Possession of excess quantity of liquor without illegal intent invokes Section 63 of the Abkari Act, which is compoundable, not Sections 55(a) and (i).

ORDER

This Crl.M.C is filed to quash Annexure A1 FIR in Crime No.

847 of 2023 of Ayarkunnam Policce Station, Kottayam District . The petitioner is the sole accused in the above crime registered for the offences punishable under Sections 55 (a) and (i) of the Abkari Act .

2. The prosecution case is that the petitioner transported 50 litres of toddy in his car on 16.08.2023 and the same is detected and seized as per mahazar. According to the petitioner, even admitting the entire prosecution case as such, no offnece under Section 55 (a) and (i) of the Abkari Act will lie. The only offence attracted is under Section 63 of the and the same is compoundable under Section 67A of the . The petitioner relied on Annexure A2 and A3 judgments of this Court to support his contentions.

3. Heard the counsel for the petitioner and the public prosecutor.

4. It is true that this Crl.M.C is filed to quash the FIR. But in a same situation, this Court quashed the proceeding as per Annexure A2 and A3. It will be better to extract the relevant portion of Annexure A3 judgment ( Nobbey v. State of Kerala and others [2011 (1) KLD 11]).

“5. This Court in Sabu v. State of Kerala , considered an identical question and held that when there is no case for the prosecution that accused were transporting illicitly 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 . In such circumstances, it can only be found that only an offence under Section 63 of Kerala is attracted.

6. As rightly pointed out by the learned Senior counsel, by Abkari (Amendment) Act 3 of 2010, repealing Abkari Amendment Ordinance 6 of 2010, Section 67A was inserted to the principal Act by Section 12. It provides that the Commissioner of Excise or the Deputy Commissioner of excise of the district concerned or any Abkari Officers specially empowered by the Government in this behalf by notification in the Gazette, may accept, from any person reasonably suspected of having committed any of the offences specified in column (1), a sum of money as Specified in Column (3) of the Table, by way of composition for the offence which may have been committed. Where any property has been seized, the same shall be confiscated to Government or disposed of, in such a manner as may be prescribed. Under sub-section 2 of Section 1, the Amending Act shall defined to have come into force on 30/3/ 1996 and the remaining provisions shall be deemed to have come into force on 07/12/2009. Therefore, Section 67A which was inserted by Abkari (Amendment) Act 3 of 2010 came into force w.e.f. 06/12/2009. In such circumstances, if the offence alleged was committed it can only be under Section 67A . Petitioners are entitled to get the offence compounded Column (1) shows the offence, which could be compounded under Section 67A . First item is transporting of liquor or intoxicating drug in excess of the quantity prescribed by the Government by notification. Column (2) shows; corresponding section, namely Section 10 of Kerala Abkari Act . Compounding fee is fixed in Column No. (3), namely Rs.5,000/- Section 10 of provides that no liquor or intoxicating drug, exceeding such quantity as the Government may. from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provis