P.K.Muhammed Nizar vs State Of Kerala
2022 Latest Caselaw 8425 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                        CRL.MC NO. 3274 OF 2008
    (CRIME NO.30 OF 2006 OF THE FAST TRACK (AD-HOC II) COURT,
                               ERNAKULAM)
PETITIONER :

          P.K.MUHAMMED NIZAR,
A




          AGED 48 YEARS,
          RESIDING AT "NANDANAM",
          OPPOSITE V.H.S.S., PANANGAD P.O.,
          KOCHI - 682 506, KOCHI TALUK, (FORMERLY DHANAPALAN,
          S/O.RAMAKRISHNAN, PARAKKAL HOUSE, NILAMBUR).

          BY ADVS.
          SRI.T.KRISHNAN UNNI (SR.)
          SRI.THARIQ
          SRI.SAJU.S.A



RESPONDENTS :

    1     STATE OF KERALA,
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.

    2     SUB INSPECTOR OF POLICE,     NORTH PARAVOOR,
          ERNAKULAM DISTRICT.

          SRI.NOUSHAD K.A., PUBLIC PROSECUTOR


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3274 OF 2008
                                    2

                     BECHU KURIAN THOMAS, J.
                   =-=-=-=-=-=-=-=-=-=-=-=-=-
                     Crl.M.C.No.3274 of 2008
                      =-=-=-=-=-=-=-=-=-=-=
                 Dated this the 6th day of July, 2022


                                   ORDER

Petitioner has invoked the inherent jurisdiction of this Court to

quash all further proceedings against him in S.C.No.30/2006 on the files

of the Fast Track (Ad-hoc II) Court, Ernakulam.

2. Petitioner is arrayed as the 3rd accused alleging offence under

Section 55(a) of the Kerala Abkari Act, 1077 (for short, 'the Act').

Prosecution alleged that on 03.11.2000, at about 7.00 a.m., the first

accused was found to have stored about 1370 litres of spirit for the

purpose of manufacture of illicit liquor with the help of accused 2 to 6 in

violation of the Act and thereby committed the offences alleged against

him. Pursuant to committal by the Magistrate, the case was considered

by the Sessions Court as against accused 1 and 2 as S.C.No.30/2006

while the petitioner was alleged to have been absconding.

3. The Sessions Court after a detailed trial during which the 2 nd

accused expired, found the first accused not guilty of the offences alleged

against him. The crucial finding in the judgment was with respect to the

sample sent for chemical analysis. The learned Sessions Judge held that

the samples "reached in the chemical analysis laboratory have not been

proved to be the samples taken on the place of occurrence. In that CRL.MC NO. 3274 OF 2008

circumstance, the seizure of contraband article itself is not liberated

from suspicious circumstances. The prosecution has not succeeded to

prove the connection between the first accused and the spirit allegedly

seized in this case. The connection of the said accused with the toddy

shop godown also could not be proved by the prosecution by adducing

the best evidence. According to the prosecution case, he is a licensee of

the toddy shop godown. There is nothing on record to substantiate his

allegation". On the above basis, the first accused was acquitted under

Section 235(1) of the Cr.P.C.

4. As mentioned earlier, petitioner is the third accused. The

allegation against the petitioner was that he was the owner of a vehicle

bearing Registration No.KCE 2797 - a Tata Mini lorry, in which the

contraband article was stored and thereby committed the offences

alleged against him.

5. Though the learned counsel for the petitioner submitted that the

identity of the petitioner has not been proved and that the proceedings

have been initiated against the petitioner by a mistaken identity as he

had converted into Islam as early as in 1991 and therefore the name of

the registered owner of the vehicle bearing No.KCE 2797 is certainly not

the petitioner and therefore the entire proceedings are vitiated. It was

further submitted that in any event, since the Sessions Court has already

acquitted the first accused that too, on the finding that the sample sent

for analysis was not proved to have been the contraband seized, the very CRL.MC NO. 3274 OF 2008

edifice on which the prosecution case was built up had fallen and

therefore notwithstanding the mistaken identity, the prosecution cannot

obtain a conviction against any of the accused.

6. Senior Counsel Sri. T.Krishnan Unni and Adv.Thariq vehemently

contended that the entire proceedings against the petitioner are liable to

be quashed and that no purpose will be served in continuing the

proceedings that too at this distance of time.

7. I have heard the learned Public Prosecutor also.

8. A perusal of the judgment in S.C.No.30/2006 dated 24.09.2007

reveals that the Sessions Court had acquitted the first accused for the

reason that the sample sent for chemical analysis was not proved to be

the sample taken from the place of occurrence and that the seizure of the

contraband article was not free from suspicion. The very basis of the

prosecution case is built upon the seizure of the alleged contraband

article. The said seizure and the corresponding analysis has not been

proved in accordance with law by the prosecution and the said judgment

has become final. In view of the above finding the case as against the

petitioner is only an exercise in futility and cannot result in conviction

under any circumstances whatsoever.

9. In view of the above consideration, notwithstanding the

contention of the petitioner that there is a mistaken identity, I am of the

view that the continuance of the proceedings against the 3 rd accused in

SC.No.30/2006 on the files of the Fast Track (Ad-hoc II) Court, CRL.MC NO. 3274 OF 2008

Ernakulam is an abuse of the process of the court. Hence I quash all

further proceedings in SC.No.30/2006 on the files of the Fast Track

(Ad-hoc II) Court, Ernakulam arising out of Crime No.368/2000 of North

Paravoor Police Station.

The Crl.M.C.is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM CRL.MC NO. 3274 OF 2008

APPENDIX OF CRL.MC 3274/2008

PETITIONER'S ANNEXURES :

ANNEXURE A PHOTO COPY OF CERTIFICATE SHOWING THAT PETITIONER HAS EMBRACED ISLAM AND ACCEPTED THE NAME AS MUHAMMED NIZAR

ANNEXURE B PHOTO COPY OF RECEIPT ISSUED IN 1993 REGARDING MONEY TRANSACTION SHOWING HIS HINDU NAME AND MUSLIM NAME

ANNEXURE C PHOTO COPY OF PHOTOGRAPHS OF PETITIONER ALONG WITH YATHEEM STUDENTS

ANNEXURE D PHOTO COPY OF ANUTORIZATION LETTER DATED 01/01/1996 THAT HE WAS AUTHORIZED BY THE ASSOCIATION TO RECEIVE DONATIONS FROM BELIVERS FOR AND ON BEHLAF OF THE SAID ASSOCIATION.

ANNEXURE E PHOTO COPY OF PHOTOGRAPH OF HIS HAVING PARTICIPATING AT STATE MUJAHID CONFERENCE IN 1997

ANNEXURE F PHOTO COPY OF LETTER DATED 21/5/1998

ANNEXURE G PHOTO COPY OF MARRIAGE CERTIFICATE ISSUED ON 22/8/2008 BY THE MUSLIM JAMA -ATH, KANYAKUMARI