Lockdown violations do not constitute an offence under Section 55(i) of the Abkari Act; relevant charges may only arise under Section 56(b) for permit breaches.

O R D E R

Petitioners are the accused in Crime No.1800 of 2020 of the Chadayamangalam Police Station, registered for offences under Section 55 (i) of the Abkari Act and Section 4(2)(e) and (j) of the Kerala Epidemic Diseases Ordinance Act , 2020, now pending as C.P.No.17 of 2021 on the files of the Judicial First Class Magistrate Court, Kadakkal. The prosecution allegation is that petitioners 1 and 2 are employees and the 3rd petitioner, the Manager of a Bar attached Hotel named 'Hotel Shilpa' and had indulged in sale of Indian Made Foreign Liquor on 19.7.2020, in violation of the lock down restrictions imposed by the Government.

2. Sri.C.C.Thomas, learned Senior Counsel appearing for the petitioners, challenges the incorporation of Section 55 (i) of the Abkari Act , contending that, even accepting the prosecution allegation in its entirety, only an offence under Section 56 (b) of the is made out. In support of the contention, reliance is placed on the decisions in Ambika v. State of Kerala [ 2011(3) KLT 35 ] and Mohanan v. State of Kerala [ 2007 (1) KLT 845 ].

3. On the other hand, the learned Senior Public Prosecutor contended that, violation of the Government orders issued with the objective of curbing the rampant spread of the Covid-19 pandemic should be dealt with seriously. It is submitted that the petitioners are liable to be prosecuted for the offences under the Kerala Epidemic Diseases Ordinance, 2020 and the Disaster Management Act, 2005 also.

4. The petitioners having limited their challenge to the prosecution under Section 55 (i) of the Abkari Act , I am not venturing into the question as to whether the petitioners are liable to be prosecuted for offences under the other enactments. The offence under Section 55 (i) of the Act will be attracted only when a person sells or stores for sale, liquor or any intoxicating drug. The penalty under Section 55 (i) for sale of liquor can be imposed only when such sale is in contravention of the Act or of any Rule or order made under the Act. The Government order imposing lock down is not an order made under the and therefore, even if sale was conducted in violation of the Government order it will not be an offence under Section 55 (i). On the other hand, Section 56 (b) specifically deals with breach of any of the conditions of the licence or permit, not otherwise provided for in the Act. Faced with similar situation, inAmbika (supra), the learned single Judge placed reliance on the earlier decisions in Mohanan (supra) andNobbey v. State of Kerala [2011(1) KLT SN 51 (Case No.68)] and held the sale conducted after the prescribed working hours to be in violation of the permit conditions and hence, punishable under Section 56 (b) of the Act. It was held that the petitioners therein could not be attributed with the offences under Section 55 (a) and (i) of the Act.

5. The reasons and the decisions aforementioned persuade me to uphold the challenge against incorporation of Section 55 (i) of the Abkari Act .

Hence, the Crl.M.C is allowed. Further proceedings against the petitioners for the offence under Section 55 (i) of the Act is quashed. It is made clear that this order does not preclude the court from continuing the proceedings with respect to the other offences.

Sd/-

V.G.ARUN, JUDGE vgs APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A CERTIFIED COPY OF THE FIR IN CRIME NO.1800/2020 OF CHADAYAMANGALAM POLICE STATION.

ANNEXURE B PHOTOCOPY OF THE ORDER DATED 27.7.2020 IN CMP NO.1009/2020 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE C PHOTOCOPY OF THE ORDER DATED 23.9.2020 IN B.A.NO.5722/2020 PASSED BY THIS HON'BLE COURT.

ANNEXURE D PHOTOCOPY OF THE ORDER DATED 22.10.2020 IN CMP NO.1140/2020 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE E CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1800/2020 OF CHADAYAMANGALAM POLICE STATION FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, KADAKKAL.

ANNEXURE F PHOTOCOPY OF THE ORDER NO.EXC/3171/2020-XC7 DATED