Kerala High Court
Arjun Shabu vs State Of Kerala on 21 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.MC NO. 9669 OF 2022
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2024:KER:88134
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
CRL.MC NO. 9669 OF 2022
PETITIONER/ ACCUSED NO.6 :
ARJUN SHABU
AGED 24 YEARS
S/O SHABU, YOGACHIRAYIL HOUSE,
AROOKUTTY P.O., AROOKUTTY VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DISTRICT,
PIN - 688526
BY ADVS.
V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M
SUKANYA S.
RESPONDENT/ STATE & COMPLAINANT :
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM DISTRICT,
PIN - 682031
2 THE EXCISE RANGE OFFICER
EXCISE RANGE OFFICE, ERNAKULAM DISTRICT,
PIN - 682018
SMT.SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 9669 OF 2022
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2024:KER:88134
BECHU KURIAN THOMAS, J.
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Crl.M.C.No.9669 of 2022
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Dated this the 21st day of November, 2024
ORDER
Petitioner is the 6th accused in S.C.No.954 of 2022 on the files of the Additional Assistant Sessions Court-I, Ernakulam. The accused, six in number are alleged to have committed the offences under Section 58 of the Abkari Act, 1077 (for short, 'the Act').
2. According to the prosecution, the accused were found on 26.11.2020, in possession of 10.290 litres in 27 bottles of liquor that were permitted to be sold only in the State of Goa and had illegally imported the same to Kerala and thereby committed the offences alleged.
3. The learned counsel for the petitioner vehemently contended that the provisions of Section 58 of the Act are not attracted from the allegations in the final report. According to the learned counsel, Section 58 of the Act requires not only possession without lawful authority but also the knowledge that the contraband was unlawfully imported or transported. In the absence of any allegation of knowledge, prosecution of the petitioner is an abuse of the process of court.
4. The learned Public Prosecutor, on the other hand, submitted that the contentions raised by the petitioner are all matters for trial and this Court cannot in exercise of the power under Section 482 Cr.P.C. quash the proceedings on the above basis.
CRL.MC NO. 9669 OF 2022 3 2024:KER:88134
5. I have considered the rival contentions.
6. It is true that Section 58 of the Act has two limbs, (1) which deals with possession of any quantity of liquor and (2) knowledge that the contraband had not paid duty or tax due under the Act. The aforesaid two limbs cannot be decided in a proceeding under Section 482 Cr.P.C. as they require evidence to be adduced. Though the learned counsel for the petitioner relied upon the decision in Jabbar v. State of Kerala [2020 (5) KLT 12], I am of the view that the said case was decided after evidence was adduced and the issue was dealt with in a criminal revision petition challenging the conviction and sentence.
7. In the instant case, since evidence is required to be appreciated, I am of the view that it is too premature a stage to arrive at a conclusion that the prosecution is an abuse of the process of law. The circumstances pointed out are all matters for the trial court to decide based on the nature of evidence adduced therein.
8. The power to quash a criminal proceeding should be exercised with circumspection, and that too in exceptional cases. While exercising the inherent power, this Court ought not to embark upon an enquiry as to the reliability, genuineness, or otherwise of the allegations made in the FIR, or the final report. The Supreme Court had observed in Mahendra K.C. v. State of Karnataka and Ors. [2022 (2) SCC 129], that the power under section 482 should be exercised sparingly and cautiously and only when the Court is of the opinion that there will be a gross miscarriage of justice, should resort be made to such powers. CRL.MC NO. 9669 OF 2022 4 2024:KER:88134
9. Recently a three Judge Bench of the Supreme Court had, in Priyanka Jaiswal v. State of Jharkhand [2024 SCC Online SC 685] observed that, at the time of examining the prayer for quashing of the criminal proceedings, the court exercising extraordinary jurisdiction can neither undertake to conduct a mini trial nor enter into an appreciation of evidence of the case. It was also observed that the correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside. The observations in the decision in State of Uttar Pradesh v. Akhil Sharda [2022 SCC OnLine SC 820] that no mini trial can be conducted by the High Court in the exercise of powers under S.482 Cr.PC was referred to in the above decision.
Accordingly, I find no reason to interfere in exercise of the inherent powers. Hence, this Crl.M.C. is dismissed.
Sd/-
BECHU KURIAN THOMAS, JUDGE RKM CRL.MC NO. 9669 OF 2022 5 2024:KER:88134 APPENDIX OF CRL.MC 9669/2022 PETITIONER'S ANNEXURES :
Annexure-I TRUE COPY OF THE REPORT DATED 27.11.2020 IN ABKARI CRIME NO. 118/2020 OF THE EXCISE RANGE OFFICE, ERNAKULAM TOGETHER WITH COPY OF MAHAZAR Annexure-II TRUE COPY OF THE JUDGMENT DATED 19.8.2020 IN JABBAR V. STATE OF KERALA, 2020 (4) KHC 652 OF THIS HONOURABLE COURT Annexure-III TRUE COPY OF THE DEGREE CERTIFICATE DATED 6.3.2019 OF THE PETITIONER Annexure-IV TRUE COPY OF THE CERTIFICATE OF PARTICIPATION IN 7TH NATIONAL YOUTH RURAL GAMES-2020 OF THE PETITIONER Annexure-IV(a) TRUE COPY OF THE CERTIFICATE OF PARTICIPATION IN THURAVOOR SUB DISTRICT SCHOOLS' CHAMPIONSHIP 2013-14 OF THE PETITIONER Annexure-IV(b) TRUE COPY OF THE CERTIFICATE OF MERIT OF THE PETITIONER Annexure-V CERTIFIED COPY OF THE FINAL REPORT DATED 28.5.2022 IN ABKARI CRIME NO. 118/2020 (CRIME AND OCCURRENCE REPORT) OF EXCISE RANGE OFFICE, ERNAKULAM