IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 OP.No. 16935 of 1998(N) ----------------------- PETITIONER: -------------------- S.A.SURESH, LICENCEE FL-1 NO: 26/98-99, KOLLAM RESIDING AT MUDAPPIL HOUSE KANNAMOOLA, THIRUVANANTHAPURAM BY ADV. SRI.M.K.CHANDRA MOHANDAS ADV SHRI. U.K. PRATHEEP ROY RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM 2. THE ASST. EXCISE COMMISSIONER KOLLAM 3. THE SUB INSPECTOR OF POLICE KOLLAM EAST POLICE STATION KOLLAM BY GOVERMENT PLEADER SHRI. K. SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO: 29966 OF 1998 IN O.P.NO: 16935 OF 1998 DISMISSED: 28.7.2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXTS: EXT.P1: PHOTO COPY OF THE FIRST INFORMATION REPORT NO: 571/98 FILED BY THE 3RD RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM jj /TRUE COPY/ P.A.TO JUDGE P.N.RAVINDRAN, J. -------------------------- O.P. No.16935 OF 1998 -------------------------- Dated this the 28th July, 2008. JUDGMENT The petitioner was the licensee of an FL1 shop during the year 1998-99. On the allegation that he was selling liquor in quantities below 180 ml. for consumption in the premises attached to his shop, Crime No: 571/98 was registered against him by the Sub Inspector of Police, Kollam East Police Station. Ext.P1 is the First Information Report registered in connection with the said crime. The charge against the petitioner is that by selling Indian made Foreign Liquor for consumption in the licensed premises he has rendered himself liable to be prosecuted and punished under Section 55(a) and (i) of the Kerala Abkari Act, hereinafter referred to as the 'Act' for short . 2. The petitioner has, in this original petition sought to quash Ext.P1 FIR on the ground that even if the entire allegations in the FIR are taken as correct, it would not attract the provisions of Sections 55(a) and (i) of the Act. It would at best render him liable to be prosecuted for the offence punishable under Section 56(b) of O.P.16935/98 2 the Act, it is contended. Reliance is placed on a decision of this Court in Mariamma and another v. State of Kerala & others {1998(1) KLT 286} in support of the said contention. 3. I have heard Shri. K. Pratheep Roy, the learned counsel appearing for the petitioner and Shri. K. Sandesh Raja, the learned Govt. Pleader appearing for the respondents. 4. The only point that arises for consideration is whether even if the entire allegations in Ex.P1 FIR are taken as true, the petitioner can be prosecuted for the offences punishable under Section 55(a) and (i) of the Act. In Mariamma and another v. State of Kerala and others (supra) a learned Single Judge of this Court held that where a licensee violates the conditions of the licence, he can be prosecuted only for the offence punishable under Section 56(b) of the Act. A similar view has been taken by a Division Bench of this Court in Mohanan v. State of Kerala {2007(1) KLT 845}. I am bound by the authoritative pronouncements of this Court in the decisions referred to above. In my opinion, as the petitioner was admittedly a licensee and the allegations even if they are assumed to be true do not relate to illegal import of liquor and sale in the course of such import, the offences alleged against the petitioner will fall only under O.P.16935/98 3 Section 56(b) of the Act. In that view of the matter, I dispose of the Original Petition with the observation that it will be open to the Prosecuting Officer to amend/alter the charge against the petitioner in the final report filed or to be filed in the Court of the Judicial First Class Magistrate's Court II, Kollam in connection with Crime No: 571/98 of Kollam East Police Station, into one under Section 56(b) of the Act. P.N.RAVINDRAN, JUDGE jj