IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 Crl.MC.No. 1745 of 2011() ------------------------ CRIME NO. 68/2011 OF KARUNAGAPPALLY EXCISE RANGE, KOLLAM DISTRICT ............... PETITIONERS / ACCUSED NOS. 1 TO 13 : ---------------------------------------------------------- 1. SOBHANAN, S/O.SREEDHARAN, KURUKKASSERIL HOUSE, CLAPPANA THEKKU MURI, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 2. JAYAPRAKASH, S/O.SREEDHARAN, SREENILAYAM, PULIYOORVANJI KIZHAKKU MURI,THODIYOOR VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 3. KUNJUMON @ LAWRENCE, S/O.SUNNY, T.M.CHIRAYIL HOUSE, AZEEKKAL MURI, ALAPPATTU VILLAGE KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 4. HARIDAS, S/O.CHELLAPPAN, S.D.BHAVAN, PERUMANTHAZHA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 5. SANTHOSHKUMAR, S/O.GANGADHARAN, KOZHIVILA VADAKKETHIL HOUSE, MAINAGAPPALLY VILLAGE, KUNNATHOOR TALUK. 6. BINU, S/O.VAMADEVAN, BINU BHAVANAM, ADINADU VADAKKU MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 7. SUBHASH, S/O.RAJAN, SUNITHALAYAM, KALLELIBHAGOM MURI, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 8. THULASEEDHARA PILLAI, S/O.MADHAVAN PILLAI, KARTHIKA BHAVANAM, EDAKKADU DESOM, PORUVAZHI VILLAGE KUNNATHOOR TALUK. 9. YESHODHARAN, S/O.RAGHAVAN, ARAKKAL VADAKKETHIL, PUTHUKKADU DESOM, CHAVARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. ...2/- Crl.MC.No. 1745 of 2011() -2- 10. VIJAYAN, S/O.NANU, KOTTADI PADIKKATHIL HOUSE, KOTTAMBALLI MURI, OCHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 11. RAMESAN, S/O.MADHAVAN, MAVELITHARAYIL HOUSE, CHIRAKKADAVU DESOM, KAYAMKULAM VILLAGE, KARTHIKAPPALLY TALUK,ALAPPUZHA DISTRICT. 12. BINDHU RENUKAN,W/O.RENUKAN, VARUNAYIL HOUSE, CHANGANKULANGARA DESOM, OCHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 13. SARGADHARAN, S/O.BALAKRISHNAN, A.A.VILLA, PRAYAR SOUTH MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADVS. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.NIREESH MATHEW RESPONDENT / COMPLAINANT : ------------------------------------------------ STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE, KARUNAGAPPALLY, KOLLAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...3/- Crl.MC.No. 1745 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - A : PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 556 DATED 6.4.2011 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. ANNEXURE - B : PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 586 DATED 11.4.2011 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. ANNEXURE - C : PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 667 DATED 21.5.2011 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. ANNEXURE - D : PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 554 DATED 6.4.2011 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. ANNEXURE - E : PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.68/2011 PREPARED BY THE RESPONDENT. ANNEXURE - F : PHOTOCOPY OF THE ORDER DATED 13.6.2008 IN CRL.MC.NO.2096/2008 PASSED BY THIS HON'BLE COURT. ANNEXURE - G : PHOTOCOPY OF THE ORDER DATED 1.6.2009 IN CRL.MC.NO.1009/2009 PASSED BY THIS HON'BLE COURT. ANNEXURE - H : PHOTOCOPY OF THE ORDER DATED 25.2.2011 IN CRL.MC.NO.544/2011 PASSED BY THIS HON'BLE COURT. ANNEXURE - I : PHOTOCOPY OF THE ORDER DATED 3.5.2011 IN CRL.MC.NO.1347/2011 PASSED BY THIS HON'BLE COURT. ANNEXURE - J : PHOTOCOPY OF THE COMMON ORDER DATED 4.5.2010 IN WP(C) NO.13813/2010 PASSED BY THIS HON'BLE COURT. ANNEXURE - K : PHOTOCOPY OF THE ORDER DATED 6.6.2011 IN CRL.MC. NO.1585/2011 PASSED BY THIS HON'BLE COURT. ANNEXURE - L : PHOTOCOPY OF THE ORDER DATED 22.7.2010 IN WP(C) NO. 13922/2010 PASSED BY THIS HON'BLE COURT. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1745 of 2011 --------------------------------------- Dated this 15th day of June, 2011 ORDER Petitioners are accused 1 to 13 in C.R.No.68 of 2011 of Karunagappally Excise Range for offences punishable under Secs.58 and 67B of the Abkari Act (for short, "the Act”) (Sec.67B relates to the power for confiscation). Case is that on 09.06.2011 at about 5.30p.m the excise party seized 495litres of toddy from vehicles and a shed and petitioners 1 to 7/accused 1 to 7 who were found dealing with the said toddy were arrested at the spot. Annexure-E is the crime and occurrence report prepared by the Excise Inspector implicating petitioners 8 to 13 as well. It is submitted that petitioners 8 to 13 are licensees or joint licensees of various toddy shops of groups 5, 7 and 8 of Karunagappally Excise Range. It is also the contention of petitioners that as per Annexures-A to D, permits petitioners 8 to 13 are authorised to transport 1200liters of toddy every day from Chittoor to Karunagappally in the vehicles permitted by their respective permits. It is also the contention of petitioners that after unloading toddy in the temporary shed, it was being filled in bottles to be taken to the respective toddy shops. Learned Senior Advocate has contended that no offence under Sec.58 of the Act Crl.M.C.No.1745 of 2011 -: 2 :- is made out in that petitioners 8 to 13 indisputably are having licenses to transport toddy as aforesaid, question whether toddy seized is artificial or not can be decided only after a positive report of chemical examination of the sample is received by the Investigating Officer and hence at any rate what can be said is only that an offence under Sec.56(b) of the Act is made out as there is a violation of the permit condition by (allegedly) keeping the toddy beyond permitted premises. In the circumstances, it is prayed that a direction may be issued to the Investigating Officer to keep the proceeding in abeyance until a positive report of chemical analysis is received. Reliance is placed on the decisions exhibited as Annexures-F to L and Rajan and Ors. Vs. State of kerala and Ors. (2010 (3) KLJ 461). Learned Public Prosecutor would contended that notwithstanding the question whether the toddy in question is artificial or not offence under Sec.58 of the Act is attracted since the mahazar prepared by the Excise party would show that toddy was being handled elsewhere than the permitted place and hence to proceed against the petitioners for the said offence it is not necessary that a report of chemical examination is received as held by this Court in Kamalaksha Vs. State of Police (2007(1) KLT 299). It is also submitted by learned Public Prosecutor that if at all necessary, it is sufficient that the report of chemical examination is produced Crl.M.C.No.1745 of 2011 -: 3 :- in the course of trial. A further argument that learned Public Prosecutor raised is that one of the vehicles seized was not having permit to carry toddy as per permits issued to the licensees or joint licensees as the case may be. 2. I referred to the allegations made in Annexure-E, crime and occurrence reports. It is not disputed that petitioners 8 to 13 are either licensees or joint licensees of the shops referred to in the petition. Assuming that toddy was being handled beyond the permitted premises, question urged is whether offence involved is only under Sec.56(b) of the Act or it involved Sec.58 of the said Act. In Rajan and Ors. Vs. State of kerala and Ors. (supra), this Court considered that question. There, offence alleged was including under Sec.55(a) and (i) of the Act. Facts of that case indicated that the toddy in question was found stored in a building adjacent to the toddy shop. It is seen from paragraph 6 of the decision that in that case learned Public Prosecutor raised an argument that toddy was stored outside the premise and hence accused are liable to be prosecuted under Sec.55(i) of the Act as they stored toddy for sale in contravention of the provisions of the Act and the Rules. That argument was rejected by this Court and it was held that accused therein could be prosecuted only for offence under Sec.56(b) of the Act and that too, after a positive report on Crl.M.C.No.1745 of 2011 -: 4 :- chemical analysis (since there was an allegation that the toddy was artificial in character) was received. In Pradeep T.B and Ors. Vs. State of Kerala and Ors. (2010(2) KLJ 413) it was held that transportation of excess quantity of toddy will not attract either Sec.55(i) or Sec.58 of the Act and that such act will only amount to a violation of the permit conditions involving Sec.56(b) of the Act. Learned Senior Advocate has pointed out that the decision in Rajan and Ors. Vs. State of kerala and Ors. (supra) was not interfered by the Supreme Court as seen from the order in Special Leave Appeal No.10082 of 2010 dated 03.01.2011. 3. In Kamalaksha Vs. State of Police (supra) with respect to the report submitted by the Abkari Officer under Sec.50 of the Act this Court observed that prima facie satisfaction of the detecting and Investigating Officer arrived at bonafide with the liquid seized from the accused as contraband liquor will be sufficient to reach a conclusion that the accused should be placed on trial. It was also held that the report under Sec.173(2) of the Code of Criminal Procedure is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to collect evidence during his investigation about commission of offence by the accused who is being put on trial. Crl.M.C.No.1745 of 2011 -: 5 :- 4. Since the mater is under investigation, it is not necessary for me to go into the question whether offence under Sec.58 of the Act is involved notwithstanding that the said provision starts with the words “whoever without lawful authority” has engaged in the acts referred to therein and indisputably petitioners 8 to 13 are either licensees or joint licensees of the shops in question. Now, I am at the question whether proceeding should be kept in abeyance until a positive report on chemical analysis of the samples collected from the toddy in question is received. In Annexures-F to L orders, relating to offence punishable under Sec.58 of the Act it has been held that when allegation is that the toddy is artificial, proceeding could be kept in abeyance till positive report is received. 5. I have gone through Annexure-E, crime and occurrence report where it is alleged that what is seized is artificial toddy. That fact has to be revealed from the report of chemical examination. In the circumstances, I am inclined to think that further proceeding in C.R.No.68 of 2011 should stand in abeyance until report of chemical examination is received. But I make it clear that I have not expressed any opinion as to whether offence under Sec.58 of the Act is attracted or not and whether petitioners 8 to 13 being holders of valid permits, Crl.M.C.No.1745 of 2011 -: 6 :- offence came only under Sec.56(b) of the Act subject of course to the report of chemical examination regarding the artificiality of the toddy allegedly seized. Resultantly this criminal miscellaneous case is disposed of directing that further proceeding in C.R.No.68 of 2011 of Karunagappally Excise Range will stand in abeyance till receipt of report of chemical examination. It will be open to the investigating officer to proceed in the matter on receipt of report of chemical examination in accordance with law and with reference to the offences allegedly committed by petitioners having regard to the circumstances stated above and the relevant provisions of the Abkari Act as explained by the various decisions of this Court. It is also directed that pendency of C.R.No.68 of 2011 shall not affect the preferential claim if any available to petitioners 8 to 13 and that no adverse consequence shall follow, so far as petitioners 8 to 13 are concerned until receipt of the report of chemical examination. (THOMAS P JOSEPH, JUDGE) Sbna/-