MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) WHAT exactly is the offence punishable under S.55 of the Kerala Abkari Act, Act 1 of 1077 (hereinafter referred to as 'the Act') is the question referred for decision of this Court. Main dispute is regarding the scope of sub-section (a) of S.55. According to the learned single Judge who referred the matter, there is a conflict between the decisions of the single Judges in Karthikeyan v. state of Kerala, 2000 (3) KLT 639 : 2000 KHC 692 : 2000 (2) KLJ 649, Balan v. State of Kerala, 2002 (3) KLT 161 : 2002 KHC 748 : ILR 2002 (3) Ker. 438, George Issac v. State of Kerala, 2004 (1) KLT 752 : 2004 KHC 121 : ILR 2004 (2) Ker. 218 and Sabu v. State of Kerala, 2003 (2) KLT 173 : 2003 KHC 386 : 2003 (1) KLJ 462 : ILR 2003 (3) Ker. 130. During hearing, another decision of the Division Bench in Surendran v. Excise Inspector, 2004 (1) KLT 404 : 2004 KHC 72 is also referred to. Reference was also made to the following decisions: Mariamma and Another v. State of Kerala and Others, 1998 (1) KLT 286 : 1998 KHC 55 : 1997 (2) KLJ 792, Rajeevan v. Excise Inspector, 1995 (1) KLT 38 : 1995 KHC 10 and Purushan v. State of Kerala, 2002 (2) KLT 661 : 2002 KHC 492 : ILR 2002 (3) Ker. 315.

(2.) BEFORE going to the issue in the matter, we may refer to the relevant statutory provisions regarding offence and proved under the Act. S.55 of the Act is as follows: "55. For illegal import, etc.:- Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or - (b) manufactures liquor or any intoxicating drug; (c) xxxx xxxx xxxx (d) taps or causes to be tapped any toddy-producing tree; or (e) draws or causes to be drawn toddy from any tree; or (f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or (g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or (h) bottles any liquor for purposes of sale; or (i) sells or stores for sale liquor or any intoxicating drug; shall be punishable (1) for any offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and (2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. Explanation: - For the purpose of this section and S.64-A, "intoxicating drug" means any intoxicating substance, other than a narcotic drug or psychotropic substance regulated by the Narcotic Drugs and Psychotropic substances Act, 1985 (Central Act 61 of 1985), which the Government may by notification declare to be an intoxicating drug." S.58 of the Act is as follows:

(3.) IN Karthikeyan v. state of Kerala, 2000 (3) KLT 639 : 2000 KHC 692 : 2000 (2) KLJ 649 offences alleged against petitioners who were FL3 licensees and barmen in a licensed hotel for selling liquor on a prohibited date under R.28A of FL Rules and conditions of licence. Court only held that, prima facie, it appears that the petitioners have committed the offence punishable under S.55 (1) as well as 56 (b) of the Act. The question when the offence come squarely within S.56 (b) whether petitioner has committed offence under S.55 (a) was not considered in the above decision. Counsel for the petitioners in that case relying upon the decision in Mariamma and Another v. State of Kerala and Others, 1998 (1) KLT 286 : 1998 KHC 55 : 1997 (2) KLJ 792 submitted that the offence, if any, alleged to have been committed by the petitioners will not attract the provisions of S.55 of the Act and if at all, the offence will come within the ambit of S.56 (b) of the Act. In that judgment the matter which came up for consideration before this Court was whether the circulars issued by the Board of Revenue on 3.9.1996 and 10.9.1996 to the effect that when it is detected that liquor in possession or in the course of sale by a licensee is found to be diluted, crime should be charged under S.55 of the Abkari Act. On the submission made by the Advocate General on the basis of the earlier judgments passed by this Court that the offence will come only under S.56 (b) of the Abkari Act, the learned single Judge found that the offence will come only within the ambit of S.56 (b) of the Abkari Act. In Karthikeyan's case question when the offence is squarely coming under S.56 (b), whether he can be charged for offence under S.55(1) for alleged violation of S.55 (a) was not specifically considered. Court only held that, on the facts of that case, the complaint cannot be quashed at the inception.