IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.MC.No. 3427 of 2008() ------------------------- CP.142/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONER(S): --------------- RATHESH, 25 YEARS S/O.LATE SOMAN, NELIKUNATTU VEEDU KURICHIMUTTOM MURI, KIDANGANOOR VILLAGE KOZHENCHERY TALUK, PATHANAMTHITTA BY ADV. SRI.AJITH MURALI RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.3427 of 2008 ---------------------------------------- Dated this the 20th day of October 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable under Section 55(a) and Section 8 of the Kerala Abkari Act. 2. The crux of the allegations against the petitioner is that he was found to be in possession of 5 x 750 ml (total 3.750 litres) of I.M.F.L purchased from the Kerala Beverages Corporation on 04/09/1999. Investigation is complete. Final report has already been filed. Cognizance has already been taken and committal proceedings has been registered. 3. The petitioner now raises before this court only one contention. He contends that even accepting the entire allegations, the final report filed alleging offences punishable under Section 55(a) and Section 8 of the Kerala Abkari Act is not justified at all. At worst, only an offence under Section 63 of the Kerala Abkari Act would lie inasmuch as what the petitioner was alleged to be found in possession was admittedly I.M.F.L and not arrack and admittedly such liquor was purchased from the Crl.M.C.No.3427/08 2 Kerala Beverages Corporation. The learned counsel for the petitioner relies on the admitted statements in the seizure mahazer in support of his contention. 4. The learned Public Prosecutor was requested to take instructions. After taking instructions, the learned Public Prosecutor accepts the contentions of the petitioner and concedes that there is nothing that can attract the allegations under Section 55(a) or Section 8 of the Kerala Abkari Act. Even according to the prosecution, article seized are not spurious liquor; but only IMF liquor purchased from the Kerala Beverages Corporation. The learned Public Prosecutor further contends that no arrack is at all involved and only I.M.F.L is involved. 5. Thus, at worst, the allegation that can be raised is only possession of licit liquor beyond the quantity prescribed. For that, obviously, the charge under Section 55(a) and Section 8 of the Kerala Abkari Act cannot lie. I am, in these circumstances, satisfied that the order taking cognizance of the offences punishable under Section 55(a) and Section 8 of the Kerala Abkari Act only deserves to be quashed. The order taking cognizance can hence be set aside and the learned Magistrate Crl.M.C.No.3427/08 3 must be directed to consider the final report afresh and take appropriate decision in the matter. 6. The learned counsel for the petitioner has a further contention that the petitioner was a juvenile on the date of commission of the offence as per the amended Section 2(l) of 'The Juvenile Justice (Care and Protection of Children) Act, 2000'. The date of commission of the offence is the crucial date and when that is reckoned, the petitioner will be less than 18 years of age on the date of commission of the offence and consequently he will be entitled for the advantage of the provisions of the 'The Juvenile Justice (Care and Protection of Children) Act, 2000', it is contended. I do not want to express any opinion on that. The learned Magistrate shall consider the final report in the light of the contentions raised by the petitioner. 7. In the result, a) This Crl.M.C is allowed in part as agreed. b) Cognizance taken against the petitioner is set aside. c) The learned Magistrate is directed to consider the matter afresh and take appropriate decision in the matter. Crl.M.C.No.3427/08 4 8. The learned counsel for the petitioner submits that if cognizance is taken only under Section 63 of the Kerala Abkari Act, the petitioner does not want to contest the proceedings and he may be permitted in that event to plead guilty to the charge under Section 63 of the Kerala Abkari Act. The petitioner can certainly apply for exemption from personal appearance and plead guilty through his counsel and depending upon the offence of which cognizance is taken, the learned Magistrate must consider the same and pass appropriate orders. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.3427/08 5 Crl.M.C.No.3427/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008