IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 Crl.MC.No. 594 of 2008(F) ------------------------ SC.601/2006 of III ADDL. SESSIONS FAST TRACK COURT (ADHOC)-I, THRISSUR CP.157/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA SC.399/2007 of ADDL. SESSIONS COURT, FAST TRACK-II, THRISSUR .................... PETITIONER: 2ND ACCUSED -------------------------------- DAVIS, S/O.CHAKKUNNI, CHIRAMBAN HOUSE, VARAKKARA, AMBALLUR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL SRI.BABU S. NAIR RESPONDENTS: STATE -------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PUDUKKAD- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV. SRI.K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 594 of 2008 ========================== Dated this the 2nd day of April, 2008. O R D E R The petitioner, who is the 2nd accused in crime No. 615 of 2003 of Pudukkad Police Station for an offence punishable under Section 55 (a) and (i) of the Abkari Act and pending as S.C.No.399 of 2007 on the file of the Addl. Sessions Court, Fast Tract-II, Thrissur, seeks to quash the proceedings as against him. The case of the prosecution is that the two accused persons (A1 and A2) on 12.12.2003 together possessed 22 bottles of Indian made foreign liquor in contravention of the provisions of the Abkari Act and they have thereby committed the aforementioned offences. 2. Upon the abscondance of the petitioner herein in S.C.No. 601 of 2006, the case against him was split up and re-filed as S.C. No. 399 of 2007. 3. Even though the Indian made foreign liquor was allegedly possessed by the two accused persons in 22 bottles, 4 bottles altogether having a volume of 1.875 litres alone were taken as samples. At the relevant time person could possess foreign liquor upto 3 litres without a permit or licence. Hence, merely because 1.85 litres CRL.M.C.NO. 594/2008 : 2: of the liquid covered by the 4 sample bottles were found to be IMFL, it cannot be concluded that all the remaining 18 bottles contained IMFL. In the light of the decision reported in Krishnankutty v. State of Kerala (2005(3) KLT 568) and Balan v. State of Kerala (2006 (2) KLD 35) the prosecution can secure a conviction only if samples from all the 22 bottles had been found to be IMFL. In fact the 1st accused was acquitted as per judgment dated 31.07.2007 in S.C. No. 601 of 2006 on the very same ground. I do not find any reason as to why the petitioner should not be given the benefit of the said legal ground which is available in common to both the accused persons. No useful purpose will be served by having the prosecution against the petitioner and it will be abuse of the process of the court to direct the petitioner to undergo ordeal of a trial. Accordingly, S.C. No. 399 of 2007 pending before the Additional Sessions Court, Fast Track-II, Thrissur shall stand quashed. This Crl.M.C. is allowed of as above. V. RAMKUMAR, JUDGE. rv CRL.M.C.NO. 594/2008 : 3: