IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 Crl.MC.No. 4374 of 2010(F) -------------------------------------- [LPC.NO.44/2010 OF ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD, CR.NO.8/2000 OF KUMBLA EXCISE RANGE] .................... PETITIONER/ACCUSED: ---------------------------------- K.P.MUSTHAFA, S/O.MUHAMMED, NALANKERI DESOM, KOLARI AMSOM, P.O.PORORA, THALASSERY TALUK, KANNUR DISTRICT, PIN-670 702. BY ADVS. SRI.SUNIL NAIR PALAKKAT, SMT.R.LEELA. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, (EXCISE INSPECTOR KUMBLA), REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.4374 OF 2010 =========================== Dated this the 18th day of November,2010 ORDER Petitioner is the sole accused in S.C.70/2008, now pending as L.P.44/2010 on the file of Additional Sessions Court Adhoc I, Kasaragod taken cognizance for the offence under section 55(a) of Abkari Act. Petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A2 final report contending that there is no material to connect petitioner with the offence and based on the fact that petitioner was the owner of the vehicle alone, he cannot be prosecuted. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure A2 final report with Annexure A1, crime and occurrence report reveal that Crl.M.C.4374/2010 2 prosecution case is that on 29.5.2000 at about 8 p.m. Excise Inspector, Kumbala intercepted lorry KRZ 7936 at Manjeswaram excise check post and found that 195 cases, each case containing 12 bottles of 750 ml. of Indian made foreign liquor being transported, in contravention of the provisions of Kerala Abkari Act. Case against the petitioner is that he is the owner of the vehicle and hence he is also committed the offence under section 55(a) of Kerala Abkari Act. 4. Learned counsel appearing for the petitioner pointed out that except the allegation that petitioner is the owner, there is no material to connect the petitioner with the consignment of contraband articles transported in the vehicle on that night. Petitioner contended that he does not know to drive a heavy vehicle and is not having any licence to drive a heavy vehicle and the vehicle had passed through the motor vehicles check post before it was intercepted and without having a driving licence he could not have driven it and in Crl.M.C.4374/2010 3 such circumstances when there is no possibility of a conviction at all, it is not in the interest of justice to continue the prosecution. 5. Learned Public Prosecutor on perusing the Case Diary submitted that except the allegation that petitioner is the owner of the vehicle, there is no material to connect the petitioner with the offence alleged. 6. In the absence of any material to show that petitioner was transporting the liquor in that lorry at the time, when it was seized, petitioner cannot be prosecuted for the offence under section 55(a) of Abkari Act. Though it is alleged that in Annexure A2 report that petitioner was driving the vehicle, there is no material to prove that he was driving the vehicle. It is submitted that no witness is expected to speak that petitioner was found driving the vehicles at that time. As against the case of the petitioner that he is not having even a license to drive a heavy vehicle, there is no material to disprove the said defence. In such Crl.M.C.4374/2010 4 circumstances, for the sole reason that the contraband articles were found being transported in a vehicle owned by the petitioner, he cannot be prosecuted, as it could have been transported without his knowledge or consent. In such circumstances, it is not in the interest of justice to continue the proceedings. Petition is allowed. L.P.44/2010 on the file of Additional Sessions Court Adhoc-1, Kasargod is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006