K.R. Roshy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASHADHA, 1941** **Crl.MC.No.2724 of 2019** **IN CC 247/2018 of THE JUDICIAL FIRST CLASS MAGISTRATE COURTIII, NORTH PARAVUR** **CRIME NO.12/2012 OF VARAPPUZHA EXCISE RANGE OFFICE , ERNAKULAM** ## **PETITIONER/ACCUSED NO.5:** **K.R.ROSHY, AGED 52 YEARS S/O.RAMAKRISHNAN, ANITHA BHAVAN, KARIKKAMURI CROSS ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK.** **BY ADVS. SRI.NIREESH MATHEW SRI.N.P.PRAJEESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. E.C.BINEESH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2724 of 2019** **2** ## **ORDER** In the petition on hand, the petitioner seeks to quash Annexure-C final report laid by the investigating officer before Judicial First Class Magistrate Court-III, North Paravur which was taken cognizance of and registered as C.C.No.247 of 2018. C.C.No.247 of 2018 was originated from crime No.12 of 2012 of Varappuzha Excise Range, Ernakulam District. Altogether 5 accused were involved in the case and the petitioner herein is the 5[th] accused. A copy of the final report is appended to the petition on hand as Annexure-C. The offences for which the accused stood chargesheeted by the Excise Inspector, Varappuzha Excise Range by the Final Report laid before the court were punishable under Sections 10, 56(b), 63, 55D and 67B of the Abkari Act (for short 'the Act'). 2. The petitioner as already stated was implicated as 5[th] accused in the case. He was the registered owner of the vehicle bearing registration No.KL-7/BJ-1116, which has been hired by the 4[th] accused for transportation of toddy from the limits of Chittoor Excise Range in Palakkad to toddy shops **Crl.MC.No.2724 of 2019** **3** belonging to 4[th] accused in Varappuzha Excise Range, Ernakulam District. The vehicle was seized at 10.45 a.m on 01.05.2012, during the course of transportation of toddy. At the time of seizure, the vehicle was found loaded with 425 litres of toddy, whereas, as per the permit issued to the 4[th] accused, the vehicle was liable to transport only 240 litres of toddy. The driver of the lorry and two helpers who were traveling therein were also taken into custody as accused Nos.1 to 3. The permit holder/licensee of the toddy shop was arrayed as accused No.4 and the petitioner herein as accused No.5. The licensee/permit holder of the toddy shop was arrayed as 4[th] accused in the case and he was chargesheeted for the offences punishable under Section 10 read with Sections 63, 56(b) and 55D of the Abkari Act. 3. The contention of Sri.Nireesh Mathew, the learned counsel for the petitioner was that specific allegations are not raised against the petitioner herein in Annexure-C to connect him with the crime. The learned counsel has invited this Court's attention to Annexure-C to contend that the petitioner herein was chargesheeted for the sole offence punishable **Crl.MC.No.2724 of 2019** **4** under Section 55D of the Act. The learned counsel has also invited this Court's attention to the witness list appended to Annexure-C. According to him, 7 witnesses were incorporated in the witness list. The points to be proved through the witnesses are also stated against their names. According to the learned counsel, any of the witnesses were not called upon to establish the involvement of the petitioner herein in the alleged offence or in other words the manner in which or basis upon which he was implicated into the case. The learned counsel has also relied on _**Sony C. Mathew v. State of Kerala (2007 KHC 4187)**_ and _**Sooraj v. Excise Inspector (2002 KHC 656)**_ to rest his contention that in the absence of any specific allegation against the petitioner, (the registered owner), he cannot be fastened with any criminal liability. 