IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 Crl.MC.No. 1345 of 2008() ------------------------- Crime No.59/2005 of Assistant Excise Commissioner, Alappuzha Excise Range PETITIONER(S)/ACCUSED: --------------- 1. PHILIP ABRAHAM,S/O.DR. K.M. ABRAHAM RESIDING AT KUREEKKATTIL, VELLAKKINAR JUNCTION CIVIL STATION WARD, ALAPPUZHA, FORMER GENERAL SECRETARY, RAMAVARMA DISTRICT CLUB, ALAPPUZHA. 2. SHAJI, AGED 34 YEARS,S/O.PEETHAMBARAN RESIDING AT MUKUNDAPRATHU HOUSE, THYKKATTUSERY PANCHAYATH, MANAPPURAM PO, THYKKATTUSSERY VILLAGE BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENT(S)/COMPLAINANTS: --------------- 1. THE ASSISTANT EXCISE COMMISSIONER ALAPPUZHA. 2. EXCISE INSPECTOR, ALAPPUZHA RANGE ALAPPUZHA. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1345 OF 2008 =========================== Dated this the 4th day of January,2010 ORDER Petitioners are the office bearers of Ramavarma District Club, Alappuzha. Based on an inspection conducted by Excise Inspector, Alappuzha Excise Circle Office on 24.5.2004, samples of foreign liquor kept for sale at the club was sent for chemical analysis. The report received revealed that percentage of alcohol in the respective samples were less than the prescribed limit by 1.70 and 1.30 percentage. Anneuxre 1 notice was sent to the petitioners to explain why action shall not be taken for selling Indian made foreign liquor, with less than the prescribed strength, in violation of the provisions of Abkari Act. By Annexure 2 explanation, first petitioner on behalf of the club, stated that Indian made Crl.M.C.1345/2008 2 foreign liquor kept at the club were purchased from Kerala State Beverages Corporation Depot directly and they cannot explain how the strength was less than the prescribed limit and therefore they are not liable. By Annexure 3 notice petitioners were informed that if they are not be prosecuted they have to express their willingness to compound the offence and directed to submit a consent letter. By Annexure 4, petitioners refused to give consent to compound the offence contending that if they are to compound the offence it may mean that they have committed the offence. By Annexure 5 petitioners were informed by Assistant Excise Commissioner that if they are not prepared to pay the penalty and compound the offence within seven days, action in accordance with law will be initiated. This petition is filed under section 482 of Code of Criminal Procedure to quash Crime 59/2005 of Excise Range, Alappuzha based on Annexure 1, 3 and 5. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. Crl.M.C.1345/2008 3 3. The argument of learned counsel is that as per condition No.5 of Form F.L.4A licence issued under Rule 13(4A), namely licence for the sale of foreign liquor in clubs to its members and their guests for consumption on the premises, it is made clear that all liquors sold or kept for sale shall be of good quality and unadulterated and nothing shall be added to increase their intoxicating power. It is argued that only if something has been added for increasing the intoxicating power, there is violation of the said condition. The argument is that when the case is that intoxicating power of Indian made foreign liquor seized from the club was not increased and on the other hand, it was less, there is no violation of the provisions of condition No.5 of the licence and if so no offence as provided under section 56(b) of Abkari Act is attracted. 4. Under section 56(b) whoever, being the holder of a licence or permit granted under the Act or being in the employ of such holder and acting on his behalf wilfully does or omits to do anything in Crl.M.C.1345/2008 4 breach of any of the conditions of his licence or permit, not otherwise provided for in this Act is punishable as provided thereunder. The argument of the learned counsel appearing for the petitioners is that when there is no case that petitioners did anything to increase the intoxicating power of the liquor, there is no violation of conditions of licence and if so, no offence under section 56(b) of Abkari Act is attracted and hence under section 67 of the Act, there is no power to compound the offence. 5. Section 67 of Abkari Act provides that Commissioner may impose a fine of Rs.10,000/- each on any person or persons holding a licence or permit under the Act for the offences under section 56(b) of the Act, for variation of the strength of foreign liquor beyond the prescribed limit as may be fixed from time to time. 6. Based on the report of chemical analyst it cannot be said that the strength of the Indian made foreign liquor kept at the club for sale to its members or guests, was within the prescribed limit Crl.M.C.1345/2008 5 as provided under the Act. If that be so, it cannot be said that condition No.5 of licence is not violated. Though learned counsel argued that there would be violation only if something is added to increase the intoxicating power of the liquor , condition No.5 provides not only adding something for increasing intoxicating power but for any other purpose also.” In such circumstance, it cannot be said that there is no violation of Section 56(b)of the Act as claimed by the petitioners. In any event, I find no no necessity to quash the notices issued by the second respondent, as petitioners are entitled to challenge the final order passed by Assistant Excise Commissioner in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006