IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.MC.No. 829 of 2011() ----------------------------------- S.C.NO. 332/2009 of ADDITIONAL SESSIONS COURT, THRISSUR, (FAST TRACK COURT-II- ADHOC) .................... PETITIONER(S): ACCUSED NO.3 ----------------------------------------------- THILAKAN, S/O.CHANDRAN, CHEMADAM HOUSE, MATHIRAPPILLY, MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.C.HARIKUMAR SMT.MOLLY KOSHY RESPONDENT(S): STATE ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.829 of 2011 -------------------------------------- Dated this the 23rd day of March, 2011. ORDER Petitioner is the third accused in Crime No.379 of 2002 of Puthukkad Police Station and S.C.No.332 of 2009 of the court of learned Additional Sessions Judge (Fast Track-II), Thrissur. He, along with accused 1 and 2 was accused of offence punishable under Section 55(g) of the Abkari Act (for short, “the Act”). Charge was framed against the accused including petitioner. At the time of trial he either absconded or was not available for trial whatever be the reason thereof. Trial against accused 1 and 2 continued in S.C.No.771 of 2008 and it resulted in acquittal as per Annexure-A2, judgment. Petitioner seeks to quash proceeding against him on the strength of Annexure-A2, judgment. Learned counsel submitted that since the substratum of prosecution case is destroyed by Annexure-A2, judgment, trial of petitioner is unwarranted. Learned Public Prosecutor submitted that petitioner was not available for trial after framing of charge and that it is not necessary to invoke power of this Court under Section 482 of the Code of Criminal Procedure in favour of an absconding accused. 2. In Moosa v. Sub Inspector of Police (2006(1) KLT 552) a Full Bench of this Court considered the question as to under what circumstances judgment against a co-accused can be made use of by an Crl.MC No.829/2011 2 accused who did not participate in trial. It is held that except for the purpose stated under Section 43 of the Evidence Act the judgment cannot be looked into. In paragraph 50 of the decision it is held that where the substratum of prosecution case is destroyed by the previous judgment it is within the power of this Court to quash proceeding against remaining accused who are to face the trial. 3. Case of prosecution is that on 11.08.2002 at about 10.30 a.m. on the excise party approaching the scene of occurrence they saw three youngsters (petitioner and accused 1 and 2) preparing to distill illicit arrack in a shed and on seeing the excise party they ran away. The Excise party seized materials for preparation of arrack from the shed. In S.C.No.771 of 2008 prosecution examined PWs 1 to 4 and marked Exts.P1 to P9 and MOs 1 to 12. MOs 1 to 12 are articles said to be seized from the shed. Version of official witnesses is that when they approached the shed three youngsters ran away from the shed. 4. I have gone through Annexure-A2, judgment. In paragraph 19 learned Sessions Judge has discussed the evidence of prosecution witnesses. It is observed that the mahazar for seizure did not even mention about sampling. The property lists produced in the court disclosed that the sample bottle had not been labelled. There was also delay in the material objects being produced in Crl.MC No.829/2011 3 court. It is observed that there was no evidence from PW4 or any of other witness for prosecution that accused 1 and 2 were found engaging in distilling of arrack, handling wash or the instruments for distilling. Evidence let in by the prosecution was only that the youngsters were seen running from the side of the motor shed wherefrom the articles were seized. Learned Sessions Judge concluded that the said evidence was not sufficient to find that accused 1 and 2 committed offence punishable under Section 55(g) of the Act. 5. Under Section 55(g) of the Act using, keeping, having in possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug is made punishable. It is clear from paragraph 19 of Annexure-A2, judgment that it was on a definite finding that the evidence is not sufficient to hold that accused 1 and 2 were in possession of any such articles referred in Section 55(g) of the Act that they were found not guilty and acquitted. Defects pointed out by the learned Sessions Judge in paragraph 19 of Annexure-A2, judgment would remain in force. In that situation I am inclined to accept the argument that Annexure-A2, judgment destroyed substratum of prosecution case. If that be so, there is no use in directing petitioner to face trial. I am inclined to allow this petition. Crl.MC No.829/2011 4 Resultantly this petition is allowed and proceeding against petitioner in S.C.No.332 of 2009 of the court of learned Additional Sessions Judge (Fast Track-II), Thrissur are quashed. THOMAS P.JOSEPH, Judge. cks