IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.MC.No. 941 of 2010() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.2054/2008 CR.NO.7/08 OF IDUKKI EXCISE RANGE .................... PETITIONER(S): ACCUSED NO.3 ------------------------------------------------ GOPALAN, S/O.NANU, THAIKKUTTATHIL HOUSE, KANJAR P.O., KUDAYATHOOR, THODUPUZHA. BY ADVS. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, IDUKKI. 4. EXCISE INSPECTOR, IDUKKI EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 5. DEPUTY COMMISSIONER OF EXCISE, IDUKKI DISTRICT. 6. ASSISTANT EXCISE COMMISSIONER, IDUKKI. 7. PREVENTIVE OFFICER, IDUKKI EXCISE RANGE OFFICE, IDUKKI. R1 TO R7 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.941 of 2010 -------------------------------------- Dated this the 22nd day of March, 2011. ORDER On getting reliable information that certain persons are engaged in illicit transportation and sale of toddy the Excise Officials on 18.03.2008 at about 8.45 a.m. came to the place of occurrence referred to in Annexure-VIII, mahazar and found two persons engaged in unauthorised sale of toddy from an autorickshaw bearing No.KL 6A/6101. On seeing the Excise Officials the person who was consuming toddy ran away from the scene and the two persons engaged in the alleged sale were caught. They were not able to produce any document for transportation of toddy. The Excise Officials registered C.R.No. 7 of 2008 of Idukki Excise Range for offences punishable under Sections 55(a) and (i) of the Abkari Act (for short, “the Act”). On questioning accused 1 and 2 who were caught from the Autorickshaw, they claimed that they are employees of toddy shop No.37 (karimban). Later, the Excise Officials submitted a report to the court on the statement of accused 1 and 2 that they are employees of toddy shop No.23 of 2008. Thereafter petitioner who is the licensee of toddy shop No.23 of 2007-2008 was implicated as accused No.3. The Excise Officials also wanted a correction in the earlier report that the toddy shop Number is '23/2007- 2008' and not '37'. Petitioner who is the licensee of toddy shop No.23/2007- 2008 contends that offence under Sections 55(a) and (i) of the Act could not stand on the admitted facts and at any rate, what is involved is only a violation of Crl.MC No.941/2010 2 permit conditions which attracted only offence punishable under Section 56(b) of the Act. Learned counsel has placed reliance on the decisions in Sasidharan v. State of Kerala (2007 (1) KLT 1062) and Pradeep v. State of Kerala (2010 (3) KLT 99). Learned Public Prosecutor submitted that on the face of allegations in the mahazar and the final report offences punishable under Sections 55(a) and (i) of the Act are attracted. 2. Section 55(a) of the Act deals with import, export, transport, transit and possession of liquor or any intoxicating drug in contravention of the Act or of any rule or order made under the Act. Section 55(i) deals with sale or store for sale of liquor or any intoxicating drug in contravention of the Act or of any rule or order made under the Act. 3. In Sasidharan v. State of Kerala what was considered was whether transportation of toddy in excess of permitted quantity attracted offence punishable under Section 55(a) of the Act. It was held that the said act does not involve any offence punishable under Section 55(a) of the Act and that it is only a violation of the conditions of licence attracting offence under Section 56(b) of the Act. In Pradeep v. State of Kerala question considered was whether transportation of toddy in excess of quantity allowed by the permit attracted offence under Section 55 or Section 56 of the Act. It was held that only Section 56(b) of the Act is attracted. Crl.MC No.941/2010 3 4. It is argued by learned counsel that Section 55(a) of the Act has application only when there is transportation, possession or sale of liquor in violation of the provisions of the Act or Rules or Order made thereunder, while in the present case it is not disputed that petitioner is the licensee of toddy shop Nos.22 and 23. It is the contention of learned counsel that the toddy in question was being brought from shop No.22 to shop No.23 both belonging to the petitioner and that even if it is assumed that the vehicle in which toddy was being transported is not a permitted vehicle, it only amounted to a violation of the conditions of licence. According to the learned counsel, even sale of toddy outside the permitted premises only attracted offence punishable under Section 56(b) of the Act. 5. There could be no doubt on the view that if toddy is brought as permitted and there is a violation of the conditions of licence/permit, the offence would come under section 56(b) of the Act. In the present case in Annexure- VIII, mahazar it is stated that toddy was unauthorisedly, in contravention of the Act being transported in the vehicle and sold at the place of occurrence. It is not disputed that the vehicle was not permitted to carry toddy on behalf of the petitioner. There is no material on record to show wherefrom the toddy which was being transported was collected. Position will be different if toddy was drawn from a place which was not permitted in which case the mere fact that petitioner is the licensee of toddy shop Nos.22 and 23 would not bring the alleged act within the ambit of Section 56 of the Act. If toddy was drawn from the places which was not authorized, transported in a vehicle not permitted and Crl.MC No.941/2010 4 sold outside the premises permitted it does not amount to merely violation of condition of licence. In such a case, the licence has no relevance. It is to be ascertained whether toddy was being brought from a permitted source. In that view of the matter at this stage it is not possible to say that no offence under Sections 55 (a) and (i) of the Act is made out. I make it clear that the question whether it is Sections 55(a) and (i) or Section 56(b) of the Act which is attracted is a matter which the trial court has to decide having regard to the circumstances stated above and on the question wherefrom the toddy transported was drawn. If petitioner has an apprehension that the pendency of the case would affect his right for participating in auction it is open to the petitioner to request the trial court to expedite trial and disposal of the case and if any such request is made trial court shall consider the same and expedite trial and disposal of the case. It is open to the petitioner to take all defences available to him in the trial court. Trial court shall decide the issue untrammelled by any observation contained in this order. Resultantly with the observations made above this petition is dismissed. THOMAS P.JOSEPH, Judge. cks