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2024 Supreme(Ker) 244
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Gopinath P., J.
Shaji Shekhar – Petitioner
Versus
The Excise Commissioner, State Of Kerala, Excise Commissionerate – Respondent
WP(C) Nos.5505, 5311 and 9107 of 2021
Decided On : 06-02-2024
Advocate Appeared:
For the Petitioner: Shri.Sameer M Nair, Sri.M.Kiranlal, Sri.Manu Ramachandran, Sri.R.Rajesh (Varkala), Sri.T.S.Sarath
For the Respondent: Sri. Manu V (Sr.Gp)
IMPORTANT POINT
The crucial element for an offence under Section 58A of the Abkari Act requires strict interpretation, and the court has the power to quash criminal proceedings when no offence is made out, even if the entire facts alleged are believed to be true.
Headnote:
Abkari Act - License Cancellation - Section 58A of the Abkari Act - Spirituous Preparations (Control) Rules, 1969 - [58A] - The judgment discusses the application of Section 58A of the Abkari Act in the context of the sale of Arishtams and Asavams, the cancellation of a retail license, and confiscation proceedings. It emphasizes the requirement of strict interpretation of penal statutes and the crucial element for an offence under Section 58A, highlighting the need for the accused to be engaged in selling a preparation intended as a substitute for alcohol or intoxicating drug. The court's decision is influenced by the interpretation of the facts and the legal provisions, leading to the quashing of proceedings and setting aside of the license cancellation and confiscation proceedings.
Fact of the Case:
The petitioners held a retail license for the sale of Arishtams and Asavams under the Spirituous Preparations (Control) Rules, 1969. They were apprehended by the excise team while transporting the products and faced proceedings under Section 58A of the Abkari Act.
Finding of the Court:
The court found that the crucial element for an offence under Section 58A of the Abkari Act was not present, even if the entire case of the respondent was accepted. It concluded that the continuance of the proceedings against the petitioners would amount to an abuse of process of law.
Issues: The issues revolved around the alleged violation of Section 58A of the Abkari Act, the maintainability of a writ petition for quashing the proceedings, and the interpretation of the law in the context of the facts presented.
Ratio Decidendi: The court emphasized the requirement of strict interpretation of penal statutes, the crucial element for an offence under Section 58A, and the court's power to quash criminal proceedings when no offence is made out, even if the entire facts alleged are believed to be true.
Final Decision: WP(C) No.9107 of 2021 is allowed, quashing all further proceedings pursuant to Ext.P3. WP(C) No.5311 of 2021 is allowed by setting aside Ext.P10 order cancelling the license. WP(C) No.5505 of 2021 is allowed, quashing the confiscation proceedings (Ext.P6).
JUDGMENT :
The petitioners are common in all these cases. The issues raised in these writ petitions are intrinsically connected and they can be conveniently disposed of by a common judgment. W.P (C) No.5311/2021 has been filed challenging Ext.P10 canceling a license issued to the 1st petitioner under the provisions of the Spirituous Preparations (Control) Rules, 1969. W.P (C) No.5505/2021 has been filed challenging confiscation proceedings initiated against the petitioners. W.P (C) No.9107/2021 has been filed seeking to quash the proceedings in Ext.P3 Crime and Occurrence Report in CR No.118/2020 of Excise Range office, Adoor.
2. It is submitted in the bar that W.P(C) No.9107/2021 can be taken as lead case. Therefore exhibits and documents referred to in this judgment are as they are marked as in W.P (C) No.9107/2021 unless otherwise specifically mentioned.
3. The brief facts necessary for consideration of issues arising in these writ petitions are that:-
The 1st petitioner is the holder of Ext.P1 retail license for sale of Spirituous Preparations (Ayush). Exhibit P1 license was issued on 10-03-2020 and was valid upto 31-03-2021. The petitioners were engaged in the sale of Arishtams and Asavams and in respect of which Ext.P1 license had been issued to them. According to the petitioners, the 1st petitioner had ordered certain Arishtams and Asavams from M/s. SMV Herbal Remedies Pvt. Ltd, Kunnikkode, a licensed manufacturer of Ayurvedic Medicines. Exhibit P2 is a copy of license of M/s. SMV Herbal Remedies Pvt. Ltd., Kunnikode. On 03-05-2020, while the petitioners were travelling on motor cycle with certain Arishtams and Asavams procured from M/s. SMV Herbal Remedies Pvt. Ltd., they were apprehended by an Excise team and Ext.P4 mahazer was drawn up. A reading of Ext.P4 mahazer will indicate that upon receiving certain information that the petitioners were engaged in sale of Arishtams and Asavams intending them to be used as a substitute for alcohol or intoxicating drug, the Excise team went to the licensed premises of the 1st petitioner. Since the premises were found to be locked and as they were leaving the premises a person who did not wish to be identified, followed the jeep of the Excise officials and informed them that the petitioners were procuring Arishtams and Asavams from a place called Puthenchanda and they were selling the same at a place called Thazhekavu. While the Excise team was proceeding to Puthenchanda they saw two persons (the petitioners herein) approaching from the opposite side on a motor cycle. It is alleged that on seeing the Excise officials the petitioners got jittery and the materials they were carrying on their lap fell on the road and it was noticed that several small plastic bottles containing some Arishtams and Asavams were inside the packet being carried by the petitioners. It is alleged that on questioning it was revealed that a quantity of Arishtams and Asavams were also stored in a car belonging to the 1st petitioner which was parked in a workshop. On the basis of the aforesaid allegations the license granted to the 1st petitioner was revoked. The motor cycle and car belonging to the 1st petitioner were confiscated and CR No.118/2020 of Excise Range office, Adoor was registered alleging violation of Section 58A of the Abkari Act, 1077.
4. The Learned counsel appearing for the petitioners in these cases would submit that the only substantive offence alleged against the petitioners is that under Section 58A of the Abkari Act. It is submitted that even if the entire allegations against the petitioners in the Crime and Occurrence Report (CR) as well as in the final report are accepted as true, it cannot be said that the petitioners have committed an offence under Section 58A of the Abkari Act. It is submitted that the crucial element for an offence under Section 58A of the Abkari Act is that there must be sale of any preparation which a person knows or has reason to believe is intended to serve as a sub
