AMBIKA S Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused in Crime No. 869 of 2010 of Pathanapuram Police Station for offences punishable under Sections 55 (a) and (i) and 56(b) of the Abkari Act (for short, "the Act"). Petitioners are the licensee, Manager and Security, respectively of a bar attached hotel at Pathanapuram. Prosecution case is that on 7.8.2010 Petitioners sold Indian Made Foreign Liquor(for short, "the IMFL") before sunrise and thereby committed offences as above stated. Sub Inspector of Police, Pathanapuramis said to have detected the offence on the said day at 4.30 a.m. and arrested Petitioners 2 and 3 at the spot. Annexure-A is the FIR while Annexure-B is the search list. Contention raised in this petition is that if at all the allegations are accepted, it only revealed commission of offence punishable under Section 56(b) of the Act which is compoundable under Section 67A of the Act as introduced by Act 3 of 2010. It is therefore prayed in this proceeding that Annexure-A, F.I.R. to the extent it concerned offences punishable under Section 55 (a) and (i) of the Act may be quashed.

(2.) I have heard learned Senior Advocate appearing for Petitioners and the learned Public Prosecutor. Learned Senior Advocate has placed reliance on the decisions: in Mohanan v. State of Kerala, 2007 1 KerLT 845 and Nobbey and Anr. v. State of Kerala,2011 1 KerLT 51. Learned Senior Advocate contends that the allegation only indicated that condition No. 20 in the FL-3 license issued to the first Petitioner that no shop shall be opened before sunrise except as per special authority from the Excise Commissioner or from the Deputy Commissioner of Excise has been' violated in which case only the offence punishable under Section 56(b) of the Act is made out.

(3.) As aforesaid, the only allegation is that third Petitioner conducted sale of IMFL before sunrise on 7.8.2010 (at 4.30a.m.). Condition No. 20 in the FL-3 license issued to the first Petitioner stated that the shop shall not be opened before sunrise. In other words, there is a violation of the said condition in the FL-3 license given to the first Petitioner. Interpreting similar provision this Court held in Mohanan v. State of Kerala and Nobbey and Anr. v. State of Kerala that in such situation, it is only a violation of the permit condition which is punishable under Section 56(b) of the Act. Viewed in that line, the offence allegedly committed by Petitioners fell under Section 56(b) of the Act. If that be so, offences punishable under Section 55 (a) and (i) of the Act cannot be attributed to the Petitioners on the facts revealed by the materials produced before me. Annexure-A, F.I.R. and all proceedings pursuant thereto to the extent it concerned Petitioners for offence punishable under Section 55 (a) and (i) of the Act are liable to be quashed. It is open to the Petitioners to approach the appropriate authority for composition of the offences punishable under Section 56(b) of the Act as provided under law.