IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3706 of 2010()
1. SHAFEEKKA, SHAFEEKKA MANZIL,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.C.C.THOMAS (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 3618 &3706
OF 2010
===========================
Dated this the 7th day of October,2010
ORDER
Petitioners in Crl.M.C.3618/2010 are
accused 1 and 2 in CR No.52/2010 of Excise
Range, Kothamangalam. Petitioner in
Crl.M.C.3706/2010 is the accused in CR.50/2010
of Excise Range, Thiruvananthapuram. She is the
licensee of a Three Star Hotel having FL-3
licence at Thiruvananthapuram. Second
petitioner in Crl.M.C.3618/2010 is the licensee
and first petitioner is the Manager of Hotel
Maria International, Kothamangalam having a bar
licence FL-3. Both the crimes were registered
on the allegations that in violation of the
conditions of license, licensee had put up an
additional counter and the respective accused
thereby committed the offence under section 56
Crl.M.C.3706 & 3618/2010 2
(b) of Abkari Act. These petitions are filed under
section 482 of the Code of Criminal Procedure to
quash the crimes registered contending that an
offence under section 56(b) of Abkari Act is not
attracted.
2. Learned senior counsel appearing for the
petitioners and learned Public Prosecutor were
heard.
3. Learned senior counsel pointed out that
under the conditions of Annexure C license,
licensee is permitted to sell and serve liquor not
only in the bar room but also in the room as well
as the restaurant, to the inmates of the hotel. It
also permits to serve liquor, along with the
meals, by the side of swimming pools, lawns and
the roof gardens on getting special permit. It is
submitted that both licensees obtained permit
to serve liquor in the lawn by paying additional
amount as prescribed and in such circumstances
putting up additional counter, within the licenced
premises will not be a in violation of the
conditions of the license and therefore offence
Crl.M.C.3706 & 3618/2010 3
under section 56(b) of Abkari Act is not attracted.
Learned senior counsel pointed out that the very
same question was considered by this court in
Crl.M.C.2292/2009 and by Annexure E order, the case
registered was quashed, holding that putting up an
additional counter within the licensed premises is
not a violation of the conditions of the licence
and therefore an offence under section 56(b) is not
attracted.
4. The argument of learned Public Prosecutor
is that under the license, the licensee can sell
liquor only within the bar room and not outside
and permission is granted only to serve liquor on
the lawns or side of the swimming pools, to the
residents of the hotel and it will not enable the
licensee to put up additional counter and the
additional counter put up, it is violation of the
conditions of the license and therefore an offence
under section 56(b) is attracted. Learned Public
Prosecutor pointed out that under Rule 16 of Kerala
Abkari Disposal Rules the sale of liquor is
permitted only inside the bar room and by G.O.(P)
Crl.M.C.3706 & 3618/2010 4
105/09/TD dated 17.6.2009, Foreign Liquor Rules
was amended whereunder Rule 3C was inserted to the
effect that no liquor shall be sold under FL-3
license through more than one bar counter, within
the licensed bar room of the hotel and an
additional counter, that too on payment of the
additional fee prescribed therein, could be put up
only within the licensed bar room of the hotel not
within the licensed premises and therefore the
offence under section 56(b) of Abkari Act is
attracted.
