IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4064 of 2005()
1. RAJAN, S/O.MADHAVAN,
... Petitioner
2. RAMABHADRAN, S/O.GOPALAN,
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE ASSISTANT EXCISE INSPECTOR,
For Petitioner :SRI.K.B.PRADEEP
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :21/01/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No. 4064 OF 2005
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DATED THIS THE 21st DAY OF JANUARY, 2009
O R D E R
The petitioners herein are accused Nos.1 and 2 in Crime
No.53/05 of Thiruvananthapuram Excise Range, registered for
the offences punishable under sections 55(a), 55(i), 8(1) and 8
(2) of the Abkari Act with the allegation that they are the
employees of the 3rd accused who is the licensee of shop No.TS
17/2005-06. The Assistant Excise Inspector,
Thiruvananthapuram, the second respondent in this petition,
who is the complainant in the above crime seized 570 litres of
spirit arrack on 14.8.2005 at about 2.30PM from the said toddy
shop. Annexure I is the occurrence report in Crime No.53/05
prepared by the second respondent.
2. Heard the learned counsel appearing for the petitioner
and the learned Public Prosecutor.
3. It is argued by the learned counsel appearing for the
petitioners that Annexure-I occurrence report is liable to be
quashed by invoking the provision of Section 482 of Cr.P.C. by
CRL.M.C.No.4064/08 -2-
this Court for the reason that Rule 9(2) of Abkari Rules has been struck
off by the Hon’ble Supreme Court as revealed from State of Kerala v.
Unni (2007(1) KLT 151(SC)). The learned counsel has also argued
that continuance of the proceedings against the petitioners herein is an
abuse of process of law so as to harass the petitioners for the reason
that there is non-compliance of the mandatory procedure regarding
taking of samples enunciated under Chapter VII of Kerala Abkari Shops
(Disposal in Auction) Rules, 2002.
4. A statement has been filed by the 2nd respondent in this
petition wherein, it is specifically stated that the 2nd respondent herein
and party have seized 570 litres of arrack as mentioned in the
occurrence report, Annexure-I which was sent for chemical analysis
and obtained the chemical analysis report Annexure-II produced by the
petitioners. It is also stated in that report that the 3rd accused who is
the licensee of the above said shop has not been arrested as on
3.2.2006. It is also submitted by the learned Public Prosecutor that
the case registered against the petitioners and 3rd accused was that
they were in possession and sale of illicit spirit arrack which was
prohibited as per the above Act and the contraband article was not
toddy, but arrack, as mentioned in Annexure-I.
CRL.M.C.No.4064/08 -3-
5. Whether the petitioners and the 3rd accused have committed
the offences alleged against them are matters to be decided by the
trial court on the basis of the evidence adduced on the side of the
prosecution. Whether they have violated the provisions of the Abkari
Act, etc. are also to be determined by the trial court. The contention
raised by the petitioners in this petition that whether the complainant
has complied with the procedures enunciated in Chapter VII of the
Kerala Abkari Shops (Disposal in Auction) Rules, 2002 are left open to
be decided by the learned Magistrate. Under the above circumstances
and with the above observation, this Crl.M.C. can be dismissed.
In the result, the Crl.M.C. is dismissed.
M.C.HARI RANI, JUDGE.
dsn