The court established that mere proximity to a vehicle does not imply possession of its contents without evidence linking the accused to the liquor.

ORDER

This petition under section 482 of the Code of Criminal Procedure, 1973 challenges the proceedings in S.C. No.519/2022 on the files of the Assistant Sessions Court, Ernakulam arising out of Crime No.407/2020 of Palarivattom Police Station. Petitioner is the first accused in the said case and is facing an indictment, along with two other accused, for the offences under sections 13, 55(a) and 55(i) of the Abkari Act , 1077 apart from section 118(e) of the Kerala Police Act , 2011 and section 4(2)(e)(j) read with section 5 of the Kerala Epidemic Diseases Ordinance, 2020 (for short ‘KEDO’).

2. Prosecution alleges that on 15.05.2020 the three accused were found in possession of 18.600 litres of liquor in 25 bottles of which one did not contain the seal of the Government of Kerala. The bottles were found in the trunk of a vehicle bearing registration No.KL- 07-CF-3055, parked in the parking lot of a private business concern, near the Ernakulam Bypass. It is also alleged that as the accused were standing outside the vehicle without wearing the facemask and without maintaining social distancing during the Covid pandemic, they were arrested and the bottles were seized.

3. Sri. P.C.Thomas, the learned counsel for the petitioner raised the following contentions (i) the officer who filed the final report was not the authorised officer under law and therefore the prosecution is a non-est, (ii) the entire liquor allegedly seized was purchased from the Kerala Beverages Corporation and hence, there is no illicit liquor falling under section 55(a) or 55(i) of the Abkari Act and therefore at the most, only section 13 of the would be attracted, (iii) the uncontroverted allegations in the final report does not make out any offence as alleged, since there are no materials to connect the petitioner and the other accused with the possession of the liquor or with the car, (iv) the petitioner and the other accused were standing inside a private property, and hence the offensive provisions of KEDO cannot be attracted. On the basis of the above submissions, the learned counsel contended that the prosecution is an abuse of the process of law and is liable to be quashed.

4. Countering the arguments, Sri.M.C.Ashi as well as Sri.C.N.Prabhakaran, the learned Public Prosecutors submitted that (i) a Sub Inspector of Police is an Abkari Officer as per section 50 of the Abkari Act and is hence entitled to file the final report, (ii) in respect of 5 bottles, the seal was found to be incomplete and therefore the liquor found in the car were illicit liquor, atleast in respect of those bottles and also that it is a matter for trial, (iii) the question whether the seized vehicle and the liquor were in the possession of the accused are all matters to be decided after trial, especially since the mahazar indicates that the accused were found initially to be sitting inside the car, and (iv) applicability of the provisions of KEDO cannot be decided in this proceeding under the inherent powers of the Court.

5. The rival contentions are dealt with as below:

(i) Can a Sub Inspector of Police file the final report under the Abkari Act ?

6. The final report in the case was filed by the Sub-Inspector of Police, Palarivattom Police Station. As per section 173 of Cr.P.C, a Station House Officer alone can file a final report. However, the Abkari Act is a special enactment. Section 50 of the , defines an Abkari Officer as including a Sub-Inspector of Police within his territorial jurisdiction. In the decision in Saji @ Kochumon v. State of Kerala ( 2010 (3) KHC 259 ) a learned Single Judge of this Court had, after referring to the provisions of Section 50 of the , held that a Sub Inspector of Police is an abkari officer and if it is within his territorial jurisdiction, he is competent to file the final report. The said proposition has been reiterated by another learned Single Judge of this Court in Moothedath Sivadasan and Another v. State of Kerala ( 2021 (1) KLT 744 ). The