IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 Crl.MC.No. 838 of 2011() ----------------------------------- (CR.NO.37/2010 OF EXCISE RANGE OFFICE, THRISSUR) ... PETITIONER(S): ACCUSED NO.3: -------------------------------------------------- P.S.BIJI, AGED 46 YEARS, S/O.SANKARAN, PUTHENPURA VEETTIL, PULLUVAZHI POST, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.M.G.KARTHIKEYAN, SRI.NIREESH MATHEW. RESPONDENT(S): COMPLAINANTS: ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, THRISSUR REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.838 of 2011 --------------------------------------- Dated this 21st day of March, 2011 ORDER On 05.03.2010 at Kombazha Check Post, the Excise party intercepted certain vehicles which were carrying toddy as per permit issued to the licensee concerned and collected samples from the toddy. The sample on chemical examination were found to contain Alcohol in excess of the permitted limit under Sec.9(2) of the Kerala Abkari Shops Disposal Rules (for short, "the Rules”). Thereon the Excise officials registered a case as C.R.No.37 of 2010 against two persons – the licensee and driver of the vehicle concerned, KL-40/B 2039. In the course of investigation the Excise Inspector submitted Annexure-E, report stating that investigation revealed that petitioner is the registered owner of the vehicle and hence petitioner was impleaded as the third accused in the case. That report is under challenge in this proceeding. Learned Senior Advocate contended that offences alleged in the crime and occurrence report are under Secs.56(b), 57(a) and 64 of the Abkari Act (for short, "the Act”). Sec.64 of the Act relates to a presumption, it is not a penal section and offences under Secs.56(b) and 57(a) of the Act cannot Crl.M.C.No.838 of 2011 -: 2 :- be attributed to the petitioner as he is neither a licensee nor his employee. It is contended that except stating that petitioner happened to be the registered owner of the vehicle in which toddy was being carried, there is no allegation against petitioner so as to implead him for any offence under the Act. Reliance is placed on the decisions in Sooraj Vs. Excise Inspector (2002 (1) KLJ 739), Rajan Vs. the Excise Inspector and Anr.(2004 (1) KLJ 666) and Sony C. Mathew vs. State of Kerala (2007 (3) KLJ 629). I have heard learned Public Prosecutor also. Learned Public Prosecutor submitted that petitioner was impleaded in his capacity as the registered owner of the vehicle. 2. It is not disputed that the vehicle in question was permitted to carry toddy for the first accused/licensee. This is clear from the mahazar prepared by the Excise officials at the time of detection of the offence itself. Sec.56 of the Act deals with misconduct by licensee or employee of such licensee and relates to violation of conditions of license or permit. Sec.57 of the Act deals with adulteration by the licensed vendor or manufacturer. 3. Though learned Public Prosecutor referred me to the presumption under Sec.64 of the Act, that in my view is not available against petitioner so far as the offence alleged is under Crl.M.C.No.838 of 2011 -: 3 :- Secs.56(b) and 57(a) of the Act. That in short is the crux of the decisions referred above and relied by the learned Senior Advocate. Indisputably, petitioner is neither the holder of a license or permit nor the employee of such person. It is also not disputed that the vehicle of which petitioner is the registered owner was permitted to carry toddy on behalf of the first accused. In the circumstances mere fact that petitioner is the registered owner is not by itself sufficient to implead him for offences under Secs.56(b) or 57(a) of the Act even relying on the presumption under Sec.64 of the Act. Hence impleadment of petitioner is not in accordance with the law and cannot stand. Resultantly this criminal miscellaneous case is allowed. Crime and occurrence report and Annexure-E, report to the extent it concerned petitioner will stand quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-