IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 Crl.MC.No. 911 of 2007() ----------------------------------- CC.93/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM CR.NO.222/1996 OF EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. .................... PETITIONER/ACCUSED NO.1 ------------------------------------------ S. RAJENDRAN @ FRANCIS, AGED 55 YEARS, S/O. LATE SAMUEL, SUNNY HOUSE, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY MR.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.I.B. PRAMOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 911 OF 2007 =========================== Dated this the 23rd day of March,2010 ORDER First accused in C.C.93/1997 on the file of Judicial First Class Magistrate's Court-III, Thiruvananthapuram is the petitioner. Learned Magistrate has taken cognizance of the offence under section 55(a) of Abkari Act on Annexure D final report against five accused. Petitioner is implicated as the Manager of Hotel Classic, Thiruvananthapuram. On 17.10.1996 the Excise Party conducted a search in the Bar attached hotel premises. Fifth accused is the licensee of the bar. From room No.204, 400.875 litres of Indian made foreign liquor were seized alleging that they were illegally kept there for sale. Though petition is filed under section 482 of the Code of Criminal Procedure to quash the cognizance taken or in the Crl.M.C.911/2007 2 alternative to permit petitioner to compound the offence under section 67 of Abkari Act, as it existed on the date of the alleged commission of the offence on 17.10.1996, in view of the statement filed by the Excise Inspector Excise Range, Thiruvananthapuram disclosing that all the accused had earlier filed Crl.M.C.697/1997 to quash the final report and the cognizance taken and petitioner was one among the petitioner therein and that petition was dismissed, learned senior counsel submitted that petitioner is restricting the relief to the alternate relief sought for. 2. Learned senior counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned senior counsel pointed out that as per Annexure D report, the offence allegedly committed by the petitioner is under section 55(a) of Abkari Act and even if it is taken that petitioner committed such an offence, Section 67 of the Abkari Act as it stood on the date of commission of the offence on 17.10.1996, the Crl.M.C.911/2007 3 offence is compoundable and as held by this court in Mariamma & Another v. State of Kerala & Ors (1998(1) KLT 286, it is a vested right available to the petitioner and petitioner is therefore entitled to compound the offence and the said decision was confirmed by the Division Bench of this court in W.A.558/1998 dated 16.3.1998 and following the said decision, by Annexure F judgment, other cases were also disposed in respect of various offences under the Abkari Act including the offence under section 55(a), and therefore petitioner is to be permitted to compound the offence. 4. Learned Public Prosecutor submitted that though fifth accused was having a licence, it was not renewed after 31.3.1996 and though subsequently it was renewed, the Indian made foreign liquor seized from room No.204 were not obtained by the fifth accused during the currency of the licence and therefore the possession of the liquor was illegal and hence Section 55(a) is attracted and in view of the subsequent amendment to Section 67, the offence is not compoundable from 3.6.1997 and Crl.M.C.911/2007 4 therefore the case cannot be allowed to be compounded. 5. Learned senior counsel pointed out that as per the Abkari Amendment Ordinance 26 of 2009 which came into force from 7.12.2009 Section 67A inserted to the Abkari Act which provides for composition of the offence, though section 55(a) is not included as an offence compoundable thereunder. 6. The seizure in this case was on 17.10.1996. The case of the prosecution is that the offence was committed either on 17.10.1996 or earlier to 17.10.1996. The question is whether as offence under section 55(a) was compoundable on that date. 7. Section 67 of Abkari Act as then stood reads:- (a) whose licence or permit is liable to be cancelled or suspended under clauses (a) and (b) of Section 26 or who is reasonably suspected of having committed an offence under clause (2) of section Crl.M.C.911/2007 5 55, sections 56,57 or 63, a sum of money not less than ten thousand rupees; and “(b) whose licence or permit is liable to be cancelled or suspended under clause (bb) of section 26 or who is reasonably suspected of having committed an offence under clause (1) of section 55 or sections 58 or 64A, a sum of money not less than twenty five thousand rupees, in lieu of such cancellation or suspension or by way of compensation for the offence which may have been committed, as the case may be. On the payment of such sum of money to such officer, the accused person, Crl.M.C.911/2007 6 if in custody, shall be discharged and no further proceedings shall be taken against such person.” Therefore as provided under section 67(b), any Abkari Officer specially empowered in that behalf is competent to accept from any person whose licence or permit is liable to be cancelled or suspended under clauses(bb) of Section 26 or who is reasonably suspected of having committed an offence under clause (1) of Section 55 or Sections 58 or 64A, a sum of money not less than twenty-five thousand rupees in lieu of such cancellation or suspension or by way of compensation for the offence which may have been committed, as the case may be. It also provides that on payment of such sum of money to such officer, the accused shall be discharged and no further proceedings shall be taken against such person. 