IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 30TH DAY OF MARCH 2010/9TH CHAITHRA, 1932 Crl.MC.No. 1853 of 2007 ( ) --------------------------- (OCCURRENCE REPORT NO.20/2004 OF EXCISE DEPARTMENT ON THE FILE OF JUDICIAL FIRST CLASS MAGISSTRIATE COURT AT KASARAGOD) PETITIONER(S)/ACCUSED: --------------------- G.UDAYAKUMAR, S/O.G.S.SOMAYYA, ALIKATTE ROAD CHOWDLA VILLAGE & POST, KASARAGOD DIST. BY ADV. SRI.T.B.SHAJIMON COMPLAINANT(S)/COMPLAINANT: --------------------------- STATE OF KERALA, REP.BY, EXCISE RANGE OFFICE, BEDIADKA RANGE REP.PUBLIC PROSECUTOR, KERALA HIGH COURT ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. PUZHKKARA MOHAMMED. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C.No. 1853 of 2007 ------------------------------------------------------------- Dated this the 30th day of March, 2010 ORDER Petition filed to quash Annexure A1 proceedings. 2. A charge sheet was laid as Annexure A1 against petitioner and 3 others alleging offence under Section 55(a) of the Abkari Act. Petitioner is the 4th accused. As per the allegations in the charge, accused nos. 1 to 3 were found transporting 1350 litres of spirit in 45 plastic cans in a pickup van on 17.10.2004 at 4 a.m. 3. Accused 1 to 3 were arrested from the sport and on investigation it was found that petitioner is the registered owner of the vehicle in which spirit was transported and hence the charge was laid against him also for transportation of spirit, in contravention of the provisions of the Act. It is alleged that it was with the consent and knowledge of petitioner that offence was committed by accused nos. 1 to 3. 4. Learned counsel for petitioner submitted that the owner of a vehicle cannot be made liable for offence under Section 55(a) for transporting spirit. He has cited a decision [Crl.M.C. No.1853/2007] 2 reported in Sony C. Mathew v. State of Kerala (2007 KHC 4187) in support of his argument. Petitioner was implicated only as the owner of the vehicle and Abkari Act does not contain any provision whereby criminal liability is cast on the owner of the vehicle, it is argued. Petitioner was implicated only as the owner of the vehicle and hence he cannot be proceeded for illegal transportation of spirit, it is strenuously argued. 5. On hearing both sides and on going through the allegations in the charge, I find that petitioner and three others are sought to be prosecuted for transportation of spirit in contravention of the provisions of the Act. The respondent police had seen accused nos. 1 to 3 engaged in transportation. Petitioner was not found at the scene. Therefore, it cannot be said that petitioner was physically involved in transportation. 6. However, he was implicated only on the ground that he is the registered owner of the vehicle. As per the decision reported in Sooraj v. Excise Inspector (2002(1) KLJ 739) the person cannot be implicated in an offence under Section 55(a), only in his capacity as owner of the vehicle. It is held in paragraph 10 of the above decision as follows: [Crl.M.C. No.1853/2007] 3 “10. The 4th accused was implicated in the case only in his capacity as owner of the vehicle and since he is the brother of the first accused. The Abkari Act does not contain any provision, whereby criminal liability is cast on the owner of the vehicle. It is another matter whether his vehicle is liable to be confiscated under the relevant provisions of the Abkari Act. As long as there is an allegation that the 4th accused was involved directly or indirectly in the transport of contraband liquor and in the absence of any specific provision in the Abkari Act which casts a liability on the owner of the vehicle for the offences committed on using that vehicle, the contention of the petitioner deserves to be accepted.” 7. The same view is followed in 2007 KHC 4187. It is also argued by learned counsel for petitioner that possession during transit is not an offence under Section 55(a) and mere possession of liquor will not be an offence under Section 55(a) of Abkari Act, as held in Mohanan v. State of Kerala [2007(1) KLT 845 (DB)]. Referring to a decision reported in Surendran v. Excise Inspector [2004(1) KLT404] it was observed that Section 55(a) is applicable only when persons illegally imports or transports liquor or is in possession of liquor while illegally transporting. 8. On going through the decision reported in Mohanan's case and Surendran's case, I am satisfied that in the light of [Crl.M.C. No.1853/2007] 4 the dictum laid down in two Division Bench decisions of this Court, petitioner cannot be proceeded against under Section 55(a) for possession of spirit which was seized from the car which allegedly belonged to him, since a person can be made liable for possession of liquor while illegally transporting. Therefore, petitioner cannot be proceeded against on the allegations in the charge Annexure A1. Hence, the following order is passed: 1) Annexure A1 so far as it relates to petitioner is hereby quashed. 2) Petitioner shall not be proceeded against on the basis of Annexure A1. Petition is allowed. Sd/- K. HEMA, JUDGE. krs.