Sugathan vs State Of Kerala
2021 Latest Caselaw 9447 Ker

  Crl.MC.1379/21                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                   THE HONOURABLE MR.JUSTICE V.G.ARUN

    MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                       Crl.MC.No.1379 OF 2021(B)

AGAINST THE ORDER/JUDGMENT IN CP 17/2021 OF JUDICIAL FIRST CLASS
                   MAGISTRATE COURT, KADAKKAL

 CRIME NO.1800/2020 OF Chadayamanagalam Police Station , Kollam


PETITIONER/S:

      1         SUGATHAN
                AGED 53 YEARS
                S/O. BALAKRISHNAN, KRISHNALAYAM, THUVAYOOR SOUTH
                P.O., KADAMPANADU, PATHANAMTHITTA DISTRICT.

      2         DURGADAS
                AGED 35 YEARS
                S/O. CHANDRABOSE, THODIYIL VEEDU, EDATHARA,
                KADAKKAL, KOLLAM DISTRICT.

      3         SHAJI R.
                AGED 50 YEARS
                S/O. RANGANADHAN, LICENSEE, HOTEL SHILPA, THEVALLY,
                KOLLAM DISTRICT, PIN-691 009.

                BY ADVS.
                SRI.C.C.THOMAS (SR.)
                SRI.NIREESH MATHEW

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
                KERALA, ERNAKULAM-682 031.


OTHER PRESENT:

                SR.PP.C.S.HRITHWIK

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
    Crl.MC.1379/21                     2




                               V.G.ARUN, J.
                -----------------------------------------------
                      CRL.M.C.No. 1379 of 2021
                -----------------------------------------------
               Dated this the 22nd day of March, 2021

                                 ORDER

Petitioners are the accused in Crime No.1800 of 2020 of the

Chadayamangalam Police Station, registered for offences under

Section 55(i) of the Abkari Act and Section 4(2)(e) and (j) of the Kerala

Epidemic Diseases Ordinance Act, 2020, now pending as C.P.No.17 of

2021 on the files of the Judicial First Class Magistrate Court, Kadakkal.

The prosecution allegation is that petitioners 1 and 2 are employees

and the 3rd petitioner, the Manager of a Bar attached Hotel named

'Hotel Shilpa' and had indulged in sale of Indian Made Foreign Liquor

on 19.7.2020, in violation of the lock down restrictions imposed by the

Government.

2. Sri.C.C.Thomas, learned Senior Counsel appearing for the

petitioners, challenges the incorporation of Section 55(i) of the Abkari

Act, contending that, even accepting the prosecution allegation in its

entirety, only an 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. On the other hand, the learned Senior Public Prosecutor

contended that, violation of the Government orders issued with the

objective of curbing 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 to the

prosecution under Section 55(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 other enactments. The offence

under Section 55(i) of the Act will be attracted only when a person

sells or stores for sale, liquor or any intoxicating drug. 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 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. Faced with similar situation, in Ambika (supra),

the learned single Judge placed reliance on the earlier decisions in

Mohanan (supra) and Nobbey v. State of Kerala [2011(1) KLT SN

51 (Case No.68)] and held the sale conducted after the prescribed

working hours to be in violation of the permit conditions and hence,

punishable under Section 56(b) of the Act. It was held that the

petitioners therein could not be attributed with the offences under

Section 55(a) and (i) of the Act.

5. The reasons and the decisions aforementioned persuade me to

uphold the challenge against incorporation of Section 55(i) of the

Abkari Act.

Hence, the Crl.M.C is allowed. Further proceedings against the

petitioners for the offence under Section 55(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 IN CRIME NO.1800/2020 OF CHADAYAMANGALAM POLICE STATION.

ANNEXURE B PHOTOCOPY OF THE ORDER DATED 27.7.2020 IN CMP NO.1009/2020 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE C PHOTOCOPY OF THE ORDER DATED 23.9.2020 IN B.A.NO.5722/2020 PASSED BY THIS HON'BLE COURT.

ANNEXURE D PHOTOCOPY OF THE ORDER DATED 22.10.2020 IN CMP NO.1140/2020 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE E CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1800/2020 OF CHADAYAMANGALAM POLICE STATION FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE F PHOTOCOPY OF THE ORDER NO.EXC/3171/2020-XC7 DATED 8.9.2020 PASSED BY THE EXCISE COMMISSIONER.

ANNEXURE G PHOTOCOPY OF THE ORDER DATED 24.2.2021 IN CRL.MC.NO.163/2021 PASSED BY THIS HON'BLE COURT.