IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.MC.No. 4739 of 2008() ------------------------------------ CP.88/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... PETITIONERS/2ND ACCUSED: ------------------------------------------ THANKAMANI, MUTHUKULATHU MELE PUTHEN VEEDU, KUNNAMPARA, OORUTTAMBALAM P.O., SHOWN IN CASE RECORDS, RESIDING AT VATTAVILAKATHU KADAYARA VEEDU, MP VIII/165, MALAYINKEEZHU VILLAGE, NEYYATTINKARA TALUK. BY ADV. MR.G.SUDHEER RESPONDENTS/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/07/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4739 OF 2008 =========================== Dated this the 29th day of July,2009 ORDER Second accused in C.P 88/2008 on the file of Judicial First Class Magistrate, Kattakada is the petitioner. First accused is her husband. This petition is filed under section 482 of the Code of Criminal Procedure to quash the case as against her contending that there is no material whatsoever to connect petitioner with the offence alleged and therefore Annexure E final report is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. The prosecution case is that on 10.6.2005 the excise party headed by the Excise Inspector, Kattakada Range conducted a raid in house No.M.P.8/165 and seized 70 litres of arrack and first accused the husband of the petitioner was not available there and petitioner is the owner of the house and arrack was stored there for the purpose of sale in furtherance of their common intention and therefore they committed the offence under section 8(1) and (2) of Abkari Act. After Crl.M.C.4739/2008 2 completing the investigation Annexure E final report was filed. The argument of the learned counsel appearing for the petitioner is that when the case was registered by preparing occurrence report, petitioner was not an accused and later on when petitioner filed Annexure C complaint against the Assistant Commissioner to the Chief Minister she was falsely implicated in the case and petitioner along with the children were living separately since last eight years to the date of seizure and she has nothing to do with the contraband article seized by the Excise Party and therefore prosecution against her is only an abuse of process of court. 4. Learned Public Prosecutor submitted that based on the investigation, finding that the husband and wife were involved in storing and sale of arrack from that house, petitioner was also implicated and there is no ground to quash the proceedings. 5. Annexure A occurrence report shows that when search was conducted and 70 litres of arrack was seized from the house, petitioner was not in that house. Annexure A does not give any indication to show that petitioner was residing in that building at that time. Annexure E final report shows that as the first accused was hiding inspite of several search he could not be arrested and therefore to Crl.M.C.4739/2008 3 find out the ownership of the building records were sought from the Panchayat and then it was found out that petitioner is the owner of the house. Final report further shows that thereafter notice was issued to the petitioner. As she did not appear, on further investigation it was found that petitioner was also engaged in storing and sale of arrack from that house and therefore she was implicated. Learned counsel appearing for the petitioner pointed out that Annexure E report and Annexure F statements of the independent witness recorded during investigation do not disclose that petitioner was in any way connected with the storing or possession of the arrack seized from the house and in such circumstance, even if petitioner is to be tried, she cannot be convicted and therefore the case is to be quashed. 6. Learned Public Prosecutor in spite of the availability of the Case Diary could not point out any statement of any of the witnesses to show either that petitioner was residing in that house at the time when arrack was seized or that arrack seized from the house was stored either with the joint responsibility of the petitioner or on her instructions or that petitioner was engaged in storing or sale of arrack. Learned Public Prosecutor pointed out that there is statement of the Crl.M.C.4739/2008 4 detecting Officer. But the detecting Officer admittedly has no personal knowledge and he can get that fact only on the statement made by some other witness who knows the fact. When the Case Diary does not disclose any material to the effect that petitioner was residing in that house at that time or that arrack was kept in the house with the knowledge or consent of the petitioner or that the storing and selling of arrack from that house with the knowledge or connivance of the petitioner. Hence even if petitioner is to be tried, on the materials available, there is no chance of a conviction. In such circumstance, it is not in the interest of justice to proceed with the case as against the petitioner. Petition is allowed. C.P.88/2008 on the file of Judicial First Class Magistrate, Kattakada as against petitioner, the second accused is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006