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2024 DIGILAW 754 (KER)

Pramod v. Sub Inspector of Police

2024-06-27

BECHU KURIAN THOMAS

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ORDER : Petitioner is the third accused in Crime No.928/2019 of Pulikeezhu Police Station, Pathanamthitta, which is now pending as C.P.No.58/2023 on the files of the Judicial First Class Magistrate Court, Thiruvalla. He is alleged to have committed offences under Sections 55(a)(1) and 13 of the Kerala Abkari Act, 1077. 2. The crime was registered on 12.08.2019 alleging that person mentioned as an ‘identifiable person’ had attempted to transport excess quantity of Indian Made Foreign Liquor for the purpose of sale to yield huge profits. According to the prosecution, on 12.08.2019, petitioner was found in possession of 72 bottles having a capacity of 375 ml of ‘Bermuda XXX Rum’ and 27 litres of Indian Made Foreign Liquor and thereby committed the offence alleged. After investigation, a final report was filed alleging that four persons had committed the offence. Petitioner is arrayed as the third accused, against whom an absconding charge was filed. The person who was arrested from the spot is arrayed as the fourth accused. 3. Sri. Mohanan C.K., the learned counsel for the petitioner, contended that the prosecution allegations are false and there are no materials to connect the petitioner with the crime. It was further submitted that even going by the admitted allegations in the final report, petitioner cannot be roped in as an accused, as he was neither found in possession of liquor nor is there any material to connect him with the crime. 4. Smt. Sreeja V., the learned Public Prosecutor, on the other hand, contended that the contentions raised by the petitioner are all factual disputes which cannot be decided at this juncture. 5. On a perusal of the final report, it is noticed that the petitioner has been included as the third accused, alleging that the accused were in possession of 72 bottles containing ‘Bermuda XXX Rum’ and 27 litres of Indian Made Foreign Liquor. However, there is no allegation either in the FIR or in the final report that petitioner was found in possession or that he was transporting liquor. From the statement of witnesses also, there is no mention or even a whisper that the petitioner was in possession of any quantity of liquor. The only material to connect the petitioner is a statement allegedly given by the fourth accused regarding his involvement. From the statement of witnesses also, there is no mention or even a whisper that the petitioner was in possession of any quantity of liquor. The only material to connect the petitioner is a statement allegedly given by the fourth accused regarding his involvement. It is elementary that the confession of a co-accused is not a substantive evidence, and the same can be used only to corroborate other substantive evidence. 6. Curiously, no substantive evidence is available in the materials collected by the prosecution to even create a doubt about the involvement of the petitioner other than the statement of the co-accused. The statement of petitioner’s neighbour though put forth as a link to establish guilt of the petitioner, the statement merely states that petitioner had taken the car from which the liquor was seized on that day. However, the said neighbour is not even shown in the witness list, and even if the said statement is accepted, still, it will only go to show that the petitioner had taken out the car on the said day. 7. The above referred materials are not sufficient to create any doubt against the petitioner. Further, the tower location collected also is of no purpose, as it can at the most show that petitioner was within the area where the fourth accused was standing at the time of seizure, which was evident from the tower location. It is thus evident that no materials sufficient enough to implicate the petitioner in the crime has been recovered by the Investigating officer. Therefore the uncontroverted allegations in the final report do not make out any of the offences alleged against the petitioner. 8. Accordingly, prosecution against the petitioner in Crime No.928/2019 of Pulikeezhu Police Station, Pathanamthitta now pending as C.P.No.58/2023 on the files of the Judicial First Class Magistrate Court, Thiruvalla, is an abuse of the process of the court. 9. Hence, I quash all further proceedings in C.P.No.58/2023 on the files of the Judicial First Class Magistrate Court, Thiruvalla, arising out of Crime No.928/2019 of Pulikeezhu Police Station. Criminal miscellaneous case is allowed as above.