This is an application filed by accused numbers 1 to 4 in CC.No.161/2013 on the file of the Judicial First Class Magistrate Court, Vaikom to quash the proceedings under section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that the petitioners were arrayed as accused numbers 1 to 4 in crime No.343/2012 of Thalayolaparambu police station alleging commission of offence under section 3 and 7 of Essential Commodities Act, 1955 and clause 16 of Kerala Kerosene Control Order, 1968. It is alleged that on 9.03.2010 at about 3.30 pm special squad on inspection found 5000 litres of blue kerosene oil in a room owned by accused numbers 3 and 4 and kept for sale by accused numbers 1 and 2 who are kerosene whole sale dealers. The article were seized on 9.3.2010 and a crime was registered on 10.05.2012 and final report was filed on 09.04.2013 and it was taken on file as CC.No.161 of 2013 by Judicial First Class Magistrate Court, Vaikom and it is pending before that court. In this case no sample was taken and no chemical analysis report was obtained to show that the articles seized was kerosene and the article was not sent to court for the purpose of the court to examine the same at the time of trial. So no conviction will be possible in such cases and proceeding with the case will be only an abuse of process of court. So the petitioners have no other remedy except to approach this Court seeking the following relief:-
1) Call for the records leading to Annexure-Ii final report and quash the same and all proceedings in CC.No.161/2013 of judicial First Class Magistrate Court, Vaikom.
2) issue such other order or direction as may be necessary in the interest of justice.
3. Heard the counsel for the petitioners and the learned Public prosecutor.
4. The counsel for the petitioners submitted that in fact no sample was taken at the time when the kerosene was seized from the premises and no report was obtained to show that it is kerosene as defined under the Kerosine Control Order. Further in the decision reported in (Kunjumoideen Kutty V State of Kerala) 1988 KHC 392 and (Manoharan Pillai V. State and Another) 2005 KHC 682, similar question has been considered and this Court has held that without getting a sample analysed and report obtained, it cannot be said the prosecution has proved the case against the accused so as to convict them for violation of provisions under Essential Commodities Act or under the Kerala Kerosine Control Order.
5. On the other hand, the learned Public Prosecutor submitted that it is a matter for evidence and it cannot be quashed at this stage invoking the power under section 482 of Code of Criminal procedure.
6. It is an admitted fact that the inspection squad had seized 5000 liters of alleged blue kerosene kept in a room owned by the accused numbers 3 and 4 intended for sale by accused numbers 1 and 2 who are the kerosene whole sale dealers on 9.3.2010 at about 3.30 pm. Admittedly, a crime was registered only on 10.05.2012 nearly after two years of the alleged seizure on the basis of a report submitted by the District Collector regarding the seizure. The final report was filed on 09.04.2013 and it was taken on file as CC.No.161 of 2013 and now pending before the Judicial First Class Magistrate Court, Vaikom. It is also an admitted fact that except a report submitted by the District Collector that blue kerosene has been seized, there is no other documents or material produced before the court for the court come to an independent conclusion as to whether the article was seized kerosene and whether the accused have committed any violation under sections 3 and 7 of Essential Commodities Act or under the provisions of the Kerala Kerosine Control Order. Further, in the decision reported in (Kunjumoideen Kutty V State of Kerala) 1988 KHC 392 this Court has held that if no sample of kerosene which is being seized from the bags by the officer was subjected to chemical analysis or any other scientific test and no sample was taken and produced before the court, then it will be difficult for the court to conclude that a commodity of particular standard fixed by law is not for the article that has been seized from the possession of the accused persons and that will entitle the accused for an acquittal. The same view has been reiterated by Division Bench of this Court in (Manoharan Pillai V. State and Another) 2005 KHC 682. In that case also, it has been held that without getting a report of the chemical examiner regarding the contraband seized, it cannot be said that the articles seized was not a genuine kerosene and the accused have violated to the provisions of the Essential Commodities Act and Kerala Kerosene Control Order so as to make them liable for the offences under those provisions and they are entitled to acquittal. So in view of the dictum laid on in the above decisions and also considering the fact that there is no sample taken and it was not subjected to any chemical examination by a chemical examiner and no material has been produced before the court to come to the conclusion that a contraband articles seized was not a genuine kerosene, then there is no purpose in keeping the case on file as no conviction will be possible and it will be only an abuse of process of law and as such the petitioners are entitled to get the relief for quashing on that ground alone.
So the petition is allowed and further proceedings in CC.No.161 of 2013 (Crime No.343 of 2012 of Thalayolaparambu police station) pending before the Judicial First Class Magistrate Court as against the petitioners is quashed.
Office is directed to communicate this order to the concerned court immediately.
sd/-
K. RAMAKRISHNAN, JUDGE R.AV