IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.156 OF 2014 BETWEEN:
Aboobaker, S/o. Mohammed Hajee, Aged 50 years, New House, Voda Village, Uchila, Udupi Taluk and District-576 101. …PETITIONER (By Sri.K.Chandrashekara, Advocate for Sri.Kiran.S.Javali, Advocate) AND:
Assistant Collector of Customs, Mangaluru-575 001. ...RESPONDENT (By Sri. Jeevan J.Neeralgi, Advocate) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the entire proceedings in C.C.No.91/2002 on the file of the II Additional C.M.M., Mangaluru.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER This petition is filed under S.482 Cr.P.C. seeking to quash the proceedings in C.C. No.91/2002 pending on the file of Additional Chief Metropolitan Magistrate, Mangaluru in so far as the petitioner herein is concerned.
2. The facts essential for disposal of the petition are as follows:
On a credible information received by the Customs Officials, 75 contraband sliver bricks were seized from a lorry in between Karkala and Padubidri road on 08.03.1992. The driver and cleaner of the said lorry namely accused Nos.5 and 6 were arrested. In the course of investigation accused No.8 was arrested and based on his voluntary statement the other accused persons were also implicated in the offence.
3. The allegations against the present petitioner is that he had loaded the aforesaid contraband sliver bricks into the lorry. After investigation charge-sheet was laid against seventeen accused persons. The present petitioner was shown as absconding and hence the case against him was split up. Accused Nos.1, 4, 7, 10, 12 to 15 and 17 faced trial in C.C. No.104/1995. By Judgment and Order dated 31.12.2004, the said accused persons were convicted and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine for the offence punishable under S.135 of the Customs Act. The appeals preferred by these accused persons before the Sessions Court, Mangalore in Criminal Appeal Nos.7-15/2005 were allowed and by Judgment and Order dated 30.06.2006 accused Nos.1, 4, 7, 10, 12 to 15 and 17 were acquitted. Accused No.8 having died case against him was abated. The case against the present petitioner is split up and pending trial in C.C. No.91/2002.
4. Learned counsel for the petitioner submitted that the petitioner was employed in Dubai and he was not aware of registration of the case. The only allegation made against the petitioner is that he had loaded contraband silver bricks into the lorry. There is no material whatsoever in support of this accusation as to where the said loading had taken place. Considering these defects even the other accused persons have been acquitted. In the said circumstances, the prosecution of the petitioner would not serve any purpose. Further, the prosecution has failed to produce sufficient material to proceed against the petitioner herein and hence at this length of time, prosecution of the petitioner would be a futile exercise. Thus, learned counsel seeks to quash the entire proceedings against the petitioner.
5. Learned counsel appearing for the respondent does not dispute the fact that after trial, accused Nos. 1, 4, 7, 10, 12 to 15 and 17 were convicted by the Trial Court and subsequently, they were acquitted by the learned Sessions Judge and the only allegation against the petitioner is that he had loaded the contraband silver bricks into the lorry.
6. Having considered the submissions and on going through the material on record, it is noticed that except the allegation that petitioner had loaded contraband silver bricks into the lorry, no other allegation is levelled against the petitioner to show his criminal intent in the commission of the above offences. Considering these facts and especially in view of the fact that the incident is of the year 1992, in my view no purpose would be served in continuing the prosecution of the petitioner.
7. Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of MOHAMMED ILIAS Vs. STATE OF KARNATAKA, (2001) 3 KLJ 551 and DEVARAJU Vs. STATE OF KARNATAKA, (2011) 1 KCCR 646 wherein in identical situation this Court has quashed the proceedings initiated against the absconding accused persons.
8. The Hon'ble Supreme Court in GURUCHARAN KUMAR AND ANOTHER Vs. STATE OF RAJASTHAN, reported in AIR 2003 SC 992 has held:
“ 32….. This Court has laid down a judicious principle that even in a case where one of the accused has not preferred an appeal, or even if his Special Leave Petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose Special Leave Petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the other accused…..”
9. In the instant case, the petitioner herein stands on a much better footing. The prosecution has proceeded with the trial of co-accused persons on the specific allegation that they were instrumental in transportation and possession of the contraband silver bricks whereas the allegation against the petitioner herein is that he merely loaded the said silver bricks into the lorry. In the absence of any material to show that the petitioner had shared criminal intent with the other accused persons, even if the above allegation is accepted as true, it does not constitute the offences charged against the petitioner. In the said circumstances, prosecution of the petitioner would be a futile exercise and hence, the following:
ORDER The petition is allowed.
The proceedings in C.C. No.91/2002, pending on the file of II Additional Chief Metropolitan Magistrate, Mangaluru, against the petitioner herein, are hereby quashed.
Sd/- JUDGE sac*