Kerala High Court
Binu vs State Of Kerala on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942
Crl.MC.No.163 OF 2021(A)
AGAINST THE ORDER/JUDGMENT IN CP 94/2020 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -III, PUNALUR
CRIME NO.498/2020 OF Punalur Police Station , Kollam
PETITIONER/S:
1 BINU
AGED 50 YEARS
S/O. SASIDHARAN, VAVUKALAYIL HOUSE, AYIRUKUZHY, S.N
PURAM MURI, PUTHOOR VILLAGE, KOLLAM DISTRICT
2 GOPAKUMAR,
AGED 42 YEARS
S/O. SUBRAMANIAN PILLAI, MURUKAVILASAM HOUSE,
BHARATHIPURAM, EROOR VILLAGE, KOLLAM DISTRICT
3 KRISHNA SAGAR,
AGED 41 YEARS
S/O. SIVADASAN, CHIRAYIL HOUSE, NILAKKAMUKKU,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031
R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.163/21 2
V.G.ARUN, J.
-----------------------------------------------
CRL.M.C.No. 163 of 2021
-----------------------------------------------
Dated this the 24th February, 2021
ORDER
Petitioners are the accused in Crime No.498 of 2020 of the
Punalur Police Station, registered for offences under Section 188 read
with 34 of IPC and Sections 55(a) and (i) of the Abkari Act, now
pending as C.P.No.94 of 2020 on the files of the Judicial First Class
Magistrate Courtr-III, Punalur. The prosecution allegation is that
petitioners 1 and 2, being the employees and the 3 rd petitioner, the
Manager of a Bar attached Hotel named 'Kumar Palace', had indulged
in sale of Indian Made Foreign Liquor on 25.3.2020, violating the lock
down restrictions imposed by the Government.
2. Sri.C.C.Thomas, the learned Senior Counsel appearing for the
petitioners, challenges the registration of proceedings for the offences
under Sections 55(a) and (i) of the Abkari Act (for short, 'the Act'). It is
contended that, even accepting the prosecution allegation in its
entirety, only the offence under Section 56(b) of the Abkari Act is
made out. In support of the contention, reliance is placed on the
decisions in Ambika v. State of Kerala [2011(3) KLT 35] and
Mohanan v. State of Kerala [2007 (1) KLT 845].
3. According to Sri.Suman Chakravarthy, learned Senior Public
Prosecutor, conduct of business in violation of the Government orders
issued in the wake of the rampant spread of the Covid-19 pandemic
should be dealt with seriously. It is submitted that the petitioners are
liable to be prosecuted for the offences under the Kerala Epidemic
Diseases Ordinance, 2020 and the Disaster Management Act, 2005
also.
4. The petitioners having limited their challenge against
prosecution for the offences under Sections 55(a) and (i) of the Abkari
Act, I am not venturing into the question as to whether the petitioners
are liable to be prosecuted for offences under the Kerala Epidemic
Diseases Ordinance and the Disaster Management Act. The offence
under Section 55(a) of the Act is attracted when a person imports,
exports, transports, transits or possesses liquor or any intoxicating
drug in contravention of the Act or of any Rule or order made under
the Act, Section 55(i) will get attracted, when a person sells or stores
for sale, liquor or any intoxicating drug. The possession of liquor by the
petitioners being in terms of the FL-III licence, they cannot be
penalised for the offence under Section 55(a). The penalty under
Section 55(i) for sale of liquor can be imposed only when such sale is
in contravention of the Act or of any Rule or order made under the Act.
The Government order imposing lock down is not an order made under
the Abkari Act and therefore even if the sale was conducted in
violation of the Government order it will not be an offence under
Section 55(i). On the other hand, Section 56(b) specifically deals with
breach of any of the conditions of the licence or permit, not otherwise
provided for in the Act. An identical situation had arisen in Ambika
(supra). The learned single Judge placing reliance on the earlier
decisions in Mohanan (supra) and Nobbey v. State of Kerala
[2011(1) KLT SN 51 (Case No.68)], held the sale after the prescribed
working hours to be a violation of the permit condition punishable
under Section 56(b) of the Act. It was held that the offences
punishable under Section 55(a) and (i) of the Act cannot be attributed
to the petitioners therein.
5. The above mentioned reasons persuade me to uphold the
contention of the Senior Counsel that the petitioners cannot be
proceeded against for commission of the offences under Sections 55(a)
and (i) of the Act.
In the result, the Crl.M.C is allowed. Annexure B final report and
further proceedings against the petitioners for the offences under
Sections 55(a) and (i) of the Act is quashed. It is made clear that this
order does not preclude the court from continuing the proceedings
with respect to the other offences.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A CERTIFIED COPY OF THE FIR AND MAHAZAR INC
RIME NO. 498/2020 OF PUNALUR POLICE STATION
ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO. 498/2020 OF PUNALUR POLICE STATION
FILED BEFORE THE JUDL. FIRST CLASS
MAGISTRATE COURT III PUNALUR
ANNEXURE C PHOTOCOPY OF THE DECISION, AMBIKA VS. STATE
OF KERALA REPORTED IN 2011(3) KLT 35
ANNEXURE D PHOTOCOPY OF THE DECISION, MOHANAN VS.
STATE OF KERALA REPORTED IN 200791) KLT 845
