SOBHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused 1 to 13 in CR No. 68 of 2011 of Karunagappally Excise Range for offences punishable under S.58 and S.67B of the Abkari Act (for short, 'the Act') (S.67B relates to the power for confiscation). Case is that on 09/06/2011 at about 5.30 p.m. the excise party seized 495 litres of toddy from vehicles and a shed and petitioners 1 to 7 / accused 1 to 7 who were found dealing with the said toddy were arrested at the spot. Annexure - E is the crime and occurrence report prepared by the Excise Inspector implicating petitioners 8 to 13 as well. It is submitted that petitioners 8 to 13 are licensees or joint licensees of various toddy shops of groups 5, 7 and 8 of Karunagappally Excise Range. It is also the contention of petitioners that as per Annexures - A to D, permits petitioners 8 to 13 are authorised to transport 1200 litres of toddy every day from Chittoor to Karunagappally in the vehicles permitted by their respective permits. It is also the contention of petitioners that after unloading toddy in the temporary shed, it was being filled in bottles to be taken to the respective toddy shops. Learned Senior Advocate has contended that no offence under S.58 of the Act is made out in that petitioners 8 to 13 indisputably are having licenses to transport toddy as aforesaid, question whether toddy seized is artificial or not can be decided only after a positive report of chemical examination of the sample is received by the Investigating Officer and hence at any rate what can be said is only that an offence under S.56(b) of the Act is made out as there is a violation of the permit condition by (allegedly) keeping the toddy beyond permitted premises. In the circumstances, it is prayed that a direction may be issued to the Investigating Officer to keep the proceeding in abeyance until a positive report of chemical analysis is received. Reliance is placed on the decisions exhibited as Annexures - F to L and Rajan and Others v. State of Kerala and Others, 2010 (3) KLJ 461 . Learned Public Prosecutor would contended that notwithstanding the question whether the toddy in question is artificial or not offence under S.58 of the Act is attracted since the mahazar prepared by the Excise party would show that toddy was being handled elsewhere than the permitted place and hence to proceed against the petitioners for the said offence it is not necessary that a report of chemical examination is received as held by this Court in Kamalaksha v. State of Police, 2007 (1) KHC 122 : 2007 (1) KLT 299 : 2007 (1) KLD 96 : 2007 (1) KLJ 119. It is also submitted by learned Public Prosecutor that if at all necessary, it is sufficient that the report of chemical examination is produced in the course of trial. A further argument that learned Public Prosecutor raised is that one of the vehicles seized was not having permit to carry toddy as per permits issued to the licensees or joint licensees as the case may be.

(2.) I referred to the allegations made in Annexure - E, crime and occurrence reports. It is not disputed that petitioners 8 to 13 are either licensees or joint licensees of the shops referred to in the petition. Assuming that toddy was being handled beyond the permitted premises, question urged is whether offence involved is only under S.56(b) of the Act or it involved S.58 of the said Act. In Rajan and Others v. State of Kerala and Others (supra), this Court considered that question. There, offence alleged was including under S.55(a) and (i) of the Act. Facts of that case indicated that the toddy in question was found stored in a building adjacent to the toddy shop. It is seen from paragraph 6 of the decision that in that case learned Public Prosecutor raised an argument that toddy was stored outside the premise and hence accused are liable to be prosecuted under S.55(i) of the Act as they stored toddy for sale in contravention of the provisions of the Act and the Rules. That argument was rejected by this Court and it was held that accused therein could be prosecuted only for offence under S.56(b) of the Act and that too, after a positive report on chemical analysis (since there was an allegation that the toddy was artificial in character) was received. In Pradeep T. B. and Others v. State of Kerala and Others, 2010 (2) KHC 945 : 2010 (2) KLJ 413 : 2010 (3) KLT 99 it was held that transportation of excess quantity of toddy will not attract either S.55(i) or S.58 of the Act and that such act will only amount to a violation of the permit conditions involving S.56(b) of the Act. Learned Senior Advocate has pointed out that the decision in Rajan and Others v. State of Kerala and Others (supra) was not interfered by the Supreme Court as seen from the order in Special Leave Appeal No. 10082 of 2010 dated 03/01/2011.

(3.) In Kamalaksha v. State of Police (supra) with respect to the report submitted by the Abkari Officer under S.50 of the Act this Court observed that prima facie satisfaction of the detecting and Investigating Officer arrived at bona fide with the liquid seized from the accused as contraband liquor will be sufficient to reach a conclusion that the accused should be placed on trial. It was also held that the report under S.173(2) of the Code of Criminal Procedure is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to collect evidence during his investigation about commission of offence by the accused who is being put on trial.