IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3427 of 2008()
1. RATHESH, 25 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PROSECUTOR
... Respondent
For Petitioner :SRI.AJITH MURALI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :20/10/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.3427 of 2008
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Dated this the 20th day of October 2008
O R D E R
The petitioner faces indictment in a prosecution for
offences punishable under Section 55(a) and Section 8 of the
Kerala Abkari Act.
2. The crux of the allegations against the petitioner is
that he was found to be in possession of 5 x 750 ml (total 3.750
litres) of I.M.F.L purchased from the Kerala Beverages
Corporation on 04/09/1999. Investigation is complete. Final
report has already been filed. Cognizance has already been
taken and committal proceedings has been registered.
3. The petitioner now raises before this court only one
contention. He contends that even accepting the entire
allegations, the final report filed alleging offences punishable
under Section 55(a) and Section 8 of the Kerala Abkari Act is not
justified at all. At worst, only an offence under Section 63 of the
Kerala Abkari Act would lie inasmuch as what the petitioner was
alleged to be found in possession was admittedly I.M.F.L and not
arrack and admittedly such liquor was purchased from the
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Kerala Beverages Corporation. The learned counsel for the
petitioner relies on the admitted statements in the seizure
mahazer in support of his contention.
4. The learned Public Prosecutor was requested to take
instructions. After taking instructions, the learned Public
Prosecutor accepts the contentions of the petitioner and
concedes that there is nothing that can attract the allegations
under Section 55(a) or Section 8 of the Kerala Abkari Act. Even
according to the prosecution, article seized are not spurious
liquor; but only IMF liquor purchased from the Kerala Beverages
Corporation. The learned Public Prosecutor further contends
that no arrack is at all involved and only I.M.F.L is involved.
5. Thus, at worst, the allegation that can be raised is
only possession of licit liquor beyond the quantity prescribed.
For that, obviously, the charge under Section 55(a) and Section
8 of the Kerala Abkari Act cannot lie. I am, in these
circumstances, satisfied that the order taking cognizance of the
offences punishable under Section 55(a) and Section 8 of the
Kerala Abkari Act only deserves to be quashed. The order taking
cognizance can hence be set aside and the learned Magistrate
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must be directed to consider the final report afresh and take
appropriate decision in the matter.
6. The learned counsel for the petitioner has a further
contention that the petitioner was a juvenile on the date of
commission of the offence as per the amended Section 2(l) of
‘The Juvenile Justice (Care and Protection of Children) Act,
2000’. The date of commission of the offence is the crucial date
and when that is reckoned, the petitioner will be less than 18
years of age on the date of commission of the offence and
consequently he will be entitled for the advantage of the
provisions of the ‘The Juvenile Justice (Care and Protection of
Children) Act, 2000’, it is contended. I do not want to express
any opinion on that. The learned Magistrate shall consider the
final report in the light of the contentions raised by the
petitioner.
7. In the result,
a) This Crl.M.C is allowed in part as agreed.
b) Cognizance taken against the petitioner is set aside.
c) The learned Magistrate is directed to consider the
matter afresh and take appropriate decision in the matter.
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8. The learned counsel for the petitioner submits that if
cognizance is taken only under Section 63 of the Kerala Abkari
Act, the petitioner does not want to contest the proceedings and
he may be permitted in that event to plead guilty to the charge
under Section 63 of the Kerala Abkari Act. The petitioner can
certainly apply for exemption from personal appearance and
plead guilty through his counsel and depending upon the
offence of which cognizance is taken, the learned Magistrate
must consider the same and pass appropriate orders.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008