IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 CRL.MC.NO. 415 OF 2011() ------------------------ CP.159/2010 OF JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... PETITIONER(S): ACCUSED NO.3 ------------------------------------------------ ANIL MENON, BALA VIHAR, OPP.BEST BAKERY, L.F.C.ROAD, KALOOR P.O., KOCHI. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT ----------------------------------------------- 1. STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KULATHUPUZHA, KOLLAM DISTRICT. 2. THE SUB INSPECTOR OF POLICE, THENMALA POLICE STATION, KOLLAM DISTRICT. (BOTH REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.415 of 2011 ==================================== Dated this the 14th day of February, 2011 O R D E R Accused No.3 in C.P.No.159 of 2010 of the court of learned Judicial First Class Magistrate-I, Punalur is the petitioner before me. He, along with the first and second accused has been charged for offences punishable under Sections 55(a)(ii) and 8(1) and (2) of the Abkari Act (for short, “the Act”). Allegations against petitioner is that he is the registered owner of vehicle No.KL-5/K- 9734 seized by the police for allegedly transporting 525 litres of spirit in 15 cans and that petitioner and other accused transported spirit with intent to make unlawful gain. This petition is to quash proceeding against petitioner on the contention that there is nothing on record to show the complicity of petitioner in the alleged incident. Learned Senior Advocate contended that in the light of decisions of this Court in Sooraj v. Excise Inspector (2002 [1] KLJ 739) and Sony C.Mathew v. State of Kerala (2007 [3] KLJ 629) petitioner, in the absence of any allegation as to his complicity to the alleged incident cannot be proceeded against for the mere reason of being registered owner of the vehicle in question. It is also contended that at the relevant CRL.M.C. No.415 of 2011 -: 2 :- time petitioner had rented out the vehicle in question as per a lease deed (Annexure- B produced in this case). However, after arguing the matter for some time, learned Senior Advocate has sought permission to withdraw this petition without prejudice to the right of petitioner to seek discharge in the trial court. It is submitted by the learned Senior Advocate that apart from merely stating that petitioner was absconding there is nothing on record to show that he had made his presence scarce to the investigating Officer by any means whatsoever. In the circumstances the stand taken by the Investigating Officer that petitioner was not available for questioning is not acceptable. Learned Senior Advocate submitted that in the light of the decision in Sukumari v. State of Kerala (2001 [1] KLT 22) learned Magistrate is competent to grant bail and as final report is already filed and investigating agency does not require to conduct any further investigation detention of petitioner is not required. Learned Senior Advocate requested that petitioner may be permitted to surrender before the learned Judicial First Class Magistrate-I, Punalur and get released on bail. 2. It is not shown before me that any further investigation in the matter is required at the instance of the CRL.M.C. No.415 of 2011 -: 3 :- investigating agency. In that situation it is open to the petitioner to appear before the learned Magistrate and seek regular bail. This Criminal Miscellaneous Case is dismissed as withdrawn without prejudice to the right of petitioner to plead discharge before the trial court. Petitioner shall surrender before the learned Judicial First Class Magistrate-I, Punalur on any day within three weeks from this day and if any application for bail is moved learned Magistrate shall take into account all relevant circumstances including that final report has already been filed, custodial interrogation of petitioner may not be required by the investigating agency and pass appropriate orders as early as possible. It is open to the petitioner to give copy of the application for bail in advance of his appearance before the learned Magistrate to the law officer concerned representing the investigating agency so that the law officer has the opportunity to go through the application even before petitioner surrenders before the learned Magistrate. THOMAS P. JOSEPH, JUDGE. vsv