At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
For the Petitioner: K.V. Anil Kumar, Advocate. For the Respondents: -----
1. The petitioner is the fourth accused in the case C.P.No.29/2018 on the file of the Court of the Judicial First Class Magistrate, Kadakkal.
2. The offences alleged against the accused in the case are punishable under Sections 55(g), 55(h) and 8(1) read with 8(2) of the Abkari Act, 1077.
3. The prosecution case is as follows:-
On 1.8.2017, at about 20.00 hours, the Sub Inspector of Kadakkal Police Station was checking vehicles and he stopped the motorcycle KL/24/N 5933 on which three persons were found travelling. When the motorcycle was stopped by the police, one of the persons got down from the motorcycle and ran away and escaped. The Sub Inspector found that the third accused, who was travelling on the motorcycle, was carrying with him a bottle containing one litre of arrack. The Sub Inspector arrested the second and the third accused, who were travelling on the Crl.MC.No.1984 OF 2020(G) 3 motorcycle, from the spot. It is alleged that the fourth accused is the person who ran away and escaped from the spot. It is further alleged that the aforesaid accused had obtained the arrack which was manufactured by the first accused.
4. This petition is filed under Section 482 Cr.P.C for quashing the proceedings against the petitioner in the case.
5. Heard the learned counsel for the petitioner and also the learned Public Prosecutor.
6. Learned counsel for the petitioner submitted that there is no material produced by the prosecution to prove that the petitioner was the person who got down from the motorcycle and escaped from the spot of the occurrence. Learned counsel for the petitioner further contended that, even if it is assumed that the petitioner was travelling on the motorcycle, no arrack was seized from his possession and therefore, the offence alleged against him will not lie.
7. The proceedings against the petitioner are sought to be quashed on two grounds. (1) There is no material to find that the petitioner was the person who was travelling on the motorcycle along with the third accused, who was carrying the bottle containing arrack. (2) There are no materials to find that the petitioner had possessed arrack or that he had any role in the manufacture or sale of arrack.
8. Annexure-B is the copy of the final report filed against the Crl.MC.No.1984 OF 2020(G) 4 accused in the case. It would show that the prosecution proposes to examine two independent witnesses to prove the occurrence. These independent witnesses have given statement to the investigating officer that they had seen the occurrence and that the petitioner is a person with whom they have got previous acquaintance and that the petitioner was the person who got down from the motorcycle and ran away and escaped from the spot of the occurrence. Identity of the petitioner, as one of the persons who was travelling on the motorcycle and who ran away and escaped from the spot, is a matter to be established by the prosecution at the time of the trial of the case.
9. It is true that no arrack was seized from the actual possession of the petitioner. However, there are materials to show that the petitioner was travelling on the motorcycle along with the second and the third accused and that the third accused was carrying a bottle containing arrack with him. Section 62 of the Abkari Act provides that, when an offence under the Act is committed by several persons in furtherance of the common intention of all, each of such person shall be guilty of such offence as if it was committed by him alone. Whether the arrack was obtained for sale from the first accused in furtherance of the common intention of all the accused is a matter to be decided after the trial of the case.
10. In the aforesaid cir
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cumstances, I find that there is no Crl.MC.No.1984 OF 2020(G) 5 sufficient ground to quash the proceedings against the petitioner in the case. The petition is liable to be dismissed. 11. Consequently, the petition is dismissed. However, this order shall not preclude the petitioner from raising all his contentions before the trial court and also from filing any application for discharge before the trial court.