IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 7759 of 2005(W) -------------------------------------- [CP.NO.66/2004 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, KANNUR] .................... PETITIONERS: --------------------- 1. KAROTHITHUNDATHIL RAGHAVAN, S/O.AYYAPPAN, AGED 67 YEARS, PADIYOOR P.O. KANNUR DISTRICT. 2. K.R.SATHEESAN, S/O.RAGHAVAN, AGED 37 YEARS, ADVOCATE, TRADE CENTRE, YOGASALA ROAD, KANNUR -1. BY ADVS. SRI.GRASHIOUS KURIAKOSE, SRI.GEORGE MATHEW. RESPONDENTS: ------------------------ 1. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KANNUR. 3. THE EXCISE INSPECTOR, SREEKANDAPURAM. 4. K.KARUNAKARAN, S/O.E.K. NAMBIAR, CIRCLE INSPECTOR OF EXCISE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KANNUR. 5. VELAYUDHAN KUNNATH, EXCISE INSPECTOR, SREEKANDAPURAM RANGE, SREEKANDAPURAM, KANNUR DISTRICT. 6. K.GOVINDAN, OFFICE OF THE RE-SURVEY SUPERINTENDENT, SREEKANDAPURAM, KANNUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SRI. P.A. SALIM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7759/2005-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE OCCURRENCE REPORT DT. 28/09/2001 IN CRIME NO. 14/2001 SUBMITTED BY THE R.4. BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT-II, KANNUR. EXT.P.2: COPY OF THE SCENE MAHAZAR DTD. 28/09/2001 IN CR. NO. 14/01 SUBMITTED BY THE R.4. EXT.P.3: COPY OF THE NOTICE DT. 08/05/2004 ISSUED BY THE R.4. TO THE P.2. EXT.P.4: COPY OF THE REPLY STATEMENT DT. 15/05/2004 SENT BY THE P.1. TO THE R.4. EXT.P.5: COPY OF THE CERTIFICATE DT. 21/02/2004 ISSUED BY THE R.6 TO THE R.4. EXT.P.6: COPY OF THE REPRESENTATION DT. 30/10/2004 FILED BY THE P.2. BEFORE THE R.2. EXT.P.7: COPY OF THE REPORT DT. 03/11/2004 SUBMITTED BY THE VILLAGE OFFICER OF PADIYOOR VILLAGE BEFORE THE R.2. EXT.P.8: COPY OF THE FORWARDING LETTER DT. 04/11/2004 SEND BY THE R.2. EXT.P.9: COPY OF THE REPORT DT. 01/11/2004 FILED BY THE R.3. BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT-II, KANNUR. EXT.P.10: COPY OF THE FINAL REPORT SUBMITTED BY THE R.3. BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT-II, KANNUR. EXT.P.11: COPY OF THE JUDGMENT DTD. 29/03/1999 IN C.C. NO. 156/97 OF THE JUDICIAL IST CLASS MAGISTRATE COURT-II, KANNUR. EXT.P.12: COPY OF THE REPRESENTATION DT. 27/01/2005 FILED BY THE P.2. BEFORE THE R.1. EXT.P.13: COPY OF THE REPRESENTATION DT. 27/01/2005 FILED BY THE P.2. BEFORE THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C)No. 7759 OF 2005 =========================== Dated this the 30th day of August,2010 JUDGMENT Petitioners are father and son. Second petitioner the son is an Advocate practicing in Kannur courts. Petitioners had defended the accused in C.C.156/1997 before Judicial First Class Magistrate II, Kannur. By Ext.P11 judgment the accused was acquitted for the offence under section 55(1) of Abkari Act charged by the third respondent Excise Inspector finding that fourth respondent did not arrest the accused in that case as alleged and did not find him possessing illicit arrack. Ext.P1 crime and occurrence report was prepared by the fourth respondent after seizure of aluminium vessels containing wash on 28.9.2001 at 12.30 p.m. As the vessels and the wash was seized from the property shown in W.P.(C) No.7759/2005 2 Ext.P2 seizure mahazar and the property belongs to the petitioners, by Ext.P3 notice, they were directed to appear before the Excise Inspector for interrogation. Ext.P4 reply was submitted by the first petitioner stating that the property from where the wash was seized does not belong to them. Sixth respondent Village Officer submitted Ext.P5 report to the Investigating Officer to the effect that the property remains undivided and belong to first petitioner and his children, including the second petitioner. Ext.P6 representation was sent to the District Collector by the second petitioner to ascertain the ownership of the property from where the wash and the vessels was seized. By Ext.P7 report, it was reported by the Village Officer that the property from where the wash and the vessels was seized does not belong to the petitioners and it belongs to Vinodini, w/o. Murali as per registered sale deed No.335/1/1994 of SR0 Ulikkal. Meanwhile Ext.P9 report was submitted by the Excise Inspector before the court W.P.(C) No.7759/2005 3 incorporating petitioners as additional accused 2 and 3. Thereafter Ext.P10 final report was also filed alleging that petitioners along with the accused committed the offences under section 55(g) and 64A of Abkari Act. This petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for Ext.P10 final report, which was taken cognizance by the learned Magistrate as C.P.66/2004, as it relates to the petitioners and also for a direction to respondents 1 and 2 the Excise Commissioner and the District Collector to take necessary action against respondents 4 to 6 on the basis of Exts.P12 and P13 representations submitted by them and also for a direction to consider Exts.P12 and P13 without delay. 2. Second respondent filed a counter affidavit stating that on the petition filed by the second petitioner, a report was called for and the report shows that the property does not belong to the petitioners and that report was sent to the Excise W.P.(C) No.7759/2005 4 Inspector. Subsequently another affidavit was filed by the Assistant Excise Commissioner(Law), Ernakulam for the second respondent disclosing that based on the report permission was sought to conduct a further investigation and application is filed before the court seeking permission under section 173(8)of Code of Criminal Procedure and order is awaited. It is submitted by the learned counsel appearing for the petitioners that subsequently after conducting a further investigation, a final report was filed whereunder petitioners were exonerated. In the light of the said development the first relief sought for in the Writ Petition has become infructuous. If the report is not so far accepted, learned Magistrate is directed to accept the same and proceed with the case in accordance with the law. 3. Learned counsel appearing for the petitioners vehemently argued that it was only out of vengeance against the second petitioner an advocate who got an order of acquittal from W.P.(C) No.7759/2005 5 Judicial First Class Magistrate, Kannur in a case registered and investigated by the fourth respondent, the case was foisted alleging that the property from where the wash and the vessels were seized belong to the petitioners when in fact it does not belong to them. It was submitted that the sixth respondent Village officer aided the fourth respondent by submitting Ext.P5 report and when the subsequent report by the Village officer shows that as per a registered sale deed of 1994 the property belongs not to the petitioners. It is submitted that stringent action is to be taken against respondents 4 to 6 as sought for in Exts.P12 and P13 representations. 4. Considering the fact that Ext.P10 final report was submitted without an exhaustive investigation, in spite of the fact that petitioners have raised a contention at the very initial stage itself that the property from where the wash and vessels was seized does not belong to them, there is force in the submission of the W.P.(C) No.7759/2005 6 learned counsel appearing for the petitioners that Exts.P12 and P13 representations are to be considered with all the seriousness if warranted and appropriate action is to be taken against the guilty. Writ Petition is disposed of. Respondents 1 and 2 are directed to consider Exts.P12 and P13 representations and take appropriate action in accordance with law without delay. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006