Charges under the Abkari Act cannot be sustained for transporting spirit as it applies only to arrack, causing further prosecution to be an exercise in futility.

ORDER

Dated this the 11^th day of July, 2025 Petitioner is the 4^th accused in Crime No.525 of

2009 registered at the Kattappana Police Station for the offence punishable under Section 8 (1) and 8(2) of the Abkari Act . The crime was registered on the allegation that at about 02:35 am on 15.09.2009, the 1^st accused was found carrying 700 litres of spirit in 20 jars of 35 litres capacity each in a Wagon-R car near Kumily, through the parallel road on the Kerala- Tamil Nadu boundary. The allegation against accused nos. 2 to 10 is of having conspired and connived with the 1^st accused for making arrangements for transportation of the illicit spirit.

2. On submission of Final Report, the case was numbered as S.C.No.650 of 2013 on the files of the Additional Sessions Court-IV, Thodupuzha. Except the petitioner and the 2^nd accused, against whom the charge abated due to death, all other accused faced trial and were acquitted by Annexure 3 judgment. The petitioner is seeking to get the proceedings against him quashed on the strength of the judgment of acquittal rendered in the case of his co-accused.

3. Learned Counsel for the petitioner contended that in the light of the categoric findings in Annexure 3 judgment, continuation of the proceedings against the petitioner will be an empty formality and an abuse of process of court. It is pointed that none of the independent witnesses had supported the prosecution case and the contraband seized being spirit, the court below rightly held that the offence under Sections 8 (1) and 8(2) is not attracted, spirit being distinct from arrack.

4. Heard, learned Public Prosecutor also.

5. As submitted by the learned Counsel for the petitioner, none of the independent witnesses supported the prosecution case. Moreover, from the stage of framing of charge itself, the proceedings suffered from infirmity, since Sections 8 (1) and 8(2) is applicable only to arrack, whereas the contraband seized in the instant case is spirit. No further discussion is warranted on this aspect in view of the specific findings at paragraph no.19 of Annexure 3 judgment, extracted hereunder for easy reference.

“19. The offence alleged is under section 8(1)

and (2) of the Abkari Act . Similar situation was considered by Hon'ble High Court in 2018 (2) KLT S.N 70 (C No.89) Sreedharan Vs, State of Kerala . In the said decision, it was held when the person alleged that the accused was transporting spirit he cannot be charge sheeted for offence u/s. 8(1) and (2) of the . In such cases framing of charge and trial held by court under section 8(1) of the Act will not legally sustained and therefore is vitiated. Both arrack and spirit being distinctly defined under the Act. There is no scope for any doubt arising the words arrack in any form take in spirit. Apart from that a reading of the definition of arrack in such sub section (6A) of Section 3 is self explanatory it excluding spirit of vine and Indian made foreign liquor. So on that context also the offence alleged against the persons is not sustainable. Therefore, I find that the prosecution miserably failed to prove the ingredients of offence under section 8(1) of the . Therefore, this point is found against the prosecution.”

The legal position being as discussed above, further prosecution of the petitioner will be an exercise in futility.

The Criminal Miscellaneous Case is hence allowed. Annexure 2 Final Report in Crime No.525 of 2009 of Kattappana Police Station, pending as L.P.No.2 of 2019 on the files of the Additional Sessions Court-IV, Thodupuzha and all further proceedings thereon, as against the petitioner, is quashed.