IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 Crl.MC.No. 4436 of 2010(F) ------------------------- (CP.39/2010 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE) .................... PETITIONERS/ACCUSED ----------------------------------- 1. SETHUMADHAVAN, S/O.KELU, KUZHIKKANDATHIL HOUSE, KASABA AMSOM DESOM, KOZHIKODE TALUK. 2. BABURAJ, S/O.VELU, NADUVIL PURAKKAL HOUSE, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 3. NASEER, S/O.MOIDEEN KOYA, SOOPPIKAVU HOUSE, KUTTICHIRA, NAGARAM AMSOM DESOM, KOZHIKODE. 4. CHACKO, S/O.JOSEPH, VATHALLOOR HOUSE, KASBA AMSOM DESOM, KOZHIKODE. 5. NARENDRAN, S/O.VELAYUDHAN, KOTTIDATHU HOUSE, ELATHUR AMSOM DESOM, KOZHIKODE. 6. C.RANGANATHAN, S/O.VELAYUDHAN, CHALAPPURATH HOUSE, KASBA AMSOM DESOM, KOZHIKODE. 7. VINOD KUMAR, S/O.APPUTTY, KUMMANGATT HOUSE, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK. 8. KANNANKUTTY, S/O.KEERAN, "SREE SADAN", PACHADITHAZHAM, CHEVAYOOR AMSOM DESOM, KOZHIKODE. Crl.MC.No. 4436 of 2010(F) ---------------------------------------- 9. RAJENDRAN, S/O.BHASKARAN, PUTHUKKUDI HOUSE, KASBA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/COMPLAINANT/STATE --------------------------------------------------------- 1. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOZHIKODE. 2. STATE REP. 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 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4436 OF 2010 --------------------------------------------- Dated 13th December, 2010 O R D E R Whether consumption of Indian Made Foreign Liquor from the terrace of a private building would attract an offence under Section 15 C of Abkari Act is the relevant question to be considered in this case. 2. Section 15 C with the explanation therein reads; “15C.No person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by the Commissioner. Explanation I: For the purpose of this section, “public place” means any Crmc 4436/10 2 street, Court, Police Station or other public office or any club or any place of public amusement or resort or on board any passenger boat or vessel or any public passenger vehicle, or a dining or refreshment room in a restaurant, hotel, rest-house, travellers bungalow or tourists' bungalow where different individuals or groups of persons consume food, but shall not include any private residential room.” As explanation (II) has no relevance in this case, it need not be considered. 3. Section 15 C makes consumption of liquor in a public place unless consumption of liquor in such place is permitted under a licence granted by the Commissioner, an offence, which is punishable as provided under Section 63 of Kerala Abkari Act. Public place Crmc 4436/10 3 is explained under Explanation I as any street, Court, Police Station or other public office or any club or any place of public amusement or resort or on board any passenger boat or vessel or any public passenger vehicle without any portion being excluded. But in respect of restaurant, rest-house, travellers bungalow or tourists' bungalow, only dining room or refreshment room where different individuals or groups of persons consume food are covered within the ambit of public place provided under Section 15 C of Abkari Act. Therefore, if a person consume liquor from any street, Court, Police Station, public office or club or any place of amusement or resort or on board or any passenger boat or vessel or any public passenger vehicle, as consumption of liquor in such a is permitted only under the licence Crmc 4436/10 4 granted by the Commissioner of Excise, he will be committing an offence, as provided under Section 15 C of Kerala Abkari Act. But if he consumes liquor from a restaurant or hotel, rest-house, travellers bungalow or tourists' bungalow, it would be an offence, only if the consumption is from the dining room or refreshment room and not from any other place. Therefore, if a person consumes liquor from terrace of a private building, it will not be an offence under Section 15 C of Abkari Act. 4. Prosecution case is that on 5/1/2007 at about 8 p.m, getting information that first accused was engaged in sale of Indian Made Foreign Liquor in a building at Kallayi road, Circle Inspector of Excise, Excise Range, Kozhikode raid, on the fourth floor of Vikas building, where office of Kerala Jenasambarka Crmc 4436/10 5 Vedi is functioning, it was found that on the terrace, the accused were sitting on the side of a table and consuming Indian Made Foreign Liquor. The liquor was seized and accused were arrested. Sample of liquor was collected and sent for chemical analysis. The bottle from which the liquor was being served shows that there was a sticker of KSBC. Crime was registered for the offence under Sections 55 (a), (i) and 15 C of Abkari Act. After completing investigation, Annexure-II report was submitted, which was taken cognizance by Judicial First Class Magistrate-I, Kozhikode as C.P.39/2010. Petition is filed under Section 482 of Code of Criminal Procedure to quash the case contending that offence under Sections 55 (a),(i) and 15 C of Kerala Abkari Act is not attracted. Annexure-II report of chemical Crmc 4436/10 6 analysis establish that ethyl alcohol was detected in the sample having percentage between 30 and 43.12%. Prosecution has no case that, liquor so seized was not purchased from KSBC. Therefore, offence either under Sections 55(a) or 55(i) of Kerala Abkari Act is not attracted, as fairly conceded by the learned Public Prosecutor. The only question is whether offence under Section 15 C is attracted. In view of my findings earlier that consumption of liquor from an open terrace of a private building, will not attract an offence under Section 15 C, the case can only be quashed. 5. Case against petitioners 2 to 9, who are accused 2 to 9 can only be quashed as prosecution case against them is only that they consumed liquor in a public place. But case against first accused is different. Learned Crmc 4436/10 7 counsel appearing for the petitioners submitted that first petitioner may be permitted to raise his defence before the Sessions Court. In such circumstances, case against petitioners 2 to 9 is quashed. Petition is allowed. Cognizance taken for the offences under Section 15 C, 55(a) and (i) of Kerala Abkari Act against accused 2 to 9 in C.P.39/2010 on the file of Judicial First Class Magistrate's Court-I, Kozhikode is quashed. First accused/first petitioner is granted liberty to raise all the contentions before the trial court. M.SASIDHARAN NAMBIAR, JUDGE. uj.