Robin v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 CRL.MC NO. 2269 OF 2014 ``` ``` CRIME NO.391/2009 OF KADUTHURUTHY POLICE STATION, WHICH IS LATER CHARGE-SHEETED AS C.P.NO.27/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VAIKOM AND LATER TRIED AS S.C. NO.277/2010 ON THE FILE OF THE ADDL. SESSIONS COURT, ADHOC NO.I, KOTTAYAM ``` ## **`PETITIONER/ACCUSED:`** ``` ROBIN AGED 33 YEARS S/O.P.J.MATHEW, PANAMKUZHY HOUSE, PARAMPRAM KARA, MUTTUCHIRA VILLAGE. ``` ``` BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. ``` ``` SRI. RANJIT GEORGE – PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2269 OF 2014 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 6[th] accused in Crime No.391/2009 of Kaduthuruthy Police Station, which was registered against him and seven others for the offences punishable under Section 55(a), (g), (h), (i), 55(B), 58(B) (a) and (e) of Kerala Abkari Act. 2. The prosecution case is that on 19.09.2009 at about 8.30 p.m. the Sub Inspector of Police, Kaduthuruthy conducted search in the residence of the accused and when seeing the Police party the 1[st] accused fled from the scene in his car. The Police found the accused Nos.2 to 6 in the place of occurrence and they were arrested from spot. It was also found that, the accused persons were indulging in manufacture of illicit Indian Made Foreign Liquor (IMFL) by adding colour to the illicit arrack. Based on such inspection, the aforesaid crime was registered and during the course of investigation the accused Nos.7 and 8 were also arraigned. Upon completion of investigation, final report was submitted before the Judicial First Class Magistrate Court-I, Vaikom where it was taken into file as C.P. No.27/2010. Later, the same was committed to the Sessions Court, Kottayam and the same was made over to the ## **`CRL.MC NO. 2269 OF 2014`** ``` 3 ``` Additional Sessions Court Adhoc – I, Kottayam where it was numbered as S.C. No.277/2010. 3. In the trial conducted in the aforesaid Sessions Case, all the accused persons, except the petitioner herein participated. Annexure B is the judgment passed in the said Sessions Case, wherein, all the accused persons except the 1[st] accused were acquitted from all the charges. The 1[st] accused was found guilty for the offences punishable under Sections 55(b), (g), (i) and 55(B), 58 of Kerala Abkari Act and he was convicted for the said offences. Even though the offence under Section 58(B), (a) and (c) of Abkari Act was also alleged against the accused persons, all the accused persons including the 1[st] accused were acquitted of the said charge. This Crl.M.C. is filed by the petitioner seeking to quash the proceedings against the petitioner herein, on the ground that the substratum of the case as against him is lost consequent to the acquittal of the accused Nos.2 to 5, 7 and 8. 4. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner and Sri.Ranjit George, learned Public Prosecutor ``` CRL.MC NO. 2269 OF 2014 ``` ``` 4 ``` for the State. 5. The learned counsel for the petitioner submits that, the finding entered into by the Sessions Court as evidenced by Annexure B judgment would indicate that, the basis of allegation raised against the petitioner is no longer in existence, consequent to the acquittal of the accused Nos.2 to 5, 7 and 8. The learned counsel brought my attention to the relevant observations of the Sessions Court contained in paragraph 13, 15 and 25. The learned counsel places reliance upon the judgments rendered by this Court in **Subash v. State of Kerala [2011 (2) KLD 152]** and **Ashok Kumar v. State of Kerala [2013(2) KLD 665]** . 6. On the other hand, learned Public Prosecutor opposes the aforesaid contentions and submits that, the petitioner was absconding all along and it is not proper to entertain this Crl.M.C. It is also pointed out that the contentions put forward by the petitioner are basically questions of fact which can only be considered during the course of trial and the therefore, he has to undergo trial. In such circumstances, the learned Public Prosecutor ``` CRL.MC NO. 2269 OF 2014 ``` ``` 5 ``` seeks for dismissal of the Crl.M.C. 7. The only point that arises is as to whether the petitioner is successful in making out a case for invoking powers of this Court under Section 482 Cr.P.C. The main contention put forward by the petitioner is by placing reliance upon the observations made by the Sessions Court in Annexure B judgment, wherein all the co-accused except the 1[st] accused were acquitted. When