Possession of liquor obtained legally does not attract charges under Section 55(a) of the Abkari Act, only Section 63 for excess quantity applies.

ORDER

The petitioner is the sole accused in Crime No.479/2023 of Karuvarakundu Police Station, Malappuram. The above case is registered alleging offence punishable under section 55(a) of the Abkari Act.

2. The prosecution allegation is that, on 21.07.2023 at about

8.30p.m., the accused was found in possession of 5 liters of Indian Made Foreign Liquor and hence committed the offence. Annexure-A is the FIR and First Information Statement. Annexure-B is the seizure mahazar. After investigation, a final report is filed as evident by Annexure-C and the case is pending as C.P.No.72/2023 before the Judicial First Class Magistrate Court-I, Manjeri.

3. The contention of the petitioner is that, even if the entire allegations are accepted, the offence under section 55(a) of the Abkari Act is not attracted because the liquor was purchased from the Kerala Beverages Corporation, which is evident from Annexure-B seizure mahazar. Hence, it is stated that, at the maximum, the offence under section 63 of the Abkari Act alone is attracted, which is compoundable under section 67A of the Abkari Act. The petitioner also relied on Annexure-D, a similar order passed by this Court in a similar situation.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. After hearing the counsel for some time, I think there is some force in the argument. This Court perused Annexure-B seizure mahazar. A perusal of the same would show that the contraband seized from the petitioner contained the hologram label of the Kerala Beverages Corporation. In Annexure-D order, this Court considered a similar case. It would be better to extract the relevant portion:

‘6. Undisputedly, what has been seized from the petitioners are 31 liters of IMFL purchased from the Beverages Corporation. The bottles are sealed and unopened.

7. This Court in Sabu v. State of Kerala considered an identical question and held that when there is no case for the prosecution that the accused were transporting illicit liquor, or they have illegally imported liquor, or the liquor was adulterated, or they have manufactured the liquor or liquor was transported for the illegal second sale, an offence under Section 55 (a) is not attracted. 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 an excess quantity of liquor than in permissible under the law. As the Indian Made Foreign Liquor was purchased legally from KSBC, the offence that would be attracted would only be Section 63 of the Kerala Abkari Act . The position has been reiterated by the Division Bench in Mohanan v. State of Kerala . In such circumstances, it is held that only an offence under of the is attracted.

8. This Court in Nobbey (supra), had occasion to hold that when the offence attracted is under Section 63 of the Act, the same is compoundable under Section 67A of the Abkari Act. However, as provided under Sub Section (1) of , if the petitioners choose to compound the offence, the IMFL seized shall be confiscated by the Government or disposed of in the manner as prescribed.

In that view of the matter, this petition will stand party allowed. All further proceedings against the petitioner under Section 55 (a) of the Abkari Act will stand quashed. It is held that only an offence under Section 63 of the Abkari Act would be attracted. It is made clear that it would be open to the petitioners to express their willingness to compound the offence, and if the same is done, the concerned respondent shall act in accordance with law.

6. I think the petitioner is also entitled to the same benefit.

Therefore, this Crl.M.C is allowed in part as follows:

a) All further proceedings against the petitioner in C.P.No.72/2023 on the file of the Judicial First Class Magistrate Court-I, Manjeri under section 55(a) of the Abkari Act is quashed. It is held that, only an offence under section 63 o