Kerala High Court
Basheer vs State Of Kerala on 13 January, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938
Crl.MC.No. 3649 of 2016 ()
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L.P. SC. NO.13/2005 OF ADDL. SESSIONS COURT (FAST TRACK-II), PALAKKAD.
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PETITIONER/ACCUSED NO.3:
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BASHEER,
AGED 42 YEARS, S/O. MUHAMMEDKUTTY,
KARUVEETTIL, KAKKATTIRIMALA, THRITHALA-2.
BY ADV. SRI.C.P.UDAYABHANU.
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE S.I. OF POLICE,
(CRIME NO.91/1997 OF MALAMPUZHA POLICE STATION),
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 22-06-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
rs.
Crl.MC.No. 3649 of 2016
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE I. CERTIFIED COPY OF THE FINAL REPORT PENDING ON THE
FILE OF ADDITIONAL SESSIONS COURT (FAST TRACK II)
PALAKKAD.
ANNEXURE II. COPY OF THE JUDGMENT IN SC.123/2000 DATED 13.01.2005
PASSED BY THE ADDITIONAL SESSIONS COURT
(FAST TRACK II) PALAKKAD.
ANNEXURE III. COPY OF THE ORDER IN SC. 46/2005 DATED 23.09.2005
PASSED BY THE ADDITIONAL SESSIONS COURT
(FAST TRACK II) PALAKKAD.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
RAJA VIJAYARAGHAVAN, V., J.
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Crl.M.C. No.3649 of 2016
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Dated this the 22nd day of June, 2016
O R D E R
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1.The petitioner is the sole accused in L.P.S.C.No.13 of 2005 on the files of the Additional Sessions Court, Palakkad (Fast Track Court-II, Palakkad). He along with four others stood indicted for having committed the offence punishable under Sections 55(a) and (h) of the Abkari Act.
2.The prosecution allegation is that, on 19.8.1997 at about 12.30 a.m., the petitioner along with the others were found in possession of 19 bottles of beer, each bottle having a capacity of 650 ml, along with four glass tumblers for the purpose of sale.
3.The learned counsel appearing for the petitioner submitted that the trial was proceeded with against all the other Crl.M.C.No.3649/2016 -2- accused and as per Annexure-II judgment dated 13.1.2005, they were found not guilty of the offence and were acquitted under Section 235(1) of the Cr.P.C. Referring to the binding precedent of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), it is submitted with much vehemence that the substratum of the prosecution case has been shattered and no purpose will be served in subjecting the petitioner to the ordeal of criminal trial. It is also submitted that Annexure-A2 judgment which was rendered in the year 2005 has become final.
4.The learned Public Prosecutor refuted the submissions and submitted that , the petitioner ,being an absconding accused , cannot be heard to contend that the proceedings against him should be quashed on the ground that the accused who faced trial were extended the benefit of doubt and were acquitted.
Crl.M.C.No.3649/2016 -3-
5.I have considered the rival submissions. I have also gone through Annexure-II judgment of the learned Additional Sessions Judge in S.C.No.123 of 2000. Annexure -II judgment was rendered on 13.1.2005 and the same has become final. The prosecution allegation , as stated earlier is that the petitioner along with four others were found possessing 19 bottles of beer unauthorisedly for the purpose of sale .The learned Sessions Judge have evaluated the prosecution case in detail , and in paragraph Nos. 15 and 16 of the judgment came to the conclusion that the prosecution had not succeeded in proving the offence under Section 55(a) read with Rule 11 of the Foreign Liquor Rules. The sample bottles were not produced before Court to enable the Court below to ascertain the validity and credibility of the seizure .None of the bottles were sealed and sampled in accordance with law and the Court below has held that there was no Crl.M.C.No.3649/2016 -4- evidence to hold that the beer was legally seized from the possession of the accused . It as further held, on a meticulous evaluation of the materials, that the offence under Section 63 of the Abkari Act also will not be attracted in the facts and circumstances. Further more, in paragraph No.16 of the judgment, it was held no convincing evidence was let in to establish the fact that the accused had indulged in the sale of liquor. These observations have become final and these are aspects which go to the root of the prosecution case. This court is of the view that these unchallenged findings will render a death blow to the whole case of the prosecution and there is justification in the submission of the learned Counsel that the substratum of the case has been shattered.
6.In Moosa v. Sub Inspector of Police (supra) a Full Bench of this Court had occasion to hold that though the judgment rendered in the case of a co-accused and the Crl.M.C.No.3649/2016 -5- reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself, a case where the very substratum of the case is lost which may be an exception to this rule.
7.Having considered Annexure-I final report and Annexure-II judgment of the learned Additional Sessions Judge, I am of the view that no purpose will be served in directing the petitioner to undergo the ordeal of the trial. In the result, this petition will stand allowed. All further proceedings against petitioner in L.P.S.C.No.13 of 2005 on the files of the Additional Sessions Court, Palakkad (Fast Track Court-II, Palakkad), shall stand quashed.
Sd/-
RAJA VIJAYARAGHAVAN, V. JUDGE Ps/23/6/16