IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 Crl.MC.No. 3981 of 2009() ----------------------------------- (CRIME NO.580/2004 OF CHALAKUDY POLICE STATION,THRISSUR DIST.) PETITIONER(S): ACCUSED NO.10: --------------------------------------------------- SHAMEER,AGED 35 YEARS, S/O.KHADER,SAJITHA MANZIL,SIVAPURAM VILLAGE, THALASSERY TALUK, KANNUR DISTRICT. BY ADV.MR.NIREESH MATHEW RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE,CHALAKUDY POLICE STATION, THRISSUR DISTRICT,REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3981 OF 2009 =========================== Dated this the 11th day of January,2010 ORDER Petitioner is the tenth accused in C.P.109/2007, now pending as L.P.31/2009, on the file of Judicial First Class Magistrate Court, Chalakkudy taken cognizance for the offence under section 55(a)(i) of Abkari Act on Annexure A final report filed by the Sub Inspector of Police, Chalakudy after investigation. Annexure A final report shows that prosecution case is that seventh accused financed accused 8 and 9, for purchasing spirit from the petitioner, the 10th accused and accused 8 and 9 jointly purchased spirit in 35 cans having a capacity of 20 litres and 2 cans having a capacity of 5 litres and in furtherance of the common intention of accused 1 to 7 to effect sale of the spirit, Crl.M.C.3981/2009 2 transported the spirit in the tempo van KL- 11-E- 3844 after keeping the cans in a concealed chamber behind the platform and on 4.11.2004 at 4.15 a.m and the tempo van was seized by the police and all the accused thereby committed the offence under section 55(a)(i) of Abkari Act. This petition is filed under section 482 of Code of Criminal Procedure contending that there is absolutely no material to connect the petitioner with the offence alleged or the spirit seized from the tempo van and therefore continuation of the prosecution as against the petitioner is only an abuse of process of court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As rightly pointed out by the learned senior counsel appearing for petitioner, the only allegation against the petitioner is that he sold the contraband spirit seized from the tempo van KL- Crl.M.C.3981/2009 3 11E -3844 by the police on 4.11.2004 on 4.15 a.m. There is no allegation in Annexure A final report there was any conspiracy involving the petitioner or petitioner had any common intention to sell the contraband spirit seized from the tempo van through accused 1 to 7. On the other hand, the specific case is that accused 8 and 9 purchased the contraband spirit from the tenth accused making use of the finance made available by the seventh accused and it was accused 1 to 7 who were possessing the same, for the purpose of sale. Therefore unless there is material to show that contraband spirit seized from the tempo van was sold by the petitioner to accused 8 and 9, even if petitioner is to be tried there is no likelihood of a conviction of the petitioner. Then it was argued by the learned senior counsel that there is no material whatsoever, to connect the petitioner with the contraband spirit or to show that the spirit was sold by the petitioner to accused 8 and 9. Crl.M.C.3981/2009 4 Learned Public Prosecutor submitted that a card was seized from the first accused driver of the tempo van and it contained the mobile phone number of the petitioner. 4. Learned senior counsel pointed out that no witness is being cited to prove that any card was seized from first accused or that the said card contains any mobile number or that the mobile number is that of the petitioner. It is also pointed out that no such card was produced as evidenced by any seizure mahazar. It is also pointed out that even according to the prosecution, the only connection of the petitioner with the offence, is that he sold it to accused 8 and 9. Therefore there cannot be any contact by the petitioner with the first accused. Therefore even if there is any mobile number of the petitioner noted in the card kept by the first accused, it will not by itself establish that petitioner was in any way connected with the offence. There is Crl.M.C.3981/2009 5 force in the submission. When according to prosecution petitioner was not a party to any criminal conspiracy and the only case is he sold the contraband spirit to accused 8 and 9, unless there is some material to show that the contraband spirit was purchased by accused 8 and 9 from the petitioner, he cannot be prosecuted. When there is no material to show that petitioner sold the contraband spirit to accused 8 and 9, prosecution as against him can never end in conviction, even if petitioner is to be directed to undergo the ordeal of a trial. Hence continuation of the prosecution would only be an abuse of process of the court. Petition is allowed. L.P.31/2009 on the file of Judicial First Class Magistrate Court, Chalakudy as against the petitioner, accused No.10 in C.P.109/2007, is quashed. M.SASIDHARAN NAMBIAR JUDGE Crl.M.C.3981/2009 6 tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006