IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 Crl.MC.No. 4386 of 2011() ---------------------------------- CRIME NO.1142/2011 OF TELLICHERRY POLICE STATION. ..... PETITIONER(S): ACCUSED & PROPRIETOR OF THE PREMISES ------------------------------------------------------------------------------------------ 1. THANZEER, S/O.MAMMOOTTY, STALL NO.31, FEMINA STATIONERY, NEW BUS STAND SHOPPING COMPLEX, TELLICHERRY, KANNUR DISTRICT. 2. M.MAMMOOTTY, PROPRIETOR, STALL NO.31, FEMINA STATIONERY, NEW BUS STAND SHOPPING COMPLEX, TELLICHERRY, KANNUR DISTRICT. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): STATE ------------------------------------ 1. SHO, TELLICHERRY POLICE STATION, CRIME NO.1142/2011 REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.31 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, TRIVANDRUM. PIN: 695 001. R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRMC. NO.4386/2011 APPENDIX PETITIONER(S) ANNEXURES AI:- COPY OF THE CERTIFICATE OF REGISTRATION UNDER THE KERALA VALUE ADDED TAX RULES, DT.26-5-2007. AII:- COPY OF THE RECEIPT EVIDENCING REMITTANCE OF THE LICENSE FEE UNDER D & O TRADE LICENSE FEE RULES,DT.18-2-2011 ISSUED BY TELLICHERRY MUNICIPALITY. AIII:- COPY OF THE RECEIPT EVIDENCING REMITTANCE OF P.F.A.LICENSE FEE ISSUED BY TELLICHERRY MUNICIPALITYDT.18-2-2011. AIV:- COPY OF THE FIR ALONG WITH THE STATEMENT IN CRIME NO.1142/2011 DT.14-11- 2011. AV:- COPY OF THE SEARCH LIST PREPARED BY THE FIRST RESPONDENT AT THE TIME OF SEIZURE, DT.14-11-2011. AVI:- COPY OF THE LIST OF PROPERTIES PRODUCED BEFORE THE MAGISTRATE ALONG WITH THE ENDORSEMENT HANDING OVER THE POSSESSION BACK TO THE FIRST RESPONDENT,DT.14-11-2011. AVII:- COPY OF THE SCENE MAHAZAR PREPARED BY THEADDITIONAL SUB INSPECTOR OF POLICE, TELLICHERRY,DT.15-11-2011. AVIII:- COPY OF THE ORDER IN C.M.P.NO.5438/2011 IN CRIME NO.1142/2011, DT.24-11- 2011. AIX:- COPY OF THE PURCHASE BILLS DT.6-11-011, 10-11-2011 & 16-11-2011 FOR PURCHASING SOME OF THE ARTICLES SEIZED. RESPONDENTS' ANNEXURES NIL:- TRUE COPY P.A. TO JUDGE tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.4386 of 2011 ----------------------------------- Dated this the 23rd day of December 2011 O R D E R 2nd petitioner is the Proprietor of a shop. The first petitioner was stated to be the person present in the shop at the time of detection of the case. 2. The allegation is that on 14.11.2011 when the first respondent inspected the shop, tobacco products were stocked for sale in the shop. According to the respondent the said shop is near an educational institution named Mahatma College and so, the stock or sale of the tobacco will attract the offence under Sec.118(i) of the Kerala Police Act. 3. Learned counsel appearing for the petitioners submits that the scene mahazar shows that there is a Tutorial College/tuition centre functioning in that building and the shop in question is not near the 'school' which alone will satisfy the requirement of Sec.118(i) of the Kerala Police Act. Prohibition on Sale of Cigarettes and other Tobacco Products around Educational Institutional Rules, 2004 defines an educational Crl.M.C. No.4386 of 2011 -: 2 :- institution as; “Educational Institution means places/centres where educational instructions are imparted according to the specific norms and include schools, colleges and institutions of higher learning established or recognised by an appropriate authority;” Learned counsel submits that a tutorial college cannot be termed as an educational institution where education is not imparted according to 'specific norms'. If it has to be conducted according to the specific norms, it should be as per the provisions of the Education Act or Rules or under any other Act or Rules. So far as private colleges/tutorial colleges are concerned, it is not being conducted under specific norms and as such the tutorial college mentioned in the police report cannot be construed as an educational institution. Since the tutorial college mentioned by the respondents cannot be construed as “school”, the offence under Sec.118(i) is not attracted. Therefore, the proceedings against these petitioners for offence under Sec.118(i) will stand quashed. If any other offence is committed/disclosed, it is for the police officer to proceed in accordance with law. 4. The articles seized from the shop of the 2nd petitioner Crl.M.C. No.4386 of 2011 -: 3 :- are not items totally prohibited for sale but the prohibition is only for sale to children aged less than 18 years and the sale should not be near the school premises. Therefore, those articles are ordered to be released to the 2nd petitioner on his filing an undertaking before the learned Magistrate that those articles will not be sold to children aged less than 18 years or near the school premises. This Crl.M.C. is disposed of accordingly. N.K.BALAKRISHNAN, J UDGE. Jvt