T B PRADEEP Vs. STATE OF KERALA

JUDGEMENT

(1.) First petitioner is the licensee of toddy shop No. 25/2005-06 of Njarakkal Excise Range, T.S. No. 39/2005-06 of Anthikkad Excise Range, T.S. No. 26 in Cherpu Excise Range. Second petitioner is the licensee oftoddy shop Nos. 7, 8, 10, 17, 19, 31, 32, 39, 40, 42, 43, 45, 46, 49, 50 to 53 and 6/2005-06 of Kodungallur Excise Range. Third petitioner is the registered owner of tempo van KL-9/M-7364. Petitioners are accused 2 to 4 in C.R. 11/2005 of Chittur Excise Range registered under Ext.P4 crime and occurrence report. The case against the accused is that on 18.5.2005 at about 8 a.m, when the Circle Inspector of Excise Range intercepted Tempo Van KL-9/M-7364 it was found 3000 litres of toddy was being transported therein though under Ext. PI to P3 permits, petitioners were allowed to transport only 1005 litres of toddy. The driver of the pick up van was arrested and the toddy was seized and ease was registered under Section 58 of Abkari Act. This petition is filed under Article 226 of the Constitution of India to quash Ext. P4 to the extent it proceeds except under Section 56 of Abkari Act and to declare that petitioners 1 and 2 are liable to be prosecuted only for the offence under Section 56(b) of Abkari Act and to declare that they are entitled to conduct the toddy shops on the basis of the respective licence. Case of the petitioners is that even if petitioners were transporting toddy in excess of the allowed quantity, it attracts only an offence under Section 56(b) of the Abkari Act, as it is only a violation of the conditions of the licence and not an offence under Section 58 of the Abkari Act.

(2.) A counter affidavit was filed by Assistant/Excise Commissioner, Palakkad on behalf of respondents 3 to 5 which discloses that the pick up van was intercepted and on such search, it was found that 1995 litres of toddy in excess of the permissible limit under the permits was being transported and therefore an offence under Section 58 of the Abkari Act is committed. It is contended that when under Ext. PI to P3, petitioners are permitted to transport only 1005 litres of toddy and 1995 litres of excess toddy was being transported, it attracts-not only an offence under Section 56(b) but an offence under Section 58 of the Act also and therefore the petition is to be dismissed.

(3.) Learned senior counsel appearing for the petitioners and learned Public Prosecutor were heard.