IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.MC.No. 197 of 2011() ----------------------------- (CRIME NO.869/2010 OF PATHANAPURAM POLICE STATION, KOLLAM DISTRICT) ......... PETITIONER(S): ACCUSED NO.1 TO 3 -------------------------------------------- 1. S.AMBIKA,AGED 50 YEARS,W/O.P.SURENDRAN, SUKANYA BHAVAN,TC-12/582,KUNNUKUZHI.P.O, THIRUVANANTHAPURAM DISTRICT. 2. SREEKUMAR,S/O.SOMAN,MINI HOUSE, DEVESWAM LANE,E-11,KESAVADASAPURAM, THIRUVANANTHAPURAM DISTRICT. 3. SANKARAN,AGED 65 YEARS,S/O.VELAYUDHAN. HARI BHAVAN,NADUVILEKKARA,KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA REPRESENTED BY S.I.OF POLICE,PATHANAPURAM POLICE STATION,KOLLAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.197 of 2011 --------------------------------------- Dated this 31st day of January, 2011 ORDER Petitioners are accused in Crime No. 869 of 2010 of Pathanapuram Police Station for offences punishable under Secs. 55(a) and (i) and 56(b) of the Abkari Act (for short, "the Act”). Petitioners are the licensee, Manger and Security, respectively of a bar attached hotel at Pathanapuram. Prosecution case is that on 07.08.2010 petitioners sold Indian Made Foreign Liquor (for short, "the IMFL”) before sunrise and thereby committed offences as above stated. Sub Inspector of Police, Pathanapuram is said to have detected the offence on the said day at 4.30 a.m and arrested petitioners 2 and 3 at the spot. Annexure-A is the FIR while Annexure-B is the search list. Contention raised in this petition is that if at all the allegations are accepted, it only revealed commission of offence punishable under Sec.56(b) of the Act which is compoundable under Sec.67A of the Act as introduced by Act 3 of 2010. It is therefore prayed in this proceeding that Annexure-A, FIR to the extent it concerned offences punishable under Sec.55(a) and (i) of the Act may be quashed. Crl.M.C.No.197 of 2011 -: 2 :- 2. I have heard learned Senior Advocate appearing for petitioners and the learned Public Prosecutor. Learned Senior Advocate has placed reliance on the decisions in Mohanan Vs. State of Kerala (2007(1) KLT 845) and Nobbey and Anr. Vs. State of Kerala (2011(1) KLD 11). Learned Senior Advocate contends that the allegation only indicated that condition No.20 in the FL-3 license issued to the first petitioner that no shop shall be opened before sunrise except as per special authority from the Excise Commissioner or from the Deputy Commissioner of Excise has been violated in which case only the offence punishable under Sec.56(b) of the Act is made out. 3. As aforesaid, the only allegation is that third petitioner conducted sale of IMFL before sunrise on 07.08.2010 (at 4.30a.m). Condition No.20 in the FL-3 license issued to the first petitioner stated that the shop shall not be opened before sunrise. In other words, there is a violation of the said condition in the FL-3 license given to the first petitioner. Interpreting similar provision this court held in Mohanan Vs. State of Kerala (supra) and Nobbey and Anr. Vs. State of Kerala (supra) that in such situation, it is only a violation of the permit condition which is punishable under Sec.56(b) of the Act. Viewed in that line, the offence allegedly committed by petitioners fell under Sec.56(b) of the Act. If that be so, offences punishable Crl.M.C.No.197 of 2011 -: 3 :- under Sec.55(a) and (i) of the Act cannot be attributed to the petitioners on the facts revealed by the materials produced before me. Annexure-A, FIR and all proceedings pursuant thereto to the extent it concerned petitioners for offence punishable under Sec.55(a) and (i) of the Act are liable to be quashed. It is open to the petitioners to approach the appropriate authority for composition of the offences punishable under Sec.56(b) of the Act as provided under law. Resultantly this petition is allowed and Annexure-A, FIR in Crime No. 869 of 2010 of Pathanapuram Police Station and all proceedings pursuant thereto as against petitioners to the extent it concerned offences punishable under Sec.55(a) and (i) of the Act are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-