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HIGH COURT OF KERALA
V. G. Arun, J
PRAKASH – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 1362 2023
Liquor - Abkari Act - ['55(i)', '56(b)'] - The court quashed cognizance taken under Section 55(i) of the Abkari Act as the act did not support such a charge, emphasizing that only Section 56(b) was appropriate given no illicit liquor was involved.
Fact of the Case:
Petitioners, employees and licensees of a hotel, challenged the cognizance taken by a Magistrate for an offense under Section 55(i) of the Abkari Act, arguing that the incident only warranted violation of licensing rules under Section 56(b).
Finding of the Court:
The court found substantial merit in the petitioners' argument, noting that the only alleged offense was under Section 56(b) and that cognizance taken for 55(i) was a mistake, thus quashing the earlier findings.
Issues: Whether the Magistrate erred in taking cognizance of the charge under Section 55(i) of the Abkari Act instead of Section 56(b), considering there was no illicit liquor involved.
Ratio Decidendi: The court established that charges under Section 55(i) are not applicable given the circumstances of the case, affirming that only a violation applicable under Section 56(b) was present.
Final Decision: Cognizance under Section 55(i) of the Abkari Act quashed; proceedings limited to Section 56(b).
O R D E R
Dated this the 6th day of March, 2023 Petitioners 1 and 2 are employees of a four star classified hotel, issued with FL-3 licence and petitioners 3 and 4 are the licensees. The grievance of the petitioners is regarding the cognizance taken by the jurisdictional Magistrate for the offence under 55(i) of the Abkari Act , based on the final report filed in Crime No.29 of 2020 of Excise Range Chalakkudy.
2. Learned Senior Counsel submitted that, since the allegation is that Indian made Foreign Liquor was placed outside the licenced premises, only violation of the Foreign Liquor Rules and Conditions of Licence can be alleged. To buttress the contention,Ambika vs. State of Kerala [ 2011(3) KLT 35 ] and Mohanan Vs. State of Kerala [2007(1) KLT 845 (DB)] are pressed into service. It is pointed out that even in Annexure G report of the Excise Commissioner, violation of the licence condition alone is found. Moreover, based on that finding, fine was imposed. Pertinently, in Annexure J final report, only the offence under Section 56 (b) of the Abkari Act is included. Therefore, the learned Magistrate had obviously taken cognizance for the offence under Section 55 (i) by mistake. If cognizance is actually taken for the offence under Section 55 (i), the matter to be committed and would therefore be assigned CP number instead of CC number.
3. Learned Public Prosecutor made available a copy of the report submitted by the investigating officer, stating that the final report is submitted for the offence under Section 56 (b) of the Abkari Act , since no illicit liquor was seized.
4. There is substantial merit in the contention urged by the Senior Counsel that the alleged act of the accused would not attract the offences under Section 55 (i) of the Abkari Act . Moreover, in view of the report of the investigating officer that the seized liquor is not illicit and offence under Section 56 (b) alone is made out, the court should not have taken cognizance for the offence under Section 55 (i) of the .
For the aforementioned reasons, the Crl.M.C is allowed. Cognizance taken for the offence under Section 55 (i) of the Abkari Act in CC No.1463 of 2022, on the files of the Judicial First Class Magistrate Court, Chalakkudy, is quashed. Further proceedings in the case shall be confined to the offence under Section 56 (b) of the and that offence being compoundable, the petitioners to resort to such remedy, if so advised.
Sd/-
V.G ARUN JUDGE
22.04.2020 ARRAYING PETITIONERS 3 AND 4 AS ACCUSED NOS.3 AND 4 Annexure-C A PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE ASST. EXCISE COMMISSIONER BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, CHALAKUDY DATED 22.04.2020 Annexure-D TRUE PHOTOCOPY OF THE SEIZURE MAHAZAR DATED 25.04.2020 Annexure-E TRUE PHOTOCOPY OF THE REPORT DATED
29.04.2020 SUBMITTED BEFORE THE JUDL.
FIRST CLASS MAGISTRATE COURT, CHALAKUDY.
Annexure-F A PHOTOCOPY OF THE REPORT DATED
20.01.2021 SUBMITTED BEFORE THE JUDL.
FIRST CLASS MAGISTRATE COURT, CHALAKKUDY BY THE ASST. EXCISE COMMISSIONER, THRISSUR Annexure-G A PHOTOCOPY OF THE ORDER OF THE EXCISE COMMISSIONER DATED 04.06.2020 Annexure-H TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 12.02.2021 IN CRL.MA.NO. 1/2021 IN CRL.MC. NO. 705/2021 PASSED BY THIS HON'BLE COURT.
Annexure-I A TRUE PHOTOCOPY OF THE STATEMENT DATED
05.03.2021 FILED IN CRL.MC.NO.705/2021 Annexure-J CERTIFIED COPY OF THE FINAL REPORT DATED
30.05.2022 SUBMITTED BEFORE THE JUDL.
FIRST CLASS MAGISTRATE COURT, CHALAKUDY.
Annexure-K TRUE PHOTOCOPY OF THE CITATION AMBIKA VS. STATE OF KERALA REPORTED IN 2011(3)
KLT 35 Annexure-L TRUE PHOTOCOPY OF THE CITATION 2007(1)
KLT 845 (DB) MOHANAN VS. STATE OF KERALA.
Annexure-M TRUE PHOTOCOPY OF THE CITATION, BINU VS.
STATE OF KERALA 2021(2) KLT 292
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