Kerala High Court
Abbas vs State Of Kerala
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938
Crl.MC.No. 6080 of 2016
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CRIME NO. 442/2016 OF MANJESWARAM POLICE STATION, KASARAGOD
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PETITIONER(S)/ACCUSED:
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ABBAS,
S/O. MUHAMMED, AGED 45 YEARS,
BAIKUR, UPPALA, KASARGOD DISTRICT.
BY ADV. SRI.P.M.ZIRAJ
RESPONDENT(S)/COMPLAINANT:
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1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HONOURABLE HIGH COURT OF KERALA
AT ERNAKULAM, REP. BY SUB INSPECTOR OF POLICE,
MANJESWARAMA POLICE STATION, KASARGODE DISTRICT,
IN CRIME NO. 442/2016.
2. SUB INSPECTOR OF POLICE,
MANJESWARAM POLICE STATION, KASARGODE DISTRICT.
BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 26-09-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
msv/
Crl.MC.No. 6080 of 2016
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APPENDIX
PETITIONER(S)' EXHIBITS
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A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME
NO.442/2016 OF MANJESWARAM POLICE STATION KASARGODE DISTRICT.
A2 TRUE COPY OF ADVANCE TAX UTILIZATION RECEIPT DATED 10.8.216
ISSUED BY THE KERALA COMMERCIAL TAXES DEPARTMENT FROM
BENGARAMANJESHWER CHECK POST.
A3 TRUE COPY OF THE TAX INVOICE CASH/CREDIT DATED 06.8.2016
ISSUED BY SAM ENTERPRISES, P.O.BERHAMPUR, GANJAM,
ORISSA 760 001.
A4 TRUE COPY OF THE DELIVERY NOTE DATED 10.8.2016 ISSUED FROM
THE OFFICE OF THE COMMERCIAL TAX DEPARTMENT, KASARGODE.
A5 TRUE COPY OF THE E-CONSIGNMENT DECLARATION DATED 10.8.2016 IN
FORM NO. 8F SUBMITTED BY THE CONSIGNEE BEFORE THE COMMERCIAL
TAX DEPARTMENT.
A6 TRUE COPY OF THE CERTIFICATE DATED 12.8.2016 ISSUED BY THE
COMMERCIAL TAX OFFICER (ADMINISTRATION) COMMERCIAL TAX CHECK
POST B.MANJESWARA.
A7 TRUE COPY OF G.O.MS NO. 161/09/ID DATED 14.12.2009.
A8 TRUE COPY OF THE FAX MASSAGE ISSUED BY THE ADDITIONAL CHIEF
SECRETARY, GOVERNMENT OF KERALA TO ALL DISTRICT COLLECTORS IN
THE STATE DATED 11.11.2010 DIRECTING THAT THE VEHICLE
TRANSPORTING SAND FROM OUTSIDE STATE SHALL NOT BE SEIZED.
A9 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT
DATED 12.10.2015 IN WPC NO. 25313/2015.
A10 TRUE COPY OF THE JUDGMENT DATED 26.4.2016 IN
WPC NO.15901/2016.
A11 TRUE COPY OF THE ORDER OF THIS HONORABLE COURT
DATED 30.8.2016 IN CRL.M.C NO. 5246/2016.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
RAJA VIJAYARAGHAVAN.V., J
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Crl.M.C. No. 6080 of 2016
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Dated 26th September, 2016
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ORDER
1.This petition is filed under Section 482 of the Code of Criminal Procedure.
2.The petitioner herein is the accused in Crime No. 442 of 2016 of Manjeswaram Police Station. In the aforesaid crime, he is accused of having committed offences punishable under Section 379 of the IPC and under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as "Act 18 of 2001").
3.The prosecution allegation is that on 11.8.2016, the Sub Inspector of Police, Manjeswaram Police Station intercepted vehicle bearing registration No. KL-18-H 7979 and on inspection it was found that river sand was being transported without any permit, pass or authorisation. The petitioner is the driver of the vehicle. The vehicle as Crl.M.C. No.6080 of 2016 -2- well the river sand was seized and Annexure 1 crime was registered.
4.Heard the rival submissions.
5.The learned counsel appearing for the petitioner submits that the State of Kerala had appointed a Committee to undertake a study on scarcity of construction grade sand in the State of Kerala. Annexure-7 order issued by the Chief Secretary is relied on by the learned counsel to buttress his submissions. It is revealed from Annexure-7 that the expert Committee had encouraged the import of sand from other States as well as from other countries. Pursuant to the said report, the Chief Secretary was entrusted with the responsibility of implementation and monitoring the above decisions. Later, Annexure-8 order was issued by the Additional Chief Secretary, ordering that vehicles which were transporting sand from other States on the strength of valid permits and documents need not be seized.
Crl.M.C. No.6080 of 2016 -3-
6.According to the learned counsel, it was in terms of Annexures- 7 and 8, that the sand was imported from the State of Orissa. Reference is made to Annexure-3 Tax Invoice, Annexure-4 Delivery Note, Annexure-5 e- consignment declaration and Annexure-6 certificate issued by the Commercial Tax Officer (Admin.) of the Commercial Tax Check Post, B.Manjeshwara, to bring home the point that the sand which was seized by the police on 11.8.2016 was in fact imported by the petitioner from the State of Orissa on the strength of Annexures-2 to 6. It is vehemently contended that registration of Annexure-1 Crime stating false allegations is nothing but an abuse of process of court and prays that this Court interferes under Section 482 of the Code to secure the ends of justice.
7.The learned Public Prosecutor on instructions would submit that a detailed investigation was conducted by the Deputy Commissioner, Commercial Taxes, Ernakulam with regard to the authenticity and genuineness of Annexures- Crl.M.C. No.6080 of 2016 -4- 2 to 6. A communication addressed to the Deputy Commissioner by the Commercial Tax Officer (Admn), Bangra Manjeswara was handed over. It is fairly submitted by the learned Public Prosecutor that investigation revealed that the vehicle involved in the instant crime had passed through the check post with loaded sand supported by valid documents as per Kerala Value Added Tax Act and Rules. It is also submitted by the learned Public Prosecutor that in view of the said communication, the offence alleged is clearly not made out.
8.After considering the rival submissions, it is obvious that none of the offence alleged in Annexure-1 FIR is disclosed. The allegations in Annexure-1 clearly is falsified by the incontrovertible records which have been produced by the petitioner. The prosecution against the petitioner cannot be said to be legitimate and I am of the firm view that the powers under Section 482 is to be exercised to prevent Crl.M.C. No.6080 of 2016 -5- abuse of process of court and also to secure the ends of justice.
In the result, this petition will stand allowed. Annexure-1 FIR and all proceedings pursuant thereto against the petitioner now pending as Crime No.442 of 2016 of Manjeswaram Police Station are quashed. Consequently, the vehicle being registration No. KL-18-H 7979 as well as the sand shall be released forthwith to the registered owner/petitioner.
Sd/-
RAJA VIJAYARAGHAVAN.V., JUDGE kp/-27.9.16