IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Crl.MC.No. 4362 of 2005 ------------------------- OR.11/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... PETITIONERS: ACCUSED. ----------------------- 1. VIJAYABHANU, S/O.MADHAVAN, LEKSHMI NIVAS, AYYARMALA, PADINJATTINKARA VADAKKU, KUNNATHOOR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT. 2. R.PRAKASH, S/O.RAGHAVA KURUP, CHAMAVILAYIL HOUSE, PALAMEL VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 3. RAMAKRISHNAN, S/O.DIVAKARAN, PUTHENPURACKAL HOUSE, THULAPARAMBU NORTH, HARIPPAD, ALAPPUZHA DISTRICT. 4. R.DEVARAJAN, S/O.RAJAGOPALAN, KAUSTHUBHAM VEETTIL, KALATHODU, PARAVOOR VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 5. SASEENDRAN NAIR, S/O.RAGHAVA KURUP, CHAMAVILAYIL HOUSE, PALAMEL VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 6. R.PRASAD, S/O.RAGHAVAN, PUTHENPURACKAL HOUSE, ERUMAKUZHY, PALAMEL, MAVELIKKARA, ALAPPUZHA DISTRICT. 7. MANOJ, S/O.KRISHNA KURUP, THAZHAKARAYIL HOUSE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT: COMPLAINANT. --------------------------- STATE OF KERALA REP. BY CIRCLE INSPECTOR OF EXCISE, CHITTUR EXCHANGE, PALAKKAD DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTORMR. THOMAS JOHN AMBOOKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-2-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.15659/2005 IN CRL.M.C.NO. 4362/2005 DISMISSED. 16-2-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 4362 of 2005 ======================= Dated this the 16th day of February 2009 ORDER The petitioners herein are accused Nos.6,7,12,13,14,16 and 17 in O.R.No.11/2000 of Chittur Excise Range, Palakkad wherein the final charge is laid before the Judicial First Class Magistrate Court, Chittur as revealed from Annexure-D for the offences punishable under Sections 55(a)(b), 56(b) and 57(a) of the Kerala Abkari Act. The allegation against accused 17 in numbers including the petitioners is that on 6-5-2000, the Excise Enforcement & Anti Narcotic Special Squad conducted an inspection in the depot of the toddy shops in Chittur, Alathur and Kollengode Excise Ranges and found that the accused were manufacturing, possessing and selling toddy illegally and committed the above offences. The petitioners have produced Annexure-A, chemical analysis report wherein it was found that in two samples, excess quantity of ethyl alcohol was detected. CRMC.4362/2005 -2- Annexure-B is the copy of the crime and occurrence report in the above case. Annexure-C is the copy of the judgment in W.A.No.3430/2001 which was filed by the first petitioner herein before this Court wherein it was found that the request of the petitioner for remission of the kist amount for the period from 9-5-2000 to 17-7-2000 for illegal closure of the toddy shops was justified. Annexure-D is the certified copy of the final report laid against the petitioners and other accused alleging offences under the above mentioned sections. Subsequently, this petition is filed before this Court by the petitioners with the prayer to set aside Annexure-D final charge in O.R.No.11/2000 of Chittur Excise Range pending before the Court of Judicial First Class Magistrate, Chittur to the extent it proceeds against the petitioners for offences except under Section 56(b) of the Abkari Act. 2. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioners that as per Annexure-A chemical analysis report, excess strength of ethyl alcohol in respect of two items of samples only was reported and the above-said offence was CRMC.4362/2005 -3- alleged against them in view of Rule 9(2) of the Kerala Abkari Shops Disposal Rules 2002. As per the decision of the Apex Court in State of Kerala v. Unni, [2007(1)K.L.T.151], Rule 9 (2) of the Abkari Shops (Disposal in Auction) Rules is found unworkable, vague and unreasonable and that Rule was struck off. Thus it is argued by the learned counsel that none of the offences alleged against the petitioners will lie in the light of the above decision of the Apex Court. 4. The prayer in this petition is opposed by the learned Public Prosecutor and submitted that investigation of the present case has already been completed as revealed from Annexure-D final report produced along with this petition and the matter is pending before the Judicial First Class Magistrate Court, Chittur as C.P.No.158/2005. According to the learned Public Prosecutor, illegal manufacturing of toddy which is an offence under Section 55(b) of the Abkari Act is also alleged against the petitioners and the petitioners can raise all the contentions before the trial court. 5. Illegal manufacturing of liquor or intoxicating drug is an offence as stipulated under Section 55(b) of the Abkari Act. Whether the petitioners, who are licensees and the employees, CRMC.4362/2005 -4- have committed any of the offences alleged against them as revealed from Annexure-D final report are matters to be decided by the learned Magistrate in the light of the decision reported in State of Kerala v. Unni, [2007(1)K.L.T.151]. The matter is pending before the learned Magistrate as C.P.No.158/2005 as submitted by the learned Public Prosecutor. The prayer in this petition is to quash Annexure-D final report filed before the Court of Judicial First Class Magistrate, Chittur except the offence mentioned therein under Section 56(b) of the Abkari Act. The nature of the offences alleged against the petitioners and other accused should be verified on the basis of the dictum laid down in the above said decision and bearing in mind that relevant Rule 9 (2) of the Abkari Shops Disposal Rules was already struck off etc. which will be done by the learned Magistrate before committal of the case. Whether sufficient ingredients are there in the final report for the alleged offences mentioned against the petitioners in the light of the dictum laid down in the above said decision will be decided by the learned Magistrate. In the circumstances, this petition is disposed of with a direction to the Judicial first Class Magistrate Court, Chittur to go CRMC.4362/2005 -5- through the allegations regarding the commission of offences in the final charge against the petitioners and to proceed against the accused in accordance with law and also in the light of the above said decision. The Crl.M.C. is disposed of accordingly. M.C. HARI RANI JUDGE ks.