The petitioner is the 5th accused in L.P.No.68 of 2004 in C.P.No.131 of 2002 on the files of the court of the Judicial Magistrate of First Class-1, Attingal.
2. The prosecution allegation can be briefly stated thus:-
The petitioner is the licensed toddy shop contractor. On 2.11.2000, while the Sub Inspector of Police, Attingal was conducting patrol duty with the police party, he got information that the third accused Raju was keeping illicit arrack within the landed property of his father. On that Crl.M.C.1199/2017 -: 2 :- basis, a search was conducted and in the said search, 27 cans containing illicit arrack were found kept in a pit in the said property. The said contraband articles were seized as per a Mahazar. Thereafter, F.I.R. was registered against the said Raju. On investigation, it was revealed that all those contraband articles had been supplied from the godown of the 2nd accused Chandran @ Manichan to the first accused Sunildeth, who was an Abkari Contractor. The petitioner was conducting toddy shops at different places in Kazhakuttom range. He is a benami of the 1st accused. The 4th accused is supervising the dealings of the first accused. On completing the investigation, the final report was filed alleging that the accused committed the offences under Sections 55(a),(i), 58 and 8(2) of the Abkari Act.
3. Since the petitioner was absconding, the case Crl.M.C.1199/2017 -: 3 :- against the petitioner was not committed to the Sessions Court. However, the case against accused Nos.2 and 3 was committed to the Sessions Court, Thiruvananthapuram. As per Annexure-I judgment dated 18.7.2007 in S.C. Nos.881 of 2004 and 877 of 2004, the learned Additional Sessions Judge, after appreciating the evidence found that the prosecution could not establish its case against accused Nos.2 and 3.
4. This petition has been filed under Section 482 Cr.P.C. praying for quashing the case against the petitioner contending that the petitioner was not the licensee of the toddy shop as alleged by the prosecution.
5. Heard.
6. It is contended by the petitioner that Annexures-C and D power of attorney were executed by Chandra Babu Crl.M.C.1199/2017 -: 4 :- and Sathy in favour of the petitioner, whereby the petitioner was given the authority to represent them in the auction proceedings, and also to produce necessary documents before the authorised officer and to sign, verify and file necessary documents. Annexures C and D do not authorise the petitioner to conduct any toddy shop. The letter addressed by the Assistant Excise Commissioner to the Circle Inspector of Police, which is appended at page No.218 to the case diary produced by the learned Public Prosecutor, would show that the petitioner herein was only a power of attorney holder of Shri.Chandra Babu and Smt.Sathi in the matter of bidding of the auction of toddy shops of Kazhakoottam Excise Range for the year 2000- 2001. It is also contended by the petitioner that in Annexure-I judgment, the learned Additional Sessions Crl.M.C.1199/2017 -: 5 :- Judge found that there was no evidence to prove that the arrack seized in this case was supplied by the 2nd accused. The court further found in Annexure-1 that the property from where the seizure was effected was a nomans land covered with wild bushes. In the said circumstances, no purpose will be served even if the prosecution is permitted to be continued, is the contention of the petitioner.
7. The learned Public Prosecutor has submitted that the investigation had revealed that it was the petitioner who was conducting the unauthorised toddy shop in the property from where the toddy was seized and in the said circumstances, the case cannot be quashed as sought for.
8. Annexures C and D power of attorney would show that the petitioner is only a power of attorney holder of Sri.Chandra Babu and Smt.Sathy. The letter of the Crl.M.C.1199/2017 -: 6 :- Assistant Excise Commissioner referred to above would also show that the petitioner is only a power of attorney holder of Chandra Babu and Sathy for the purpose of auction of the toddy shops at Kazhakoottam Excise Range for the year 2000-2001. The Annexures C and D do not show anything to the effect that the petitioner was given any authority to conduct the toddy shops. Under Annexure-I judgment, the learned Additional Sessions Judge had already entered into a factual finding that there is no evidence to prove that the land from where the arrack was allegedly seized was rented out by the 2nd accused to the petitioner. It appears from Annexure-I judgment that the substratum of the prosecution case had been lost. In the said circumstances, particularly when there is no material to show that the arrack seized was intended to be mixed Crl.M.C.1199/2017 -: 7 :- with the toddy in the toddy shops of the petitioner, no successful prosecution can be sustained. It is also to be noted that the arrack was seized from the property of the father of Raju, who is the third accused. Even though the said Raju was made as an accused, the father of Raju was not made as an accused. Even the licensee of the toddy shops, namely Chandra Babu and Sathy, for whom the petitioner was conducting the auction on the strength of Annexures C and D, were not made as accused in the case. In view of the above reasons, I am satisfied that even if the petitioner is directed to undergo the ordeal of the trial, it will not result in a successful prosecution. At the best, it would result in waste of valuable time of the court and in the said circumstances, it is not in the interest of justice to continue the proceedings against the petitioner. For the Crl.M.C.1199/2017 -: 8 :- said reason, I am inclined to allow this Crl.M.C. quashing the final report and all further proceedings against the petitioner in L.P.No.68 of 2004 in C.P.No.131 of 2002 on the files of the court of the Judicial Magistrate of First Class-1, Attingal, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice and accordingly, I order so.
In the result, this Crl.M.C. stands allowed.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/28..3..2017