the allegations raised by the accused persons are considered, it can be seen that, the crime was registered on the basis of inspection conducted in the premises of the 1[st] accused. During inspection it was found that the accused Nos.2 to 6 were present at the scene of occurrence at the relevant time and they were arrested. It is discernible from Annexure B judgment that the independent witnesses have turned hostile to the prosecution. The prosecution is mainly placing reliance upon the evidence of PW1 who is the detecting officer. The specific role assigned to the petitioner as per the prosecution case is that he along with accused Nos.7 and 8 helped the 1[st] accused in adding colours and flavours to the illicit arrack procured by 8[th] accused for the ``` CRL.MC NO. 2269 OF 2014 ``` ``` 6 ``` purpose of manufacturing illicit Indian made foreign liquor. However, it is discernible from the observations in paragraphs 13 and 15 that the Sessions Court expressed doubt on the evidence of PW1 as regard to the involvement of accused Nos.2 to 5, 7 and 8. After discussing the entire materials produced by the prosecution a definite finding was entered into by the Sessions Court that the aforesaid accused persons were not guilty of the offences alleged. One of the said findings is that, the prosecution failed to adduce any evidence that the 8[th] accused has procured arrack for commission of crime. It is also a relevant aspect to note that Sessions Court also found that even the 1[st] accused is not guilty of the offences offences under Section 58B, (a) and (c) of the Abkari Act which is for adding colour and flavor to the liquor. Since the very allegation raised against the petitioner herein is helping the 1[st] accused in adding colour and flavor to the illicit arrack and thereby manufacturing illicit IMFL, the finding of not guilty of the 1[st] accused on this charge is also a crucial aspect. Apart from the above, all the other accused persons who were found in the place of occurrence at the ``` CRL.MC NO. 2269 OF 2014 ``` ``` 7 ``` relevant time and were arrested from the spot were also found to be not guilty by the Sessions Court, after evaluating the entire materials produced by the prosecution. Since the petitioner herein stands on the same footing with respect to their presence in the place of occurrence at the relevant time, the finding that the accused Nos.2 to 5, 7 and 8 are not guilty, is a crucial aspect and it will have an impact of destroying the substratum of the case put forward against the petitioner herein. 8. In **Moosa v. Sub Inspector of Police [2006 (1) KLT 552 (FB)]** even though the Full Bench of this Court held that the acquittal of co-accused by itself cannot be a ground for quashing the proceedings against the other accused, it was observed that, in cases where the substratum of the case itself is lost, the said powers can be invoked. In the judgments relied upon by the learned counsel for the petitioner that is **Subash** ’s case (supra) and **Ashok Kumar** ’s case (supra) the aforesaid principles are re-iterated. In such circumstances, as I have already found that the findings entered by the Sessions Court in Annexure B judgment have destroyed ``` 8 ``` ## **`CRL.MC NO. 2269 OF 2014`** the substratum of the case as against the petitioner herein, consequent to the finding of acquittal of the other accused persons, who stands on the same footing as that of the petitioner herein. In such circumstances, I am of the view that this is a fit case in which the powers of this Court under Section 482 Cr.P.C. can be invoked, as no fruitful purpose would be served by the proceeding with the trial as against the petitioner herein. Accordingly, this Crl.M.C. is allowed. Annexure A final report in Crime No.391/2009 of Kaduthuruthy Police Station and all further proceedings thereof as against the petitioner herein are hereby quashed. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** ``` SCS ``` ``` CRL.MC NO. 2269 OF 2014 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 2269/2014`** ``` PETITIONER ANNEXURES ANNEXURE A:CERTIFIED COPY OF THE CHARGE SHEET/FINAL REPORT IN CRIME NO.391/2009 OF KADUTHURUTHY POLICE STATION. ANNEXURE B:PHOTOCOPY OF THE JUDGMENT DATED 2/12/2011 IN S.C NO.277/2010 PASSED BY THE ADDL. SESSIONS COURT, ADHOC NO.1, KOTTAYAM. ANNEXURE C:PHOTOCOPY OF THE DECISION REPORTED IN SUBASH VS. STATE OF KERALA IN 2011(2) KLD 152. ANNEXURE D:PHOTOCOPY OF THE DECISION REPORTED IN ASHOK KUMAR VS. STATE OF KERALA IN 2013(2) KLD 665. ```