A discharge petition may be granted if the prosecution fails to establish essential elements of the charges against the accused.

O R D E R

This revision is filed against the order dated

19.08.2022 in Crl.MP No. 99/2022 in SC No. 646/2021 on the file of the II^nd Additional Sessions Judge, Ernakulam. The petitioners are accused Nos. 2 and 3 in the above case. The petitioners and the 1^st accused were chargesheeted for the offence alleged under Secs. 55(a) and 55(i) of the Kerala Abkari Act . The offences under Sec.118(e) of the Kerala Police Act and Sec.4(2)(e)(j) r/w Sec.5 of the Kerala Epidemic Diseases Ordinance Act , 2020 is also alleged.

2. The prosecution case is that on 15.05.2020 at 7.30 pm, the accused was found in possession of 18.6 litres of Indian Made Foreign Liquor in sealed bottles having Kerala Government Label in a car bearing registration No. KL-07-CF-3055 violating the restrictions imposed by the State Government during the spread of Covid-19 pandemic. According to the petitioners, the offence alleged are not attracted. Therefore, the petitioners who are the 2^nd and 3^rd accused filed discharge petition before the trial court. The trial court found that the offence under Sec. 55(a) of the Abkari Act is not attracted. But, the trial court found that the offence under Sec.55(i) of the Kerala Abkari Act , 118(3) of the Kerala Police Act and Sec.4(2)(e)(j) of the Kerala Epidemic Diseases Ordinance Act , 2020 will stand and the petitioners have to face trial for the same. Aggrieved by the same, this revision is filed.

3. Heard.

4. The main contention of the petitioners is that the offence under sec. 55(i) of the Kerala Abkari Act is also not maintainable against the petitioners. Public Prosecutor supported the impugned order.

5. Admittedly, the petitioners are 2^nd and 3^rd accused. The prosecution case is that, they along with the 1^st accused were found in possession of Indian Made Foreign Liquor. The trial court found that, Sec.55(i) of the Kerala Abkari Act is maintainable against the petitioners, mainly based on the statement of the charge witness No.2, who is the Manager of the Hotel Holiday Inn, Kochi. This Court perused the statement given by CW2 under sec.161 Cr.P.C, the Manager of the Hotel Holiday Inn, Kochi. 6. A perusal of the statement would only show that the 1^st accused in the case was working in the Hotel Holiday Inn, Kochi as a staff. The statement also shows that the police seized Indian Made Foreign Liquor from the 1^st accused. Even after going through the entire statement of the above witness, I am of the considered opinion that there is nothing to show that the ingredients of Sec.55(i) of the Abkari Act will stand against the petitioners, who are the 2^nd and 3^rd accused. Sec.55 (i) of the Abkari Act is extracted hereunder :

“55. For illegal import, etc. - Whoever in contravention of this Act or of any rule or order made under this Act.

xxx xxx xxx xxx xxx xxx (i) Sells or stores for sales liquor or any intoxicating drug;

shall be punished.-

(1) for any offence other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and (2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both.”

7. Even if the entire allegations in the final report are accepted, there is no case to the prosecution that the petitioners, who are the 2^nd and 3^rd accused committed the offences under Sec.55(i) of the Kerala Abkari Act . I am of the considered opinion that Sec.55(i) of the Abkari Act also will not stand against the petitioners, who are the 2^nd and 3^rd accused. But, I make it clear that this finding is not applicable to the 1^st accused and his case will be considered separately by the