IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Crl.MC.No. 1008 of 2009() ------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.8756/2008 Dated 18/03/2008 .................... (CRIME NO.1111/2007 OF ADOOR POLICE STATION,PATHANAMTHITTA DISTRICT) PETITIONER(S): ACCUSED NO.2,3: ---------------------------------------------------- 1. D.PRASAD, S/O.DAMODHARAN, KUTTIVILAYIL HOUSE, NOORANADU P.O., ALAPPUZHA DISTRICT. 2. AJITHKUMAR, S/O.ANIRUDHAN, KOTTKKATU THEKKETHARAYIL HOUSE, BHARANIKKAVU P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADVS. MR.M.G.KARTHIKEYAN, MR.NIREESH MATHEW. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ADOOR POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION MR.V.G.GOVINDAN NAIR BY PUBLIC PROSECUTOR MR. C.K.SURESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/06/2009 ALONG WITH CRMC NO. 1009 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------------- CRL.M.C.NO.1008/09 & 1009/09 --------------------------------------------------- Dated 1st June 2009 O R D E R Petitioners are successful bidders of toddy shops 11 and 12 of Adoor Excise Range for the Abkari year 2007-08. On 31/12/2007 at 5.45 a.m Sub Inspector of Police, Adoor took sample from toddy shop No.12 suspecting adulteration after preparing Annexure-B mahazar (in Crl.M.C.1009/2009) and sent it for chemical analysis. Annexure-A FIR (in Crl.M.C.1009/2009) was registered and crime 1110/2007 of Adoor police station was registered. On same day at 7 a.m Sub Inspector of Police took samples from toddy shop No.11 after preparing Annexure-B (in Crl.M.C.1008/2009) and samples were forwarded for chemical analysis and Crime 1111/2007 of Adoor Police station was registered under Annexure-A FIR (in Crl.M.C.1008/2009). Petitioner approached this court by filing bail application No.108/07 and 117/07 respectively in crime No.1111/2007 and 1110/2007 for anticipatory bail. Under Annexure-E order (in both CRMC 1008/09 & 1009/09 2 Crl.M.C's) this court dismissed the applications recording the submission of the learned Public prosecutor and finding that apprehension of arrest is without any basis. The Public Prosecutor had submitted to the court that though crimes have been registered before receipt of the report of chemical analysis, no action whatsoever will be taken until report is received and the reports are against the petitioners. Apprehending that registration of the cases would disentitle them from participating in the auction in getting privilege under Rule 5 of Kerala Abkari Shops Disposal Rules, 2002 petitioners and others had approached this court by filing W.P.C.8756/2008. As per Annexure-F judgment, writ petition was disposed declaring that unless a charge has been framed by the court for abkari offences against a person in terms of Section 211 of Code of Criminal Procedure, he cannot be excluding from being granted licence on the ground of any allegation against him as to the commission of an offence punishable under Abkari laws. Policy order then prevailing was to the effect that no applicant is eligible for the CRMC 1008/09 & 1009/09 3 privilege of group if he is “charged” for an offence relating to illicit liquor or prosecution proceedings are pending against him before a court of law. It was interpreted by this court that charged for an offence would mean submission of a charge in terms of Section 211 of Code of Criminal Procedure. Subsequently the policy conditions were changed instead of charged with offence “registered for an offence” was substituted. These petitions are filed under Section 482 of Code of Criminal Procedure anticipating that registration of FIR will disentitle petitioners from claiming preferential right otherwise available to them. 2. Learned counsel appearing for petitioners and learned Director General of Prosecution were heard. 3. Learned counsel appearing for petitioners pointed out that Rule 8 of Kerala Abkari Shops Disposal Rules, 2002 provides the procedure taking samples and registration of case thereafter and under Sub Rule 3 only on receipt of chemical analysis report establishing that there is violation of the provisions of Abkari Act and Rules or CRMC 1008/09 & 1009/09 4 conditions or adulteration a case can be registered and as the FIRs were prepared and crimes were registered before receipt of the report of chemical analysis, they are premature and therefore registration of the crimes against petitioners are not valid and registration of the crimes will not prevent the petitioners from raising the preferential claim provided under Rule 5 and to that limited extent either FIRs are to be quashed or petitioners are to be permitted to raise the preferential claim ignoring the registration of crimes under Annexure-A FIRs. 4. Learned Director General of Prosecution submitted that the wording of Rule 5 was charged with an offence relating to illicit liquor and subsequent to the decisions of this court that charged would only mean submission of the charge, it was substituted by registration of a case and as per the rules, if a case is registered against him for an offence relating to illicit liquor, then the preferential claim cannot be availed and if that be so, registration of FIR is sufficient to disentitle him from raising a preferential claim and under CRMC 1008/09 & 1009/09 5 Section 482 of Code of Criminal Procedure, the FIRs cannot be quashed at this stage. 5. Sub Rule 3 of Rule 8 of Kerala Abkari Shops Disposal Rules, 2002 reads; On receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, Rules or conditions of Licence or any adulteration is notices, a case shall be registered within 24 hours. The sample marked as 'B' shall be produced before the concerned Court. If no case is registered, the sample marked 'B' shall be destroyed. A reading of Rule 8 makes it absolutely clear that a case can be registered based on the sample taken from the licensed shop for violation of the provisions of Abkari Act, Rule or conditions of license or for adulteration as provided under Rule 8, only after receipt of a positive report of chemical analysis against them. In the light of sub rule 3 of Rule 8 there is force in the submission of the learned counsel appearing for petitioners that when registration of a case is contemplated CRMC 1008/09 & 1009/09 6 only after receipt of the report of chemical analysis, if chemical analysis report is received later and it shows that there is no violation of the provisions of Abkari Act, Rules or conditions of licence or any adulteration by that time the auction will be over and petitioners would loose their right of preferential claim which is otherwise is available for them and it would result in serious prejudice and hardship. 6. Learned Director General of Prosecution submitted that if petitioners are permitted to have the preferential claim and subsequently the report of chemical analysis is against the petitioners, then it would result in making rule 5(3) redundant and therefore the prayer as sought for cannot be granted. But that contingency could be effectively avoided by making it clear that in case the report of the chemical analysis of the samples taken and already forwarded reveal that there was adulteration or violation of the provisions of Abkari Act, Rules or conditions of licence or any adulteration then the licence granted based on the preferential claim will CRMC 1008/09 & 1009/09 7 stand cancelled. 7. The criminal M.Cs. are disposed making it clear that the registration of Annexure-A FIRs will not disentitle the petitioners from raising the preferential claim, if available under Rule 5 as it now stands till the receipt of the report of chemical analysis against them. It is also made clear that if on receipt of the report of chemical analysis later and it is found that there is any violation of the provisions of the Abkari Act, Rules or any adulteration based on the sample taken under Annexure-B mahazars and petitioners were granted the licence, then the licence so granted based on the preferential claim shall stand cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.