IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 Crl.MC.No. 3864 of 2010() ------------------------------------ ( CRIME NO. 15/2010 OF EXCISE RANGE OFFICE, KALIKAVU, MALAPPURAM DISTRICT) ---------------------- PETITIONER(S): ACCUSED NOS. 1 TO 4 -------------------------------------------------------- 1. K.A.MOHANAN, S/O.AYYAPPU, KODOKKI HOUSE, NADUVIL KARA, VATANAPPALLY, CHAVAKKAD, THRISSUR DISTRICT. 2. PANKAJAKSHAN NAIR, AGED 45 YEARS, S/O.NEELAKANDAN NAIR, KALABHAVAN HOUSE, NADUVIL KARA, VATANAPPALLY, THRISSUR DISTRICT. 3. K.N.PREMAN, AGED 54 YEARS, S/O.NARAYANAN, KARINJETTA HOUSE, NADUVIL KARA, VATANAPPALLY, THRISSUR DISTRICT. 4. P.K.SHYJU, S/O.KUTTAN, POOVATHUMPARAMBIL HOUSE, NADUVIL KARA, VATANAPPALLY, CHAVAKKAD, THRISSUR DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE SRI. NIREESH MATHEW RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KALIKAVU, MALAPPURAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3864 OF 2010 --------------------------------------------- Dated 30th November, 2010 O R D E R Petitioners are the licensees of toddy shops in Group No.1 in Nilambur Excise Range. On 12/8/2010 Excise officials intercepted vehicle No.KL-46.8118 and KL- 10/D-5462 and found that toddy was being transported in excess of the permissible quantity. Sample of toddy was taken and sent for chemical analysis and crime and occurrence report was prepared. CR.15/2010 was registered for the offence under Section 58 of Abkari Act. Though petitioners filed Annexure-H W.P.C.25901/2010, seeking a writ of mandamus directing not to proceed with the case, before receipt of certificate of chemical analysis as provided under Rule 8(3) of Kerala Abkari Crmc 3864/10 2 Shops Disposal Rules, 2002, subsequently writ petition was dismissed as withdrawn with liberty to file a petition under Section 482 of Code of Criminal Procedure by Annexure-K judgment dated 14/9/2010. It is thereafter this petition is filed under Section 482 of Code of Criminal Procedure to quash crime and occurrence report and the further proceedings except to the extent of Section 56(b) of Abkari Act. 2. Learned Senior counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned Senior counsel pointed out that by Annexures-A to E permits, petitioners were permitted to transport 750 litres of toddy each every day in each of the vehicles and Annexure-G mahazar shows that in one vehicle 1037.4 litres and in other vehicle 1115.4 Crmc 3864/10 3 litres were transported which are in excess of 287.4 and 365.4 litres respectively. Though when the writ petition was filed, certificate of chemical analysis was not available, subsequently it was received and Annexure-L certificate of chemical analysis establishes that quantity of alcohol in none of the 15 samples examined, exceed 5% and in such circumstances, no other offence except an offence under Section 56(b) of Abkari Act will be attracted. Learned Senior counsel relying on the decision of this Court in Sasidharan v. State of Kerala (2007 (1) KLT 1062), Mohanan v. State of Kerala (2007 (1) KLT 845), Pradeep T.B & others v. State of Kerala & others (2010 (2) KLJ 413) and judgment in Crl.M.C.4049/2010 pointed out that the position has already been covered by Crmc 3864/10 4 the decision and therefore, petitioners can be prosecuted only for the offence under Section 56(b) of Abkari Act and the offence under Section 58 of Abkari Act registered under Annexure-F is to be quashed. 4. Learned Public Prosecutor would argue that when permits enable the petitioners to transport only 750 litres of toddy by each of the lorry, 287.4 and 365.4 litres in excess was transported in the vehicles and the said excess quantity was transported without any authority in violation of the rules and without payment of dues payable and therefore, it is illicit toddy as provided under Section 58 of Abkari Act. Learned Public Prosecutor would also argue that petitioners had not paid any tree tax for the excess quantity of toddy transported and therefore, in any case when toddy without payment of tree tax was Crmc 3864/10 5 transported, an offence under Section 58 of Abkari Act is attracted and hence, investigation for the offence under Section 58 of Abkari Act cannot be quashed. 5. This Court in Sasidharan's case, Pradeep's case and Mohanan's case considered the question whether transportation of toddy in excess of the quantity permitted would attract an offence under Section 55(a) or 55(i) or 58 of the Abkari Act and held that license of a toddy shop if transports toddy in excess of permissible limit under the permission granted, neither an an offence under Section 58 or 55(a) or 55(i) of Abkari Act is attracted. Question whether transportation today without payment of tree tax would attract an offence under Section 58 of Abkari Act was considered by this Court in Crl.M.C.4049/2010 and held that it will not attract either an offence under Crmc 3864/10 6 Sections 55(a), 55(i) or 58 of Abkari Act. In view of the said findings, it can only be found that transportation of toddy in excess of the permissible limit under Annexures-A to E permits would only attract an offence under Section 56(b) of Abkari Act, especially when Annexure-L certificate of chemical analysis establishes that percentage of ethyl alcohol found in each of the samples is less than the permissible limit. Petition is allowed. CR.15/2010 of Kalikavu Excise Range is quashed to the extent it relates to an offence under Section 58 of Abkari Act, making it clear that case can be investigated for the offence under Section 56 (b) of Abkari Act. M.SASIDHARAN NAMBIAR, JUDGE. uj.