1. First petitioner is the licensee of toddy shop No. 25/2005-06 of Njarakkal Excise Range, T.S.No.39/2005-06 of Anthikkad Excise Range, T.S.No.26 in Cherpu Excise Range. Second petitioner is the licensee of toddy shop Nos.7,8,10,17,19,31, 32, 39, 40, 42, 43,45,46,49,50 to 53 and 6/2005-06 of Kodungallur Excise Range. Third petitioner is the registered owner of tempo van KL-9/M-7364. Petitioners are accused 2 to 4 in C.R.11/2005 of Chittur Excise Range registered under Ext.p4 crime and occurrence report. The case against the accused is that on 18.5.2005 at about 8 a.m., when the Circle Inspector of Excise Range intercepted Tempo Van KL-9/M-7364 it was found 3000 litres of toddy was being transported therein though under Ext.P1 to P3 permits, petitioners were allowed to transport only 1005 litres of toddy. The driver of the pick up van was arrested and the toddy was seized and case was registered under S.58 of Abkari Act. This petition is filed under Art. 226 of the Constitution of India to quash Ext.P4 to the extent it proceeds except under S.56 of Abkari Act and to declare that petitioners 1 and 2 are liable to be prosecuted only for the offence under S.56 (b) of Abkari Act and to declare that they are entitled to conduct the toddy shops on the basis of the respective licence. Case of the petitioners is that even if petitioners were transporting toddy in excess of the allowed quantity, it attracts only an offence under S.56(b) of the Abkari Act, as it is only a violation of the conditions of the licence and not an offence under S.58 of the Abkari Act.

2. A counter affidavit was filed by Assistant/ Excise Commissioner, Palakkad on behalf of respondents 3 to 5 which discloses that the pick up van was intercepted and on such search, it was found that 1995 litres of toddy in excess of the permissible limit under the permits was being transported and therefore an offence under S.58 of the Abkari Act is committed. It is contended that when under Exts. P1 to P3, petitioners are permitted to transport only 1005 litres of toddy and 1995 litres of excess toddy was being transported, it attracts not only an offence under S.56 (b) but an offence under S.58 of the Act also and therefore the petition is to be dismissed.

3. Learned Senior Counsel appearing for the petitioners and learned Public Prosecutor were heard.

4. Learned Senior Counsel relying on the decision of this court in Crl.M.C.No.322/2010 dated 23.2.2010 where identical aspects were considered, though not on the applicability of S.58 but S.55 (a) of Abkari Act, and relying on the decisions of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Balan v. State of Kerala (2002 (3)kLT 161)submitted that petitioners could only be prosecuted for the offence under S.56(b) and not under S.58 of the Abkari Act.

5. Learned Public Prosecutor argued that petitioners were permitted to transport only 1005 litres of toddy and they were found transporting 3000 litres of toddy and the said transport of excess quantity of toddy was without lawful authority and therefore S.58 is attracted. It is also argued that S.56(b) would apply only if there is no other provisions in the Act applies and when S.58 applies, petitioners are not entitled to get the said offence quashed on the ground that S.56 (b) alone is attracted.

6. It is the prosecution case that petitioners were found transporting in a pick up van 3000 litres of toddy, when under Exts. P1 to P3 licenses were permitted to transport only 1005 litres of toddy. The case is that the transportation of 1995 litres of toddy was without a licence and hence unauthorised. The question is whether the said transport would attract an offence under S.58 or S.56 (b) of the Abkari Act.

7. Section 58 of the Abkari Act provides the punishment for possession of illicit liquor as the headnote shows. Under the section whoever, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfu