IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 24TH DAY OF NOVEMBER 2011/3RD AGRAHAYANA 1933 WPC.No. 9224 of 2010 (Q) ------------------------ PETITIONERS: ------------ 1. N.S.LENIN, AGED 48 YEARS S/O.SUBRAMANIAN(LATE), NADUVILEPARAMBIL HOUSE CHAKKAMPARABU DESOM KURUVILASSERY VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT 2. SANTHOSHKUMAR, S/O.SUDHEENDRAN PUNATHIL HOUSE, EDATHIRUTHY DESOM EDATHIRUTHY VILLAGE,KODUNGALLUR TALUK THRISSUR DISTRICT 3. PRAJEESH, S/O. RJAN,THAYYIL HOUSE KUZHIKKATTUSSERY DESOM,THAZHEKKADU VILLAGE MUKUNDAPURM TALUK,THRISSUR DISTRICT BY ADVS. SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN RESPONDENTS: ------------ 1. STATE OF KERALA, REP. BY SECRETARY TAXES (A) DEPARTMENT, GOVT.SECRETARIAT THIRUVANANTHAPURAM 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM 3. THE DEPUTY COMMISSIONER OF EXCISE THRISSUR 4. THE C.I. OF EXCISE,IRINJALAKKUDA THRISSUR DISTRICT 5. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE CHALAKKUDY,THRISSUR DISTRICT 6. THE DISTRICT COLLECTOR,THRISSUR R1 TO R6 BY ADDL. AG SRI.P.C. IYPE BY GOVERNMENT PLEADER SRI.BIJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-11- 2011 ALONGWITH RP NO.785/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STK WPC.No. 9224/2010 APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF THE REPORT DATED 8.3.2010 IN CR.NO.31/2007 SUBMITTED BY THE ASST. EXCISE INSPECTOR, CHALAKKUDY BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, CHALAKKUDY. P2: COPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.31/2007 REGISTERED BY THE EXCISE INSPECTOR, CHALAKUDY. P3: COPY OF THE MAHAZAR DATED 19.12.2007 PREPARED BY THE EXCISE INSPECTOR, CHALAKKUDY. P4: COPY OF THE ORDER DATED 26.06.2008 IN B.A. NO.3939/2008 PASSED BY THIS HON'BLE COURT. P5: COPY OF THE ORDER DATED 29.7.2008 IN B.A.NO.4373/2008 PASSED BY THIS HON'BLE COURT. P6: COPY OF THE ORDER DATED 10.03.2010 IN B.A.NO.1542/2010 PASSED BY THIS HON'ABLE COURT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE STK N.K. BALAKRISHNAN,J. ------------------------------------ W.P.C. 9224 of 2010 and R.P. No.785 of 2011 ------------------------------------------ Dated this the 24th day of November, 2011 JUDGMENT This petition under Article 226 of the Constitution was originally filed to quash the FIR registered against the petitioners/accused persons in Crime No.31/2007 of Chalakkudy Excise Range. A direction was also sought to give preferential right to the petitioners for the allotment of the toddy shops in Group. III, IV and IX of Chalakkudy Excise Range for the Abkari year 2010-2011 as per Rule 5(1)(a) of the Rules 2002 without taking into account the implication of the petitioners as accused Nos. 3 to 5 in the aforesaid crime. Since it was subsequently reported that the final report had already been filed after conducting investigation in the aforesaid case, the writ petition was sought to be amended incorporating a further prayer to quash the further proceedings taken by the trial court pursuant to the final report filed in the aforesaid case to the extent it relates to the petitioners who are accused Nos. 3 to 5 in the aforesaid case. It is contended by the petitioners 2 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 that Ext.P1 crime report was prepared and filed without any material to proceed against the petitioners. Even while granting anticipatory bail to A1 and A2, it was held by this court that offence under Section 55(a) of Abkari Act would not be attracted. As per the amendment caused to be effected, the petitioners contend that the final report which was filed after 3 years of Ext.P1 occurrence report is also legally unsustainable since there are no averments so as to connect the petitioners with the alleged crime. 2. The learned counsel for the petitioners would submit that there is nothing in the final report to hold that the toddy was seized from the possession of the petitioners or that the petitioners were the licensees. But this submission has been resisted by the learned Additional Advocate General pointing out that A1 is the owner in possession of the vehicle and A5 is the RC owner of the vehicle. There are sufficient materials to hold that toddy measuring 475 litres was seized by the Excise officials, in respect of which 3 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 the seizure mahazar was prepared in the presence of the independent witness. It was based on that, occurrence report was also prepared and filed in Court. 3. The detection was had on 20.02.2007. The final report was filed on 30.03.2010. Altogether 22 witnesses are seen cited as witnesses to prove the case. The final report has been filed against 5 accused including the petitioners herein. The offences alleged are shown as 55(a), 55-I, 55G of Abkari Act. 4. The gist of the case is that on 19/12/2007 at night the Excise officials reached the sport and seized 475 litres of toddy after following the procedure prescribed. It was alleged that the toddy was illegally transported in 19 plastic cans in the jeep. There is also the allegation that A1 and A5 had created false documents in pursuance of a conspiracy hatched by them and based on the false sale documents in respect of the vehicle the toddy was transported by them in the aforesaid vehicle. 