IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP.No. 36219 of 2002(J) ----------------------- PETITIONERS --------------- 1. MRS.P. BABY, M/S. JAYALAKSHMI PHARMA, EDAVANASSERY, MYNAGAPPALLY, KOLLAM. 2. JOY SEBASTIN, KUNNAPALLI, MALLIKASSERI P.O., KOTTAYAM. BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENTS --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFIARS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE INSPECTOR, PAMPADY RANGE, PAMPADY, KOTTAYAM. GOVERNMENT PLEADER SRI.C.M.KAMMAPPU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/07/201, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.36219/2002 APPENDIX PETITIONERS' EXHIBITS EXT.P1 : TRUE COPY OF THE ORDER DATED 18/11/2000 IN CMP.NO.55465/2000 IN O.P.NO.32465/2000 ISSUED BY THIS HONOURABLE COURT. EXT.P2 : TRUE COPY OF THE FORM L.2 LICENCE DATED 27-1-1999 ISSUED BY ASST.EXCISE COMMISSIONER, KOLLAM TO THE FIRST PETITIONER. EXT.P3 : TRUE COPY OF THE WHOLESALE LICENCE DATED 10/8/2000 ISSUED BY ASST.EXCISE COMMISSIONER, KOLLAM TO THE FIRST PETITIONER. EXT.P4 : TRUE COPY OF THE CERTIFICATE DATED 20-9-2002 OF THE 2ND PETITIONER. EXT.P5 : TRUE COPY OF THE CRIME OCCURRENCE REPORT IN CR.NO.14/2002 DATED 13-11-2002 ISSUED BY 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE ORDER DATED 13-2-2002 IN CRL.M.P.NO.2380/2001 IN CR.M.C.2764/2001 ISSUED BY THIS COURT. EXT.P7 : TRUE COPY OF THE ORDER DATED 28.7.2000 IN CMP.NO.30621/2000 IN O.P.NO.18421/2000 ISSUED BY THIS COURT. /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - O.P.NO.36219 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of July, 2011 JUDGMENT This is a petition filed under Article 226 of Constitution of India seeking to quash all further proceedings in pursuance of Ext.P5 occurrence report in C.R.No.14/2002 of Pampady Excise Range, Kottayam. 2. The material averments in the petition in brief are these : First petitioner Mrs.P.Baby is engaged in manufacture and sale of Ayurvedic medicines in the name and style of M/s.Jayalakshmi Pharmaceuticals, Kollam under the authority of the licence issued by the Drug Controller of Kerala and Excise authorities. Second petitioner is marketing the products through his agents. They have a retail outlet in shop No.AP VII/267 at Chengalam Kara, Chengalam village in Kottayak Taluk. One Shibu who is the accused in the above crime was the salesman therein. On November 13, 2002 at abut 12.30 p.m., the Excise officials under the leadership of Sri.Soman Achari, Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, OP.No.36219/2002 2 Kottayam searched the premises and seized 15 litres of arishtoms and asavams kept in the bottles therein. Those bottles have the label of Jayalakshmi Pharmaceuticals, Kollam. A case under Section 55(a) and 58A of Abkari Act was registered against the salesman of the shop on the allegation that those arishtoms and asavams have strength of alcohol more than the strength provided for those materials and was intended for using the same as liquor. Ext.P5 is the copy of the occurrence report. The salesman Shibu was produced before the Judicial First Class Magistrate, Kottayam on November 14, 2002 and was released on bail by the Additional Sessions Court, Kottayam. The Excise authorities have no authority to initiate prosecution against the salesman employed by the second petitioner. Arishtoms and asavams seized from the shop are Ayurvedic medicines. No charge under Section 55(a) and 58A will lie against him. Therefore, all further proceedings in pursuance of Ext.P5 proceedings had to be quashed. 3. First respondent is State of Kerala, represented by the Secretary, Department of Home Affairs, Secretariat, Thiruvananthapuram. Second respondent is the Excise Inspector, Pampady Excise Range, Kottayam. They filed a separate counter OP.No.36219/2002 3 statement contending as follows : It is true that a case as C.R.No.14/2002 was registered against the salesman of Shop No.A.P.VII/267 under Sections 55(a) and 58 A of Abkari Act. The allegation against him was that he was found in possession of 15 litres of arishtoms and asavams in bottles having strength of alcohol more than prescribed under the Act and was intended for using the same as liquor. The accused in the said case has violated the various provisions of Spirituous Preparations ( Control) Rules 1969 and was using the same as intoxicating drug. The prosecution initiated against the salesman of the shop is legal and valid. SP VII licence is required to sell arishtoms and asavams. Therefore, the petition has to be dismissed. 4. Heard the counsel for the petitioners and the Government Pleader appearing for the respondents. 5. The following questions arise for consideration : 1. Whether any prosecution under the provisions of Abkari Act will lie against the accused in C.R.No.14/2002 of Pampady Excise Range ? 2. Whether the said proceeding is liable to be quashed ? OP.No.36219/2002 4 6. Learned counsel for the petitioners Sri.K.Karthikeya Panicker argued that the petitioners are manufacturing and selling arishtoms and asavams under a valid licence issued by the Drugs Controller of Kerala under the Drugs and Cosmotic Act and that therefore the salesman of the second petitioner cannot be prosecuted under the provisions of Abkari Act. I find force in the above contention. Ext.P2 is the copy of F.L.II licence issued to the first petitioner by the Drugs Controller of Kerala for the manufacture and sale of Ayurvedic medicines. Sale of spirituous preparations are regulated by the provisions contained in the Kerala Spirituous Preparations ( Control) Rules 1969. Rule 6 of the said Rule permits manufacture of spirituous preparations and Rule 10 permits possession of the spirituous preparations. He has also obtained wholesale and retail licence from the Excise authorities. Ext.P3 is the wholesale licence issued to the first petitioner. 