RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused 1, 2, 3 and 5 in CR. 61/2010 of Changanacherry Excise Range. Petitioners 3 and 4 are licensees of toddy shops of group No. IX and X of Changanacherry Excise Range respectively. First petitioner is a worker and second petitioner, the Manager of T.S.No. 55 of group No. IX. On 30/9/2010 at about 10.45 a.m. Excise Commissioner inspected toddy shop No. 55 and prepared Annexure-B mahazar. Based on the findings in Annexure-B that 700 liters of toddy was found stored in a building owned by fifth accused, adjacent to T.S.No. 55, petitioners 1 and 2 were questioned and finding that the toddy found therein was stored by petitioners 3 and 4 and under Annexure-A crime and occurrence report case was registered for the offence under Sections 55 (a) and 55 (i) of Abkari Act. Samples of toddy taken were sent for chemical analysis. Petitioners 1 and 2 were arrested. Third petitioner is one of the licensees of the toddy shop of Group No. IX, Petition is filed under Section 482 of Code of Criminal Procedure to quash the offences under Sections 55(a) and 55 (i) of Abkari-Act, contending that the offences are not attracted on the undisputed facts and if at all,, there was only violation of the conditions of the licence and therefore, only an offence under. Section 56(b) will be attracted, unless a positive report is obtained on chemical analysis. Fourth petitioner, the fifth accused in the case is the licensee of one of the joint licensees of toddy shops in group No. X in Changanacherry Excise Range. Learned Senior counsel appearing for petitioners and learned Public Prosecutor were heard.

(2.) Learned Senior counsel pointed out that accused 3 and 4 are admittedly licensees of toddy shops in group No. IX of Changanacherry Excise Range. Even if, they have stored toddy outside the licensed premises, it would attract only an offence under Section 56(b) of Kerala Abkari Act, as it is only violation of the conditions of the license and an offence under Sections 55 (a) or 55 (i) of Abkari Act is not attracted. Learned Senior counsel pointed that question whether storing toddy outside the licensed premises would attract an offence under Section 55 (a.), was considered by this Court in Crl. M.C. 983/2009 and by Annexure-C order, it was found that an offence under Section 55 (a) is not attracted and it would only be an offence under Section 56 (b) of Abkari Act.

(3.) This Court in Crl. M.C. 648/2009 considered the question whether an offence under Section 55 (i) of Abkari Act is attracted by sale of toddy on a prohibited day and also outside the licensed premises. By Annexure-D order "this Court held that even if there was sale of toddy on a prohibited day like Gandhi Jayanthi day, it will not attract an offence under Section 55 (a) of Abkari Act alone as it was found that the license was to sell toddy within the premises of the toddy shop and if it was sold, offences under Section 55 (a) and 55 (i) of Abkari Act will not be attracted. By Annexure-E order Honourable Supreme Court dismissed the S.L.P. No. 4224/2009 preferred by the State, challenging Annexure-D order.