5. Conditions 1, 2, 3 and 7 of the licence was
considered by this court in detail in Annexure E
order. Condition No.2 provides that no liquor
shall be sold under the licence for removal outside
the hotel, to anyone including residents of the
hotel providing that liquor may be sold and served
to residents of the hotel in the rooms wherein they
reside or in the restaurants where they partake
food, by the employees of the bar. It is further
provided that liquor can be served along with
meals by the side of swimming pools, lawns and the
Crl.M.C.3706 & 3618/2010 5
roof gardens of the hotel, on obtaining special
annual permit from the Excise Commissioner. It is
further provided that such a hotel should have an
exclusive restaurant for the use of families and
others, where no liquor shall be served. Though
the conditions of licence provide for showing the
boundaries of the licenced premises and boundaries
of the bar room separately, there is no condition
providing that sale of liquor could only be
within the boundaries of the bar room. On the
other hand, Condition No.2 itself makes it
sufficiently clear that, conditions of the licence
provide for sale of liquor even outside the
boundaries of the bar room. Condition No.2
provides that liquor can be sold and served to the
residents of the hotel, in their rooms or in the
restaurant, where they partake food. At the same
time as far as swimming pools and lawns and roof
gardens are concerned, Condition No.2 provide that
though liquor cannot be sold there though it can
be served along with the meals by the side of
swimming pools, lawns and the roof gardens. Thus
Crl.M.C.3706 & 3618/2010 6
Condition No.2 makes a distinction between the
restaurant and a roof gardens or lawns or swimming
pools. As far as swimming pools, lawns and roof
gardens of a hotel are concerned, the licensee is
not entitled to sell liquor and can only serve
liquor there. On the other hand, as far as the
restaurant is concerned, licensee is entitled to
sell as well as serve liquor inside the restaurant,
though such sale could only be to the residents of
the hotel. So also serving liquor along with the
meals, by the side of swimming pools, lawns and
roof gardens could only be to the inmates of the
hotel. Therefore when condition No.2 makes a
distinction with reference to the restaurant and
roof gardens, whereunder sale is permitted inside
the restaurant but not permitted inside the roof
gardens or lawns, it is clear that contention that
sale is permitted only inside the bar room cannot
be accepted. If that be the case, it cannot be
said that putting up a counter in the restaurant or
outside the bar room and within the licensed bar
premises, would be violation of Condition No.2 as
Crl.M.C.3706 & 3618/2010 7
found by this court in Annexure E order.
6. True, Rule 16 was not considered in the said
decision. The question is whether Rule 16 makes
any distinction. Rule 16 reads:-
16. No premises shall be
used for the sale or for
possession and use of
liquor unless they have
been approved by the Excise
Commissioner.”
Sub Rule (1) only provides that no premises shall
be used for sale or for possession and use of
liquor, without prior sanction of the Excise
Commissioner. The licence granted enables the
licensee, to sell liquor within the licenced
premises, in accordance with the conditions of the
licence. When condition No.2 of the licence enable
the licensee to sell liquor, not only within the
bar room but to the restaurant also, it cannot be
said that Rule 16 is a bar to put up additional
counter outside the bar room but within the
premises of the hotel. Therefore Rule 16 does not
Crl.M.C.3706 & 3618/2010 8
make any difference on the earlier finding on
putting up additional counter outside the bar room
and within the licensed premises by a licensee as
held in Annexure E order. What remains is only
Annexure R1, the Government Order amending Foreign
Liquor Rules by inserting sub rule 3C after sub
rule 3B of Rule 13. Sub Rule 3C so inserted
reads:-
“3C. No liquor shall be
sold under FL3 licensee
through more than one bar
counter within the
licensed bar room of the
hotel.”
The Explanatory Note shows that there is at
present no provision in the Foreign Liquor Rules,
to restrict the opening of more than one bar
counter within the licenced bar room of the hotel
and Government considers that if a license holder
is allowed to maintain more than one bar counter,
it will enable him to provide more facilities to
Crl.M.C.3706 & 3618/2010 9
the customers and therefore it is decided to
permit FL-3 licence holder to maintain additional
bar counters, within the licenced bar room, by
paying an additional annual fee of Rs.25,000/- for
each additional bar counter and to make necessary
amendments to the Foreign Liquor Rules. Thus, by
sub rule 3C, what is provided is putting up
additional bar counter within the licensed bar
room of the hotel. True, sub rule 3C does not
provide for putting up additional bar counter
outside the bar room. But the question is whether
there is any prohibition for putting up additional
bar counter outside the bar room.
7. That is the question which was considered,
in the earlier Crl.M.C. and decided in Annexure E
order. As it is already found that a licensee can
sell liquor not only within the bar room but
within the licensed premises, when sub rule 3C
only provide for collecting additional fee for
putting up additional counter within the licensed
premises and does not prohibit putting up
additional counter outside the bar room, Rule 3C
Crl.M.C.3706 & 3618/2010 10
also will not make any difference in the
conclusions arrived at in Annexure E order.
Therefore by putting up an additional counter as
found at the time of inspection, evidenced by
Annexure A mahazar which are within the licensed
premises, no offence under section 56(b) of Abkari
Act is attracted. Hence the Crimes registered
could only be quashed.
Petitions are allowed. CR.No.50/2010 of
Excise Range Office, Thiruvananthapuram and
CR.No.52/2010 of Excise Range Office, Kothamangalam
are quashed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006