IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Crl.MC.No. 2760 of 2009 --------------------------------------- LP.56/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER/ACCUSED NO.1: HARIKUMARAN NAIR, AGED 45 YEARS, S/O.NARAYANA PILLAI, HARITHA, NEAR C.R.P.CAMP, PALLIPPURAM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KAZHAKOOTTAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2760 of 2009 -------------------------- ORDER Petitioner is the first accused in C.P.No.52/2002, now pending as L.P.No.56/2004, on th file of Judicial First Class Magistrate's Court-III, Thiruvananthapuram. Prosecution case is that petitioner is a licensed toddy shop contractor and second accused, knowing that fact, rented out his building to the petitioner with the knowledge that it will be used for unauthorised sale of toddy and permitted the petitioner to sell toddy from there through accused 3 and 4, the salesmen and on 25.4.2000 at about 2 p.m., a search was conducted in the said building and 62½ litres of toddy was seized and samples were sent for chemical analysis and accused 3 and 4, the sales men, were arrested. On completing the investigation, final report was submitted alleging that the accused committed offences under Section 55(a) and (i) of Abkari Act. As petitioner and third accused were absconding, the case as against accused 2 and 4 were committed to the Sessions Court (Fast Track-I), CRMC 2760/09 2 Thiruvananthapuram. Additional Sessions Judge tried them in S.C.No.1071/2003. Under Annexure-H judgment dated 1.11.2006, learned Additional Sessions Judge, on appreciating the evidence, found that possibility of tampering the contraband articles cannot be ruled out and there is no evidence to prove that second accused is the owner of the building, from where the toddy was allegedly seized or that it was rented out to the petitioner/first accused with the knowledge that he will use it for the purpose of selling toddy unauthorisedly. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him contending that petitioner was not a licensee of the toddy shop as alleged by the prosecution. 2. It is contended by the petitioner that Annexures-A and B power of attorney were executed by Chandrababu and Sathy, where under, power of attorney was given to the petitioner to represent them in the auction proceedings and also to produce necessary documents before the authorised officers, to sign, verify and file necessary documents. But, the power of CRMC 2760/09 3 attorney do not authorise the petitioner to conduct any toddy shop. Petitioner would contend that Annexure-E information was obtained on 10.8.2009 from the State Public Information Officer, which also establish that petitioner is not a licensee and only a power of attorney holder, who was authorised to represent the said persons at the auction sale and in such circumstances, the very basis of the prosecution case falls and therefore, the case is to be quashed. It is also contended that after recording the evidence, under Annexure-H judgment, learned Additional Sessions Judge had already found that there was no legal seizure or any evidence to prove that the building, from where the toddy was allegedly seized, was rented out to the petitioner by the second accused and in such circumstances, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, the case is to be quashed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned Public Prosecutor submitted that investigation reveals that it was the petitioner who CRMC 2760/09 4 was conducting the unathorised toddy shop in the building, from where the toddy was seized and in such circumstances, the case cannot be quashed as sought for. 5. As rightly argued by the learned counsel appearing for the petitioner, the very basis of the prosecution case is that petitioner is a licensed toddy shop contractor and with the knowledge that he is a toddy shop contractor and the building will be used for unauthorised sale of toddy, second accused rented out the building to the petitioner and while, through accused 3 and 4, toddy was being sold in that building, search was conducted and toddy was seized. It is on this allegation, the final report was filed. Annexure-G final report shows that neither licence to prove that petitioner was a licensed toddy shop contractor nor any other material was produced to prove that he was a licensed toddy shop contractor at the relevant time. At the same time, Annexures-A and B power of attorney along with Annexure-E information obtained by the petitioner establish that petitioner was not a licensed toddy shop contractor and instead, he was only the CRMC 2760/09 5 power of attorney holder of the two persons, who had participated in the auction sale and petitioner was representing them and produced Annexures-C and D solvency certificates. In the absence of any evidence, either documentary or oral sought to be proved by any witness, prosecution cannot sustain the plea that petitioner is a licensed toddy shop contractor. 6. Under Annexure-H judgment, learned Additional Sessions Judge had already entered a factual finding that there is no evidence to prove that the building, from where the toddy was allegedly seized, was rented out by the second accused to the petitioner. As held in Annexure-H judgment, even the search and seizure cannot be made use of, in view of the findings that there was no legal search. Therefore, on the materials, it is absolutely clear that even if petitioner is to be directed to undergo the ordeal of a trial, it will not result in a successful prosecution. At best, it would result only in unnecessary waste of valuable time of the court. In such circumstances, it is not in the interest of justice to continue the prosecution as against the petitioner. CRMC 2760/09 6 Petition is allowed. C.P.No.52/2002, now pending as L.P.No.56/2004, on the file of Judicial First Class Magistrate's Court-III, Thiruvananthapuram as against the petitioner is quashed. 9th October, 2009 (M.Sasidharan Nambiar, Judge) tkv