Sarath S. Pillai v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **Crl.MC.No.4089 OF 2019(A)** **IN CC 1595/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD** ## **CRIME NO.1443/2015 OF VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/SOLE ACCUSED:** **SARATH.S AGED 48 YEARS S/O.DR.K.SASIDHARAN PILLAI, HOUSE NO.307, SREEVALSAM, PTP NAGAR P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.PHILIP MATHEWS SRI.GIBI.C.GEORGE** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE, VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695 013.** **R1-2 BY SRI.C.K.PRASAD, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4089 OF 2019(A)** 2 **==> picture [25 x 11] intentionally omitted <==** ## **O R D E R** ## **Dated this the 14th day of August, 2019** Annexure A1 FIR registered at Vattiyoorkavu Police Station and Annexure A6 final report filed after concluding investigation based on Annexure A1 before Judicial First Class Magistrate Court II, Nedumangad and C.C.No.1595/2016 registered on it's file on the basis of those, are sought to be quashed in the petition on hand. The petitioner herein is the sole accused in the above case. He was an Income Tax Officer. 2. The allegation of the prosecution was that on 14.10.2015 the officers of Central Bureau of Investigation (for short 'the CBI') had conducted a raid in the house of the petitioner, during the course of which they found 21 bottles of foreign liquor and Indian Made Foreign Liquor kept in two almirahs situated at two bedrooms of the petitioner which totally measures 19 liters of liquor. The officials also found eight cartridges/bullets of gun from the hall of the house, kept in a purse inside the showcase of the almirah. The officials of the CBI informed the matter to the police and based on that the crime aforesaid was registered by **Crl.MC.No.4089 OF 2019(A)** 3 Vattiyoorkkavu Police, alleging commission of offences punishable under Section 3 r/w Section 25(1B) Arms Act, and Section 55(a) and 63 of the Abkari Act (for short 'the Act'). The copy of the FIR is appended to the petition on hand as Annexure A1. During the course of investigation, a report was filed before the court, proposing to delete Section 55(a) of the Act from Annexure A1 FIR and to substitute Section 63 of the Act, therein, copy of which is appended to the petition on hand as Annexure A2. Copies of the recovery mahazar and list of properties prepared while forwarding the properties to the court were appended to the petition on hand, respectively as Annexure A3 and Annexure A5. Investigation was held and a final report was laid by the investigating officer before the Judicial First Class Magistrate Court II, Nedumangad chargesheeting the petitioner as the sole accused and alleging that he had committed the offences punishable under Section 3 r/w Section 25(1B) of the Arms Act and Section 63 of the Act, copy of which is appended to this petition as Annexure A6. The Judicial First Class Magistrate Court II, Nedumangad, received the final report and registered C.C.No.1595/2016, on it's file, on it's basis. 3. The contention of Sri.V.Philip Mathews, the learned counsel for the petitioner was that the final report is devoid of **Crl.MC.No.4089 OF 2019(A)** 4 relevant materials to convict the petitioner. It is urged by him that the investigating agency shall obtain sanction as contemplated under Section 39 of the Arms Act to prosecute the petitioner and without that being produced alongwith the final report, the court shall not take cognizance of that. ## 4. Section 39 of the Arms Act is extracted hereunder: “Previous sanction of the district magistrate necessary in certain cases-No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.” Therefore, sanction is required to be obtained for successfully prosecuting the petitioner for the offence under Section 3 of the Arms Act. The counsel has invited the attention of this Court to Annexure A6 final report to submit that the documents listed alongwith, did not incorporate the sanction and therefore, inference possibly be drawn was that the prosecution failed to obtain the sanction prior to filing the final report to chargesheet the petitioner before the court. 