IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 Crl.MC.No. 149 of 2011() ------------------------ CC.113/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, THIRUVANANTHAPURAM CR.NO.222/1996 OF EXCISE RANGE OFFICE, THIRUVANANTHAPURAM .................... PETITIONER(S): ACCUSED NO.5: ---------------------------- C.M.PREMNATH, MANAGING PARTNER, HOTEL CLASSIC, KILLIPPALAM, THIRUVANANTHAPURAM. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW SRI SAJI SHANKARAN NAIR RESPONDENT(S): COMPLAINANT: --------------------------- 1. STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIOER OF EXCISE, THIRUVANANTHAPURAM. (BOTH REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.) PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.149 of 2011 -------------------------------------- Dated this the 24th day of January, 2011. ORDER Annexure-F, order dated December 1, 2010 passed by the Deputy Commissioner of Excise, Thiruvananthapuram, respondent No.2 in this proceeding on Annexure-E, application dated March 24, 2010 preferred by petitioner requesting to compound the offence under Section 67(b) of the Abkari Act (for short, “the Act”) as it stood before the amendment on June 3, 1997 is under challenge in this proceeding. 2. According to the respondents, Excise Officials inspected the bar hotel of petitioner/accused No.5 on October, 1996 and found Indian Made Foreign Liquor kept in a room which was not a licensed premise. Thereon a case was registered against petitioner and others including manager of the bar hotel for offence punishable under Section 55(a) of the Act. While so, in the light of the decision of this Court in Mariamma and another v. State of Kerala and others (1998 (1) KLT 286) accused No.1 got the case against him compounded as per direction in Annexure-B, order dated March 23, 2010 in Crl.M.C.No.911 of 2007 of this Court. Based on Annexure-B, order respondent No.2 passed Annexure-C, order compounding the offence and that matter was reported to the learned Judicial First Class Magistrate-III, Thiruvananthapuram (where the case was pending). Accepting the composition as per Annexure-C, learned Magistrate acquitted accused No.1 as per Annexure-D, order dated April 30, 2010 (in C.C.No.93 of 1997). In the light of the said order petitioner filed Crl.M.C.No.149/2011 2 Annexure-E, application before respondent No.2 seeking similar relief. But, by Annexure-F, order respondent No.2 held that since the matter is pending before learned Judicial First Class Magistrate-III, Thiruvananthapuram order of that court is necessary to compound the offence. That order is under challenge. Learned Senior Advocate for petitioner placed reliance on the decision in Mariamma and another v. State of Kerala and others (referred to supra) as also Annexure-B, order passed by this Court. It is pointed out that since the alleged offence occurred prior to the amendment to the Act which came into force on June 3, 1997 and in the light of Section 67(b) of the Act as it stood before such amendment permission of the court was not required to compound the offence under Section 55(a) of the Act as it stood before the amendment. It is pointed out by learned Senior Advocate that the stand of respondent No.2 is not correct. I have heard learned Public Prosecutor as well. 3. It is not disputed by the respondents also that the offence under Section 55(a) of the Act was compoundable under Section 67(b) of the Act as on the date of alleged incident. It is also not disputed that as things stood on the date of commission of offence permission of the court was not required for such composition which is discernible from the decision reported in Mariamma and another v. State of Kerala and others and Annexure-B, order. In view of that, petitioner is entitled get to the offence compounded under Section 67(b) of the Act as it stood before the amendment (which came into force on June 3, 1997). In that view of the matter Annexure-F, order passed by respondent No.2 cannot be sustained and is liable to be set aside. Resultantly this petition is allowed. Annexure-F, order is set aside. Crl.M.C.No.149/2011 3 Respondent No.2 is directed to consider Annexure-E, application and pass appropriate orders in the light of the decision in Mariamma and another v. State of Kerala and others and Annexure-B, order and in case offence is compounded, respondent No.2 shall communicate that matter to the learned Judicial First Class Magistrate-III, Thiruvananthapuram where C.C.No.93 of 1997 (refiled as C.C.No.113 of 2010) is pending. Proceedings in C.C.No.113 of 2010 of the court of learned Judicial First Class Magistrate-III, Thiruvananthapuram will stand in abeyance for a period of three months from this day during which time respondent No.2 shall pass appropriate orders on Annexure-E, application. THOMAS P.JOSEPH, Judge. cks