Kerala High Court
George Mathew vs State Of Kerala on 3 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.8694 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 8694 OF 2018
CRIME NO.27/2005 OF KOLLENGODE EXCISE RANGE OFFICE,
PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.75 OF
2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHITTUR
PETITIONER/ACCUSED NO.3:
GEORGE MATHEW,
AGED 50 YEARS
S/O. V.M. MATHEW, VALAYIL HOUSE, KOLENCHERY
P.O., ERNAKULAM, MANAGING DIRECTOR, M/S.
SOLAR TECHNOLOGIES AND SERVICING PRIVATE
LIMITED, VALLAMATTAM ESTATE, M.G. ROAD,
RAVIPURAM, KOCHI-682015.
BY ADVS.
PRASUN.S
DENU JOSEPH
RESPONDENT/COMPLAINANT - STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.
BY ADV.SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 03.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.8694 of 2018
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.8694 of 2018
----------------------------------------------
Dated this the 03rd day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to
quash Annexure A1 final report and all further
proceedings in C.P. No.75/2010 on the file of the
Judicial First Class Magistrate Court, Chittur against
the petitioner. Annexure A1 final report is filed
against the petitioner alleging offences punishable
under Sections 55(a) and 8(1) of the Abkari Act.
2. The allegation in the aforesaid case is that
the Kollengode Excise Range, on 18.10.2005,
arrested the 1st and 2nd accused in the above case,
while transporting 300 litres of spirit in an Opel Astra
Car bearing registration No.KL.7.AA.187. As per
Annexure A2, the allegation as against the petitioner
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herein is that the petitioner, who was allegedly the
registered owner of the said car had not produced
any documents to disprove the same. Hence the
petitioner was also arrayed as the 3rd accused.
According to the petitioner, even if the entire
allegations are accepted, no offence is made out.
3. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
4. According to the petitioner, even if the
entire allegations are accepted, no offence is made
out against the petitioner. The petitioner relied on
the orders of this Court in Sony C. Mathew v. State
of Kerala [2007 KHC 4187], Hassanar v. State of
Kerala [2008 (1) KLT 921] and Rajan v. Excise
Inspector [2004 (2) KLT 430].
5. The Public Prosecutor submitted that the
contentions raised by the petitioner are to be raised
before the trial court at the appropriate stage.
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6. This Court considered the contentions of
the petitioner and the Public Prosecutor. A perusal of
the final report would show that the petitioner is
implicated in the case because he did not respond to
the letter sent by the Investigating Officer.
Therefore, it is concluded that the petitioner, who is
the 3rd accused, is the owner of the vehicle. Except
the allegation that the petitioner is the owner of the
vehicle bearing registration No.KL.7.AA.187 Opel
Astra Car, no other allegation is raised against the
petitioner. There is no case to the prosecution that
the petitioner was present at the time of the alleged
seizure of the contraband. In such circumstances,
without any other materials, whether the petitioner
can be prosecuted, is the question. Of course, the
petitioner produced Annexure A2 agreement to show
that the vehicle was transferred to another person.
But the Prosecutor submitted that, Annexure A2 is
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not admissible and it is to be proved before the trial
court at the appropriate stage. But in Sony C.
Mathew's case (supra), this Court considered a
similar situation. It will be better to extract the
relevant portion of the above order:
"7. In the present case also the only
allegation is that the petitioner is the owner of
the vehicle which used for transporting the
contraband article and from where the spirit was
seized. The same is the position as far as this
case is concerned. Going by annexure B report,
there is no material or allegation to connect the
petitioner with the alleged offence except the
mere fact that she happened to be the owner of
the vehicle in question. In the absence of any
specific allegation attributing any role to the
petitioner for the commission of the offence,
especially, when there is no provisions in the
Abkari Act, casting any penal liability or
registered owner of a vehicle which used for
transporting the contraband article or from where
such article was seized, no charge will lie against
the petitioner under S.55(a) of the Abkari Act.
