Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
K.N. Karthikeyan And Anr. vs State Of Kerala on 12 October, 2000
Equivalent citations: 2001 CriLJ 408
Author: K M Shafi
Bench: K M Shafi


ORDER

K.A. Mohamed Shafi, J.

1. This M.C. is filed by accused Nos. 1 and 2 in C.C. No. 382/98 on the file of the Judicial First Class Magistrate’s Court-II, Chengannur to quash the prosecution against them.

2. The offences alleged against the petitioners are punishable under Section 55(i), 56(b) and 54 read with 63 of the Kerala Abkari Act. The allegation is that in disobedience of the order No. N2-4175/96, dated 22-4-96 issued by the District Collector banning the sale of intoxicating liquors on 7-5-96, 8-5-96 and 9-5-96 in connection with the election and counting of votes in the election to the Parliament and Assembly held on 8-5-96, they sold liquors in the Indraprastham Bar, of which the 1st accused is the licensee and the 2nd accused is the Bar Man, at about 8 p.m. on 7-5-96. The case was registered as Crime No. 85/97 by the Mavelikkara Police and the C.I. of Police, Mavelikkara after investigation has laid the charge-sheet against the peitioners alleging the above offences.

3. The counsel for the petitioners submitted that the offences punishable under Sections 55(i) and 56(b) of the Abkari Act are not at all attracted in this case and if at all the offence punishable under Section 54 read with 63 of the Abkari Act is attracted which is compoundable under the provisions of the Act.

4. Section 55(i) of the Abkari Act deals with penalties for illegal import etc. which reads as follows :

Section 55 – For illegal import etc. :-

Whoever in contravention of this Act or of any rule or order made under this Act –

xxx xxx xxx xxx

(i) sells or stores for sale liquor or any intoxicating drug; shall be punishable

(1) for any offence other than an offence falling under Clause (d) or Clause (e) with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh, and

(2) for an offence tailing under Clause (d) or Clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both.

xxx xxx xxx xxx

5. Therefore, it is clear that sale or storing for sale of liquor or any intoxicating drug in contravention of the Act or of any rule or order made under the Act is an offence punishable under Section 55(i) of the Abkari Act. The petitioners have vehemently contended that the 1st petitioner is the licensee and the 2nd petitioner is a Bar Man in the licensed bar and, therefore, sale of liquor in the licensed bar will not come within the ambit of Section 55(i) of the Abkari Act for selling or storing for selling liquor or any intoxicating drug. Admittedly the 1st petitioner is issued with the licence as provided under the Indian Foreign Liquor Rules. Therefore, the counsel contended that if at all, the 1st petitioner will be liable for violation of the licence conditions as stipulated under the Foreign Liquor Rules.

6. Rule 28-A of the Foreign Liquor Rules directs that the licenced premises for sale of liquor in respect of all the Licences issued under those rules shall remain closed on the days mentioned in Sub-rules (i) to (vi). Sub-rules (v) and (vi) stipulate that those premises shall remain closed on the days of poll and two days preceding the day of the General Election or Bye-election and on the day of counting of votes and the day succeeding thereto as well as the day of poll and the day preceding that day of the elections/bye-elections to the Corporation/Municipal Wards/Panchayat Constituencies and on the day of counting of votes and the day succeeding thereto. Condition 20-A of Form F.L. 3 Licence for Hotel (Restaurant) stipulates that the licenced premises shall remain closed on the days mentioned in the condition including the day of poll and two days preceding that day of general election or bye-election and on the day of counting of votes and the day succeeding thereto. Condition No. 27 stipulates that for infraction of any of the rules or the conditions of the licence either by the licensee or by any person in his employment shall entail on the licensee or his agent or both, a fine of Rs. 5,000/- or cancellation of the licence or both. Condition No. 28 of the licence lays down that the imposition of fine or cancellation of the licence shall not, however, relieve the licensee or his agent from liability to be prosecuted for the specific offence committed against the Abkari Act or under the Foreign Liquor Rules.

