IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 Crl.MC.No. 4680 of 2010(F) -------------------------------------- [CR. NO.22/2010 OF THE EXCISE INSPECTOR, KOTTAYAM EXCISE RANGE ] ............... PETITIONERS/ACCUSED NOS. 1 & 2: ------------------------------------------------------ 1. GOPALAKRISHNAN, S/O.KRISHNAN, ALLIYANKAL HOUSE, MATHIRI DESOM, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. P.V.AJAYAN, AGED 41 YEARS, S/O.VARGHESE, PULIYANTHUNDATHIL HOUSE, KANAKKARI P.O., KOTTAYAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADVS. SRI. NIREESH MATHEW, SRI. S. RAJEEV. RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOTTAYAM, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4680 of 2010 -------------------------- ORDER Second petitioner, licensee of a bar hotel Athira and he is holder of FL-3 licence in Kottayam Excise Range. Subsequently, the licence was changed in the name of Jayakrishnan on 5.6.2010. It is a hotel with two star facility. On 4.6.2010, excise party inspected the Restaurant. On the allegation that an additional counter, in violation of the licence conditions and Foreign Liquor Rules, is being run in the Restaurant, C.R.No.22/2010 was registered for the offence under Section 63 of Kerala Abkari Act, on Annexure-B crime and occurrence report, based on Annexure-A mahazar prepared at that time. This petition is filed under Section 482 of Code of Criminal Procedure to quash the crime and further proceedings thereunder and for a direction to release the articles seized and produced before the Magistrate, as no offence under CRMC 4680/10 2 the Abkari Act is attracted. Petitioners would contend that the question has been settled by this Court under Annexure-G order and in such circumstances, continuation of the proceedings is only an abuse of process of the court. 2. Learned senior counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Prosecution case is only that in violation of the conditions of the licence and Foreign Liquor Rules, an additional counter was opened in the Chinese Restaurant and petitioners thereby committed the offence. Section 63 of Abkari Act is attracted only if there is no other penal provision for the offence committed. If the case of the prosecution is to be accepted, it would only attract an offence under Section 56(b) of Abkari Act, as it is only violation of the conditions of licence or foreign Liquor Rules. CRMC 4680/10 3 4. Whatever it be, the question is whether opening an additional counter within the Restaurant would be violation of the conditions of licence or Foreign Liquor Rules. The question has been settled by this Court in Annexure-G order and in Shafeekka v. State of Kerala (2010 (4) KHC 513). In the light of the decisions, the crime registered and the further proceedings can only be quashed. Petition is allowed. C.R.No.22/2010 of Excise Range, Kottayam, registered under Annexure-B crime and occurrence report and further proceedings are quashed. Judicial First Class Magistrate, Kottayam is directed to release the articles seized in the case and produced before the court to the petitioners without delay. 9th December, 2010 (M.Sasidharan Nambiar, Judge) tkv