Binoy P.B vs State Of Kerala
2023 Latest Caselaw 9612 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  FRIDAY, THE 8TH DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945
                   CRL.MC NO. 7212 OF 2023




PETITIONERS/ACCUSED NOS.1 & 2:

    1     BINOY P.B
          AGED 39 YEARS, S/O.P.K.BHASKARAN,
          PARIYARATHU HOUSE, PARAMTHODU KARA,
          CHIRAKKADAVU, CHERUVALLI VILLAGE,
          KANJIRAPPALLY TALUK,
          KOTTAYAM DISTRICT., PIN - 686506
    2     RAJEEV K.K
          AGED 52 YEARS, S/O.KARUNAKARAN,
          KUMBLANICKAL HOUSE, PADINJATTU BHAGOM,
          CHIRAKKADAVU VILLAGE, KANJIRAPPALLY TALUK,
          KOTTAYAM DISTRICT., PIN - 686506
          BY ADVS.
          NIREESH MATHEW
          C.C.THOMAS (SR.)(T-48)

RESPONDENT/COMPLANANT - STATE:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM,
          KOCHI., PIN - 682031
OTHER PRESENT:

          VIPIN NARAYAN PP


    THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 08.09.2023, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
 Crl.M.C.No.7212/2023

                                 2



                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                   Crl.M.C. No.7212 of 2023
             ----------------------------------------------
         Dated this the 08th day of September, 2023


                             ORDER

This Criminal Miscellaneous Case is filed by the accused

in Crime No.24/2023 of Excise Range Office, Erumeli. The 1 st

petitioner was the licensee of all the toddy shops in Group

No.V in Erumeli Excise Range, Kottayam Division. The 2nd

petitioner is the worker in Toddy Shop No.26 included in the

said group. On 01.03.2023 at 2.35 pm, a case is registered

against the petitioners on the allegation that the petitioners

sold Indian made foreign liquor purchased from the Kerala

State Beverages Corporation, which violates the Abkari Act

and the Rules. Annexure-A is the certified copy of the crime

and occurrence report and Annexure-B is the copy of the

mahazar. It is submitted that on the basis of the registration of

the case for offence other than under Section 56(b) of the

Abkari Act, the license of the 1 st petitioner is suspended and

thereafter cancelled. The 1st petitioner filed WP(C).

No.15856/2023 challenging the order of suspension and Crl.M.C.No.7212/2023

cancellation of the licenses. It is further submitted that this

Court was pleased to stay the resale of the toddy shop and

posted for hearing.

2. It is the case of the petitioners that the final report

is not filed in Crime No.24/2023 even after 6 months. The case

is detected on 01.03.2023. Though the 1st petitioner

approached the Excise Inspector several times, it is stated that

they are not finalizing the investigation for the reasons best

known to him. It is the definite case of the petitioners that

even if the entire allegation are admitted in toto, the offence

will lie only under Section 56(b) of the Abkari Act, which is

compoundable. The petitioners relies on the judgment of this

Court in Thomaskutty Vs. Commissioner of Excise, Tvm &

others[2016 KHC 187]. Hence this criminal miscellaneous

case.

3. Heard the learned Senior Counsel Sri.C.C.Thomas,

as instructed by Adv.Nireesh Mathew, and the learned Public

Prosecutor.

4. The Senior Counsel submitted that in the light of

Annexure-D judgment [Thomaskutty's case (supra)], the

offences under Sections 55D and 55(i) of the Abkari Act are not Crl.M.C.No.7212/2023

attracted. This Court perused Annexure-D judgment,

especially paragraphs 40 and 45. It will be better to extract

paragraphs 40 and 45 of the above judgment:

"40. In the light of the above discussion, I do not hesitate to hold that Section 55 of the Act has no application to the alleged crime the fourth respondent has been charged with.

45. In the light of the above statutory principles and the judicial dicta, I am of the opinion that for any breach of the licence conditions, which may have been, incidentally, an offence under the other provisions of the Act, the licencee could be made answerable under Section 56 of the Act, but not other provisions--especially penal--of the Act."

5. In the light of the same, I think the offence under

Section 55 is not attracted. A similar view is taken by this

Court in W.P.(C). No.27197/2011 and in Crl.M.C.

No.4416/2010. In the light of the above order, I am of the

considered opinion that the offences under Sections 55D and

55(i) of the Abkari Act in Annexure-A crime and occurrence

report are to be set aside. But the respondents can proceed

with the investigation as far as the offence under Section

56(b) of the Abkari Act is concerned. The petitioners are also Crl.M.C.No.7212/2023

free to compound the same, if permissible as per law.

Therefore, this Criminal Miscellaneous Case is disposed

of in the following manner:

1. The offences alleged under Sections 55D and

55(i) of the Abkari Act in Annexure-A crime

and occurrence report are set aside and the

respondents are free to proceed under Section

56(b) of the Abkari Act against the petitioners.

2. I make it clear that the petitioners are free to

compound the offence under Section 56(b) of

the Abkari Act, if the same is permissible as

per law.

sd/-

                                        P.V.KUNHIKRISHNAN
JV                                             JUDGE
 Crl.M.C.No.7212/2023





                  APPENDIX OF CRL.MC 7212/2023

PETITIONER ANNEXURES
Annexure-A        CERTIFIED COPY OF THE CRIME AND

OCCURRENCE REPORT IN CR.NO.24/2023 OF EXCISE INSPECTOR, ERUMELI EXCISE RANGE DATED 01.03.2023.

Annexure-B CERTIFIED COPY OF THE MAHAZAR DATED 01.03.2023 PREPARED BY THE EXCISE CIRCLE INSPECTOR, PONKUNNAM.

Annexure-C TRUE PHOTOCOPY OF THE LETTER DATED 26.08.2023 SENT TO THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERUMELI.

Annexure-D TRUE PHOTOCOPY OF THE DECISION, THOMASKUTTY VS. COMMISSIONER OF EXCISE, TVM & OTHERS REPORTED IN 2016 KHC 187 .