IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH FEBRUARY, 2008 / 26TH MAGHA ,1929 Crl.MC.No. 3874 of 2005 ----------------------------- (SC.191/2005 of ADDL.SESSIONS COURT (FAST TRACK-I, KOTTAYAM) .................... PETITIONERS/ ACCUSD NOS.2 AND 3: ----------------------------------------------- 1. BALAKRISHNAN, AGED 80 YEARS, THANDATTU HOUSE, KUDAVECHOOR KARA, VECHOOR VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT. 2. MONCY MOL, AGED 32 YEARS, THANDATTU HOUSE, KUDAVECHOOR KARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.M.R.ARUN KUMAR RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J. ----------------------------------------------------- Crl.M.C.NO. 3874 OF 2005 ----------------------------------------------------- Dated this the 15th day of February, 2008. O R D E R The above Crl.M.C.is preferred by the petitioners who are accused Nos. 2 and 3 in S.C.No.191 of 2005 on the file of the Additional Sessions Court (Fast Track -I, Kottayam) with a prayer to quash all further proceedings in S.C.No.191 of 2005 pursuant to the filing of Annexure A7 Charge Sheet or Final Report. 2. The allegation against the accused in the above case is that on 10.8.2004 at about 1.30 p.m., when the Excise Inspector was on duty in his office, he received an information that the arrack, wash and utensils for the distillation of arrack were kept in the house of the petitioners by the first accused and as per that information, the Excise Inspector went to the spot along with his party and when he reached there, a person was seen standing in the house and on seeing the Excise Party, he ran away and he could not be intercepted. It is also alleged that on further inspection, the third accused was Crl.M.C.No.3874 of 2005 :-2-: seen standing in front of the house and on questioning, she told that the father of her husband was inside the house and on search of the house, it was found that illicit arrack was kept in two bottles, each containing 750 ml. of arrack, a plastic jar containing 4.5 litres and steel jar containing 3 litres of arrack kept beneath a cot inside a room. In another room, a plastic jerry can having a capacity of 35 litres was found containing 10 litres of wash and also found some utensils and apparatus used for distillation of arrack. All these articles were taken into custody as per the Mahazar and according to the Excise Range Inspector, the accused 1 to 3 committed the offences punishable under Sections 8(1), (2), 55(a) and (g) of the Kerala Abkari Act. According to the petitioners, the materials detected by the Excise Party were not sufficient to attract any of the offences alleged by them. The age of the first petitioner is stated to be 80 years at the time of the alleged incident and the second petitioner is a lady and they are not capable of committing any offence as alleged by the prosecution. In Crl.M.C.No.3874 of 2005 :-3-: the above M.C., it is averred that the implication of the petitioners is illegal and it is a clear abuse of process of law. According to them, there is not even a remote possibility for the case to end in conviction of accused Nos.2 and 3. Therefore, according to them, the entire proceedings are liable to be quashed. It is also averred that the first petitioner is in a bed-ridden stage and he was aged about 80 years and he was laid up even at the time of search. According to the petitioners, the second petitioner who is the third accused was implicated in the crime only because she was standing in front of the house when the Excise party was coming after chasing the first accused. Therefore, it is averred that the second accused is also implicated without any reason. It is also the contention of the petitioners that there is nothing in the case records to raise even a suspicion against the present petitioners. It is averred in paragraph 3 of the Crl.M.C. that “possession, that too conscious exclusive possession being the essential ingredient Crl.M.C.No.3874 of 2005 :-4-: of the offences punishable under Sections 55(a),(g) ,8(1) and (2) of the Kerala Abkari Act, the detecting officer has miserably failed to analyse the situation in the alleged place of occurrence.” According to the petitioners, since the detecting officer is miserably failed to analyse and come into conclusion whether the petitioners are more conscious and exclusive possession of the contraband articles and therefore, the petitioners were implicated without any basis and materials. 3. I have heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 4. The learned counsel took me through the various records produced which are Annexures A1 to A8. It is submitted that the allegations and averments contained in the report are not sufficient to constitute an offence and there is no evidence at all to direct the petitioners/accused to undergo the ordeal of trial. The arguments of the learned counsel for the petitioners are mainly on the point that the first accused is connected Crl.M.C.No.3874 of 2005 :-5-: with the crime, who was not taken into custody from the house at the time of detection, and hence, the petitioners are implicated, who have no connection with the said crime. According to the counsel, the first accused was not arrested from the house where the contraband articles were searched and seized. Even according to the prosecution, the first accused ran away from the spot on seeing the Excise party and therefore, he could not be intercepted and arrested. Therefore, in the above background, if that is the case of the prosecution, the petitioners cannot be implicated in any manner. It is pointed out that the first petitioner, who is the second accused, is a very old and sick person. It is also submitted that the second petitioner is implicated only for the reason that she stood in front of the house even at the time when the Excise party came back after chasing the first accused who ran away from the spot. Therefore, the counsel submits that no prosecution will lie against the petitioners and therefore, the proceedings pending before the court below will amount Crl.M.C.No.3874 of 2005 :-6-: to clear abuse of process of the court. 5. Per contra, the learned Public Prosecutor submits that the prosecution, after conducting a detailed investigation, filed a final report on the basis of which the court has taken cognizance. The available materials are sufficient to attract the penal provisions of the Abkari Act. It is also submitted by the learned Public Prosecutor that all the contentions raised by the petitioners as well as the learned counsel for the petitioners are to be considered only at the time of evidence. 6. I have perused the materials available on record produced by the petitioners along with the Crl.M.C. On a perusal of the materials and records available, it cannot be said that the allegations and the documents would not be sufficient and do not disclose the offence alleged against the petitioners. Of course, the sufficiency of the allegations and the documents are to be scrutinised after adducing evidence and at the time of appreciation of evidence. Crl.M.C.No.3874 of 2005 :-7-: 7. In this connection, it is relevant to note that the petitioners herein had already approached this Court on a previous occasion by filing Crl.M.C.No.3554 of 2004 with a prayer to quash the proceedings pending against them, on the basis of Annexure-A2 occurrence report. But, as revealed by Annexure A1 order, this Court was not inclined to interfere with the matter and allow the prayer. Though several and similar contentions were taken, this Court disposed of the above mentioned Crl.M.C. without entering into any discussion on the matter and directed the Judicial First Class Magistrate Court, Vaikom to grant exemption to the petitioners from their personal appearance except for the purpose of completion of the trial. 8. As observed by this Court in Annexure A1 order, I am not entering into any discussion on the merit of the submissions. All the contentions advanced against the petitioners are to be examined only on the basis of the evidence to be adduced at the time of trial. Any observation or decision on the contentions raised by the Crl.M.C.No.3874 of 2005 :-8-: petitioners is likely to adversely affect either the petitioners or the prosecution and therefore, I am not proposed to enter into any finding. Since Annexure A1 order is in force, the petitioners can avail of the benefit of the said order. In the result, this Crl.M.C. fails and is dismissed. (V.K.MOHANAN) Judge Mbs/