IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.MC.No. 802 of 2009 ------------------------ CC.538/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... PETITIONER / 2ND ACCUSED ------------------------------------------- SRI.MOHAMMED, S/O.E.MOIDEEN KUNHI HAJI, M.K.H.COMPOUND, NAYANMARAMOOLA P.O., VIDYANAGER. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENTS --------------------- 1. STATE OF KERALA, REPRESENTED BY S H O KASARAGOD POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. 2. THE TALUK SUPPLY OFFICER, KASARAGOD. 3. SRI.MOHAMMED SHEREFF, S/O.SASHA, BEKAL, NEAR HANAFI MASJID, MALANKALLU, SEKALPOST, HOSDURG TALUK, KASARAGOD. R1 AND R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 802 of 2009 ================== Dated this the 26th day of June, 2009. O R D E R Petitioner is the second accused in C.C.No.538/2008 on the file of Chief Judicial Magistrate Court, Kasaragod. Prosecution case is that the accused committed an offence under Section 6(A) of Essential Commodities Act, 1955 and LPG (Regulation and Supply and Distribution) Order, 2000. The case is that on 18-12- 2007 at about 3.00 PM on getting information that LPG cylinders are transported in a vehicle from the godown of the authorised dealer of Bharat Petroleum Corporation for the purpose of black marketing, search was conducted and 30 LPG Cylinders loaded in a Pick-Up Van No.KL-14C-9702 parked in front of the private Kongan Gas Distribution Center by name Gasko Company, Vidyanagar, Kasaragod, was seized and on the basis of the statement case was registered. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that petitioner had no substantiating right over the vehicle on 18-12-2007 as he had sold the vehicle Crl.M.C.No.802/2009 -2- to third respondent under Annexure A2 sale agreement for sale dated 2-6-2007. It is contended that because of the existence of the hypothecation agreement, registration certificate was not transferred in the name of the third respondent, but as the petitioner has nothing to do with the vehicle on the date of seizure on 18-12-2007, petitioner cannot be prosecuted for the offences and therefore the case is to be quashed. 2. Second respondent filed a statement with regard to the seizure and the circumstances in which the case was registered and seizure was effected. It is also stated that petitioner himself filed an application before the District Collector for release of the vehicle, claiming to be the owner of the vehicle and therefore petitioner is not entitled to get the case quashed. 3. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. The argument of the petitioner is that as evidenced by Annexure A2 sale agreement, petitioner cease to have any right over the vehicle with effect from 2-6-2007 and the ownership was transferred to the third respondent and seizure was six months subsequent to the transfer and therefore petitioner Crl.M.C.No.802/2009 -3- cannot be prosecuted. Learned Counsel also argued that petitioner was compelled to file a petition for custody of the vehicle before the District Collector, as he was the registered owner as based on the agreement for sale, third respondent cannot get the vehicle released. It is also argued that even though petitioner filed a petition to release the vehicle, it was not released to him but to the third respondent accepting his case that he is the owner of the vehicle and therefore petitioner cannot be prosecuted. 5. Learned Public Prosecutor made available a copy of the petition filed by the petitioner before the District Collector, Kasaragod on 16-1-2008 for getting the vehicle released and it is pointed out that it is the specific case of the petitioner in that application that he is the owner of that vehicle and he is solely depending upon the vehicle for the livelihood of his family and on the date of seizure it was hired to Bharat Gas Agency, Tailangady and therefore petitioner cannot be heard to contend that he has nothing to do with the vehicle on 18-12-2007. 6. Petitioner admittedly continues to be the registered owner of the vehicle. His case is that he had transferred the vehicle under Annexure A2 agreement to the third respondent Crl.M.C.No.802/2009 -4- and therefore he has no right or responsibility over the vehicle on 18-12-2007. As rightly pointed out the Public Prosecutor, the petition filed before the District Collector by the petitioner himself on 16-1-2008 establish that even on that day petitioner claimed to be the owner of the vehicle and solely depending on the income from the said vehicle and also that the said vehicle was hired by Bharat Gas Agency on the morning of 18-12-2007. In the light of the petition filed by the petitioner himself before the District Collector, petitioner is not entitled to contend that he has no subsisting right over the vehicle on the day of seizure inspite of Annexure A2 agreement. Hence, the case as against petitioner cannot be quashed. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr