The main legal point established in the judgment is the interpretation and validity of S.64A of the Kerala Abkari Act, which imposes penalties for allowing the use of premises for illegal activities related to liquor or intoxicating drugs.

K.S. Radhakrishnan, J.

Petitioner is the owner of a building No. 870A of Ward No.1 of Neeleswaram Panchayat. The building was let out to one Saji Luckose on a monthly rental basis. Circle Inspector of Police, Neeleswaram conducted a search in the building on 28.9.1996 and unearthed 4340 litres of unauthorised spirit contained in barrels and other utensils. A case was registered against Saji Luckose and petitioner under Ss.55A and 64A of the Kerala Abkari Act The charge levelled against the petitioner was that petitioner rented out the premises to Saji Luckose and that with the knowledge and consent of the petitioner and Saji Luckose the building was used for the said illegal activities, even after the expiry of the lease period, so as to make unlawful gain.

2. According to counsel for the petitioner, the room was rented out on the basis of Ext. P3 rent deed for a period of six months. However, on expiry of the said period also Saji Luckose continued to be in possession of the building and vacated it only on 2.9.1997. According to counsel, when the incident happened, petitioner had no control over the building. Therefore, no charge will lie against the petitioner. He has got a further case that S.64A of the Act would not give any authority to the officer to include the owner of the building as an accused, merely because the building has been let out to a person. Counsel submitted that construction of a building and giving the said premises on rent to persons who are doing business and trade is the right of a citizen and the said right and the grant of lease cannot give rise to a cause of action for criminal prosecution. Any such action is violative of Arts.14,19(1)(g) and 21 of the Constitution of India

3. In order to establish his case, counsel relied on the decision of the Supreme Court in Samatha v. State of A.P. (1997) 8 SCC 191. Counsel contended that since petitioner has already let out the building and there is separation of ownership and possession, which created a right or interest on the enjoyment of the demised property on the lessee. Counsel therefore, contended that petitioner has no legal control over the building. Reliance was also placed on the decision of the Supreme Court in A/A. Pepsi Foods Ltd. v. s.j. Magistrate, J.T. (1997) 8 SC 705, and it was contended that while exercising powers under Arts.226 and 227 of the Constitution of India, this Court has got power to interfere with the proceedings initiated by the criminal Court, since the criminal proceedings under S.64A have no legal validity.

4. In order to understand the contentions raised by counsel for the petitioner, it is necessary to understand the scope of S.64A of the Kerala Abkari Act. The said provision is extracted below for easy reference:

"64A. Penalty for allowing land, building room, etc. for manufacture, sale or storing for sale of liquor or intoxicating drug.- Notwithstanding any thing contained in this Act, or in any other law for the time being in force, any owner or occupier or person having control of, any land, building, room, space or enclosure, permits any person to use such land, building room, space or enclosure for manufacture, sale or storing for sale of liquor, or intoxicating drug in contravention of this Act or of any rule or order made thereunder or of any licence or permit obtained under this Act shall be punishable with fine which shall not be less than twenty-five thousand rupees unless he proves to the satisfaction of the court that all due and reasonable precautions were taken by him to prevent such use."

5.64A is attracted only if any owner, or occupier or person having control of any land, building, room, space or enclosure permits any person to use such land, building, room, space or enclosure for manufacture, sale or storing for sale, of liquor or intoxicating drug in contravention of the Abkari Act or rules made thereunder or of any licence or permit obtained under the Act. Therefore, only if permission is give