4. Per contra, the learned Public Prosecutor has contended that, sufficient allegations are incorporated in Annexure-C to connect the petitioner with the offence. He has stated that an agreement is procured by the Investigating Officer and incorporated with the records of the case, which would help to establish the conspiracy alleged by them against **Crl.MC.No.2724 of 2019** **5** the petitioner. The learned Public Prosecutor has also contended that the confession statement of the 4[th] accused, (licence holder/permit holder) is also available and it being given to an Excise Inspector is relevant and admissible in evidence. According to the learned Public Prosecutor when materials of the nature are available, the offence alleged against the petitioner in Annexure-C will sustain and there is absolutely no scope for invocation of jurisdiction under Section 482 Cr.P.C to quash it. 5. Annexure-C is perused. As rightly pointed out by the learned counsel for the petitioner the only offence for which he was chargesheeted is one punishable under Section 55D of the Act. The relevant part of Annexure-C is extracted hereunder: “ 1.5.12 ന 10.25 AM ന ട� ക�സ�ല� ഒന മതൽ മന വല� പത��ള�യ ചനക��സ�, സക�ഷ�, കമ��ൻ എന�വർ കചർന അസൽ �ള� �ടത� ല&ർമ�റ� ക�വശമ�ലലതയ, അളവ�ൽ കടതല, �ള� വ��പഴ ക2ഞ�ല� IV -)0 ഗപ� �ള� ഷ�പ� ക�സൻസ6യ, ട� ക�സ�ല� ന���, പത�യമ�യ വ�ജയൻ കവണ� 5-)0 പത� ക2�ഷ�യലട ഉടമസ�തയ�ലളളവ�ഹനത�ൽ �ടത�ല=�ണ വനത� ന��വ�ലള അബ���� ന�യമത�ന, ചടങൾക, വ�രദമ��യ�ൽ കമൽ ഒന മതൽ മന വല� പത��ൾ അബ���� ആക� 10 R/W 63 വകപ� പ���, ശ�ക�=ത= കറവ, ന���, പത� വ�ജയൻ അബ���� ആക� 10 R/W 63, **Crl.MC.No.2724 of 2019** **6** 56(b), 55D വ�പ�ൾ പ���, ശ�ക�=ത= കറവ, അഞ�, പത� ക2�ഷ� അബ���� ആക� 55D വ�പ പ���, ശ�ക�=ത= കറവ, ലചയ���കന.” 6. Section 55D is appropriate to be extracted hereunder inorder to have a proper understanding of the ingredients which constitute the offence. “ **55D.Penalty for criminal conspiracy.-** When two or more persons agree to do or cause to be done an act which is illegal under this Act and does such an illegal act in pursuance of such agreement by any one or more of the parties to that agreement, such an agreement is designated a criminal conspiracy under this Act and each person who is a party to the criminal conspiracy shall, on conviction, be punished with the same punishment provided for the offence committed.” 7. Section 55D of the Act provides for the penalty to be imposed in a case wherein two or more persons are involved in criminal conspiracy to do an act or cause an act to be done which is illegal. It also refers that the illegal act for which the person is proposed to be made liable must be in pursuance of an agreement, entered into among the parties. It also provides for the penalty to be imposed for the offence, conspired to be committed, if established as committed. In the backdrop of the provisions extracted above, this Court **Crl.MC.No.2724 of 2019** **7** ventured to see whether the ingredients of the offence are attracted from the allegations incorporated in Annexure-C. As already stated, 7 witnesses have been cited in the witness list by the prosecution. Witness No.1 is none other than the Assistant Excise Commissioner, Excise Intelligence and Investigation Bureau, Central Zone, Ernakulam. He was cited as a witness to establish the detection of the offence. Witness No.2 is Excise Inspector, Varappuzha Excise Range. The evidence proposed to be adduced through him is the receipt of the contraband and the accused, other aspects relating to the registration of the case and release of the accused on bail. Witness No.3 is the Preventive Officer, Varappuzha Excise Range and the factum proposed to be established through him is the arrest of the accused and preparation of records pertaining to sealing and sampling of the contraband. Witness No.4 and 5 are none other than independent witnesses who are attestors to the seizure mahazar prepared in the case. What is proposed to be established from the examination of them is also the detection of the offence, seizure and sealing of the contraband. Witness No.6 is none other than the Village **Crl.MC.No.2724 of 2019** **8** Officer of Alangad Village Office, who is supposed to say about the site plan prepared in the prosecution case. Witness No.7 is the Excise Inspector, Varappuzha Excise Range, who is proposed by the prosecution to state about the arrest of the petitioner herein, in the crime and also the investigation held in the case. From the above discussion about the witnesses and the points to be proved through them, it is clear that neither documentary evidence has been collected by the prosecution nor witnesses have