IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 Crl.MC.No. 4173 of 2010() --------------------------------------- (CR.NO.35/2010 REGISTERED BY THE EXCISE INSPECTOR, KASARAGOD EXCISE RANGE, KASARAGOD) .................... PETITIONER(S): ACCUSED NOS. 1 TO 4: ----------------------------------------------------------- 1. SHANET.P.T, AGED 25 YEARS, S/O.THOMAS.P.M, PULICKEKANDATHIL HOUSE, KOLAKKAD VILLAGE, THALASSERY TALUK, KANNUR DISTRICT. 2. KRISHNAKUMAR.K.V, AGED 38 YEARS, S/O.O.V.NARAYANAN NAMBIAR, PANANGATTOOR DESOM, KUTTIYERI VILLAGE, THALIPARAMBA TALUK, KANNUR DISTRICT. 3. JOHN KALLAT, KALLAT HOUSE, THALIPARAMBA, KANNUR DISTRICT. 4. TERRY JOHN, S/O.JOHN KALLAT, KALLAT HOUSE, THALIPARAMBA, KANNUR DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.NIREESH MATHEW. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KASARAGOD, KASARAGOD DISTRICT BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADDL. DIRECTOR GENERAL OF PROSECUTION SRI.P.N.SUKUMARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C No.4173 of 2010 -------------------------- Dated this the 28th October, 2010 O R D E R On 18.7.2010 at 5 pm, Excise Officers inspected Bar Hotel, J.K. Residency, Kasargod. Finding an additional bar counter functioning in the first floor of the hotel, contending that it is in violation of the conditions of the license and the rules under Kerala Abkari Act, registered CR No.35/010 of Excise Range Office, Kasargod for the offence under Section 56 (b) of Kerala Abkari Act. Petition is filed under Section 482 of Cr.P.C to quash the crime and further proceedings, contending that neither the Abkari Act nor the Rules or the conditions of license prohibit an additional counter being opened and therefore there is no violation of the rules or conditions of the license and therefore registration of the case is only an abuse of the process of court and hence it is to be quashed. Petitioners would contend that identical question has been considered and decided by this Court in Annexure-E order in Crl.M.C 2292/09 dated 20.8.2009. Crl.M.C No.4173 of 2010 2 2. Learned senior counsel appearing for the petitioners and learned Additional Director General of Prosecutions were heard. 3. A statement was filed by the Deputy Commissioner of Excise, Kasargod explaining the basis, for registration of the case. The contention in the statement is that under condition No.1 of Annexure-C license, sale of foreign liquor could only be in the room specifically approved for that purpose and described as the 'bar room" in the license conditions and Foreign Liquor Rules have been amended by G.O (P) No.105/2009/TD dated 17.6.2009 by which Rule 13 (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 and that too on payment of additional fee prescribed therein could be put up only within the licensed bar room of the hotel. It is contended that in the plan produced for obtaining license, the counter has been specifically marked inside the bar room and under the license, sale of foreign liquor is permitted only within Crl.M.C No.4173 of 2010 3 the bar room and therefore, additional counter put up in the first floor is in violation of the Rules and conditions of the license. Hence, the offence under Section 56(b) of Abkari Act is attracted and therefore crime registered cannot be quashed. 4. This Court in Annexure -E order considered the question where putting up of an additional counter would be in violation of the conditions of license. Finding that conditions of the license permitted for sale of foreign liquor even outside the bar room, it was held that putting up of additional counter will not be in violation of the conditions of license. 5. The contentions raised based on G.O (P) No. G.O (P) No.105/2009/TD dated 17.6.2009 were considered by this Court in Crl. M.C No.3618/2010. It was held that though conditions of the license provide for showing boundaries of the licensed premises and boundaries of the bar room separately, there is no condition providing for sale of liquor only within the boundaries of the bar room and instead condition No.2 itself makes it clear that sale of Crl.M.C No.4173 of 2010 4 liquor is permissible even outside the boundaries of the bar room. Therefore, it is found that additional counter could be put up even in the restaurant where under license foreign liquor could be sold and served. Though learned Additional Director General of Prosecutions made an attempt to justify the registration of the case on the ground that the plan submitted while applying for license shows only one counter within the bar room and under condition No.1, sale could only be within the bar room, in the light of the conditions of the licence, I cannot agree with the submission. As held in Crl.M.C No.3618/2010, when the conditions of licence permits sale of foreign liquor in the restaurant and there is no prohibition for putting up a counter within the restaurant, as held in Crl. M.C No.3618/2010, if an additional counter is put up within the licensed premises, it is not in violation of the provisions of Abkari Rules, Foreign Liquor Rules or the conditions of license as it now stands. If the Government finds that the Rule is to be amended, it is up to the Government to effect necessary amendments. If that be when the offence alleged Crl.M.C No.4173 of 2010 5 is not attracted on the basis of the prosecution case itself, the prosecution can only be quashed. Petition is allowed. CR No.35/2010 of Kasargod Excise Range, Kasargod is quashed. M.SASIDHARAN NAMBIAR JUDGE ma