7. Therefore, it is clear that the sale of liquor by the licensees is prohibited under Rule 28-A of F.L. Rules and condition 20-A(v) of the conditions of F.L. 3 Licence on the days mentioned therein. Condition 28 of the Licence lays down that the licensee will be liable for the specific offence under the provisions of the Abkari Act and the Rules framed thereunder over and above the payment of penalty and/or the cancellation of the licence issued to the licensee. Therefore, the contention of the petitioners that the offence punishable under Section 55(i) of the Abkari Act is not attracted in this case since the 1st petitioner is the admitted licensee and the 2nd petitioner is the bar man under him, is not sustainable.

8. The counsel for the petitioners relying upon the decision in Mariamma v. State of Kerala (1998) 1 Ker LT 286, submitted that the offence, if any, alleged to have been committed by the petitioners will not attract the provisions of Section 55 of the Act and if at all, the offence will come within the ambit of Section 56(b) of the Act. In that judgment the matter which came up for consideration before this Court was whether the circulars issued by the Board of Revenue on 3-9-96 and 10-9-1996 stating that when it is detected that liquor in possession or in the course of sale is found to be diluted, crime should be charged under Section 55 of the Abkari Act. In that case on the basis of the submission made by the Advocate General on the basis of the earlier judgments passed by this Court that the offence will come only under Section 56(b) of the Abkari Act the learned single Judge found that the offence will come only within the ambit of Section 56(b) of the Abkari Act. The above decision is of no help to the petitioners in this case. In that case the question considered by this Court was whether the circulars issued by the Board of Revenue directing to register the case under Section 55 of the Act on finding that the liquor stored or sold by the licensees if found to be diluted. In this case the allegation made against the petitioners is that they have not only violated the provisions of the conditions of the licence issued to them, but they have also violated the order issued by the District Collector banning the sale of liquor on the particular day as provided under Section 54 of the Act. Therefore, the above argument advanced by the counsel for the petitioners, is not sustainable.

9. The counsel for the petitioners submitted that the notice alleged to have been issued by the District Collector under Section 54 of the Act is not served upon the petitioners and, therefore, the petitioners are not liable for any offence alleged against them and, therefore, the prosecution launched against them should be quashed. This contention is not sustainable since the contention of the prosecution is that notice is served upon the petitioners and the question whether notice is in fact served upon the petitioners or not is a matter for consideration by the trial Court at the stage of evidence.

10. The contention of the petitioners that the provisions of Section 56(b) of the Abkari Act are not attracted in this case since the only allegation is that they have sold liquor in the licensed bar on a day on which the sale of liquor was prohibited by the District Collector, as it is not in violation of the licence conditions, is also not sustainable, since the allegation made against the petitioners is that they have sold liquor in violation of the conditions of the licence and the provisions of the F.L. Rules.

11. The last contention raised by the petitioners is that the offence alleged against them, if at all, will fall under Section 54 read with 63 of the Abkari Act. It is true that when the offence alleged is punishable under Section 54 of the Act, the penal provision is Section 63 of the Act and the offence punishable under Section 54 read with 63 of the Act is compoundable under Section 67 of the Act prior to the deletion of Section 67 as per the Ordinance 7/1997 with effect from 3-6-1997. The sentence provided under Section 63 of the old Act before the amendment of 1997 is fine of Rs. 500/- or imprisonment for six months. The present amended Act provides sentence of fine extending to Rs. 5,000/- or imprisonment which may extend to two years or with both. Therefore, the counsel for the petitioners submitted that the above prosecution launched against the petitioners cannot be sustained.

12. The fact that the offence punishable under Section 54 read with 63 of the Abkari Act is compoundable is not a matter of significance in this case since the offences punishable under Sections 55(i) and 56(b) of the Abkari Act are also alleged against them. Whether the petitioners are liable for the offences alleged against them or not, is a matter to be considered by the trial Court at the stage of evidence.

13. It is clear from the allegations made against the petitioners in this case that there is prima facie case against the petitioners that they have committed the offences punishable under Sections 55(i) and 56(b) and Section 54 read with 63 of the Abkari Act. Therefore, the contention of the petitioners that since no prima facie case is made out against them and they are not at all liable for the offences punishable under Section 55(i) and 56(b) of the Abkari Act, the prosecution launched against them should be quashed by invoking the jurisdiction of this Court under Section 482 of the Cr. P.C. is not at all sustainable.

Therefore, this Cri M.C. is dismissed.


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