JOBY JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners 1 and 2 are the employees and petitioners 3 to 7 are the joint licensees of toddy shops 57 to 61 of Group X of Kanjirappally Excise Range. Based on an inspection made by the second respondent, Circle Inspector of Excise, Kanjirappally registered C.R.54/2010 of Kanjirappally Excise Range. He prepared Annexure - A crime and occurrence report for the offences under S.55(a), 55(i), 56(b) and 58 of Kerala Abkari Act, on the allegation that even though being Gandhi Jayanthi day, sale of toddy is prohibited about 50 Ltrs. of toddy of Sago Palm (Choondapana) was found stored in the toddy shop No. 61 and petitioners thereby committed the offences. Petition is filed under S.482 of Code of Criminal Procedure to quash the registration of the case for the offences under S.55(a), 55(i) and 58 of Abkari Act contending that if at all, only an offence under S.56(b) is attracted. Petitioners would contend that two of the petitioners along with other licensees of the group No.X of Kanjirappally Excise Range had submitted Annexure - I complaint to the Excise Commissioner pointing out that second respondent is attempting to extract money illegally from the toddy shop owners. It is contended that because of that complaint false case was registered without any bona fide. It is contended that there was no sale of toddy from the toddy shop on 2/10/2010 as alleged and though tree tax was not paid for all the trees in respect of the toddy shops, it was not wilful. It is the case that evidenced by Annexure - J, tree tax was paid for shop No.57 on 01/10/2010 and when tree tax for remaining shops were tendered, it was reported that tree tax need be paid by 15/10/2010, as reported in Annexure - H newspaper report and therefore, tree tax was not paid on or before 01/10/2010 in respect of the remaining shops and even if, it is taken that toddy found in the toddy shop was tapped from trees for which tax was not paid, it will not attract an offence under S.55(a) or 55(i) or 58 of Abkari Act and therefore, continuation of the proceedings for those offences is only an abuse of process of the Court and hence it is to be quashed.

(2.) Assistant Commissioner of Excise, Kottayam filed a statement justifying the registration of the case and opposing the prayer for quashing the offences.

(3.) Learned Senior Counsel appearing for the petitioners and learned Public Prosecutor were heard.