8. It is pertinent to note that a special
provision namely S.64A is incorporated in the
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Abkari Act fixing penal liability for persons like
owner of land, building, room, space or enclosure
used for manufacture, sale or storing for sale of
liquor or intoxicating drag. The Legislature has
carefully excluded vehicles or vessels or such
moving carts etc., since no presumption can be
attributed unless it is specifically charged and
proved that such vehicle or vessels or carts are
used with the consent of its owners. S.64A is
applicable only if land or space or enclosure is
allowed to be used for manufacturing the sale or
storing for sale of liquor and not for transporting.
In the present case, the prosecution has no case
that either the petitioner was travelling in the
vehicle from where the contraband article was
seized and the other accused were arrested or
the vehicle was used with her connivance.
Therefore, the facts involved in the case squarely
covered by the decision reported in Rajan v.
Excise Inspector, 2004 (2) KLT 430 : 2004 (1)
KLJ 666. Therefore S.64A is also not attracted in
the case against the petitioner.
9. In the light of the above facts and
circumstances, and the settled position of law, I
am of the view that there is no meaning in
allowing the proceedings of the court below
against the petitioner and therefore it is just and
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proper to quash the proceedings pending in the
court below, to the extent it is against the
petitioner. "
7. Similarly, in Hassanar's case (supra) also
this Court considered the same point. It will be
better to extract the relevant portion of the above
order:
"3. Admittedly, the prosecution has no case
that the petitioner was one among the two
unidentified persons who were seen riding the
motorcycle in question. The petitioner is sought
to be implicated on the ground that subsequent
investigation revealed that he is the transferee of
the motorcycle from the registered owner one Mr.
Hannifa Puthur who is stated to be abroad. S.64A
of the Abkari Act reads as follows:
"64A. Penalty for allowing land, building, room
etc. for manufacture, sale or storing for sale of
liquor or intoxicating drug.-- Notwithstanding
anything contained in this Act, or in any other law
for the time being in force, any owner or occupier
or person having control of, any land, building,
room, space or enclosure, permits any person to
use such land, building, room, space or enclosure
for manufacture sale or storing for sale of liquor
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or intoxicating drug in contravention of this Act or
of any rule or order made thereunder or of any
licence or permit obtained under this Act shall be
punishable with fine which shall not less than
twenty five thousand rupees unless he proves to
the satisfaction of the Court that all due and
reasonable precautions were taken by him to
prevent such use."
4. S.64A of the act can be attracted only if
it is shown that the person in question was
having control of any land, building, room, space
or enclosure. S.64A does not take in any vehicle.
The words "space" or "enclosure" mentioned in
the Section cannot also include a vehicle.
Admittedly, the contraband liquor was carried in
the motorcycle and the prosecution has no case
that the petitioner was one among the two riders
of the motorcycle. The petitioner can be roped in
under S.55(a) of the Act only if it could be shown
that he was having control over the vehicle in
question. Since S.64A of the Abkari Act does not
take in any vehicle, the prosecution of the
petitioner under S.64A also is unsustainable. I
am fortified in this conclusion the decision
reported in Rajan v. Excise Inspector, 2004 KHC
599 : 2004 (1) KLJ 666 : 2004 (2) KLT 430. The
entire proceedings before the JFCM, Kasaragod in
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CP No. 309/01 and in CP No. 14/99 shall stand
quashed. "
8. Again in Rajan's case (supra), this Court
considered the same point. The above order is
extracted hereunder:
"1. Petitioner herein is the second accused
in C.P.No.173 of 2002, on the file of the Judicial
First Class Magistrate Court, Kasaragod. He along
with another accused was charge sheeted for
offence punishable under S.55(a) and 64A of the
Abkari Act. The allegation as seen from Annexure
A2 charge sheet is that on 6.8.2000 the first
accused was transporting packets of arrack from
Karnataka State. The total number of packets
transporting by the first accused was found 200.
The petitioner was arrayed as second accused on
the ground that petitioner is the registered owner
of the Chetak scooter, bearing No.KL-14/2650.
