BINUKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is accused No.2 in S.C.No.1045 of 2010 of Sessions Court, Alappuzha. He is a licensee of toddy shop No.14 of Kuttanad Excise Range and has permit to transport toddy from Chittoor to T.S.Nos.14 to 16, 18, 103 and 104 of Kuttanad Excise Range by vehicle Nos. KL-4/7774 and KL-4/5171. Case is that on 19.09.2009 Circle Inspector of Excise seized 75 litres of toddy which was being transported on behalf of petitioner in an Autorikshaw bearing No.KL-4/W-9082 (which is not an authorised vehicle as per the permit) and which was driven by the first accused. He was arrested and the toddy was seized. On investigation, Excise Range officials were satisfied that of the 450 litres of toddy which was brought from Chittoor in one of the autorised vehicles, that vehicle developed mechanical defect on the way, could not move forward and thereon 75 litres out of the 450 litres (within the permitted limit) was being transported to TS No.14 in the said Autorikshaw. In the authorised vehicle which came behind the remaining 375 litres of the toddy was being transported. Accordingly, petitioner was implicated in the case and a final report was submitted against petitioner and accused No.1 alleging commission of offences punishable under Secs.55(a) and 56(b) r/w Sec.63 of the Kerala Abkari Act. Annexure-A1 is the final report to that effect. PETITIONER challenges Annexure-A1, final report on the ground that even if entire allegations made by prosecution are accepted, so far as petitioner/licensee is concerned only an offence under Sec.56(b) of the Act is made out and the final report to the extent implicated petitioner for offence punishable under Sec.55(a) r/w Sec.63 of the Act is illegal. It is also contended that the entire allegations are false. Hence this petition seeking to quash all further proceedings in S.C.No.1045 of 2010 of Sessions Court, Alappuzha against the petitioner pursuant to Annexure-A1, final report.

(2.) LEARNED counsel for petitioner contends that even as per Annexure-A1, final report it is admitted that toddy drawn from Chittoor was being transported to the toddy shops in one of the authorised vehicles as per the permit and conditions, Annexure-2 and 3. It is while so that the said vehicle developed mechanical defect and a portion of toddy drawn from the quatity in the authorised vehicle was being transported in an Autorikshaw. According to the learned counsel, at any rate it attracted only offence punishable under Sec.56(b) of the Act. LEARNED Public Prosecutor submitted that in the light of the decision in Mohanan v. State of Kerala (2007 (1) KLT 845) it may be possible for petitioner to contend that no offence under Sec.55(a) of the Act is made out since the State has not so far challenged that judgment but, offence attributed to the petitioner under Sec.56(b) r/w Sec.63 of the Act and at any rate the latter offences would stand.

(3.) NEXT question is whether offences punishable under Sec.56(b) or 63 of the Act is made out. Sec.63 can have application only when an offence which is not otherwise provided under the Act is committed. In other words if any other offence as provided under the Act is shown to be committed, Sec.63 of the Act can have no application.