Kerala High Court
Kurian Abraham vs State Of Kerala on 26 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944
CRL.MC NO. 1037 OF 2022
[AGAINST C.P.No.1/2017 PENDING ON THE FILES OF THE COURT OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS-II, PEERMADE]
PETITIONER/7TH ACCUSED:
KURIAN ABRAHAM
AGED 72 YEARS
KAIPUZHA HOUSE, NELLICKAMON P.O.,
ANGADI, RANNI, PATHANAMTHITTA DISTRICT,
PIN-689674.
BY ADV M.REVIKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
PIN - 682031
ADV. C.S HRITHWIK- SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.05.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.No.1037 of 2022 2
ORDER
The petitioner is the 7th accused in Crime No.671/2012 of Kumily Police Station which is now pending as C.P.No.1/2017 before the Judicial First Class Magistrate Court-II, Peerumedu. The offences alleged against the petitioner and the other accused are under Sections 2(b) and 5(b) of the Explosives Substances Act, 1908.
2. The prosecution case is that on 15.7.2012 at 8.5 a.m., the Excise Inspector, Excise Check post, Kumily intercepted a lorry bearing registration No.TN-01-F-0156 at Kumily check post and during the inspection, about 2400 kgs of Amonium Nitrate was found in the vehicle. It was alleged that, 1st accused was arrested from the spot and the 2nd accused fled from the scene of occurrence. During the investigation, it was CRL.M.C.No.1037 of 2022 3 revealed that the aforesaid articles were transported from a godown situated at Tamilnadu which was under the supervision and control of accused Nos.3 to 5. The 6th respondent was the owner of the lorry by which the contraband articles were transported and the role assigned to the 7th respondent is that the same were brought to his purpose. Annexure-3 is the final report submitted in this case after investigation. This Crl.M.C. is filed quashing all further proceedings pursuant to Annexure-3.
3. Heard Sri.M.Ravikrishnan, the learned counsel appearing for the petitioner and Sri. C.S.Hrithwik, the learned Public Prosecutor for respondent.
4. The most crucial contention put forward by the learned counsel for the petitioner is relating to the patent illegality in the search CRL.M.C.No.1037 of 2022 4 and seizure effected. It was pointed out by the learned counsel for the petitioner by placing reliance upon Annexure-A1 seizure mahazar that the same was effected by the Excise officers who were not competent to conduct search in respect of an offence punishable under the provisions of Explosives Substances Act. In such circumstances, the learned counsel for the petitioner seeks for quashing the proceedings.
5. On the other hand the learned Public Prosecutor would oppose the aforesaid conditions. It was pointed out that, the conditions that are raised by the learned counsel for the petitioner are matters to be considered on merits and interference is not at all required at this stage. It was pointed out that, it was a chance recovery during the routine check up of the vehicle at the check post. Therefore, no CRL.M.C.No.1037 of 2022 5 impropriety can be attributed to the said procedure and immediately thereafter the investigation was taken over by the police along with the articles seized, contends the learned Public Prosecutor. Therefore, the learned Public Prosecutor seeks for dismissal of the Crl.M.C.
6. The crucial question arises is whether the search conducted in this case was illegal or not and if it is an illegal search, a prosecution can be proceeded against, on the basis of the materials recovered through such search. The learned counsel for the petitioner relies upon the order passed by this Court in Crl.M.C.No.791 of 2022 wherein a similar question was considered by this Court, and held that, in a case where the search and seizure were conducted by the Excise Officials pertaining to the commission of offence under Explosives Substances Act, the same cannot CRL.M.C.No.1037 of 2022 6 be treated as a legal seizure. This is particularly because, the powers and duties vested upon the Excise officers are confined to the search and seizure of contraband articles with respect to certain other articles and it does not extent to the search and seizure for the purpose of Explosives Substances Act. The aforesaid principles are applicable in this case as well. It is true that, even if the search was found to be illegal, the prosecution can go on if there are materials available on record to proceed with independently. However, in this case, the entire prosecution case rests upon the seizure of the articles and in the absence of the aforesaid contraband articles being produced and relied upon by the prosecution, the offence cannot be established. Therefore, the finding as to the legality/illegality of the search CRL.M.C.No.1037 of 2022 7 conducted is a matter of utmost importance which goes to the route of the prosecution.
7. In this case, it is evident that, the officers who conducted search were Excise officers who were not competent in this regard. Therefore, the contraband articles seized in pursuance of such an illegal search cannot be relied upon by the prosecution for proceeding with the matter. In the absence of articles seized through legally sustainable means, no prosecution can continue.
8. In such circumstances, the prosecution in this case is legally not sustainable and hence I am of the view that, this is a fit case in which the powers of this Court under Section 482 Cr.PC can be invoked.
In the result, this Crl.M.C. is allowed, all further proceedings pursuant to Annexure-3 final CRL.M.C.No.1037 of 2022 8 report submitted in Crime No.671/2012 of Kumily Police Station and all further proceedings in C.P.No.1/2017 on the file of the Judicial First Class Magistrate Court-II, Peerumedu as against the petitioner are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk CRL.M.C.No.1037 of 2022 9 APPENDIX OF CRL.MC 1037/2022 PETITIONER'S ANNEXURES:
Annexure1 COPY OF THE MAHAZAR PREPARED BY CW1 (EXCISE INSPECTOR) DATED 15.07.2012 Annexure2 COPY OF THE F.I.R IN CRIME NO. 671/2012 OF KUMILY POLICE STATION, IDUKKI DISTRICT Annexure3 COPY OF THE FINAL REPORT IN CRIME NO.
671/2012 OF KUMILY POLICE STATION, IDUKKI DISTRICT, NOW PENDING AS C.P.NO. 1 OF 2017 BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-II, PEERMADE