IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 5957 of 2010(Q) ------------------------- PETITIONER(S): --------------- 1. PARAMESWARAN, AGED 35 YEARS, S/O.KOTHA, KUZHIYATTUPARAMBIL HOUSE,PANNIYAMKURISSI P.O., CHERPULASSERY, PALAKKAD DISTRICT. 2. MURUKAN, S/O.AYYAPPAN, MANGALASSERY HOUSE, PANIYAMKURISSI P.O., CHERPULASSERY, PALAKKAD DISTRICT. 3. JAYASANKAR, S/O.NARAYANAN EZHUTHASSAN, PUTHENVETTIL HOUSE, NELLAYA P.O., CHERPULASSERY, PALAKKAD DISTRICT. 4. B.KRISHNAPRASAD, S/O.BHASKARAN, KURUVARATHODI HOUSE, CHERPULASSERY VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. 5. K.RAJESH, AGED 39 YEARS, S/O.NARAYANAN, RAJESH NIVAS, 557, CHERUPULASSERY P.O., OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN RESPONDENT(S): --------------- 1. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, OTTAPALAM, PALAKKAD DISTRICT. 2. THE CIRCLE INSPECTOR OF EXCISE, EXCISE SPECIAL SQUAD, ERNAKULAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. WP(C).No. 5957 of 2010 :2: 4. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 5. STATE OF KERALA REP.BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR MR.C.S.HRITHIK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb V.RAMKUMAR, J. ------------------------------------- W.P(C) No.5957 of 2010 -------------------------------------- Dated this the 16th day of June, 2010 JUDGMENT Petitioners 1 to 4, who are accused Nos.3 to 6 in Crime No.3/2010 of Ottapalam Excise Range for an offence punishable under Section 55 (a) of the Abkari Act, seek to quash Ext.P1 to P3 (Crime and occurrence report, mahazar and subsequent report implicating the petitioners as accused Nos.3 to 6). The 5th petitioner seeks a direction to the 3rd respondent, Deputy Commissioner of Excise, Palakkad to release the vehicle bearing Reg.No.KL-51/7602 involved in the above crime. 2. The case of the prosecution is that, the 2nd respondent, the Excise Circle Inspector attached to the Excise Special Squad, Ernakulam, seized the above vehicle (lorry) found parked in front of a house and the lorry was found to carry 896 Litres of toddy. The 5th petitioner claims to be the registered owner of the lorry. The lorry was seized on the suspicion that toddy was illegally transported. A search conducted in the house, in front of which the lorry was parked, resulted in the seizure of 90 Litres of toddy and 20 Litres of a liquid suspected to be spirit. A1, who was the 'cleaner' of the lorry and brother of W.P(C) No.5957 of 2010 2 the 5th petitioner and A2 who was the 'driver' of the lorry, were arrested from the spot. Petitioners 1 to 4 were subsequently arrayed as A3 to A6, since they are the licensees in respect of the toddy shops in question. The above crime was thereafter registered and investigation commenced. 3. According to the petitioners, they have a valid permit for transporting 900 Litres of toddy and the time allotted for transporting toddy is between 6 a.m and 11 a.m. According to petitioners 1 to 4, their implications as A3 to A6 is without any basis because the samples drawn from the toddy found in the lorry and marked as S5 to S11 were forwarded to the Chemical Examiner for analysis and as per report dated 19.3.2010 of the Chemical Examiner, Ernakulam the percentage of Ethyl Alcohol in S5 to S11 were all below 5% by v/v as against the permitted maximum of 8.1% under rule 9(2) of the Abkari Shops Disposal Rules 2002. 4. This court while admitting this petition passed an order on 17.3.2010 as follows:- W.P(C) No.5957 of 2010 3 “As per order dated 5.3.2010 Ext.P11 order suspending the license of the petitioner was stayed. This petition is filed for a direction to respondents to give preferential right for allotment of toddy shops for the year 2010-2011 without taking into account the registration of crime C.R.No.3/2010 by the first respondent. In view of the order, it is made clear that registration of crime C.R.No.3/2010 shall not be a ground to deny preferential claim, if any, available to the petitioner.” 5. Since the investigation of the case is still in progress and the Officer in-charge of the investigation is yet to come to a definite conclusion regarding the 20 Litres of liquid seized from the house, the ownership of the house etc., this court exercising powers under Section 482 Cr.P.C will be loath to quash the crime and occurrence report, mahazar and the report implicating the petitioners. This court also will be loath to stay the investigation of the case. If after the conclusion of investigation the petitioners are charge sheeted by the 1st respondent, they will be free to challenge the same before the appropriate court, in case grounds to do so exist. Reserving the said right of petitioners 1 to 4 and reserving the right of the 5th petitioner to W.P(C) No.5957 of 2010 4 move the 3rd respondent for expeditious disposal of his claim regarding the vehicle, this writ petition is dismissed. The interim order passed by this court as extracted above shall continue and shall be in force till the filing of the final report in the case. V.RAMKUMAR, JUDGE dmb