IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.MC.No. 4048 of 2010() ------------------------------------ C.R.NO.61/2010 OF CHANGANACHERRY EXCISE RANGE, KOTTAYAM DISTRICT. .................... PETITIONER/ACCUSED NO.1, 2, 4& 5: ------------------------------------------------------- 1. RAJAN, AGED 28 YEARS, S/O.JAYARAJ PUTHUVELIL HOUSE, BAISON VALLEY, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. SANTHOSH P.KUMAR, S/O.KUMARAN, PUTHENCHIRAYIL HOUSE, NEELAMPEROOR VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. * 3. JOBYCHAN SCARIA, S/O.SCARIA, CHETTUTHADATHIL HOUSE, SANTHIPURAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT. *THE 3RD PETITIONER IS TREATED AS 3RD ACCUSED INSTEAD OF 4TH ACCUSED AS PER ORDER DATED 08/10/2010 IN CRL.MA.NO.6407/2010 4. M.D. BAIJU, S/O.DAMODHARAN, BAIJU BHAVAN, VAZHAPPALI PADINJARU, VAZHAPPALLY VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. SRI.NIREESH MATHEW. RESPONDENT/COMPLAINANT: --------------------------------------------- 1. STATE OF KERALA, REP.BY EXCISE INSPECTOR CHANGANACHERRY EXCISE RANGE, KOTTAYAM DISTRICT REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM, 695 001. R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4048 OF 2010 --------------------------------------------- Dated 8th October, 2010 O R D E R Petitioners are accused 1,2,3 and 5 in CR.61/2010 of Changanacherry Excise Range. Petitioners 3 and 4 are licensees of toddy shops of group No.IX and X of Changanacherry Excise Range respectively. First petitioner is a worker and second petitioner, the Manager of T.S.No.55 of group No.IX. On 30/9/2010 at about 10.45 a.m, Excise Commissioner inspected toddy shop No.55 and prepared Annexure-B mahazar. Based on the findings in Annexure-B that 700 liters of toddy was found stored in a building owned by fifth accused, adjacent to T.S.N0.55, petitioners 1 and 2 were questioned and finding that the toddy found Crmc 4048/10 2 therein was stored by petitioners 3 and 4 and under Annexure-A crime and occurrence report case was registered for the offence under Sections 55(a) and 55(i) of Abkari Act. Samples of toddy taken were sent for chemical analysis. Petitioners 1 and 2 were arrested. Third petitioner is one of the licensees of the toddy shop of Group No.IX. Petition is filed under Section 482 of Code of Criminal Procedure to quash the offences under Sections 55(a) and 55(i) of Abkari Act, contending that the offences are not attracted on the undisputed facts and if at all, there wass only violation of the conditions of the licence and therefore, only an offence under Section 56(b) will be attracted, unless a positive report is obtained on chemical analysis. Fourth petitioner, the fifth accused in the case is the licensee of Crmc 4048/10 3 one of the joint licensees of toddy shops in group No.X in Changanacherry Excise Range. 2. Learned Senior counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Learned Senior counsel pointed out that accused 3 and 4 are admittedly licensees of toddy shops in group No.IX of Changanacherry Excise Range. Even if, they have stored toddy outside the licensed premises, it would attract only an offence under Section 56(b) of Kerala Abkari Act, as it is only violation of the conditions of the license and an offence under Sections 55(a) or 55(i) of Abkari Act is not attracted. Learned Senior counsel pointed that question whether storing toddy outside the licensed premises would attract an offence under Section 55(a), was considered by this Crmc 4048/10 4 Court in Crl.M.C.983/2009 and by Annexure-C order, it was found that an offence under Section 55(a) is not attracted and it would only be an offence under Section 56(b) of Abkari Act. 4. This Court in Crl.M.C.648/2009 considered the question whether an offence under Section 55(i) of Abkari Act is attracted by sale of toddy on a prohibited day and also outside the licensed premises. By Annexure-D order this Court held that even if there was sale of toddy on a prohibited day like Gandhi Jayanthi day, it will not attract an offence under Section 55(a) of Abkari Act alone as it was found that the license was to sell toddy within the premises of the toddy shop and if it was sold, offences under Section 55(a) and 55 (i) of Abkari Act will not be attracted. By Crmc 4048/10 5 Annexure-E order Honourable Supreme Court dismissed the S.L.P.No.4224/2009 preferred by the State, challenging Annexure-D order. 5. Learned Senior counsel pointed out that Section 55, as it originally stood before Kerala Amendment Act 16 of 1997, which came into force w.e.f 3/6/1997, even against the licensee the offence would have attracted, by the Amendment Act 16 of 1997, Section 55 was amended deleting “or of any licence or permit obtained under the Act”. Therefore, if there is any contravention of the conditions of the licence or permit obtained under the Act subsequent to 3/6/1997 by a licensee, an offence under Section 55, either under (a) or (i) is not attracted against the licensee. Therefore, offence under Section 55(i) is not attracted against the licensee on the Crmc 4048/10 6 allegation that licensee stored toddy outside the licensed premises, as it is only violation of Sub Rule 5 of Rule 7 of Kerala Abkari Shops Disposals Rules, 2002. 6. Learned Public Prosecutor argued that toddy was found stored outside the licensed premises and therefore, accused are liable to be prosecuted for the offence under Section 55(i), as they stored for sale, in contravention of the provisions of the Act or the Rules. Argument is that toddy could be stored or sold only under a license and that too within the licensed premises and as toddy was seized from a building outside the licensed premises, an offence under Section 55 (i) of Abkari Act is attracted. 7. In view of the decision of the Division Bench of this Court in Mohanan v. Crmc 4048/10 7 State of Kerala (2007 (1) KLT 845) it cannot be disputed that an offence under Section 55(a) of Abkari Act is not attracted in this case, as there is no case that toddy was either illegally imported or exported or stored for any of that purpose. 8. Question then is whether an offence under Section 55(i) is attracted. Section 55(i) before its amendment by Act 16 of 1997, provides that whoever in contravention of this Act or of any Rule or order made under this Act or by any licensee or permit obtained under this Act, import, export, transports or possesses liquor or any intoxicating drug, he is punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than twenty five thousand rupees. By amendment Act of 16 of 1997 Crmc 4048/10 8 invoking Section 55 against the licensee for contravention of the provisions of the license or permit obtained under the Act was excluded by deleting the words “or of any licence or permit obtained under this Act”. As a result, if there is a violation of the conditions of the license or permit alone by a licensee, an offence under Section 55(a) or 55(i) will not be attracted. So also, “storing for sale of liquor” though originally not included within the ambit of Section 55(i), subsequent to amendment Act 16 of 1997, whoever in contravention of the Act or of any rule or order made under the Act sells or stores for sales liquor or any intoxicating drug is also liable for punishment under the said section. So also sentence for the offences were enhanced to imprisonment for ten years and with fine Crmc 4048/10 9 which shall not be less than rupees one lakh. Therefore, w.e.f 3/6/1997, if a licensee has violated the terms of the license or permit and stored liquor outside the licensed premises, an offence under Section 55(i) will not be attracted against the licensee or his employees, if they are acting under the licensee. 9. Question then is, whether on the facts of this case, as seen from Annexure-B mahazar, an offence under Section 55(a) or 55(i) is attracted. As stated earlier Section 55(a) is not attracted. Though learned Public Prosecutor argued that as toddy was found stored not within the licensed premises of accused 3 to 5, an offence under Section 55(i) is attracted, when it is admitted that accused 3 and 4 are the licensees of toddy shop of Crmc 4048/10 10 group No.IX and they are the licensees of toddy shop No.55 and toddy was seized from a room near to the said toddy shop, though belonging to fifth accused, a licensee with others of toddy shops of Group X, prosecution case is that accused 3 to 5 together stored the toddy jointly, as far as accused 3 and 4, the licensee of toddy shop No.55 the case could only be that they stored toddy outside the licensed premises of toddy shop No.55. It would only be a violation of Sub Rule 5 of Rule 7 of Kerala Abkari Shops Disposal Rules which provides that possession or sale at a licensed premises of any liquor, other than to which the licence relates, is prohibited. 10. If that be so, accused 3 and 4 could be prosecuted only for an offence under Section 56(b) of the Abkari Act, unless the report on Crmc 4048/10 11 chemical analysis establishes that what was stored is not toddy. Question is whether the position would be different against the fifth accused. As far as fifth accused is concerned, he is also admittedly one of the licensees of toddy shops of group No.X of Changanacherry Excise Range. Even if prosecution case is accepted, case against fifth accused could only be that he stored toddy outside the licensed premises of the toddy shop of group No.X. So long as he is a licensee of the toddy shop and in violation of Sub Rule 5 of Rule 7, he stored toddy outside the licensed premises, may be along with licensees of group No.IX, it would only be a violation of conditions of the licence and if so, offence attracted could only be under Section 56(b) and not 55(i) of Abkari Act, unless report of chemical analysis shows Crmc 4048/10 12 otherwise. In such circumstances, petition is disposed quashing the offence under Sections 55 (a) and 55(i) of Kerala Abkari Act in Crime No.61/2010 of Changanacherry Excise Range, making it clear that the case can be prosecuted only for the offence under Section 56(b) of Kerala Abkari Act till a positive report is obtained on chemical analysis. M.SASIDHARAN NAMBIAR, JUDGE. uj.