4 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 5. The crime and charge sheet so far as it relates to the forgery of the sale agreement with regard to the vehicle and other documents, the proceedings/trial should follow if separate charge sheet has been filed with regard to the offence alleged to have been so committed by A1 and A5. That is not beong dealt with in this matter. 6. The learned counsel for the petitioners would submit that during 2007-08 the petitioners and the first accused were joint licensees of Group No.I and III of Chalakkudy Excise Range. The learned counsel submits that the investigating officers did not collect any material to show that the toddy seized in this case was transported by the petitioners herein. But the prosecution contends that the toddy was seized from the vehicle of which A1 was the owner in possession and A5 was the R.C. owner. It is further submitted by the learned counsel that for the subsequent period A1 was not a joint licensee along with the petitioners. The learned counsel further submits that as per 5 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 I.A.No.15024 of 2011, relief is claimed by A3 and A4 who are petitioners 1 and 2 and they alone are claiming preference and so the fact that they were joint licensees during 2007-08 will not affect the preferential claim put foward by A3 and A4. It is also argued by the learned counsel that as per the final report, it is clear that the samples collected was found to be toddy and there was no foreign material nor does it show that its strength was above the permissible 8.1 %. So much so, the learned counsel submits that the offence that would be attracted is only under Section 56 of the Act. In this connection, the learned counsel has also relied upon the decision of this court in Rajan & Others v. State of Kerala (2010 (3) KLJ 461) where it was held that even if the toddy was seized from a room or building outside the building room shown in the licence, still it will be only violation of the permit condition attracting offence under Section 56(a). In short, the argument is that the offence that would be attracted 6 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 against the petitioners is only under Section 56 of the Act and so the rules and guidelines which prohibit the licensee's eligibility for preferential claim may not be attracted. 7. It is argued on behalf of the respondents that offences as against these petitioners is maintainable under Section 55(a) of the Act, since no permit, what so ever, was produced by any of the accused before the Investigating Officer to show that the licensees transported toddy as per valid permit. It is also argued by the learned counsel for the respondents that the materials collected would show that a false agreement was entered into, between A1 and A5, only to make it appear that the vehicle was possessed by A5. It is true that if no permit was produced by the licensees, then, the argument that the transportation was without a valid permit could have been accepted. 8. The learned senior counsel for the petitioners would submit that so far as A2 to A4 are concerned no material 7 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 could be collected to show that the toddy seized in this case was the toddy which belonged to or was transported by A2 to A4. It is pointed out that no witness did say that these petitioners were present in the jeep or that they were seen loading toddy into the jeep or leaving the jeep at the scene of occurrence or leaving that place. It is also pointed out that though the offence was detected on 20.12.2007, the report was filed, arraying these petitioners as A2 to A4, only on 8.3.2010. But still the investigating agency could not collect any material to show that the toddy in question, which was seized by the Excise Officials, belonged to or was transported by these accused, A2 to A4. 9. The statement of CW 19 is only to the effect that these petitioners and A1 were joint licensees for the period 2007-2008. But that does not mean that the toddy which was found in the jeep, which belonged to A1, was actually the toddy transported as per the license issued to A1 or that A2 to A4 had any connection with the toddy found in the 8 W.P.C. 9224 of 2010 and R.P. No.785 of 2011 jeep. Since no such material was collected, the prosecution as against the petitioners (A2 to A4) would be a futile exercise, the learned counsel for the petitioners submits. The argument that these are only matters to be considered at the time of trial cannot be accepted since no material at all was collected by the investigating agency to show the complicity of these petitioners. Hence the prosecution against these petitioners, A2 to A4, in the aforesaid case shall stand quashed. In the light of what is stated above and in the light of the order passed by this Court in I.A. No: 15024/2011 dated 19.9.2011, the Excise Commissioner (R2) shall confirm the allotment as per Rule 5(15) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002, if there is no other legal impediment N.K. BALAKRISHNAN, JUDGE srd/smvd/jjj