8. Section 55(a) provides that whoever in contravention of this Act or of any rule or order made under the Act, imports, exports, Crl.M.C.911/2007 7 transports,transits or possesses liquor of any intoxicating drug, shall be punishable as provided thereunder. Under sub section (1) of Section 55, for any offence, other than an offence falling under clause (d)or clause (e), punishment is imprisonment for a term which may extend to two years and with fine, which shall not be less than twenty five thousand rupees. The offence under clause (d) and (e) are punishable under sub section (2). Therefore an offence under section 55 (a) which is punishable under sub section (1) of Section 55 is compoundable under section 67(b) while an offence under clause (d) or (e) Section 55, is compoundable under section 67(a) of the Abkari Act, as then stood on the date of commission of the offence. 9. Learned single Judge in Mariamma's case (supra) considered the effect of deletion of Section 67 by Ordinance 7/1997, which came into force with effect from 3.6.1997 and the effect of Section 67 as it stood prior to 3.6.1997, in respect of offences committed earlier to that date. Crl.M.C.911/2007 8 This court held:- “7.Before the amendment of the Abkari Act by Ordinance No.7/1997 the offences charged against the petitioners for dilution were compoundable as per R.67(a) of the then existing Act. It is not disputed that in all these cases, dates of alleged occurrences of crime were before the amendment of the Act by Ordinance 7/97. Criminal case has to be dealt with on the basis of law in force at the time of occurrence of offence unless otherwise provided for validly in the statutes. When S.67 was deleted by Ordinance, deletion was not made retrospectively. Therefore, Crl.M.C.911/2007 9 as offences detected are compoundable under Sec.67 at the time of the alleged commission of the offence, petitioners are well within their rights to make use of the same. It was a right vested in the licensees during that time.” In view of that finding, it was held that since criminal cases are to be tried according to law in force at the time of commission of the offence, the offences are to be compounded on the basis of Section 67(a) as then stood. 10. The effect of the deletion of Section 67 by the Ordinance was considered by the Division Bench in W.A.558/1998 and it was held:- “The short question arising for consideration in this appeal is whether an offence, envisaged by Section 55 of the Abkari Act, which was Crl.M.C.911/2007 10 compoundable under section 67 of the said Act at the point of time, when it was allegedly committed, can be compounded even after the deletion of Section 67 of the Act. It is not in dispute that Section 67 of the Abkari Act was in force, when the offence was committed. Under section 67, offence under section 55, inter alia, is compoundable. Section 67 ceased to exist on the statute book subsequently. Section 67 being a part of substantive law will be applicable to this case and the appellant will be entitled to get the offence compounded under section 67 of the Act, notwithstanding its deletion at a subsequent stage.” Crl.M.C.911/2007 11 It was held that the question is not one whether Section 67 is still in force, but whether the offence was compoundable at the point of time when the offence was committed and admittedly section 67 was in force at that point of time and that being a part of substantive law, the offence is compoundable. 11. In view of the decision of the learned single Judge in Mariamma's case (supra) and the Division Bench decision in W.A.558/1998, it can only be held that the offence under section 55(a) was compoundable under section 67(b) as on 17.10.1996, in view of the then existing section 67 of the Abkari Act. As it is a substantive right available to the petitioner, he is entitled to seek compounding of the offence as sought for in Annexure E application. True, in Annexure E application petitioner was sought to compound the offence under section 67(a) of the Abkari Act, but as the offence alleged is under Section 55(a), what is attracted is Section 67(b) of Abkari Act as it existed on 17.10.1996. Crl.M.C.911/2007 12 Petition is disposed directing Deputy Commissioner of Excise, Thiruvananthapuram to consider Annexure E representation for compounding the offence and submitted under section 67(b) and pass appropriate orders in accordance with law, in the light of the observations made earlier and to report the decision to the Judicial First Class Magistrate, Thiruvananthapuram within two months from today. Judicial First Class Magistrate, Thiruvananthapuram is directed to keep the proceedings in abeyance till then. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006