IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 Crl.MC.No. 2927 of 2005 ------------------------- C.P.NO.155/2005 IN CRIME NO.100/2003 OF BEDAKAM POLICE STATION PETITIONER: ACCUSED: ------------------------------------- A.J. JOSEPH, ANTHINADU HOUSE, OTTAMAVUNKAL, KARIPADAKAM VILLAGE, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: COMPLAINANT: -------------------------------------------------- STATE OF KERALA, REP. BY S.H.O. BEDAKAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.2927 of 2005 = = = = = = = = = = = = = = Dated this the 25th day of February, 2008 ORDER In this petition filed under Section 482 Cr.P.C, the petitioner who is the 2nd accused in Crime No.100/2003 of Badakam Police Station for offences punishable under Section 55 (a) and 64(A) of the Kerala Abkari Act, seeks to quash Annexure A2 final report and the consequential proceedings pending as C.P.No.155 of 2005 on the file of the J.F.C.M, Kasaragod, so far as they relate to the petitioner. 2. The case of the prosecution is as follows: At about 9.20.p.m. on 09.07.03, the first accused was driving an auto rickshaw bearing Registration No.K L 14-C 3851 coming from Banthdukka and seeing the Police party, the 1st accused abandoned the autorickshaw and took to his heels. A search conducted in the autorickshaw resulted in the recovery of 180 packets of Karnataka made Arrack (each packet containing 100 ml of arrack) and the 1st accused has thereby committed an offence punishable under Section 55(a) of the Kerala Abkari Act and the 2nd accused being the registered owner of the auto Crl.M.C.No.2927 of 2005 2 rickshaw in question has committed an offence punishable under Section 64(A) of the Kerala Abkari Act. 3. The prosecution has no case that the petitioner was a passenger in the autorickshaw or that he was present in the auto rickshaw at the time of its detention. The only reason for arraying the petitioner as the 2nd accused is that he was the registered owner of the autorickshaw in question. But in order to launch a successful prosecution under Section 64(A)of the Kerala Abkari Act, the person in his capacity as the owner of the vehicle should be shown to have control of any land, building, room, space or enclosure and permits any person to use such land, building, room, space or enclosure for manufacture, sale or storing for sale of liquor or intoxicating drug in contravention of the provisions of the Act. 4. The words “space” or “enclosure” mentioned in the Section cannot include a vehicle. Hence, even if it is shown that the petitioner was having control on any land, building, room, space or enclosure, he cannot be prosecuted under Section 64 (A), unless it is shown that he was having control over the vehicle which is not taken in by the Section. If so, the Crl.M.C.No.2927 of 2005 3 prosecution of the petitioner as A2 for the sole reason that he is the registered owner of the vehicle is misconceived and cannot be entertained. 5. I am fortified in this conclusion by the decision in Rajan Vs. Excise Inspector ( 2004(2) KLT 430) by this Court and the order dated 22.1.08 in Crl.M.C.No.2860/2005. Accordingly, the proceedings in C.P.No.155/2005 on the file of J.F.C.M, Kasaragod, so far as they relates to the petitioner (A2), are hereby quashed. This Crl.M.C is allowed as above. V. RAMKUMAR, JUDGE sj