1. Petitioners are the accused in Crime No.411/2010 of Karimkunnam Police Station registered under Annexure-C FIR for the offence under Section 55(a) of Abkari Act. The allegation in Annexure-C FIR is that on 23/10/2010 at about 2.15 p.m, on getting information by a telephonic message that petitioners are transporting huge quantity of liquor in an autorickshaw, Sub Inspector of Police, Karinmkunnam Police Station intercepted autorickshaw No.KL-38-7190 driven by the first petitioner, with second petitioner seated in the back side. On verification it was found that without any license or permit to transfer liquor in excess of the permissible quantity provided under Foreign Liquor Rules, 86 bottles in seven cartons of Indian Made Foreign Liquor were being transported. They were arrested and samples from each carton was taken and the crime was registered. The remaining 79 bottles seized were produced in court. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings initiated on Annexure-C FIR, except to the extent of the proceedings under Section 63 of Abkari Act. A direction was sought against the third respondent to compound the offence as provided under Section 67 A of Abkari Act introduced by Kerala Abkari (Amendment) Act 3 of 2010, contending that Indian Made Foreign Liquor was purchased from Kerala State Beverages Corporation and were being taken to his residence for a function and no offence as alleged was committed except an offence under Section 63 of Abkari Act.

2. Learned Senior counsel appearing for the petitioners and learned Public Prosecutor were heard.

3. As it is the specific case of the petitioners that the Indian Made Foreign Liquor seized in the case from the autorickshaw were purchased from KSBC and Annexure-A mahazar does not disclose the same, it is not specifically disclose the same, Sub Inspector of Police who seized the liquor, was directed to file a statement. The statement filed by the Sub Inspector shows that it was under a bonafide belief that an offence under Section 51(a) of Abkari Act is involved, petitioners were arrested and taken to the Police Station and contraband articles were seized. Later as instructed by the Court, all 79 bottles kept in the Police Station were again inspected on an application sent to the shop-in-charge of Kerala State Beverages Corporation, Karimkunnam asking to give a report whether those articles were sold by them. As per letter dated 19/11/2010, shop-in-charge of KSBC certified that all the bottles of liquor specified in the letter were sold by them as shown in Ext.R1(a) communication and bills issued by KSBC were not produced by the petitioners.

4. It is thus clear that 86 bottles of Indian Made Foreign Liquor which was seized, while petitioners were transporting it in the autorickshaw, were purchased from KSBC shop at Karimkunnam. Question is what is the offence attracted.

5. This Court in Sabu v. State of Kerala (2003 (2) KLT 173) considered an identical question and held that when there is no case for the prosecution that accused were transporting illicity liquor or they have illegally imported liquor or the liquor was adulterated or they have manufactured the liquor or liquor was transported for illegal second sale, an offence under Section 55(a) is not attracted and when the liquor was purchased from KSBC for own consumption and there is no question of illegal import or transporting or possessing illicit liquor, the only offence alleged is for possession of excess quantity of liquor than in permissible under the law. Though petitioner purchased the Indian Made Foreign Liquor legally from KSBC, offence would come only under Section 63 of the Kerala Abkari Act. The position has been reiterated by the Division Bench in Mohanan v. State of Kerala (2007 (1) KLT 845). In such circumstances, it can only be found that only an offence under Section 63 of Kerala Abkari Act is attracted.

6. As rightly pointed out by the lear