IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 Crl.MC.No. 4516 of 2010() ------------------------- ( CP.105/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA) .................... PETITIONER/3RD ACCUSED ---------------------------------------- SUNDARAN, S/O.ASARI NADAR, S.K.BHAVAN, ANTHIYOORKONAM, KOLLODE.P.O, MALAYINKEEZHU, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT/STATE -------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: vk THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4516 of 2010 ==================================== Dated this the 01st day of March, 2011 O R D E R Petitioner is accused No.3 in C.P. No.105 of 2010 of the court of learned Judicial First Class Magistrate, Kattakada for offence punishable under Section 8(1) and (2) of the Kerala Abkari Act (for short, “the Act”). According to the prosecution petitioner and accused Nos.1 and 2 were engaged in illicit distilling of arrack in a building taken on lease by accused No.1 which was detected by the excise officials on 25.08.2009 at about 7.20 p.m. Accused Nos.1 and 2 are stated to have ran away from the scene. Excise officials seized the contraband from the said place. After investigation Investigating Officer submitted final report implicating petitioner also in the alleged incident. Petitioner seeks to quash proceeding against him on the ground that there is no material to show that he is in any way involved in the alleged distilling of illicit arrack and seizure of the contraband. I have heard the learned Public Prosecutor also. 2. It is argued by learned counsel for petitioner that wife of petitioner had preferred Annexure-A2, complaint before the Home Minister as early as on 19.09.2009 stating that excise CRL.M.C. No.4516 of 2010 -: 2 :- officials are trying to falsely implicate petitioner and requesting the Home Minister to direct an enquiry against the Circle Inspector who implicated petitioner also in the case. Learned counsel has invited my attention to running pages 23, 25 and 35 of the Paper Book where some of the witnesses cited by the prosecution are seen to have stated that they had seen only accused Nos.1 and 2 going to the building where the alleged distilling occurred. Learned counsel also submitted that the building was taken on rent by accused No.1. 3. Learned Public Prosecutor contended from the statement of two witnesses at page 30 and 31 of the Paper Book that petitioner also was staying in the room where the alleged distilling took place. One of the witnesses is seen to have stated that the building was taken on rent by accused No.1 where his brother (accused No.2) and father (petitioner) were seen going and coming often. In page 30 of the Paper Book one of the witnesses is seen to have told the Investigating Officer that at the time the alleged distilling took place petitioner was residing in that building. 4. No doubt learned counsel has relied on the statement of some of the witnesses which is to the effect that they had seen accused No.1 and 2 going to the building where the alleged distilling occurred. That does not mean that petitioner was not CRL.M.C. No.4516 of 2010 -: 3 :- going to the said house. The said statement of witnesses can only meant that so far as they are concerned, they had seen only accused Nos.1 and 2 going to the said house. 5. I have referred to the statement of one of the witnesses that petitioner was also residing in the building where alleged distilling took place. It is a question of disputed fact whether petitioner was residing in the building where the alleged incident occurred. Materials on record prima facie revealed that there was illicit distilling of arrack in the said building. In such a situation petitioner cannot request this Court to quash the proceeding against him invoking power under Section 482 of the Code of Criminal Procedure. Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv