IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4337 of 2010()
1. SURESH, AGED 28 YEARS, S/O. KARNAN,
... Petitioner
2. SHANMUGHAN, AGED 48 YEARS, S/O. BALAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE CIRCLE INSPECTOR OF EXCISE,
For Petitioner :SRI.C.C.THOMAS (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/01/2011
O R D E R
THOMAS P.JOSEPH, J.
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Crl. M.C. No.4337 of 2010
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Dated this the 13th day of January, 2011
O R D E R
Petitioners are the driver and cleaner of a Jeep with Reg.
No.KL-44/7106. On May 11, 2010 while petitioners were allegedly
carrying toddy in the said vehicle that vehicle was intercepted by
the Excise Officials on Aluva-Munnar road and on examination it
was found that the accused were carrying 384 litres of toddy.
The officials of the Excise Department on verification of the permits
produced by petitioners learned that as per the permits
petitioners could transport in the vehicle only 345 litres of toddy.
Petitioners were arrested at the spot and the articles were seized.
A case was registered as Crime No.30 of 2010 for offences
punishable under Section 55(a) and 55(b) of the Abkari Act (for
short, “the Act”). Annexure-A is the photocopy of crime and
occurrence report. Later it appeared that the Excise Officials
issued notice to the permit holder-licensee, as seen from
Annexure-E on May 19, 2010 stating about alleged transportation
of toddy in excess of the quantity permitted and directed him to
show cause why licence in favour of permit holder should not be
CRL. M.C. No. 4337 of 2010
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cancelled. To that notice the licensee gave Annexure-F reply
denying the allegations and contending that he has not done any
act in violation of the shop licence or permits. In this petition,
petitioners/accused pray that Annexure-A, crime and occurrence
report (CR. No.30 of 2010 of Kothamangalam Excise Range) and
further proceedings which concerned offence under Sec.55(a) of
the Act be quashed. Learned Senior Advocate appearing for
petitioners contended that even as per Annexures A & B it is clear
that what is involved is only a violation of permit conditions in
that the vehicle was carrying excess toddy than permitted
quantity. It is contended by the learned Senior Advocate that in
that case or even if it is assumed that toddy was collected from
trees for which no tree tax is paid, no offence under Sec.55 or 58
of the Act is made out and offence even as per Annexures A and B
only comes under sec.56(b) of the Act. Learned Senior Advocate
has placed reliance on the decisions in Sasidharan v. State
of Kerala (2007[1] KLT 1062), Pradeep T.B. & Others v.
State of Kerala & Others (2010 [2] KLJ 413) and
Mohanan v. State of Kerala (2007 [1] KLT 845). In
response it is contended by learned Public Prosecutor that of the
CRL. M.C. No. 4337 of 2010
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three permits which petitioners were carrying at the relevant time
one was found to be issued in respect of the vehicle concerned. It
is also contended that records produced by petitioners did not
show that there was any entry made at the Kombzha excise
check post which indicated that the vehicle involved had not
passed that check post.
2. Going by Annexures A and B it would appear that the
case set up by the Excise Officials is that petitioners were found
carrying toddy in excess of quantity permitted under the permits
issued to the licensee concerned. Annexure C and D are
photocopies of the permits produced by petitioners and issued in
favour of the licensee. There is no dispute regarding the
authenticity of the said documents and it is also not disputed that
the said documents were produced by the petitioners at the time
of interception by the Excise Officials. As per Annexure C and D,
permits total quantity of toddy which petitioners could carry in
KL-44/9414 or KL-44/7106 is 345 litres whereas Annexures-B,
mahazar shows that vehicle No.KL-44/7106 (which was being used
at the relevant time) carried 384 litres. Obviously it is a case
where excess quantity of toddy in violation of the permitted
quantity as per the permits was being transported. The decision
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in Sasidharan v. State of Kerala (supra) states that
when allegation is only that there was transportation of toddy in
excess of the quantity permitted under the permit, offence
attracted is only under Sec.56(b) of the Act. There, learned Judge
was considering whether an offence under 55(a) of the Act could
be made out and the question was answered in the negative. The
Division Bench also has taken the same view in the matter in
Mohanan v. State of Kerala (supra). In Pradeep T.B.
& Others v. State of Kerala & Others (supra) learned
Judge apart from holding that Sec.55 has no application in such
circumstances also found that Sec.58 of the Act cannot be applied
and that in such situation offence squarely fell under Sec.56(b) of
the Act. In an unreported decision in Crl. M.C. No.4049 of 2010
dated November 18, 2010 a similar question was considered and
the offences attributed to the accused in that case under sec.55
(a) (i) and 58 of the Act were quashed. There it was held that
non-payment of tree tax at the relevant time is no ground to
implicate the accused for an offence other than under Sec.56(b)
of the Act.
3. The above decisions inform me that so far as the
present case is concerned, allegation being transportation of
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toddy in excess of the quantity permitted under the permits
(Annexures C and D), the offence can only fall under Sec.56(b)
of the Act. I must also refer to the provisions of the Act in this
regard. While Sc.55(d) and (e) of the Act refer to any person
contravening the provisions of the Act or Rules so far as toddy is
concerned it is relevant to note that before amendment by Act 16
of 1977, Sec.55 was applicable to any person contravening the
provisions of the Act or of any licence or permit obtained under
the Act which meant that violation of conditions of permit would
attract offence under Sec.55 of the Act. Now, the words “or of
any licence or permit obtained under this Act” having been
omitted from Sec.55 by Act No.16 of 1997 as aforesaid, violation
of the licence or permit so far as it concerned articles referred to
in Sec.55 of the Act cannot come within the purview of the said
Act. This aspect has been considered in Rajan & Others v.
Sate of Kerala and Another (2010 [3] KLJ 461),
paragraph 5. Section 56 of the Act directly deals with the holder
of a licence or permit committing offences as stated therein and
clause (b) relates to breach of any of the conditions or the licence
or permit not otherwise provided for in the Act. Thus
transportation of toddy in excess of quantity permitted under the
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licence is a violation of the permit condition punishable under
Sec.56(b) of the Act. Viewed in that line offence under Sec.55(a)
of the Act cannot stand against the petitioners.
Resultantly, this Criminal Miscellaneous Case is allowed.
Annexures- A, crime and occurrence report to the extent it
concerned offence under Sec.55(a) of the Act is quashed. I make
it clear that this order will not stand in the way of appropriate
authority proceeding with investigation of the offence under
sec.56(b) of the Act as provided under law.
THOMAS P. JOSEPH, JUDGE.
vsv