MARIAMMA AND ANN Vs. STATE OF KERALA

JUDGEMENT

(1.) IN all these petitions, petitioners are challenging the circulars issued by the Board of Revenue dated 3. 9. 96 and 10. 9. 96 wherein it is stated that when it is detected that liquor in possession or in the course of sale is found to be diluted, crime should be charged under S. 55 of the Abkari act (hereinafter referred to as the Act ). Officers are acting on the basis of above Circulars and it is also alleged that in certain cases they are reopening the matters already closed. IN all these, cases, samples of INdian Made Foreign liquor were taken from the licenced premises and it was allegedly found that the above did not contain required strength of alcohol and offences were said to have been committed before 3. 6. 97. The Act was amended with effect from 3. 6. 97 by Abkari Amendment Ordinance, 1997 (Ordinance 7/97) which was replaced by ordinance No. 13/97. The samples were taken from the petitioners licensed premises before the amendment of the Act by Ordinance. IN other words, these are pre-ordinance cases. The petitioners include licensees and their employees. . It was found that above samples were below the required strength. R. 2 of the Foreign Liquor Rules provides required strength for INdian Made foreign Liquor. It reads as follows: "2. The minimum strength at which imported and indian made foreign spirits can be sold are 35 UP of gin and 25u. P. for all other kinds of spirits. However, the actual proof spirit content of such liquor may be 1 proof under or over the above proof strength". Similar conditions are engrafted in the licence also (Condition No. 4 ). Since on analysis of samples it was further alleged that the liquor taken was not having the required strength, actions were initiated against the petitioners under different sections of the Abkari Act. IN certain cases matter was already agreed to be compounded under S. 67 of the Act. Even such cases are sought to be reopened on the basis of Circular issued by the excise Commissioner on 3. 9. 96 after a date of passing of the Ordinance. IN paragraph 8 of the Circular it is stated that such offences should be charged out under S. 55 of the Act and it shall not be under S. 58 of the Act as is being done by certain officers. This is the reason for taking criminal prosecution. IN view of the Circular officers have no option but to charge the case under s. 55. Therefore, intervention of this Court is necessary and petitioners pray for a declaration that such offences will come only under S. 56 (1) of the Act and are compoundable under S. 67 (a) of the Act as existed before the introduction of Ordinance.

(2.) IT is the contention of the petitioners that they have not committed any offences. They are purchasing liquor from Kerala Beverages corporation as it is compulsory. There is no case for the Department that they have adulterated the liquor or liquor is purchased from any other place. IT is also submitted that when bottle is opened in the bar, because of the easy evaporation of the ethyl alcohol, reduction of strength is a natural consequence. Ethyl alcohol is the primary alcohol with following composition, ch3 - CH, OH with high evaporation rate. This results in easy dilution and reduction in strength. IT is also pointed out that Clause 25 of the Excise manual allows 4 degree 'variation and it is provided to avoid malicious prosecution of shopkeepers.

(3.) THE decision of this Court reported in Catholic Syrian bank v. Appellate Authority (1986 KLT 1394) was relied for the proposition that the authorised officers has no power to compound the offence after the deletion of S. 67 by ordinance and therefore, no compounding is possible even though offence was committed earlier. It was held in the above case that when scheduled banks were exempted by Government notification from the purview of the Shops and Commercial Establishments Act even pending appeal also ceases to be maintainable. THE decision reported in Meenakshi Amma v. Madhavan Nair (1968 klt 744), Mano Mani v. Labour Court and Ann (1969 KLR 742), Collector v. Habib-Ullah-Din (AIR 1967 Jammu & Kashmir 44), Gopalakrishnan Nair v. Padmavathy Amma (1970 KLT 888) and Hotel Maharani Pvt. Ltd. v. Corporation of calicut (1986 KLT 992) were differentiated on the ground that in all those cases the authority to dispose of the matter continued to have the jurisdiction to deal with the matter. But in view of the issuance notification exempting the scheduled Banks from the Shop Act it was held that no jurisdiction of the appellate authority also' ceased. This view was upheld by the Division Bench in this Court in Poulose v. Catholic Syrian Bank (1988 (2) KLT 599 ). THE SLP was also dismissed. Based upon the above decisions, it was argued that since the authorised officers power to compound the offences is taken away now, it is no more possible to compound the offences. In these petitions, there were requests for compounding the offences earlier. Further criminal cases stand on a different footing.