7. The next question for consideration is whether charge under Section 55(a) or 58A of Abkari Act will lie against the accused in the above case. 8. Clause (a) of Section 55 of Abkari Act prohibits imports, OP.No.36219/2002 5 exports, transports, transits or possess liquor or any intoxicating drug. 9. Going by Ext.P5 occurrence report, the prosecution has no case that seized articles are liquor or intoxicating drug. Admittedly, those are arishtoms and asavams sold under a valid licence. That being so, the ingredients to constitute an offence under Section 55(a) of Abkari Act are absent in Ext.P5. It follows that the accused in the said case cannot be said to have committed any offence under Section 55(a) of Abkari Act. 10. Section 58 A of Abkari Act reads thus : For sale of certain preparations:- Whoever sells any preparation which he knows or has reason to believe is intended to serve as a substitute for alcohol or intoxicating drug shall on conviction before a competent court be punished with imprisonment which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both; Provided that nothing contained in this section shall apply to the sale of any medicinal preparation for bona fide treatment, mitigation or prevention of disease in human beings or animals. 11. Section 58 A thus prohibits sale or possession of any OP.No.36219/2002 6 preparations which is a substitute for alcohol or intoxicating drug. A reading of Ext.P5 does not show that accused therein was in possession of a preparation which can be used as a substitute for alcohol or intoxicating drug. That apart, proviso to Section 58A specifically exempts medicinal preparation for bonafide treatment, mitigation or prevention of disease in human beings or animals. It follows that a charge under Section 58A of Abkari Act will not lie against the accused in that case. 12. Learned Government Pleader argued that accused in C.R.No.14/2002 of Pampady Excise Range has violated several provisions of Kerala Spirituous Preparations ( Control) Rules 1969. But in Ext.P5 there is no such allegation. If the accused has violated any of the provisions of the said Rule, prosecution is at liberty to proceed against him under the said Rules. 13. There is another aspect in this case. Clause (l) to Rule 3 of Kerala Spirituous Preparations ( Control) Rules 1969 reads thus : (l) “spurious preparation” means any medicinal or toilet preparation containing alcohol or intoxicating drug which ; OP.No.36219/2002 7 (i) in the case of those purported to be a preparation manufactured according to a pharmacopoeia, does not conform to the formula laid down in the pharmacopoeia approved by the Government of India or the Government of Kerala; and (ii) in the case of those claiming to be patents or proprietory preparations do not conform to the formula approved by the Government of Kerala; and (iii) contains any substances which when swallowed, inhaled or injected into a human being produces intoxication, drowsiness, sleep, stupefaction or insensibility, but not approved as a bonafide medicinal preparation; Note:- Asavas and Arishtas or other preparations containing alcohol which is only self- generated shall be deemed as spurious preparations if the alcohol content of any such preparation exceeds 12% by volume, unless otherwise declared by the Expert Committee. That being so, arishtoms and asavams can be treated as spurious preparation only if it contains alcohol exceeding 12% by volume. 14. I have called for the records in the above said case. The OP.No.36219/2002 8 report of the Chemical Examiner shows that strength of alcohol in the seized articles is 3.8% to 11.52% by volume which is below the prescribed 12% mentioned in the above said Note. It follows that those arishtoms and asavams seized from the shop are not spurious preparations as defined under Section 3 (l) of the Kerala Spirituous Preparations (Control) Rules 1969. As I have found that the accused in the above said case has not violated any of the provisions of the Abkari Act, the entire proceedings in pursuance of Ext.P5 occurrence report have to be quashed and the accused therein has to be discharged. 15. Learned Government Pleader would argue that petitioners have no locus standi to file this O.P. as they are not the accused in C.R.No.14/2002 of Pampady Excise Range. There is no substance in the above contention. First petitioner is the licencee as seen from Ext.P2, copy of the licence issued under the Drugs and Cosmetics Act permitting him to manufacture and sell Ayurvedic preparations. Ext.P3 is the wholesale licence issued to the first petitioner. Second petitioner is his authorised agent as revealed from Ext.P4. Admittedly, the articles were seized from the retail outlet of second petitioner. The accused therein is the salesman of that shop. That being so, the OP.No.36219/2002 9 petitioners are perfectly entitled to file this O.P. challenging Ext.P5 proceedings. In the light of my above findings, the O.P. is allowed. The entire proceedings in pursuance of Ext.P5 occurrence report in C.R. No.14/2002 of Pampady Excise Range, Kottayam are hereby quashed. The accused therein is discharged. P.Q.BARKATH ALI JUDGE sv. OP.No.36219/2002 10