IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 Crl.MC.No. 3706 of 2010() ------------------------------------- CR.NO.50/2010 OF EXCISE INSPECTOR, THIRUVANANTHAPURAM. .................... PETITIONER/ACCUSED --------------------------------- SHAFEEKKA, SHAFEEKKA MANZIL, TC-20/2383, KOWDIAR P.O., THIRUVANANTHAPURAM. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. SRI.NIREESH MATHEW. RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM-10, 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 07/10/2010, ALONG WITH CRMC NO. 1522 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3618 &3706 OF 2010 =========================== Dated this the 7th day of October,2010 ORDER Petitioners in Crl.M.C.3618/2010 are accused 1 and 2 in CR No.52/2010 of Excise Range, Kothamangalam. Petitioner in Crl.M.C.3706/2010 is the accused in CR.50/2010 of Excise Range, Thiruvananthapuram. She is the licensee of a Three Star Hotel having FL-3 licence at Thiruvananthapuram. Second petitioner in Crl.M.C.3618/2010 is the licensee and first petitioner is the Manager of Hotel Maria International, Kothamangalam having a bar licence FL-3. Both the crimes were registered on the allegations that in violation of the conditions of license, licensee had put up an additional counter and the respective accused thereby committed the offence under section 56 Crl.M.C.3706 & 3618/2010 2 (b) of Abkari Act. These petitions are filed under section 482 of the Code of Criminal Procedure to quash the crimes registered contending that an offence under section 56(b) of Abkari Act is not attracted. 2. Learned senior counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned senior counsel pointed out that under the conditions of Annexure C license, licensee is permitted to sell and serve liquor not only in the bar room but also in the room as well as the restaurant, to the inmates of the hotel. It also permits to serve liquor, along with the meals, by the side of swimming pools, lawns and the roof gardens on getting special permit. It is submitted that both licensees obtained permit to serve liquor in the lawn by paying additional amount as prescribed and in such circumstances putting up additional counter, within the licenced premises will not be a in violation of the conditions of the license and therefore offence Crl.M.C.3706 & 3618/2010 3 under section 56(b) of Abkari Act is not attracted. Learned senior counsel pointed out that the very same question was considered by this court in Crl.M.C.2292/2009 and by Annexure E order, the case registered was quashed, holding that putting up an additional counter within the licensed premises is not a violation of the conditions of the licence and therefore an offence under section 56(b) is not attracted. 4. The argument of learned Public Prosecutor is that under the license, the licensee can sell liquor only within the bar room and not outside and permission is granted only to serve liquor on the lawns or side of the swimming pools, to the residents of the hotel and it will not enable the licensee to put up additional counter and the additional counter put up, it is violation of the conditions of the license and therefore an offence under section 56(b) is attracted. Learned Public Prosecutor pointed out that under Rule 16 of Kerala Abkari Disposal Rules the sale of liquor is permitted only inside the bar room and by G.O.(P) Crl.M.C.3706 & 3618/2010 4 105/09/TD dated 17.6.2009, Foreign Liquor Rules was amended whereunder Rule 3C was inserted to the effect that no liquor shall be sold under FL-3 license through more than one bar counter, within the licensed bar room of the hotel and an additional counter, that too on payment of the additional fee prescribed therein, could be put up only within the licensed bar room of the hotel not within the licensed premises and therefore the offence under section 56(b) of Abkari Act is attracted. 5. Conditions 1, 2, 3 and 7 of the licence was considered by this court in detail in Annexure E order. Condition No.2 provides that no liquor shall be sold under the licence for removal outside the hotel, to anyone including residents of the hotel providing that liquor may be sold and served to residents of the hotel in the rooms wherein they reside or in the restaurants where they partake food, by the employees of the bar. It is further provided that liquor can be served along with meals by the side of swimming pools, lawns and the Crl.M.C.3706 & 3618/2010 5 roof gardens of the hotel, on obtaining special annual permit from the Excise Commissioner. It is further provided that such a hotel should have an exclusive restaurant for the use of families and others, where no liquor shall be served. Though the conditions of licence provide for showing the boundaries of the licenced premises and boundaries of the bar room separately, there is no condition providing that sale of liquor could only be within the boundaries of the bar room. On the other hand, Condition No.2 itself makes it sufficiently