IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 Crl.MC.No. 4725 of 2010() -------------------------------------- SC.NO.1045/2010 OF SESSIONS COURT, ALAPPUZHA .............. PETITIONER(S): 2ND ACCUSED: ------------------------------------------------ BINUKUMAR, S/O.PURUSHOTHAMAN, KOORKKAPARAMBIL VEEDU, AVALOOKUNNU MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK. BY ADVS. SRI.S.SANAL KUMAR, SMT. BHAVANA.V. RESPONDENT(S): PETITIONER: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4725 of 2010 --------------------------------------- Dated this 24th day of January, 2011 ORDER Petitioner is accused No.2 in S.C.No.1045 of 2010 of Sessions Court, Alappuzha. He is a licensee of toddy shop No.14 of Kuttanad Excise Range and has permit to transport toddy from Chittoor to T.S.Nos.14 to 16, 18, 103 and 104 of Kuttanad Excise Range by vehicle Nos. KL-4/7774 and KL-4/5171. Case is that on 19.09.2009 Circle Inspector of Excise seized 75 litres of toddy which was being transported on behalf of petitioner in an Autorikshaw bearing No.KL-4/W-9082 (which is not an authorised vehicle as per the permit) and which was driven by the first accused. He was arrested and the toddy was seized. On investigation, Excise Range officials were satisfied that of the 450 litres of toddy which was brought from Chittoor in one of the autorised vehicles, that vehicle developed mechanical defect on the way, could not move forward and thereon 75 litres out of the 450 litres (within the permitted limit) was being transported to TS No.14 in the said Autorikshaw. In the authorised vehicle which came behind the remaining 375 litres of the toddy was being transported. Accordingly, petitioner was implicated in the Crl.M.C.No.4725 of 2010 -: 2 :- case and a final report was submitted against petitioner and accused No.1 alleging commission of offences punishable under Secs.55(a) and 56(b) r/w Sec.63 of the Kerala Abkari Act. Annexure-A1 is the final report to that effect. Petitioner challenges Annexure-A1, final report on the ground that even if entire allegations made by prosecution are accepted, so far as petitioner/licensee is concerned only an offence under Sec.56(b) of the Act is made out and the final report to the extent implicated petitioner for offence punishable under Sec.55(a) r/w Sec.63 of the Act is illegal. It is also contended that the entire allegations are false. Hence this petition seeking to quash all further proceedings in S.C.No.1045 of 2010 of Sessions Court, Alappuzha against the petitioner pursuant to Annexure-A1, final report. 2. Learned counsel for petitioner contends that even as per Annexure-A1, final report it is admitted that toddy drawn from Chittoor was being transported to the toddy shops in one of the authorised vehicles as per the permit and conditions, Annexure-2 and 3. It is while so that the said vehicle developed mechanical defect and a portion of toddy drawn from the quatity in the authorised vehicle was being transported in an Autorikshaw. According to the learned counsel, at any rate it Crl.M.C.No.4725 of 2010 -: 3 :- attracted only offence punishable under Sec.56(b) of the Act. Learned Public Prosecutor submitted that in the light of the decision in Mohanan v. State of Kerala (2007 (1) KLT 845) it may be possible for petitioner to contend that no offence under Sec.55(a) of the Act is made out since the State has not so far challenged that judgment but, offence attributed to the petitioner under Sec.56(b) r/w Sec.63 of the Act and at any rate the latter offences would stand. 3. It is seen from Annexure-2, permit that it was issued on 31.03.2009 in favour of petitioner to be valid for the period from 01.04.2009 to 30.06.2009. The offence was allegedly detected on 19.09.2009. It is not disputed by the prosecution also that the permit in favour of petitioner was renewed and accordingly there was valid permit in favour of petitioner on the date of alleged commission of offences as seen from Annexure- A1, final report. 4. Question for consideration is whether offences attributed to the petitioner in Annexure-A1, final report are made out. So far as offence under Sec.55(a) of the Act is concerned, that offence relate to import, export, transport, transit or possession of liquor or intoxicating drug in contravention of the provision of the Act and the Rules made thereunder. The Crl.M.C.No.4725 of 2010 -: 4 :- decision referred to above is clear that on the admitted facts no offence under Sec.55(a) of the Act is made out. In the reported case, the toddy tapper who had permit to tap toddy from certain trees, for some reason or other authorised another person to do so and that person was carrying toddy on a bicycle which was not authorised. The Division Bench held that no offence under Sec.55(a) of the Act is made out and since offence of that nature is not provided elsewhere in the Act, it is Sec.63 of the Act which apply. If that be so, petitioner cannot be said to have committed the offence punishable under Sec.55(a) of the Act. To that extent, Annexure-A1, final report cannot stand. 5. Next question is whether offences punishable under Sec.56(b) or 63 of the Act is made out. Sec.63 can have application only when an offence which is not otherwise provided under the Act is committed. In other words if any other offence as provided under the Act is shown to be committed, Sec.63 of the Act can have no application. 6. It is not disputed that petitioner had a permit in his name to transport toddy in vehicle Nos. KL-4/7774 or KL-4/5171. It is also not disputed that toddy was being transported in one of those authorised vehicles from Chittoor and on the way that vehicle developed mechanical defect . Thereon, 75 litres from Crl.M.C.No.4725 of 2010 -: 5 :- the toddy which was being carried in the authorised vehicle was shifted to the Autorikshaw (not an authorised vehicle) and that quantity of toddy was being transported in the said Autorikshaw. It is at that point that the Excise Range officials detected the offences. In short, it is a case where at the relevant time toddy was being transported in a vehicle which was not authorised. 7. Learned Public Prosecutor submitted that facts of the present case is similar to the facts discussed in (Mohanan v. State of Kerala (supra). I am unable to accept that argument. For, in that case it was not mere transportation of toddy in a vehicle which was not authorised but, the toddy being tapped by a person not authorised by the permit. It is taking note of that factual situation also that the Division Bench held that Sec.63 of the Act applied. For, the facts did not attract any other offence prescribed under the Act. In the present case the only allegation is that at the relevant time 75 litres of the toddy out of the permitted quantity was transported in an unauthorised vehicle. It is true that Annexure-3, conditions do not say that in such situations as involved in this case, it is permissible for the permit holder to transport toddy in an unauthorised vehicle. Pure and simple, in my view it is a case where toddy was being transported in a vehicle not authorised which is a violation of the permit Crl.M.C.No.4725 of 2010 -: 6 :- conditions and squarely fall under Sec.56(b) of the Act. If that be so, question of attracting Sec.63 of the Act does not apply. In that view of mine, offence under Sec.63 of the Act cannot be attributed to the petitioner. But on the materials on record there is no reason to interfere with Annexure-A1, final report to the extent it concerned offence punishable under Sec.56(b) of the Act attributed to the petitioner. Resultantly this criminal miscellaneous case is allowed in part and Annexure-A1, final report to the extent it related to the offences under Secs.55(a) and 63 of the Act is quashed as against the petitioner. It is made clear that Annexure-A1, final report to the extent it concerned petitioner for offence punishable under Sec.56(b) of the Act would stand whether that offence has been committed or not being a matter which the trial court has to decide. (THOMAS P JOSEPH, JUDGE) Sbna/-