Kerala High Court
Saleem vs State Of Kerala on 15 January, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
Crl.MC.No.3406 OF 2015
AGAINST C.C. NO.955 OF 2014 OF THE COURT OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS-XI (TEMPORARY), THIRUVANANTHAPURAM
CRIME NO.1184/2014 OF VALIYATHURA POLICE STATION,
THIRUVANANTHAPURAM CITY
PETITIONER/ACCUSED:
SALEEM
AGED 56 YEARS, SON OF RAJAPPAN,
POOVALLIL HOUSE, CHERIYAZHEEKAL P.O.,
ALAPPAD, KARUNAGAPPALLY, KOLLAM DISTRICT.
BY ADV. SRI.ALAN PAPALI
RESPONDENTS/STATE, AIR CUSTOMS & DEFACTO COMPLAINANT:
1 STATE OF KERALA
[CRIME NO.1184/2014 OF VALIATHURA POLICE STATION],
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
2 THE ASSISTANT COMMISSIONER OF CUSTOMS
OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS,
AIR CUSTOMS, INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM-695024.
3 SMT.SHANTHI
DAUGHTER OF SMT.RATHNAMMAL, DOOR NO.1/98, KALKURICHI,
VIRUDUNAGAR VILLAGE, VIRUDUNAGAR DISTRICT, TAMIL
NADU, PIN 626104.
R1 BY ADV. SRI.P.C.IYPE
R2 BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS, COCHIN COMMISSIONERATE
OTHER PRESENT:
SRI.K.B.UDAYAKUMAR, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.3406 OF 2015 2
ORDER
Dated this the 15th day of January 2021 This petition is filed to quash the entire proceedings in C.C. No.955/2014 on the file of the Judicial First Class Magistrate Court- 11 (Temporary), Thiruvananthapuram. It is a case charge sheeted against the petitioner alleging offence punishable under Sections 406 and 420 IPC.
2. The prosecution case as narrated by the petitioner in this criminal miscellaneous case is extracted hereinbelow:-
"For the purpose of cheating and making undue gain the 1 st Charge Witness (defacto complainant), while she was travelling from Sree Lanka in Flight No.UL 161 on 26.08.2014 at or about 9.30 a.m. the accused who was also travelling in the same Flight, misled that the gold ornaments worn by her would be seized by the Customs and the defacto complainant gave gold chain weighing 150 gms. to the accused for concealing the same under the accused's possession and after getting possession of the gold, the accused cheated the defacto complainant and absconded with the gold."
3. Heard learned counsel for the petitioner and the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that even if the entire allegations against the petitioner are accepted the offence under Sections 406 and 420 IPC is not made out. The prosecution against the petitioner is an abuses of the process of Crl.MC.No.3406 OF 2015 3 the court. The learned counsel submitted that in the light of the statement given by the de-facto complainant under Section 108 of the Customs Act, 1962, the offence is not made out. The learned counsel also submitted that this Court may quash the proceedings.
5. Sri. Sasthamangalam Ajithkumar, learned Standing Counsel appeared for the 2 nd respondent, submitted that it is matter of evidence and this Court may not quash the proceedings at this stage.
6. After hearing both sides, according to me, the petitioner can raise all the contentions raised in this criminal miscellaneous case before the trial court by filing an appropriate petition for discharge. There can be a direction to the court below to consider the same within a time frame and till then the petitioner can be exempted from personal appearance.
7. Therefore, this criminal miscellaneous case is disposed with the following directions:-
(i) The petitioner is at liberty to file a petition for discharge, if charge is not already framed, within a period of 3 weeks from the date of receipt of a copy of this judgment.
(ii) If such an application is filed by the petitioner before the court below, the learned Magistrate will consider the same and pass appropriate orders in accordance with law, within one Crl.MC.No.3406 OF 2015 4 month from the date on which such a petition is received.
(iii) Till the disposal of the discharge petition, the learned Magistrate will allow the petitioner to appear through a counsel.
Sd/-
P.V.KUNHIKRISHNAN JUDGE Skk//16012021 Crl.MC.No.3406 OF 2015 5 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE-I TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1184/2014 DATED 26.08.2014 OF VALIATHURA POLICE STATION.
ANNEXURE-II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1184/2014 DATED 15.10.2014 OF VALIATHURA POLICE STATION.
ANNEXURE-III TRUE COPY OF THE SUMMONS DATED 12.09.2014 ISSUED BY THE SUPERINTENDENT OF CUSTOMS, AIR INTELLIGENCE UNIT, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM TO THE PETITIONER.
ANNEXURE-IV TRUE COPY OF THE SUMMONS DATED 12.09.2014 ISSUED BY THE SUPERINTENDENT OF CUSTOMS, AIR INTELLIGENCE UNIT, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM TO THE 3RD RESPONDENT.
ANNEXURE-V TRUE COPY OF THE STATEMENT GIVEN BY THE PETITIONER BEFORE THE SUPERINTENDENT, AIR INTELLIGENCE UNIT, AIR CUSTOMS, THIRUVANANTHAPURAM ON 24.09.2014.
ANNEXURE-VI TRUE COPY OF THE STATEMENT DATED 24.09.2014 GIVEN BY THE 3RD RESPONDENT BEFORE THE SUPERINTENDENT OF CUSTOMS, AIR INTELLIGENCE UNIT, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM.
ANNEXURE-VI(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-VI.
ANNEXURE-VII TRUE COPY OF THE SHOW CAUSE NOTICE DATED 23.03.2015 ISSUED TO THE PETITIONER BY THE ASSISTANT COMMISSIONER OF CUSTOMS, AIR CUSTOMS, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM.
ANNEXURE-VIII TRUE COPY OF THE REPLY DATED APRIL, 2015 GIVEN BY THE PETITIONER BEFORE THE ASSISTANT COMMISSIONER OF CUSTOMS, AIR CUSTOMS, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM.
PETITIONER'S EXHIBITS: NIL