JOHNY ALEX @ DENNY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the original second accused in Crime No. 899 of 2016 of the Mulavukadu Police Station, registered under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act. The said crime was registered by the police on the basis of the seizure of 5 grams of ganja from the possession of the first accused during a DJ party conducted at the Island D'Cochin Resort at about 10.30 p.m. on 13.08.2016. The said resort belongs to the petitioner as owner. It was entrusted to one Johny Alex under a licence agreement dated 11.08.2016, and the said licence agreement contains a condition, that the licensee shall not allow the guests or employees or agents to bring drugs or narcotic substances or illicit articles of any kind at the premises during the tenure of licence. The resort was being managed by a person at that time. Just because the petitioner is the owner of the resort, the police arraigned him as accused in the crime, and submitted final report against him too. The first accused appeared before the learned Magistrate, and pleaded not guilty. On his plea, he was sentenced to pay a fine of L 5,000/-. As the petitioner herein was not available at that time, the case against him was split up and refiled as C.C. No. 699 of 2017. He has brought this application under Section 482 Cr.P.C to quash the prosecution on the ground that there is absolutely no material against him, and that the pending prosecution as against him will amount to abuse of judicial process.

(2.) On hearing both sides, and on a perusal of the materials, including the license agreement between the petitioner and the licensee, Johny Alex, I find that the final report as against the petitioner was wrongly brought by the police without any material to prosecute him. It is an accepted proposition that once a premises is rented out, or entrusted to a party on licence, the licensee must be responsible for the act committed at the premises during the tenure of the licence agreement. The quantity of ganja involved in this case is 5 grams, and it was seized from the possession of the first accused during a DJ party. It is pertinent to note that it was not a seizure from the premises. It was seized or taken by the police from his pants pocket. If so, it is not known how the owner of the premises, or the person in possession of the premises can be prosecuted under Section 20(b)(ii)(A) of the NDPS Act. It appears that just because the petitioner herein did not respond to the police call, or he left the locality, the police brought final report against him as second accused on the allegation that the first accused was permitted by him to bring ganja at the premises. It appears that the police brought such an allegation on an imaginative finding that the owner of the premises must be liable for the offence committed at the premises by the licensee, or the persons who came there for the DJ party during the tenure of license. This Court has called for explanation from the police officer who submitted final report against the petitioner. His explanation is that the licence agreement in between the petitioner and Johny Alex was not produced before him, and so, he happened to submit a final report against the petitioner. The explanation is not fully acceptable, and it is not fully satisfactory. The learned Public Prosecutor prayed for mercy on the ground that the police officer is about to retire from service. In the explanation submitted by him, he has tendered an unconditional apology for the mistake committed by him. When asked about the action possible, the learned counsel for the petitioner submitted that the petitioner is not particular that action must be taken against the police officer.

(3.) Anyway, on a consideration of all aspects, including the explanation containing an unconditional apology made by the police officer, it feel it appropriate to accept the apology, and drop further action against him. As found above, the final report against the petitioner herein as second accused in the crime is really baseless. He cannot be made liable for the offence committed by a person or a guest who came there during the DJ party. In fact, the liability must be only that of the first accused, because he probably brought ganja without the knowledge of anybody else, and a very small quantity of ganja was seized from his possession or from his pants pocket. This could not have been noticed by anybody, including the Manager. I find that the prosecution as against the petitioner herein is liable to be quashed, because if it is allowed to continue, it will definitely amount to abuse of judicial process.