IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 149 of 2011()
1. C.M.PREMNATH, MANAGING PARTNER,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. THE DEPUTY COMMISSIOER OF EXCISE,
For Petitioner :SRI.C.C.THOMAS (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.149 of 2011
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Dated this the 24th day of January, 2011.
ORDER
Annexure-F, order dated December 1, 2010 passed by the Deputy
Commissioner of Excise, Thiruvananthapuram, respondent No.2 in this
proceeding on Annexure-E, application dated March 24, 2010 preferred by
petitioner requesting to compound the offence under Section 67(b) of the Abkari
Act (for short, “the Act”) as it stood before the amendment on June 3, 1997 is
under challenge in this proceeding.
2. According to the respondents, Excise Officials inspected the bar
hotel of petitioner/accused No.5 on October, 1996 and found Indian Made
Foreign Liquor kept in a room which was not a licensed premise. Thereon a
case was registered against petitioner and others including manager of the bar
hotel for offence punishable under Section 55(a) of the Act. While so, in the
light of the decision of this Court in Mariamma and another v. State of
Kerala and others (1998 (1) KLT 286) accused No.1 got the case against
him compounded as per direction in Annexure-B, order dated March 23, 2010 in
Crl.M.C.No.911 of 2007 of this Court. Based on Annexure-B, order respondent
No.2 passed Annexure-C, order compounding the offence and that matter was
reported to the learned Judicial First Class Magistrate-III, Thiruvananthapuram
(where the case was pending). Accepting the composition as per Annexure-C,
learned Magistrate acquitted accused No.1 as per Annexure-D, order dated April
30, 2010 (in C.C.No.93 of 1997). In the light of the said order petitioner filed
Crl.M.C.No.149/2011
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Annexure-E, application before respondent No.2 seeking similar relief. But, by
Annexure-F, order respondent No.2 held that since the matter is pending before
learned Judicial First Class Magistrate-III, Thiruvananthapuram order of that
court is necessary to compound the offence. That order is under challenge.
Learned Senior Advocate for petitioner placed reliance on the decision in
Mariamma and another v. State of Kerala and others (referred to supra) as
also Annexure-B, order passed by this Court. It is pointed out that since the
alleged offence occurred prior to the amendment to the Act which came into
force on June 3, 1997 and in the light of Section 67(b) of the Act as it stood
before such amendment permission of the court was not required to compound
the offence under Section 55(a) of the Act as it stood before the amendment. It
is pointed out by learned Senior Advocate that the stand of respondent No.2 is
not correct. I have heard learned Public Prosecutor as well.
3. It is not disputed by the respondents also that the offence under
Section 55(a) of the Act was compoundable under Section 67(b) of the Act as
on the date of alleged incident. It is also not disputed that as things stood on the
date of commission of offence permission of the court was not required for
such composition which is discernible from the decision reported in Mariamma
and another v. State of Kerala and others and Annexure-B, order. In view of
that, petitioner is entitled get to the offence compounded under Section 67(b) of
the Act as it stood before the amendment (which came into force on June 3,
1997). In that view of the matter Annexure-F, order passed by respondent No.2
cannot be sustained and is liable to be set aside.
Resultantly this petition is allowed. Annexure-F, order is set aside.
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Respondent No.2 is directed to consider Annexure-E, application and pass
appropriate orders in the light of the decision in Mariamma and another v.
State of Kerala and others and Annexure-B, order and in case offence is
compounded, respondent No.2 shall communicate that matter to the learned
Judicial First Class Magistrate-III, Thiruvananthapuram where C.C.No.93 of 1997
(refiled as C.C.No.113 of 2010) is pending. Proceedings in C.C.No.113 of 2010
of the court of learned Judicial First Class Magistrate-III, Thiruvananthapuram
will stand in abeyance for a period of three months from this day during which
time respondent No.2 shall pass appropriate orders on Annexure-E, application.
THOMAS P.JOSEPH,
Judge.
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