According to the petitioner, as can be seen from
Annexure A1, he became the registered owner
only after the alleged offence. Whatever may be
that, his further contention is that charge against
him was framed under S.64A. S.64A reads as
follows:
"64A. Penalty for allowing land, building, room,
etc. for manufacturing, sale or storing for sale of
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liquor or Intoxicating drug:- Notwithstanding
anything contained in this Act, or in any other law
for the time being in force, any owner or occupier
or person having control of, any land, building,
room, space or enclosure, permits any person to
use such land, building, room, space or enclosure
for manufacture, sale or storing for sale of liquor
or intoxicating drug in contravention of this Act or
of any rule or order made thereunder or of any
licence or permit obtained under this Act shall be
punishable with fine which shall not be less than
twenty-five thousand rupees unless he proves to
the satisfaction of the court that all due and
reasonable precautions were taken by him to
prevent such use."
A plain reading of S.64A would show that it will
attract only if any land, building, room, space or
enclosure owned by a person is used for
manufacture, sale or storing for sale of liquor or
intoxicating drug. S.64A is not attracted merely
because accused is the registered owner of the
vehicle. The word 'place' is defined under S.3(21)
of the Act as follows:
"(21) Place:- "Place" includes also a house,
building, shop (tent, booth, raft, vehicle and
vessel;"
But, place is not mentioned in the section. Of
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course, first accused was charged for offence
under S.55(a) for transporting or importing
intoxicating liquor. But S.64A is applicable only if
land or space or enclosure is allowed to be used
for manufacturing, sale or storing for sale of
liquor and not for transporting. The prosecution
has no case that petitioner was travelling in the
vehicle at that time or abetting the above
offence. The only allegation is that he was
registered owner of the vehicle. There is no other
allegation against him in the F.I.R. He was not
even charge sheeted for abetting the offence.
2. In the above circumstances, charges
under S.64A framed on second accused is not
maintainable. Therefore, Annexure A2 charge
sheet under S.64A against the second accused in
C.P. No. 173 of 2002 is quashed. The Magistrate
Court will be free to proceed with charges against
accused No. 1 according to law.
The Crl.M.C. is allowed."
9. In the light of the above principles, this
Court perused the final report. The only allegation
against the petitioner is that, he is the registered
owner of the vehicle in which the liquor is
transported. Except the same, no other evidence is
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produced by the prosecution. If that be the case, I
am of the considered opinion that the prosecution
against the petitioner is to be quashed. But I make it
clear that this order is applicable only to the
petitioner who is the 3rd accused and the case against
the 1st and 2nd accused will be proceeded in
accordance with law untrammeled by any observation
in this order.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the
petitioner alone in Annexure A1 final report and in
C.P. No.75/2010 on the file of the Judicial First Class
Magistrate Court, Chittur arising from C.R.
No.27/2005 of Kollengode Excise Range are quashed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
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PETITIONER ANNEXURES
ANNEXURE-A1 THE TRUE PHOTOCOPY OF THE FINAL
REPORT IN THE AFORESAID CR
NO.27/2005 PF THE KOLLENGODE EXCISE
RANGE.
ANNEXURE-A2 THE TRUE PHOTOCOPY OF THE SALE
AGREEMENT DATED 16/10/2003 WITH
RESPECT TO THE OPEL ASTRA CAR
BEARING REGISTRATION NO.KL-07-AA-
ANNEXURE-A3 THE TRUE PHOTOCOPY OF THE NOTICE CR
NO.27/05 DATED 29/04/2006 ISSUED TO
THE PETITIONER ( IN HIS OFFICIAL
ADDRESS WHICH WAS FUNCTIONING AT
THAT POINT OF TIME) BY THE EXCISE
INSPECTOR KOLLENGODE RANGE, EXCISE
RANGE OFFICE, KOLLENGODE.
ANNEXURE-A4 THE TRUE PHOTOCOPY OF THE ORDER
DATED 27/11/2018 IN CRL. RP
NO.308/2011 OF THIS HONOURABLE
COURT.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
