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.
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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.
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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
2024:KER:88134
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
