CHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petition on hand is filed by the 1st accused in SC No. 668/16 pending before Assistant Sessions Court, Thrissur, registered there based on the final report submitted in Crime No. 542/16 of Mannuthy Police Station. The petitioner alongwith other accused were charge sheeted for the offences punishable under Sections 55(a), 55(i), 58(a) of the Abkari Act (for short 'the Act') and Rules 9, 10 and 17 of the Kerala Spirituous Preparations (Control) Rules, 1969 (for short, 'the Rules, 1969). The relief sought by the petitioner is to quash all further proceedings in SC No. 668/16 as far as the petitioner is concerned. The case of the prosecution as averred by the petitioner in the petition on hand is to the following effect: At 17 hours on 11.03.2016 the second and third accused were found selling Arishtam in the shop owned by the petitioner. The Arishtam manufactured by Haritha Company as 'Harithamrutham' was found sold therein by accused Nos. 2 and 3, who were not holding a licence for selling the same. The offence alleged was detected by the S.I. of police, Mannuthy Police Station and based on that, the Crime was registered against the petitioner and co-accused and that led to the laying of a final report (Annexure I), before Judicial First Class Magistrate Court-III, Thrissur. By proceedings initiated as CP No. 50/16, the case was committed to Court of Sessions, Thrissur and made over to Assistant Sessions Court, Thrissur wherein SC No. 668/16 was registered.

(2.) Dr. K.P. Satheesan, the learned Senior Counsel appeared for the petitioner and advanced arguments on his behalf. According to him, the petitioner is the owner of a shop room wherefrom sample of 'Arishtam' was taken which when analysed by a Chemical Laboratory, the offence alleged was detected. Petitioner's wife is having the licence issued by Nadakkathara Grama Panchayat for selling Ayurveda Medicines. The true copy of the said licence is produced alongwith the petition on hand as Annexure II. An Ayurvedic Medicine namely Harithamrutham was manufactured by 'Haritha Pharmaceuticals'. The petitioner's wife was appointed as it's authorised selling agent by the said Company. True copy of the certificate issued by Haritha Pharmaceuticals appointing the wife of the petitioner as authorised selling agent is produced alongwith the petition on hand as Annexure III. Haritha Pharmaceuticals is a company engaged in manufacturing Haritha products which also includes Harithamrutham, on the strength of a licence obtained by them. According to the learned Senior Counsel, the licence is SP-VII licence with No. 11/97-98 produced alongwith the petition on hand as Annexure IV. Annexure IV licence is renewed successively, annually and is valid till date.

(3.) Seven samples were taken by the 2nd respondent at the time of detection from Harithamrutham found kept in the shop for sale and the same was sent for chemical analysis. True copy of the report of the Chemical Examiner's Laboratory dated 29.04.2017 is produced alongwith the petition on hand as Annexure V. It is stated in Annexure V that the percentage of Ethyl Alcohol in the seven samples examined there are below 12%. The grievance of the petitioner projected by the learned Senior Counsel was that despite receipt of Annexure V certificate after analysis of samples of 'Harithamrutham' from the Chemical Examiner's laboratory certifying that the Ethyl Alcohol contents on those are below 12%, the second respondent proceeded to file the final report charge sheeting the petitioner and others for the offences as aforesaid. According to him, in view of Annexure V, the final report itself is unsustainable in law and therefore, the case registered by the Assistant Sessions Judge on its basis as SC No. 668/16 is not maintainable. It is further contended by the learned Senior Counsel that the holder of Annexure III and II was none other than petitioner's wife Smt. Kamala and being so respectively from 2011 and 2015, the 2nd respondent is highly unjustified in laying a final report as Annexure I, charge sheeting the petitioner for the alleged offences. The learned Senior Counsel has drawn the attention of this Court to Rule 3(1) of the Rules, 1969 which defines 'spurious preparation' to contend that since Annexure V produced alongwith the petition on hand reports the alcohol contents in the seven samples analysed therein as below 12%, it cannot be treated as spurious preparation and therefore the prosecution initiated against the petitioner is patently illegal. According to him, as per the note appended to Rule 2(k)(1), Asavas and Arishtas and all other preparations containing self generated alcohol, shall be deemed as spurious preparations, if the alcohol content of any such preparation exceeds 12% by volume, unless otherwise declared by the expert committee and therefore, the alcohol content in the samples examined in the case on hand being less than 12% by volume, the contraband seized, to any extent of imagination, cannot be spurious preparation. According to him, the contraband is only spirituous preparation, for manufacturing which SP-VII license is held by Smt. Vijaya, the proprietrix of 'Haritha Pharmaceuticals'. Smt. Kamala, the wife of the petitioner was granted with a certificate appointing her as an authorised selling agent by the manager of Haritha Pharmaceuticals for sale of Harithamrutham, a spirituous preparation, reported by the chemical laboratory after analysis as not spurious preparation, the sale conducted in the petitioner's shop, is only an authorised sale and the prosecution is highly unjustified in charge sheeting the petitioner for the same. It is contended by the learned counsel that the petitioner has been transacting the sale of Harithamrutham as supplied by its manufacturer on the strength of Annexure II and III. The learned counsel has also invited the attention of this Court to Rule 17 of Rules 1969 to contend that, if at all an offence is attracted from the allegations, that is only infraction of any of the rules or conditions of a licence or permit issued under the rules either by a licencee or by any person in his employment and it shall entail only the licensee, a fine upto Rs. 30,000/- or cancellation of his licence or both. According to the counsel, in that context, the prosecution is highly unjustified in charge sheeting the petitioner for the offences. According to him, rather than proposing to prosecute the petitioner, it ought to have imposed penalty on the licensee, who is the wife of the petitioner, as the offence involved is infraction of conditions of licence. According to him, by proposing to prosecute the petitioner by filing the final report before a court of law without invoking the authority under Rule 17 of Rules 1969, the prosecution has acted illegally and for that reason itself the proceedings sought to be quashed are devoid of any basis. According to the learned Senior Counsel, the offences alleged against the petitioner will not sustain and therefore, he seeks to quash Annexure A1 and SC No. 668/16, registered on the files of Assistant Sessions Court, Thrissur as against the petitioner.