IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.MC.No. 2292 of 2009(B) -------------------------------------- CC.NO.2067/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA. .................... PETITIONERS/ACCUSED NO.1 TO 3: --------------------------------------------------- 1. P.F.RAJESH, MANAGING PARTNER, M/S.POOKODANS PLEASANT RESIDENCY, S/O.FRANCIS, POOKODANS HOUSE, VENDORE DESOM, AMBALLUR VILLAGE, THRISSUR DISTRICT. 2. THULASI DAS, S/O.SEKHARAN, THEKOOT HOUSE, CHERUVAYA DESOM, CHAVAKKAD, THRISSUR DISTRICT. 3. SURENDRAN, POTTUTHAL HOUSE, KALLOOR, MUKUNDAPURAM, THRISSUR DISTRICT. BY MR.C.C.THOMAS, SENIOR ADVOCATE, ADVS.MR.M.G.KARTHIKEYAN, MR.NIREESH MATHEW. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, IRINJALAKKUDA, THRISSUR DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2292 OF 2009 ------------------------------------------ Dated 20th August 2009 O R D E R First petitioner is the Managing Partner of M/s.Pookodans Pleasant Residency, Kodakara and petitioners 2 and 3 are the employees. On 22/9/2007 Excise Inspector, Irinjalakuda range conducted a raid in the bar hotel and seized foreign liquor kept at the hotel alleging violation of the license conditions after preparing Annexure-C mahazar. Annexure-H final report was filed alleging that petitioners committed offence under Section 56(b) of Abkari Act. Learned Magistrate took cognizance of the offences. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken as C.C.2067/2007 by the Judicial First Class Magistrate, Irinjalakuda for the offence under Section 56(b) of Abkari Act contending that there is no violation of license conditions. Annexure-A is the copy of FL-3 license issued to first petitioner showing terms and conditions of the license as well as boundaries of CRMC 2292/09 2 the licensed premises. Allegation against petitioners in Annexure-H final report is that by selling foreign liquor from a temporary counter put up at the hotel, petitioners violated the conditions and thereby committed offence under Section 56(b) of Abkari Act. Case of the petitioners is that there is absolutely no violation of any of the conditions of the license. It is contended that conditions of the license does not prohibit operating of more than one counter and this aspect was upheld by this court in Annexure-I judgment in W.P.C.24971/2008 and therefore no offence is committed. 2. Learned Senior counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Learned Senior counsel pointed out that Annexure-A license was issued in form FL-3 prescribed under the Foreign Liquor Rules and though under condition No.1, sale of foreign liquor could only be to the residents in the Hotel or Boarding house, for the use of those residents and that of their guests or to casual visitors partaking of meals. Under proviso to Rule 2 on payment of Rs.25,000/- per year (which was only Rs.10,000/- earlier prior to 4/3/2009) as CRMC 2292/09 3 prescribed, the licensee can serve liquor at the restaurants to the persons other than residents also and under Rule 2 liquor could be sold and served not only in the bar room, but even by the side of swimming pools, lawns and the roof gardens of the hotel provided additional payment as provided is made. It it submitted that as seen from Annexure-A license, petitioner paid Rs.10,000/- and as there is no prohibition for putting up more than one counter no offence is committed. 4. Argument of the learned Public Prosecutor is that even if petitioners are entitled to put up more than one counter, it can only be within the licensed premises and the license is only for the bar room and as the petitioner had put up additional counter outside the bar, as seen from Annexure-C mahazar, the offence is attracted and therefore the case cannot be quashed. It is also argued that the final report does not show the details of the licensed premises and therefore based on Annexure-A, the case cannot be quashed. It was submitted that only the materials which are available before the Magistrate could be looked into to decide whether the proceedings could be quashed or not. CRMC 2292/09 4 5. The relevant conditions in the Form F3 license are condition Nos.1,2,3 and 7. They read as follows. “1. The privilege extends to the sale of foreign liquor [for consumption within a room specifically approved for the purpose] to residents in the Hotel or Boarding House for the use of those residents and that of their guests or to casual visitors partaking of meals. 1A. The license under this rule shall be subject to the condition that the licences shall procure his the supplies of foreign liquor only from such FL.9 licensees in the State as may be permitted by the Excise Commissioner. However, hotels having not less than Three Star Standard may purchase Foreign Made Foreign Liquor form Central Customs on the strength of a permit obtained from the Excise Commissioner in the regard on payment of an annual additional rental as laid down in Rule 13(3A) 2. No liquor shall be sold under this licence for removal outside the hotel to anyone including residents of the hotel. Provided that CRMC 2292/09 5 liquor may be sold and served to resident of the hotel in the rooms wherein they reside or in the restaurants where they partake food, by the employees of the bar. Provided that the hotel can serve liquor along with meals by the side of swimming pools, lawns and the roof gardens of the hotel on obtaining special annual permit from Excise Commissioner. Provided further that such hotels should have an exclusive restaurant for the use of families and others where no liquor shall be served. (Provided also that the licensee can serve liquor at the restaurants to persons other than residents on payment of Rs.10000/-(Rupees Ten thousand only) per year. 7. The sale or possession (except subject to the rules- applicable to unlicensed persons) by the licensee of any liquor outside the limits of this licensed premises is prohibited.” 6. Neither the foreign liquor rules nor the conditions of the license, prohibits operating more than one counter within the licensed premises. In fact, CRMC 2292/09 6 neither the rule nor the conditions of form FL-3 license provide for putting up counters. It only provides for selling and serving liquor to the residents, their guests or to casual visitors, in addition to the persons coming to the restaurant, provided additional payment as provided under the proviso is made. Therefore, for the reason that petitioner has put up additional counter, it cannot be said that there is violation of condition No.7 of form FL-3 license, which only prohibits that sale or possession by the licensee of any liquor outside the limits of the licensed premises. Therefore, within the licensed premises a licensee is entitled to sell, possesses and serve foreign liquor, subject to the conditions 1 and 2. If putting up of one counter, within the licensed premises is not in violation of the conditions of the license or operating more than one counter cannot also be in violation of the condition, provided the counters are within the licensed premises. 7. There is absolutely no allegation in Annexure-H final report or even in Annexure-C mahazar that the alleged additional counter was outside the licensed premises. More over, as argued by the learned Senior counsel appearing for petitioners, licensed CRMC 2292/09 7 premises in Annexure-A license is the entire building. If that be so, prosecution against the petitioners for the offence under Section 56(b) of Abkari Act on the allegation that there is a violation of conditions of form FL-3 license granted to the petitioners, and that too without a specific case that additional counter put up by the first petitioner is outside the licensed premise is not sustainable. Putting up or operation of an additional counter which is not alleged to be outside the licensed premises will not attract an offence under Section 56(b). Hence in the interest of justice, continuation of the proceedings can only be quashed. Petition is allowed. C.C.2067/2007 on the file of Judicial First Class Magistrate, Irinjalakuda is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.