clear that, conditions of the licence provide for sale of liquor even outside the boundaries of the bar room. Condition No.2 provides that liquor can be sold and served to the residents of the hotel, in their rooms or in the restaurant, where they partake food. At the same time as far as swimming pools and lawns and roof gardens are concerned, Condition No.2 provide that though liquor cannot be sold there though it can be served along with the meals by the side of swimming pools, lawns and the roof gardens. Thus Crl.M.C.3706 & 3618/2010 6 Condition No.2 makes a distinction between the restaurant and a roof gardens or lawns or swimming pools. As far as swimming pools, lawns and roof gardens of a hotel are concerned, the licensee is not entitled to sell liquor and can only serve liquor there. On the other hand, as far as the restaurant is concerned, licensee is entitled to sell as well as serve liquor inside the restaurant, though such sale could only be to the residents of the hotel. So also serving liquor along with the meals, by the side of swimming pools, lawns and roof gardens could only be to the inmates of the hotel. Therefore when condition No.2 makes a distinction with reference to the restaurant and roof gardens, whereunder sale is permitted inside the restaurant but not permitted inside the roof gardens or lawns, it is clear that contention that sale is permitted only inside the bar room cannot be accepted. If that be the case, it cannot be said that putting up a counter in the restaurant or outside the bar room and within the licensed bar premises, would be violation of Condition No.2 as Crl.M.C.3706 & 3618/2010 7 found by this court in Annexure E order. 6. True, Rule 16 was not considered in the said decision. The question is whether Rule 16 makes any distinction. Rule 16 reads:- 16. No premises shall be used for the sale or for possession and use of liquor unless they have been approved by the Excise Commissioner.” Sub Rule (1) only provides that no premises shall be used for sale or for possession and use of liquor, without prior sanction of the Excise Commissioner. The licence granted enables the licensee, to sell liquor within the licenced premises, in accordance with the conditions of the licence. When condition No.2 of the licence enable the licensee to sell liquor, not only within the bar room but to the restaurant also, it cannot be said that Rule 16 is a bar to put up additional counter outside the bar room but within the premises of the hotel. Therefore Rule 16 does not Crl.M.C.3706 & 3618/2010 8 make any difference on the earlier finding on putting up additional counter outside the bar room and within the licensed premises by a licensee as held in Annexure E order. What remains is only Annexure R1, the Government Order amending Foreign Liquor Rules by inserting sub rule 3C after sub rule 3B of Rule 13. Sub Rule 3C so inserted reads:- “3C. No liquor shall be sold under FL3 licensee through more than one bar counter within the licensed bar room of the hotel.” The Explanatory Note shows that there is at present no provision in the Foreign Liquor Rules, to restrict the opening of more than one bar counter within the licenced bar room of the hotel and Government considers that if a license holder is allowed to maintain more than one bar counter, it will enable him to provide more facilities to Crl.M.C.3706 & 3618/2010 9 the customers and therefore it is decided to permit FL-3 licence holder to maintain additional bar counters, within the licenced bar room, by paying an additional annual fee of Rs.25,000/- for each additional bar counter and to make necessary amendments to the Foreign Liquor Rules. Thus, by sub rule 3C, what is provided is putting up additional bar counter within the licensed bar room of the hotel. True, sub rule 3C does not provide for putting up additional bar counter outside the bar room. But the question is whether there is any prohibition for putting up additional bar counter outside the bar room. 7. That is the question which was considered, in the earlier Crl.M.C. and decided in Annexure E order. As it is already found that a licensee can sell liquor not only within the bar room but within the licensed premises, when sub rule 3C only provide for collecting additional fee for putting up additional counter within the licensed premises and does not prohibit putting up additional counter outside the bar room, Rule 3C Crl.M.C.3706 & 3618/2010 10 also will not make any difference in the conclusions arrived at in Annexure E order. Therefore by putting up an additional counter as found at the time of inspection, evidenced by Annexure A mahazar which are within the licensed premises, no offence under section 56(b) of Abkari Act is attracted. Hence the Crimes registered could only be quashed. Petitions are allowed. CR.No.50/2010 of Excise Range Office, Thiruvananthapuram and CR.No.52/2010 of Excise Range Office, Kothamangalam are quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006