been cited by them to establish the conspiracy in which the petitioner herein, is allegedly involved to attract commission of offence by him under Section 55D of the Act. 8. This Court had perused the alleged agreement, which according to the learned Public Prosecutor is available in the case diary. On a glance of the agreement, this Court finds that it was one executed among the petitioner and the licensee of the toddy shop at a time when the service of the vehicle was hired by the 4[th] accused. It is also pertinent to note from the allegations in the case diary that the service of the vehicle referred to above, of which the petitioner herein is the **Crl.MC.No.2724 of 2019** **9** registered owner was availed during the course of transportation of the toddy, when the vehicle which was already hired for the service became defunct. The service of the vehicle bearing Registration No.KL-7/BJ-1116 was called for by the 4[th] accused in that circumstance. The toddy which was being transported was shifted from the defunct conveyance to KL-7/BJ-1116. It is also alleged by the prosecution that the permit or licence, which authorises the 4[th] respondent to transport the toddy were not available in the vehicle at the relevant time when the contraband and the vehicle were seized. Service of KL-7/BJ-1116 was provided by the petitioner at the spot when he was called upon to do so by the 4[th] respondent over telephone. If that be the situation, the 5[th] accused, who had no opportunity to see the licence or permit possessed by the 4[th] respondent and therefore, he can be taken to have no idea about the quantity permitted to be carried in the vehicle at the relevant time. The petitioner may not be able to know that the quantity of contraband loaded in the vehicle is excess than the permitted quantity, since he had no knowledge about the permissible quantity liable to be **Crl.MC.No.2724 of 2019** **10** carried in the vehicle, in view of his vehicle entering into the seen during the course of transportation. 9. It is evidenced from the aforesaid discussion that the petitioner herein has taken the burden to transport the toddy in the course of its transit. The 4[th] accused was not available at the spot at the relevant time of seizure. The service of petitioner's vehicle was sought by him over telephone from somewhere. Therefore, there is no likelihood of the petitioner to be informed about the quantity of toddy carried in the vehicle or that toddy carried therein was excess quantity than permitted one, in violation of the permit held by the 4[th] accused. 10. In the absence of incriminating materials, criminal liability cannot be fastened on the petitioner herein. As rightly pointed out by the learned counsel for the petitioner materials are lacking to charge the petitioner, herein with liability for commission of offence under Section 55D of the Act. Evenif, the petitioner is sent to face trial in C.C.No.247 of 2018, the prosecution will not be able to establish the culpability alleged against him with the materials available on hand. The dictum **Crl.MC.No.2724 of 2019** **11** in the decisions cited _supra_ by the learned counsel for the petitioner will also favour the petitioner herein. For the foregoing reasons, this Court is inclined to allow the Crl.M.C. In the result, the Crl.M.C. stands allowed and all proceedings initiated against the petitioner/5[th] accused in C.C.No.247 of 2018 pending on the files of Judicial First Class Magistrate Court-III, North Paravur, taken cognizance by it on the basis of the final report laid in Crime No.12 of 2012 of Varappuzha Excise Range, Ernakulam District stands quashed forthwith. **Sd/-** ## **MARY JOSEPH** **JUDGE** NAB **Crl.MC.No.2724 of 2019** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.12/2012 REGISTERED BY THE EXCISE INSPECTOR, VARAPPUZHA RANGE.** **ANNEXURE B PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO.P5-8821/11 DATED 1/10/2011 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. ANNEXURE C PHOTOCOPY OF THE FINAL REPORT IN CR.NO.12/2012 FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR.** **RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//**