High Court Kerala High Court

Shafeekka vs State Of Kerala Represented By The on 7 October, 2010

Kerala High Court
Shafeekka vs State Of Kerala Represented By The on 7 October, 2010
       

  

  

 
 
  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.
          ===========================
            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.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006