IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Crl.MC.No. 786 of 2010(A) ------------------------------------ (CR.NO.23/2009 OF EXCISE RANGE, KUMBLA) ........ PETITIONER/ACCUSED: ----------------------------------- BALKRISHNA SHETTY @ BALAKRISHN, AGED 30 YEARS, S/O. KINJANNA SHETTY, KURIYA DESOM, PAIVELIGE VILLAGE, KASARAGOD. BY ADV. MR.T.G.RAJENDRAN. RESPONDENTS: ------------------------ 1. THE EXCISE RANGE OFFICER, KUMBLA. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.786 OF 2010 ------------------------------------------ Dated 22nd March 2010 O R D E R Petitioner is the second accused in crime No.23/2009 of Excise Range, Kumbla registered for the offences under Section 55 (a) and 64 (A) of Abkari Act read with Section 9 of Foreign Liquor Rules on Annexure-I occurrence report. Petition is filed under Section 482 of Code of Criminal Procedure to quash the FIR contending that there is no material as against the petitioner and hence prosecution of the petitioner is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel Crmc 786/10 2 appearing for the petitioner is that though first accused, brother of the petitioner was arrested, there is no material as against the petitioner and even if, any statement is recorded implicating the petitioner, it is inadmissible and hence the case as against the petitioner is to be quashed. 4. Learned Public Prosecutor pointed out that search was conducted based on the information that petitioner is keeping in possession of contraband liquor and conducting sale and when Excise party reached the house, petitioner ran away and his brother the first accused was caught red handed and in such circumstances, petitioner is not entitled to get the case quashed. 5. On hearing the learned counsel and learned Public Prosecutor, I cannot agree with the submission that the case is to be quashed at this stage. If final report is submitted Crmc 786/10 3 without any material against the petitioner at that stage petitioner is at liberty to seek an order of discharge from the concerned court. 6. Learned counsel then submitted that a direction be issued to the Magistrate to consider his application for bail on the date of surrender. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I find no reason to believe that the Magistrate is unaware of the provisions of law or the decisions of this court or the Apex court or that the Magistrate will not act in accordance with law. In such circumstances, no direction is warranted. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.