IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 Crl.MC.No. 372 of 2011() ------------------------ CP.48/2010 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... (CRIME NO.698/2010 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT) .............. PETITIONER(S): ACCUSED NO.1 TO 3: --------------------------------------------------------- 1. BOBY,AGED 36 YEARS,S/O.PETER, KAPPILAMMOOTTIL VEEDU,KOTTAPPARA KARA, AANAVERATTY VILLAGE. 2. UNNI,AGED 35 YEARS,S/O.KUNJAPPAN, POTTAMIKOTTATHIL HOUSE,MARADY KARA, MARADY VILLAGE. 3. SIVAN,AGED 54 YEARS,S/O.KUNJU, POTTAYIL HOUSE,PERUMBALLOOR KARA,ARAKKUZHA VILLAGE, MUVATTUPUZHA,ERNAKULAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA,REPRESENTED BY S.I. OF POLICE, MUVATTUPUZHA POLICE STATION,ERNAKULAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.372 of 2011 -------------------------------------- Dated this the 22nd day of February, 2011. ORDER Petitioners are accused Nos.1 to 3 in Crime No.698 of 2010 of Muvattupuzha Police Station and C.P.No.48 of 2010 of the court of learned Judicial First Class Magistrate, Muvattupuzha. The Police registered Crime No.698 of 2010 against petitioner and the licensee of a bar hotel (FL-3 license No.E-76) for offences punishable under Sections 55(a) and 55(i) of the Abkari Act (for short, “the Act”) on the allegation that petitioner Nos.1 and 2 being the employees, petitioner No.3 being the manager and accused No.4 being the licensee of the bar hotel were engaged in sale of Indian Made Foreign Liquor (for short, “IMFL”) on the varandha of a building (which according to the learned Public Prosecutor is not connected to the building in respect of which license was granted, while according to the learned counsel for petitioners it is the western varandha of the building in respect of which the FL-3 license was issued) on 01.07.2010 at about 5 p.m. which is declared as a dry day as per Condition 20A (vii) of the Foreign Liquor Rules (for short, “the Rules”). In the course of investigation accused No.4 was deleted from the array of parties and Section 56(b) of the Act was also incorporated in the FIR. After investigation the Police submitted Annexure-C, final report against petitioners for offences punishable under Sections 55(a), 55(i) and 56(b) of the Act. Challenge in this petition is to the final report and proceedings taken pursuant thereto to the extent Crl.MC No.372/2011 2 if concerned offence punishable under Sections 55(a) and 55(i) of the Act. Learned counsel for petitioners contended that allegations in the final report even if accepted on its face value would only amount to an offence punishable under Section 56(b) of the Act and placed reliance on the decision of the Division Bench of this Court in Mohanan v. State of Kerala (2007(1) KLT 845) and Annexure-D, order dated January 31, 2011 in Crl.M.C.No.197 of 2011. It is contended that in the light of the above decisions offence under Sections 55 (a) and 55(i) of the Act cannot stand and hence the final report is liable to be quashed to that extent. 2. Learned Public Prosecutor argued that the decision in Crl.M.C.No.197 of 2011 is distinguishable from the present case since in the present case, it is not the licensee who is proceeded against but the other persons. It is pointed out by the learned Public Prosecutor that in Crl.M.C.No.197 of 2011, final report was submitted against the licensee of FL-3 shop for sale of liquor before sunrise which this Court found, amounted only to violation of the conditions of license and hence punishable under Section 56(b) of the Act. It is further submitted by the learned Public Prosecutor that sale of liquor on a dry day in the present case was not within the licensed premises but beyond it and hence the decision in Crl.M.C.No.197 of 2011 cannot apply to the facts of this case. Learned Public Prosecutor submitted that if the argument of Crl.MC No.372/2011 3 petitioners is accepted it would mean that a licensee or his employee could conduct sale of liquor even if it is purchased from the Kerala Beverages Corporation (for short, “the Corporation”) at any place beyond the licensed premises and claim that offence committed is only under Section 56(b) of the Act. 3. So far as first argument raised by the learned Public Prosecutor that since petitioners are not licensees of the shop offence under Sections 55(a) and 55(i) of the Act would apply is concerned, I am unable to accept the same, for, it is clear to me from Section 56 of the Act that the said provision applies not only to the holder of a licence or permit under the Act but also to any person being the employee of such holder and acting on his behalf. It is not disputed before me that petitioner Nos.1 and 2 are employees and petitioner No.3 is the manager of the licensee (accused No.4 who was deleted from the array of accused). It is also not in dispute that petitioners were allegedly engaged in sale of liquor on the relevant day on behalf of the licensee. If that be so, merely for the reason that petitioners are not licensees of the shop it is idle to contend that Section 56(b) of the Act has no application. Crl.MC No.372/2011 4 4. The next question is where exactly liquor was being sold on the relevant day . According to the learned Public Prosecutor, place where the sale was being conducted has no reference to the licensed building. Learned counsel for petitioners contend that the alleged sale was on the varandha on the western side of the licensed building. 5. It is not disputed that the liquor in question was purchased from the Corporation. Section 55(a) of the Act deals with import, export (transport, transit or possession) of liquor or any intoxicating drug while Section 55(i) deals with sale or storage for sale of liquor or any intoxicating drug in contravention of the Act or Rule or order made under the Act. It is seen from Annexure-C, final report that the alleged sale of liquor on the relevant day was on the western varandha of Janatha Tourist Home which, it is not disputed is the licensed building going by the final report. In otherwords, the allegation as per final report is that the sale was conducted not in the counter but on the western varandha of the licensed building. If that be so, question of application of offence under Section 55(i) does not arise. 6. Nor can Section 55(a) of the Act apply in the light of the decision of Division Bench of this Court in Mohanan v. State of Kerala (supra). In that view of matter charges levelled against petitioners in Annexure-C, final report for offences punishable under Sections 55(a) and 55(i) of the Act cannot Crl.MC No.372/2011 5 stand. So far as the apprehension raised by the learned Public Prosecutor that if such a view is taken it is open to a licensee to sell liquor though purchased from the authorised outlet anywhere beyond the licensed premises and claim that the offence is punishable only under Section 56(b) of the Act is concerned, it is for the Government to look into the matter and if necessary, make necessary amendment to the Act in that regard. Resultantly this petition is allowed to the extent that incorporation of Sections 55(a) and 55(i) of the Act in the final report in Crime No.698 of 2010 of Muvattupuzha Police Station and all proceedings pursuant thereto against petitioners in respect of the said offences are quashed. THOMAS P.JOSEPH, Judge. cks