IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Crl.MC.No. 376 of 2010() ------------------------ CP.62/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... (OR.NO.101/2003 OF KOLLAM EXCISE RANGE) PETITIONER(S): ACCUSED: ------------------------------------------ K.P.RAJAN, S/O.KUNJUKRISHNAN, ROSHAN HOUSE, SREE NAGAR, PATTATHANAM, KOLLAM DISTRICT. BY ADVS. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.P.MOHANDAS (ERNAKULAM), MR.MATHEW SUNNY. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THE EXCISE INSPECTOR, KOLLAM EXCISE RANGE, KOLLAM. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar,J. ======================= Crl.M.C. No. 376 of 2010 ======================= Dated this the 16th day of March, 2010 O R D E R Petitioner is the accused in C.P.62/2009 on the file of Judicial First Class Magistrate's Court-II, Kollam taken cognizance for the offence under section 55(a) of Abkari Act on Annexure III final report. This petition is filed under section 482 of the Code of Criminal Procedure contending that no offence under section 55(a) of the Abkari Act is attracted in view of the decision of the Apex Court in State of Kerala v. Unni (2007(1) KLT 151) and therefore the cognizance taken is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure III final report shows that prosecution case is that on 27.12.2003, at about 7 a.m, the Circle Inspector Kollam Excise Range and the Excise party conducted a search near the Crl.M.C.376/2010 2 residential house of the petitioner a licensee of the toddy shop T.S.19/2002-2003 has stored 350 litres of toddy in a 500 litres black synthetic tank and 245 lites of toddy were stored in seven plastic cans with a capacity of 35 litres each, in violation of the conditions of the licence. Samples of the toddy were taken and sent for chemical analysis. It is alleged that petitioner committed the offence under sections 55(a) of the Abkari Act. 4. Annexure II report of the Chemical Analyst establishes that ethyl alcohol was detected in all the samples. But percentage of ethyl alcohol varied from 7.12% to 5.91%. The test for drugs and other tranquillizers was negative. So also test for methanol, starch and chloralhydrate were also negative. When the percentage of ethyl alcohol present as shown in the report of chemical analysis was less than 8%, it cannot be said that petitioner added any external substance to strengthen the toddy. As settled by the Apex Crl.M.C.376/2010 3 Court in Unni's case (supra) petitioner cannot be prosecuted for the offence under section 55(a) of Abkari Act. Therefore the cognizance taken for the offence under section 55(a) of Abkari Act can only be quashed. 5. But as rightly pointed out by the learned Public Prosecutor facts would reveals that an offence under section 56(b) of Abkari Act is attracted. Annexure-I, the licence issued to the petitioner, enables him to store toddy only in the temporary shed in R.S.No.6/20 of Block No.23. The toddy seized by the excise party was not stored in the said shed. It is thus clear that toddy was not stored at the licensed premises. Therefore there is clear violation of the conditions of the license. If that be so, petitioner is liable to be prosecuted for the offence under section 56(b) of Abkari Act. Petition is allowed in part. The cognizance taken for the offence under section 55(a) of the Abkari Act in C.P.62/2009 by Judicial First Class Crl.M.C.376/2010 4 Magistrate's Court-II, Kollam is quashed. It is made clear that learned Magistrate can proceed with the case, for the offence under section 56(b) of Abkari Act. M.Sasidharan Nambiar Judge tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- CRL.R.P.NO. /08 --------------------- ORDER MARCH,2008