IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 2010 of 2009() ------------------------------------- (CRIME NO.321/2008 OF CHINGAVANAM POLICE STATION, KOTTAYAM) PETITIONER(S): ACCUSED NO.1: -------------------------------------------------- DINESAN, AGED 49 YEARS, S/O. MURALEEDHARAN, PALATHINGAL HOUSE, KIDANGARA P.O., VELIYANADU VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY MR.C.C.THOMAS, SENIOR ADVOCATE MR.M.G.KARTHIKEYAN, MR.NIREESH MATHEW. RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, CHINGAVANAM POLICE STATION, KOTTAYAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JAOCB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2010 of 2009 -------------------------- ORDER Petitioner is the first accused in Crime No. 321/2008 of Chingavanam Police Station, which is taken cognizance as C.C.No.820/2008 on the file of Judicial First Class Magistrate's Court, Changanassery. Annexure-A final report shows that prosecution case as against nine accused is that on 17.8.2008, Accused Nos.2 to 9 were found sitting in Karibinkala Family Restaurant consuming liquor and petitioner/first accused was working as Supervisor there and they thereby committed offences under Sections 15C and 64A of the Abkari Act. This petition is filed under Section 482 of Code of Criminal Procedure contending that even if the case as alleged in Annexure-A FIR and final report is accepted, it will not make out an offence either under Section 15C or under Section 64A of the Abkari Act and therefore, continuation of the CRMC 2010/09 2 proceedings as against the petitioner is only an abuse of the process of court and it would disentitle the petitioner from participating in the auction and in getting renewal of the licence issued under the Abkari Act. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Section 15C of Abkari Act provides that no person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by the Commissioner. Prosecution case is not that petitioner consumed liquor from Karimbinkala Family Restaurant where there was no licence granted by the Commissioner of Excise. It is the case that Accused Nos.2 to 9, who were taking food, were found consuming liquor. At best, from the mahazar, it could be said that petitioner was also there at that time and he was pouring liquor in glasses to the other accused. But, that will not attract an CRMC 2010/09 3 offence under Section 15C of Abkari Act, as against the petitioner. 4. Section 64A of Abkari Act provides penalty for allowing land, building, room, etc. for manufacturing, sale or storing for sale of liquor or intoxicating drug. Section 64A reads as follows: “Penalty for allowing land, building, room, etc. for manufacturing, sale or storing for sale of liquor or intoxicating drug:- Notwithstanding anything contained in this Act, or in any other law for the time being in force, any owner or occupier or person having control of, any land, building, room, space or enclosure, permits any person to use such land, building, room, space or enclosure for manufacture, sale or storing for sale of liquor or intoxicating drug in contravention of this Act or of any rule or order made thereunder or of any licence or permit obtained under this Act shall be punishable with fine which shall not be less than twenty five thousand rupees unless he proves to the satisfaction of the court that all due and reasonable precautions were taken by him to prevent such use.” CRMC 2010/09 4 5. It is absolutely clear from Section 64A that only if an owner or occupier or a person having control of any land, building, room, space or enclosure permits any person to use such land, building, room, space or enclosure “for manufacturing, sale or storing for sale of liquor or intoxicating drug in contravention of the Act or of any rule or order made thereunder or of any licence of permit obtained under the Act” shall be punishable under that Section. Therefore, the offending permission should be for using such land, building, room, space or enclosure either for sale or for manufacture or for storing for sale. There is no allegation either in the FIR or in the final report that petitioner, who is in control of Karibinkala Family Restaurant, had permitted Accused Nos.2 to 9 for manufacture or sale or storing for sale of liquor to attract an offence under Section 64A of the Abkari Act. Even if the petitioner permitted Accused Nos.2 to 9 to consume CRMC 2010/09 5 liquor in violation of the provisions of Section 15C of the Abkari Act, it will not attract an offence under Section 64A of the Abkari Act. Therefore, continuation of the proceedings as against the petitioner is only an abuse of process of the court. It is to be quashed. The petition is allowed. Crime No.321/2008, Annexure-A FIR and final report and C.C.No.820/2008 on the file of Judicial First Class Magistrate's Court, Changanassery as against the petitioner are quashed. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv