SURESH Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the driver and cleaner of a Jeep with Reg. No. KL-44/7106. On May 11, 2010 while Petitioners were allegedly carrying toddy in the said vehicle that vehicle was intercepted by the Excise Officials on Aluva-Munnar road and on examination it was found that the accused were carrying 384 litres of toddy. The officials of the Excise Department on verification of the permits produced by Petitioners learnt that as per the permits Petitioners could transport in the vehicle only 345 litres of toddy. Petitioners were arrested at the spot and the articles were seized. A case was registered as Crime No. 30 of 2010 for offences punishable under Section 55(a) and 55(b) of the Abkari Act (for short, "the Act"). Annexure-A is the photocopy of crime and occurrence report. Later it appeared that the Excise Officials issued notice to the permit holder-licensee, as seen from Annexure-E on May 19, 2010 stating about alleged transportation of toddy in excess of the quantity permitted and directed him to show cause why licence in favour of permit holder should not be cancelled. To that notice the licensee gave Annexure-F reply denying the allegations and contending that he has not done any act in violation of the shop licence or permits. In this petition, Petitioners/accused pray that Annexure-A, crime and occurrence report (CR. No. 30 of 2010 of Kothamangalam Excise Range) and further proceedings which concerned offence under Section 55(a) of the Act be quashed. Learned Senior Advocate appearing for Petitioners contended that even as per Annexures A & B it is clear that what is involved is only a violation of permit conditions in that the vehicle was carrying excess toddy than permitted quantity. It is contended by the learned Senior Advocate that in that case or even if it is assumed that toddy was collected from trees for which no tree tax is paid, no offence under Section 55 or 58 of the Act is made out and offence even as per Annexures A and B only comes under Section 56 (b) of the Act. Learned Senior Advocate has placed reliance on the decisions in Sasidharan v. State of Kerala,2007 1 KerLT 1062, Pradeep T.B. and Ors. v. State of Kerala and Ors., 2010 3 KerLT 99 and Mohanan v. State of Kerala, 2007 1 KerLT 845. In response it is contended by learned Public Prosecutor that of the three permits which Petitioners were carrying at the relevant time one was found to be issued in respect of the vehicle concerned. It is also contended that records produced by Petitioners did not show that there was any entry made at the Kombzha excise check post which indicated that the vehicle involved had not passed that check post.

(2.) Going by Annexures A and B it would appear that the case set up by the Excise Officials is that Petitioners were found carrying toddy in excess of quantity permitted under the permits issued to the licensee concerned. Annexure C and D are photocopies of the permits produced by Petitioners and issued in favour of the licensee. There is no dispute regarding the authenticity of the said documents and it is also not disputed that the said documents were produced by the Petitioners at the time of interception by the Excise Officials. As per Annexure C and D, permits total quantity of toddy which Petitioners could carry in KL-44/9414 or KL-44/7106 is 345 litres whereas Annexures-B, mahazar shows that vehicle No. KL-44/7106 (which was being used at the relevant time) carried 384 litres. Obviously it is a case where excess quantity of toddy in violation of the permitted quantity as per the permits was being transported. The decision in Sasidharan v. State of Kerala states that when allegation is only that there was transportation of toddy in excess of the quantity permitted under the permit, offence attracted is only under Section 56(b) of the Act. There, learned Judge was considering whether an offence under 55(a) of the Act could be made out and the question was answered in the negative. The Division Bench also has taken the same view in the matter in Mohanan v. State of Kerala . In Pradeep T.B. and Ors. v. State of Kerala and Ors. learned Judge apart from holding that Section 55 has no application in such circumstances also found that Section 58 of the Act can not be applied and that in such situation offence squarely fell under Section 56(b) of the Act. In an unreported decision in Crl. M.C. No. 4049 of 2010 dated November 18, 2010* a similar question was considered and the offences attributed to the accused in that case under Section 55 (a) (i) and 58 of the Act were quashed. There it was held that non-payment of tree tax at the relevant time is no ground to implicate the accused for an offence other than under Section 56(b) of the Act.

(3.) The above decisions inform me that so far as the present case is concerned, allegation being transportation of toddy in excess of the quantity permitted under the permits (Annexures C and D), the offence can only fall under Section 56(b) of the Act. I must also refer to the provisions of the Act in this regard. While Section 55(d) and (e) of the Act refer to any person contravening the provisions of the Act or Rules so far as toddy is concerned it is relevant to note that before amendment by Act 16 of 1977, Section 55 was applicable to any person contravening the provisions of the Act or of any licence or permit obtained under the Act which meant that violation of conditions of permit would attract offence under Section 55 of the Act. Now, the words "or of any licence or permit obtained under this Act" having been omitted from Section 55 by Act No. 16 of 1997 as aforesaid, violation of the licence or permit so far as it concerned articles referred to in Section 55 of the Act cannot come within the purview of the said Act. This aspect has been considered in Rajan and Ors. v. Sate of Kerala and Anr., 2010 3 KerLJ 461, para. 5. Section 56 of the Act directly deals with the holder of a licence or permit committing offences as stated therein and Clause (b) relates to breach of any of the conditions or the licence or permit not otherwise provided for in the Act. Thus transportation of toddy in excess of quantity permitted under the licence is a violation of the permit condition-punishable under Section 56(b) of the Act. Viewed in that line offence under Section 55(a) of the Act cannot stand against the Petitioners.