IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.MC.No. 2259 of 2009(D) -------------------------------------- CP.NO.46/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA. .................... PETITIONER/ACCUSED NO.1: ------------------------------------------- V.A.JAYARAM, AGED 51 YEARS, S/O.ACHUTHAN, VADAKKANCHERRY HOUSE, EANGANDIYOOR VILLAGE, THRISSUR DISTRICT. BY ADV. MR.NIREESH MATHEW. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP. BY ASST. COMMISSIONER OF POLICE, POLICE CONTROL ROOM, KOCHI CITY, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2259 OF 2009 ------------------------------------------ Dated 20th August 2009 O R D E R Petitioner is the first accused in crime No.131/2004 of Kalamassery police station taken cognizance by the Judicial First Class Magistrate-II, Aluva as C.P.46/2008, on Annexure-C final report. Prosecution case is that on 11/4/2004, Sub Inspector of Police Kalamassery conducted a search in the premises of toddy shop No.54 in Ernakulam excise range, where petitioner was the licensee during the period 2004-2005 and seized 3018 liters of toddy as well as materials like Saccharin kept in the toddy shop in 14 plastic jars and prepared the samples and sent them for chemical analysis. Annexure-B report of chemical analysis and certificate obtained showing that percentage of ethyl alcohol was respectively 0.13, 4.93 and 1.93 in addition to the detection of original sweetening agent Saccharin. Based on the investigation, a final report was submitted before the court on 21/12/2004 as further action dropped. Later, CRMC 2259/09 2 as directed by the Inspector General of Police, case was investigated further by the Sub Inspector of Police, Kalamassery and based on the original materials itself he submitted Annexure-C final report alleging that accused committed offences under Sections 55(a), 56(b), 57(b) and 58 of Abkari Act and Rule 9(2) of Kerala Abkari Shops and disposal Rules, 2002. License for the toddy shop issued in favour of the petitioner was suspended and notice was issued to show cause why the license shall not be cancelled. Under Annexure-A order dated 9/2/2005, Commissioner of Excise, Thiruvananthapuram withdrew the order of suspension of the license, finding that as per the report of the chemical examiner no poison or foreign ingredient was detected and police has also submitted a further action dropped report before the court. When learned Magistrate took cognizance for the offences, and issued warrant, this petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-C final report and the cognizance taken. Case of the petitioner is that when Honourable Supreme Court quashed Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 in State of Kerala v. Unni (2007 (1) KLT 151 SC), learned Magistrate CRMC 2259/09 3 should not have taken cognizance of the offence under Section 57(b) for violation of Rule 9(2). It was contended that Section 55(a) and Section 57(b) and 58 of Abkari Act are not attracted at all and in view of subsequent decision of the learned Single Judge of this court in Balu v. State of Kerala (2007 (1) KLT 401) if at all offence under Section 56(b) alone is attracted and if that be so, it is to be tried by the Magistrate and not to be committed for trial to the sessions court. Learned counsel appearing for petitioner submitted that unless the prosecution under Sections 55 (a) and 57(b) are not quashed, petitioner would be disentitled to get renewal of the license or fresh grant of license and in such circumstances, in the interest of justice prosecution for the offences under Sections 55(a) and 58 of Abkari Act are to be quashed. 2. Learned Senior counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Though offences under Sections 55(a), 57 (a) and 58 were allegedly committed and learned Magistrate took cognizance for the offences on the final report, on the admitted facts the said offences are not attracted. As per the amended Act 16 of 1997, with CRMC 2259/09 4 effect from 3/6/1997 Section 55 was amended deleting its application in respect of a licensee. Section 55(a) as amended reads. “Section 55. For illegal import, etc.--Whoever in contravention of this Act or of any rule or order made under this Act, (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or” Petitioner being a licensee, cannot be prosecuted for offence under Section 55(a) of the Abkari Act. Therefore cognizance taken for the offence under Section 55(a) of the Act can only be quashed. 4. Section 57(b) of the Act is attracted only if petitioner has sold or kept or exposed for sale as foreign liquor, liquor which he knows or has reason to believe to be country liquor. Section 57(b) reads; “Section 57(b): For adulteration, etc., by licensed vendor or manufacture--whoever being the holder of a license for the sale or manufacture of liquor or of any intoxicating drug under this Act, (b)sells or keeps or exposes for sale as foreign liquor, liquor which he knows or has reason to CRMC 2259/09 5 believe to be country liquor; or” There is no allegation that toddy seized from the shop of the petitioner was either sold or kept or exposed for sale as a foreign liquor. Hence Section 57(b) is also not attracted. Cognizance taken for the offence under Section 57(b) can only be quashed. 5. Section 58 is applicable, if without lawful authority petitioner has been in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured or knowing the duty, tax or rental payable under the Act not to have been paid therefor. There is no case that toddy seized from the toddy shop of the petitioner was unlawfully imported, transported or manufactured. There is also no case that duty or tax or rental was payable under the Act for the toddy. Therefore, Section 58 is also not attracted. Hence cognizance taken for the offence under Section 58 of the Act can only be quashed. 6. Learned Public Prosecutor then argued that it is for the court to frame proper charge and even if as per the final report the allegation is that CRMC 2259/09 6 petitioner committed offence under Section 57(b), if on the materials offence under Section 57(a) is attracted, the Magistrate has to frame charge for the said offence. It was argued that as report of the chemical analysis establish that Saccharin was added, which is a foreign ingredient, an offence under Section 57(a) of the Act is attracted. Learned Senior counsel appearing for the petitioner relying on the decision of this court in Balu's case (supra) argued that unless there is an allegation that Saccharin is a foreign ingredient likely to add to its actual or apparent intoxicating quality or strength of toddy or any article prohibited under any rule, even on the materials now available an offence under Section 57(a) is not attracted. I find force in the submission. Any way, it is not for this court to decide the question at this stage as it is for the concerned Magistrate to decide. 7. Even though in Balu's case, learned Single Judge held that an offence under Section 56(b) of the Act also is not attracted in spite of starch added to the toddy, learned Senior counsel fairly submitted that the same learned Judge in a later decision, when the violation of Rule 7(5) and Rule 9(3) of Kerala CRMC 2259/09 7 Abkari Shops Disposal Rules, 2002 was brought to his notice, took a view that Section 56(b) of Kerala Abkari Act may apply. As violation of Rule 7(5) or 9(3) will attract an offence under Section 56(b) of the Act, cognizance taken for the offence under Section 56(b) cannot be quashed. Petition is allowed in part. Cognizance taken on Annexure-C report, for the offences under Section 55 (a), 57(b) and 58 of Kerala Abkari Act read with Section 9(2) of Kerala Abkari Shops Disposal Rules, 2002 is quashed. It is made clear that as an offence under Section 56(b) is triable by the Judicial First Class Magistrate-II, Aluva the case need not be committed to the Sessions court and the Magistrate is at liberty to try the same after re-numbering the case. M.SASIDHARAN NAMBIAR, JUDGE. uj.