JITH Vs. STATE OF KERALA

JUDGEMENT

(1.) The questions of law involved in this case are no more res integra and therefore narration of facts, in succinct would be suffice for the disposal of the case. Petitioners 1 and 2 are allegedly the workers of the 3rd petitioner, the licensee of toddy shop No. 2 to 7 in Group No.1 of Vadanappally Excise Range, as is obvious from Annexure - A. The gist of the allegation is that 991.8 litres of toddy was seized as per Annexure - C mahazar from a vehicle bearing Registration No. KL 08 AJ 6752 parked inside a tin - roofed shed and also from a nearby shed. Petitioners 1 and 2 were arrested from the spot. The 3rd petitioner is arraigned as an accused as he being the licensee of the shop and the shed in question was used for storing the toddy fetched for transportation to 6 other toddy shops to which he is the licensee. Admittedly, the 3rd petitioner is entitled to transport 468 litres of toddy each day in terms of Annexure - D. Therefore, in essence the accusation in Annexure - B is with respect to the transportation and storing of toddy in excess of the permitted quantity and consequently for commission of offences under S.55(a) and (i) of the Abkari Act. Annexure - B would reveal that the 3rd petitioner is also accused of storing of toddy outside the licensed premises. This petition has been filed challenging Annexure - B crime and occurrence report and all further proceedings against the petitioner.

(2.) I have heard the learned Senior Counsel appearing for the petitioner and the learned Public Prosecutor.

(3.) The core contention of the learned Senior Counsel is that even if the entire allegations are taken as correct, they would not constitute an offence under S.55(a) or 55(i) of the Abkari Act and at the most, they may constitute an offence under S.56(b) of the Abkari Act. It is submitted that an offence under S.56(b) of the Abkari Act is compoundable in terms of the provisions under S.67A of the Abkari Act. In short according to the learned Senior Counsel if at all the prosecution launched against the petitioner is to continue it can be continued only for an offence under S.56(b) of the Abkari Act. The learned Senior Counsel relied on the decisions of this Court in Suresh v. State of Kerala reported in 2011 KHC 2367 : 2011 (1) KLT 614, Rajan and Others v. State of Kerala and Others reported in, 2010 (3) KHC 537 : 2010 (3) KLT 601 : 2010 (2) KLD 372 : ILR 2010 (3) Ker. 610, Sobhanan and Others v. State of Kerala reported in, 2011 (2) KHC 962 : 2011 (2) KLD 66 a decision of the Division Bench of this Court in Mohanan v. State reported in, 2007 (1) KHC 752 : 2007 (1) KLT 845 : ILR 2007 (1) Ker. 687 : 2007 (1) KLJ 436. The learned Senior Counsel also contended that the decision of this Court in Rajan and Others v. State of Kerala and Others was also taken up before the Honourable Supreme Court in SLP (Crl) No. 10082/2010 but the Honourable Apex Court declined interference. The pith of the contentions of the learned Senior Counsel is that the decisions referred supra would undoubtedly show that for violation of the conditions of licence an offences under S.55(a) or 55(i) will not be attracted unless there is a specific accusation that the toddy being transported is an illicit liquor and when the allegations are only of transportation of or storing of toddy in excess of the permitted quantity such allegation would attract only an offence under S.56(b) of the Abkari Act. A perusal of the decisions referred supra would make it clear that the consistent view taken by this Court after referring to the entire relevant provisions under the Abkari Act is that when the allegation is only pertaining to violation of the conditions of licence or in otherwords transportation or storage of toddy in excess of the permitted quantity and in the absence of a clear accusation that the toddy being transported or stored is illicit liquor the allegations could not attract offences under S.55(a) or 55(i) and in such cases only an offence under S.56(b) is attracted. In the light of the decisions in Suresh's case (supra), Sobhanan's case (supra) and Rajan and Others case (supra) which was affirmed by the Honourable Apex Court in the order dated 03/01/2011 in SLP (Crl) No. 10082/2010 and the decisions of the Division Bench of this Court in Mohanan's case (supra) I am of the view that the respondents cannot dispute the said position of law. The said position is already settled by this Court. A perusal of Annexure - B would reveal that essentially the accusation against the petitioners is that 991.8 litres of toddy were seized from a vehicle which was parked infront of a shed being used by the 3rd petitioner, licensee of the toddy shops Nos. 2 to 7 Group No.1 of Vadanappally Excise Range and also from that very shed. This fact is clear from Annexure - C, which is the seizure Mahazar prepared in respect of toddy seized from the said shed and also from the vehicle. It is evident from Annexures B and C that the contraband seized is admittedly toddy. There is no case for the prosecution that what is seized from the shed as also from the vehicle is not toddy. In the light of the aforesaid judicial pronouncement if at all the entire allegations in Annexure - B is taken as correct they cannot attract offence either under S.55(a) or 55(i) of the Abkari Act. However, such allegations would certainly constitute an offence under S.56(b) of the Abkari Act. I am of the view that in view of the judgments referred supra I cannot accept the contention of the offences and allegations in Annexure - B against the petitioners would constitute offences under S.55(a) and S.55(i) of the Abkari Act. In the result this petition is disposed of declaring that the petitioners cannot be prosecuted for offences under S.55(a) and S.55(i) of the Abkari Act whilst they may be prosecuted for an offence under S.56(b) of the Abkari Act. The investigation in Annexure - B can be proceeded with only for the offence under S.56(b) of the Abkari Act. In case the respondents are proceeded against the petitioners for offences under S.56(b) of the Abkari Act, in view of the provisions under S.67A of the Abkari Act it will be open to the petitioners to approach the Officer concerned to compound the offence in terms of the said provisions.