IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 4064 of 2005() ------------------------- .................... CRIME NO.53/05 OF THIRUVANANTHAPURAM EXCISE RANGE. PETITIONERS/ACCUSED NOS.1 AND 2: ------------------------------------------ 1. RAJAN, S/O.MADHAVAN, IDAYAR THOTTUVAYAL VEEDU, MUTTATHARA, THIRUVALLOM, THIRUVANANTHAPURAM. 2. RAMABHADRAN, S/O.GOPALAN, MAJAKUZHI PUTHEN VEEDU, CHENKAL, AMARAVILA, NEYYATTINKARA. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S)/STATE & COMPLAINANT : --------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI. 2. THE ASSISTANT EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SMT.LAKSHMI RANI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.221/06 IN CRL.M.C.NO.4064/05 //DISMISSED// 21.1.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No. 4064 OF 2005 ----------------------------------------------------- DATED THIS THE 21st DAY OF JANUARY, 2009 O R D E R The petitioners herein are accused Nos.1 and 2 in Crime No.53/05 of Thiruvananthapuram Excise Range, registered for the offences punishable under sections 55(a), 55(i), 8(1) and 8 (2) of the Abkari Act with the allegation that they are the employees of the 3rd accused who is the licensee of shop No.TS 17/2005-06. The Assistant Excise Inspector, Thiruvananthapuram, the second respondent in this petition, who is the complainant in the above crime seized 570 litres of spirit arrack on 14.8.2005 at about 2.30PM from the said toddy shop. Annexure I is the occurrence report in Crime No.53/05 prepared by the second respondent. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. It is argued by the learned counsel appearing for the petitioners that Annexure-I occurrence report is liable to be quashed by invoking the provision of Section 482 of Cr.P.C. by CRL.M.C.No.4064/08 -2- this Court for the reason that Rule 9(2) of Abkari Rules has been struck off by the Hon'ble Supreme Court as revealed from State of Kerala v. Unni (2007(1) KLT 151(SC)). The learned counsel has also argued that continuance of the proceedings against the petitioners herein is an abuse of process of law so as to harass the petitioners for the reason that there is non-compliance of the mandatory procedure regarding taking of samples enunciated under Chapter VII of Kerala Abkari Shops (Disposal in Auction) Rules, 2002. 4. A statement has been filed by the 2nd respondent in this petition wherein, it is specifically stated that the 2nd respondent herein and party have seized 570 litres of arrack as mentioned in the occurrence report, Annexure-I which was sent for chemical analysis and obtained the chemical analysis report Annexure-II produced by the petitioners. It is also stated in that report that the 3rd accused who is the licensee of the above said shop has not been arrested as on 3.2.2006. It is also submitted by the learned Public Prosecutor that the case registered against the petitioners and 3rd accused was that they were in possession and sale of illicit spirit arrack which was prohibited as per the above Act and the contraband article was not toddy, but arrack, as mentioned in Annexure-I. CRL.M.C.No.4064/08 -3- 5. Whether the petitioners and the 3rd accused have committed the offences alleged against them are matters to be decided by the trial court on the basis of the evidence adduced on the side of the prosecution. Whether they have violated the provisions of the Abkari Act, etc. are also to be determined by the trial court. The contention raised by the petitioners in this petition that whether the complainant has complied with the procedures enunciated in Chapter VII of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 are left open to be decided by the learned Magistrate. Under the above circumstances and with the above observation, this Crl.M.C. can be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn