IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 Crl.MC.No. 3905 of 2009() ------------------------------------ CRIME NO.70/2009 OF POTHUKALLU POLICE STATION. ............... PETITIONER/4TH ACCUSED ---------------------------------------- SARAFUDEEN, S/O.ABDURAHMAN, AGED 32 YEARS, KOOLIYODAN HOUSE, MULLANPARA, MANJERI, MALAPPURAM DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENTS/COMPLAINANTS ---------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, POTHUKALLU POLICE STATION, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA,REPRESENTED BY THE FOREST RANGE OFFICER, KANJIRAPPUZHA FOREST RANGE, POTHUKALLU, MALAPPURAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3905 OF 2009 =========================== Dated this the 11th day of January,2010 ORDER Petitioner is the fourth accused in Crime No.70/2009 of Pothukallu Police Station registered for the offence under section 3 read with section 25(i) of Arms Act. Prosecution case is that on 23.7.2009 during night getting information that meat of the wild animal shot dead from the reserve forest is being transported in an autorikshaw, forest officials reached there and an autorikshaw was found parked nearby the house and finding the forest officials, the person who was driving the autorikshaw ran away. On inspecting the autorikshaw, it was found that on the back seat of the autorikshaw there was partially cooked meat of a wild animal. On inspection of the house, 25 kgms of partially cooked meat of wild Crl.M.C.3905/2009 2 animal battery case, headlight, chopper,catridge of gun etc. were found and seized. It is also found that autorikshaw belongs to the petitioner as its R.C stands in his name. Crime No.70/2009 is therefore registered against four accused based on Annexure A mahazar prepared by the Forest Range Officer. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings as against him contending that petitioner is not involved in the offence at all and for the sole reason that he is the owner of the autorikshaw, he cannot be prosecuted. It is pointed out that Bail Applications 4256/2009 and 4257/2009 were filed by accused 1 and 2 before this court under section 438 of Code of Criminal Procedure, and by Annexure B order anticipatory bail was granted to the sixth accused who was subsequently implicated as the driver of the autorikshaw, on the allegation that he was the person who ran away from the autorikshaw finding Crl.M.C.3905/2009 3 the forest officials and therefore when Investigating Officer has no case that petitioner was there in the autorikshaw or was armed with any gun he cannot be prosecuted. 2. In view of the contentions raised, learned Public Prosecutor was directed to make available the material if any to show that petitioner was present in the autorikshaw on that night and if he was present, whether he was armed with a gun. Learned Public Prosecutor on instruction submitted that petitioner was implicated only for the reason that the registration certificate of the autorikshaw shows that petitioner was the owner of the autorikshaw. There is no other material to connect the petitioner with the offence. 3. Even if the autorikshaw was used for the purpose of carrying the meat of a wild animal shot dead from the forest, unless there is material to show that the owner of the autorikshaw was aware of the intended transport, or was a party to a Crl.M.C.3905/2009 4 conspiracy, he cannot be prosecuted for the offence under the Arms Act on the ground that he is the owner of the autorikshaw. Moreover Annexure A mahazar shows that no arms were seized from the autorikshaw. 4. When prosecution has no case that autorikshaw owned by the petitioner was used for carrying any arms and no arms were seized from the autorikshaw and there is no case that petitioner was armed with a gun, he cannot be prosecuted for the offence under section 3 read with section 25(i) of the Arms Act. In such circumstances, F.I.R as against the petitioner can only be quashed. Petition is allowed. Annexure C F.I.R as against the petitioner in Crime 70/2009 is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006