C.A.MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are the managing partners of a firm that runs the Mundakkal Tourist Home that is engaged in the vending of beer and wine under cover of an FL-11 licence issued to them. In the Writ Petition, the petitioners impugn Exts.P2 to P6 communications issued to them by the respondents, who allege that they have committed an offence under Section 56(b) of the Abkari Act, inasmuch as inspections conducted by the respondent authorities at the premises of the petitioners hotel, on two occasions, revealed that they were selling wine, which had an alcoholic strength of only 6.31 v/v and 7.28 v/v respectively during the years 2014-2015 and 2015-2016. While the samples were taken at the time of inspection, and a mahazar drawn up immediately thereafter, the samples were later forwarded to the Chemical Examiners Laboratory. Based on the report from the said office, an FIR was registered alleging the commission of the offence under Section 56(b) of the Abkari Act. It is also apparent from the averments in the Writ Petition that, subsequent to the registration of the FIR, the petitioners were also offered an opportunity to compound the offence alleged against them which they declined. In the Writ Petitions, the proceedings leading to the registration of the FIR, and the subsequent notices issued to the petitioners in connection with the prosecution steps, are impugned, inter alia, on the contention that the petitioners cannot be seen as persons, who had violated any of the conditions of the permit granted to them under the Abkari Act and Rules.

(2.) Counter affidavits have been filed by the 3 rd respondent in both these Writ Petitions, wherein the stand taken is that the Abkari case is registered against the petitioners based on the Chemical Analysis Report of the Assistant Chemical Examiner to the Government of Kerala. It is specifically averred that while the Chemical Examination Report showed that the samples of wine that were sold by the petitioner had an alcoholic content of 7.28% V/V and 6.3 V/V, respectively, in terms of Rule

(3.) of the Foreign Liquor Rules the strength of alcohol in the wine had to be between 8% and 15.5% V/V. It is the further submission of learned Government Pleader, based on the counter affidavits filed, that the challenge by the petitioners to the proceedings initiated by the respondents is premature inasmuch as the investigation pursuant to the registration of the FIR is yet to be completed and a final report yet to be laid before the Magistrate's Court, and it is only because of the stay granted in these cases that those proceedings have not culminated in the filing of a final report.