010 4 alleged confession statement of the co- accused, there is no material whatsoever to show that petitioner has anything to do with the contraband articles seized or the vehicle in which it was sent and therefore, even if petitioner is to be tried, there is no likelihood of a successful prosecution and hence the case is to be quashed. 4. Learned Public Prosecutor submitted that he had gone through the entire case diary and the case diary does not contain any material apart from the confession statement of accused 4 to 7 to show that contraband articles were sent by the petitioner. Learned Public Prosecutor submitted that investigation revealed that Maruti car in which cans containing spirit were transported, is a stolen car and the Crmc 469/2010 5 vehicle and contraband spirit were entrusted to accused 4 to 6 by the petitioner, though learned Public Prosecutor submitted that apart from the confession statement of accused 4 to 6, there is no material in support of said allegation. 5. As rightly argued by the learned counsel appearing for the petitioner, confession statement of a co-accused cannot be made use of against the petitioner. When there is no other material to connect the petitioner with either the Maruti car in which the contraband articles were sent or to show that they were entrusted by the petitioner to accused 4 to 6, even if, petitioner is to be tried, there is no likelihood of a successful prosecution. In such circumstances, it is not in the interest Crmc 469/2010 6 of justice to continue with prosecution, as it will not yield any fruitful purpose. Petition is allowed. Cognizance taken in S.C.233/2006 on the file of Additional Sessions court, Fast Track No.I, Pathanamthitta, as against first accused alone is quashed. It is made clear that prosecution as against the other accused is to be continued. M.SASIDHARAN NAMBIAR, JUDGE. uj.