IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2598 of 2007()
1. JAISON, S/O.ULAHANNAN,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE, KAMBALAKKAD,
... Respondent
For Petitioner :SRI.LALJI P.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/08/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.2598 of 2007
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Dated this the 20th day of August 2007
O R D E R
The petitioner now faces indictment in a prosecution under
Section 55(a) of the Kerala Abkari Act. Final report has been
filed. Cognizance has already taken. Proceedings are now
pending as C.P.No.20/07 before the learned Chief Judicial
Magistrate, Kalpetta, submits the learned counsel for the
petitioner.
2. Proceedings commenced on the basis of an F.I.R
lodged by the Sub Inspector of Police, Kambalakkad police
station on 6/7/2004. Crime was registered under Section 102
Cr.P.C. The Sub Inspector of Police allegedly inspected the
premises of the petitioner on receipt of information that some
intoxicating liquor was kept in the premises of the petitioner.
Seizure was effected. The article was sent to the chemical
examiner for report. The report of the chemical examiner shows
that the article in question contains ethyl alcohol. Consequently
final report has been filed raising allegations under the Kerala
Abkari Act against the petitioner. The precise allegation raised
is under Section 55(a) of the Kerala Abkari Act.
3. The learned counsel for the petitioner fairly submits
that even though he disputes the alleged seizure etc. he is not
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pressing those contentions at this stage under section 482
Cr.P.C. The learned counsel raises only one contention before
me. He urges that the article seized cannot, in any view of the
matter, be held to be liquor, inasmuch as the report shows that
the percentage of ethyl alcohol present is only 6.2 and 2.15
respectively in the two bottles which were sent for chemical
examination. Therefore, the learned counsel contends that the
prosecution under the Kerala Abkari Act is not justified or
possible.
4. I am afraid, I cannot accept this contention. Section 3
(10) of the Kerala Abkari Act defines liquor in the following
words.
(10) Liquor:- “liquor” includes spirits of wine, [arrack],
spirits, wine, toddy, beer and all liquid consisting of or
containing alcohol.”
5. The contraband article seized from the premises did
certainly contain ethyl alcohol as seen from the report of
chemical examination. In these circumstances, I find no merit in
the contention that the article seized cannot be held to be liquor.
Inasmuch as the article contains ethyl alcohol, it must now be
Crl.M.C.No.2598/07 3
held to answer the definition of liquor in Section 3(10) of the
Kerala Abkari Act.
6. Possession of liquor without legal authority is an
offence under the Kerala Abkari Act whatever be the precise
offence and I do not find in these circumstances any merit in the
prayer for quashing the proceedings. The petitioner has various
contentions to urge. He even questions the finding that there
was presence of ethyl alcohol in the article from which sample
was taken. The learned counsel relies on different percentages
of alcohol reported in the report of analysis, when admittedly
both samples of the article were taken from one container. Be
that as it may, it is not necessary for me to go into those
contentions now. The petitioner shall be at liberty to raise all
necessary and appropriate contentions before the courts below
in the course of the trial.
7. I do not, in these circumstances, find any merit in the
contention that the prosecution is bound to fail for the reason
that what is seized is not liquor at all.
8. The learned counsel for the petitioner submits that
the petitioner is absolutely innocent and apprehends that his
Crl.M.C.No.2598/07 4
application for regular bail may not be considered by the learned
Magistrate on merits, in accordance with law and expeditiously.
He therefore prays that appropriate directions may be issued.
9. I have no reason to assume that the learned
Magistrate would not consider the petitioner’s application for
regular bail on merits, in accordance with law and expeditiously.
Every court must do the same. His application for bail will have
to be considered in the light of the decisions in Sukumari v.
State of Kerala [2001(1) KLT 22] and Alice George vs.Deputy
Superintendent of Police [2003(1)KLT 339]. I need only observe
that such application must be considered on merits and disposed
of expeditiously – on the date of surrender itself. This petition is
in these circumstances dismissed with the above observations
and directions.
Hand over copy of this order to the learned counsel for the
petitioner today itself.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007