5. The learned counsel has cited **Romesh Sharma v. The State (2002(1) Crimes 497)** and **Javitri Devi v. State (CRLJ 1971 0 1340)** to rest his contention that without sanction, being **Crl.MC.No.4089 OF 2019(A)** 5 obtained for initiating a prosecution, the final report filed before the court chargesheeting an accused for an offence under Section 3 r/w 25(1B) of the Arms Act, will not sustain legally. 6. The learned Public Prosecutor has procured a statement obtained from the Inspector of Police, Vattiyoorkavu Police Station and filed the same in the petition on hand. It is stated that the offence under Section 55(a) is now substituted by Section 63 of the Act. As per the statement filed, 8 bottles were found kept in a show case situated in the first floor and those were seized after preparing seizure mahazar in the presence of CW1 and got attested by him. Two independent witnesses had also made to sign the same. It is also stated by the learned Public Prosecutor on questioning the accused, that the house in question belongs to him. Therefore, the contention of the learned Public Prosecutor was that the offence under Section 63 of the Abkari Act is attracted in the case on hand. With regard to the argument on sanction, the learned Public Prosecutor has conceded stating that sanction is a pre-requirement for launching a prosecution involving an offence under Section 3 Arms Act, without which courts are barred from taking cognizance on a final report chargesheeting a person for that offence. **Crl.MC.No.4089 OF 2019(A)** 6 7. A list of documents proposed to be produced before the Court by the prosecution is attached to the final report. The list of documents does not incorporate the sanction of the District Magistrate as contemplated under Section 39 of the Arms Act. The Delhi High Court in **Romesh Sharma** 's case _supra_ has held if sanction is not produced alongwith final report, the court cannot take cognizance thereof. It has been held by the very same High Court in **Javithri Devi** 's case _supra_ that the defect of non-production of sanction alongwith final report is incurable. Therefore, it follows from the aforecited dictums that sanction of the District Magistrate is a pre-condition for initiating a successful prosecution against a person chargesheeted for an offence under Section 3 of Arms Act. Without a sanction being produced by the prosecution, the court ought not to have taken cognizance on the final report. In the case on hand from Annexure A6 it is crystal clear that such a document is not available with the documents proposed to be marked in evidence. It may be that the final report has been taken on file by the court below and proceedings have been initiated on it as CC No.1595/16. But, the prosecution is unlikely to succeed in the proposed trial without sanction of the District Magistrate being procured and marked in evidence. Since **Crl.MC.No.4089 OF 2019(A)** 7 production of sanction is a requirement that preceedes the filing of the prosecution, the same has to be procured sufficiently earlier and must find a place in the documents sought to be marked in evidence. 8. However, for an offence under Section 63 of the Abkari Act to be attracted against the petitioner, he must be in possession of excess quantity of liquor. The allegations are sufficient to draw a _prima facie_ case against the petitioner, as far as Section 63 of the Act is concerned. In the result, Crl.M.C stands allowed in part. Annexures A1 and A6 and all further proceedings initiated in CC No.1595/16 on the files of the Judicial First Class Magistrate Court-II, Nedumangad to the extent it chargesheets the petitioner for offence under Section 3 read with Section 25(1B) of the Arms Act, stands quashed. ## **Sd/-** ## **MARY JOSEPH** **JUDGE** ab/ttb **Crl.MC.No.4089 OF 2019(A)** 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF FIR NO.1443/15 IN CRIME NO.1443/2015 OF VATTIYOORKAVU POLICE STATION.** **ANNEXURE A2 COPY OF REPORT FILED BY THE SECOND RESPONDENT DELETING SECTION 55(a) OF THE ABKARI ACT.** **ANNEXURE A3 COPY OF RECOVERY MAHAZAR DATED 14.10.15 PREPARED IN CRIME NO.1443/2015.** **ANNEXURE A4 COPY OF THE REPORT BY THE 2ND RESPONDENT REGARDING MISTAKE IN MAHAZAR.** **ANNEXURE A5 CERTIFIED COPY OF PROPERTY LIST IS PRODUCED.** **ANNEXURE A6 COPY OF FINAL REPORT FILED IN CRIME NO.1443/2015.** **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//**