IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 Crl.MC.No. 3868 of 2011() ------------------------- SC.183/2011 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM .................... PETITIONER(S): ACCUSED ---------------------- KRISHNAN KUTTY NAIR @ K.K.NAIR, S/O.GOVINDAN NAIR,SREE NILAYAM HOUSE, MULAKKUZHA VILLAGE,CHENGANNOOR TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.C.K.SAJEEV SMT.K.N.RAJANI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3868 of 2011 APPENDIX PETITIONER(S) ANNEXURES: ANNEXURE-I: CERTIFIED COPY FO THE FINAL REPORT IN S.C.183/2011 ON THE FILE OF THE ADDL.SESSION'S COURT(FAST TRACK-I), ERNAKULAM. RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE smvd N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 3868 of 2011 ------------------------------------------ Dated this the 29th day of November, 2011 ORDER Petitioner is the accused in Sessions Case No. 183/11 which is now pending before the Additional Sessions Court, (Fast Track – I), Ernakulam. The incident took place on 29/10/2006 at 12.10 P.M. It is alleged that one person was found riding a scooter bearing NO.KL-7 M 5073. It was intercepted at Travancore gate at Naval Base, Cochin. The person who was riding it, leaving his scooter sped away from the scene. When the vehicle was inspected, 12 bottles of IMFL, each bottle containing 750Ml, used to be supplied from defence canteen, were found. Investigation was thereafter conducted by several officers but none of them could find who actually was the person riding this scooter at th relevant time carrying the IMFL bottles mentioned above. 2. Later the investigation revealed that RC (Registration Certificate) of the scooter stood in the name of one Kuriakose. When he was given notice he appeared Crl.M.C.No. 3868 of 2011 -: 2 :- before the investigating officer and stated that he had sold the vehicle to the petitioner herein who was formerly working in Navy. The petitioner retired from naval service on 31.10.2005. Though investigation conducted thereafter also, the actual person who was carrying the IMFL in the scooter could not be found out. The final report shows that all the witnesses have stated that they could not even identify the person by sight. When notice was issued to the petitioner it was stated by him that immediately after retirement he sold the aforesaid scooter to Havildar Raju and thereafter Havildar had sold it to one Sankarankutty and then he transferred it to one Prabhakaran. The investigation revealed that the petitioner was paying the vehicle tax since 2005. Though there was no document to prove the transfer of the vehicle to Havildar Raju, the petitioner was stated to have produced the witnesses who were serving in Navi, who told the investigating officer about the factum of sale of the scooter. Even though, the Crl.M.C.No. 3868 of 2011 -: 3 :- investigation continued even thereafter, the real person who carried the IMFL bottles could not be found out. The officer who later took charge of the investigation found that though the real person could not be traced out, since the year 2005 it was the petitioner who was the RC owner of the vehicle and hence he should be held liable. The gate pass issued by the Regulating Officer would show that the pass was issued in the name of the petitioner/K.K. Nair. But on that ground it cannot be assumed that the petitioner had carried the IMFL bottles at the relevant time. Though investigation was conducted for several years, the investigating agency could not trace out who actually carried the IMFL bottles. Accordingly scooter which was seized was confiscated by the department. No objection was raised by anybody. 3. The learned counsel submits that since even after the final report, the investigating agency could not find/confirm the identity of the person who actually Crl.M.C.No. 3868 of 2011 -: 4 :- transported 12 bottles of IMFL, it will be too unjust and harsh to implicate the petitioner herein since once upon a time he happened to be the owner of the scooter. The fact that he had produced witnesses who were serving in Navy and they deposed as to the factum of sale having been admitted by the investigating officer in the final report, the prosecution cannot turn round and say that the petitioner should be fastened with the criminal liability, that too an offence under Section 55(a) of the Act, submits the learned counsel. 4. As stated above, the only evidence which the prosecution wanted to rely upon is that in the gate pass of Naval Base there was an entry to the effect that the said scooter was ridden by the accused. 5. The learned counsel for the petitioner submits that the entry in the gate pass was not made by reference to any document. The subsequent purchaser also could have given the name of the petitioner as he was the R.C. owner of the Crl.M.C.No. 3868 of 2011 -: 5 :- vehicle. The entry in the gate pass may be incorrect. Based on that alone the prosecution against the petitioner, that too, for a grave offence, cannot be sustained. Considering all the aspects, I find, no acceptable material to proceed against this petitioner. Hence, proceedings against this petitioner, in S.C. No:183/2011 of the Additional Sessions Court (Fast Track-I), Ernakulam, is quashed. N.K. BALAKRISHNAN, JUDGE smvd/jjj