Kerala High Court
Sanjay J.Marivala vs State Of Kerala on 14 August, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:62804
Crl.MC Nos.6088 & 7178 of 2016
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 14TH DAY OF AUGUST 2024 / 23RD SRAVANA, 1946
CRL.MC NO. 6088 OF 2016
CRIME NO.14/2007 OF Kumbala Excise Range Office, Kasargod
CP NO.275/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
KASARAGOD
PETITIONER/3RD ACCUSED:
SANJAY J.MARIVALA
MANAGING DIRECTOR,KANCOR INGREDIENTS LIMITED,
KANAKKANKADAVU ROAD, ANGAMALY,ERNAKULAM DISTRICT.
BY ADVS. SRI.P.VIJAYA BHANU (SR.)
SRI.K.PAUL KURIAKOSE
RESPONDENT/STATE:
STATE OF KERALA
THROUGH THE EXCISE CIRCLE INSPECTOR,
EXCISE CIRCLE OFFICE, KASARAGOD,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SRI.SANGEETHARAJ N.R., SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
14.08.2024, ALONG WITH Crl.MC.7178/2016, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
2024:KER:62804
Crl.MC Nos.6088 & 7178 of 2016
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 14TH DAY OF AUGUST 2024 / 23RD SRAVANA, 1946
CRL.MC NO. 7178 OF 2016
CRIME NO.14/2007 OF Kumbala Excise Range Office, Kasargod
CP NO.275 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
KASARAGOD
PETITIONER/2ND ACCUSED:
THOMAS KADAVAN
ASSISTANT VICE-PRESIDENT (PR & CSR)
M/S. AVT NATURAL PRODUCTS LIMITEDPLOT NO 225/1-A,
SOUTH VAZHAKULAM, MARAMPILLY P.O
ALUVA 683107, ERNAKULAM DISTRICT
BY ADV SRI.K.PAUL KURIAKOSE
RESPONDENT/STATE:
STATE OF KERALA
THROUGH THE EXCISE CIRCLE INSPECTOR
EXCISE CIRCLE OFFICE, KASARAGOD
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA,ERNAKULAM
BY ADV GOVERNMENT PLEADER
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 14.08.2024, ALONG WITH Crl.MC.6088/2016, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
2024:KER:62804
Crl.MC Nos.6088 & 7178 of 2016
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. Nos.6088 & 7178 of 2016
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Dated this the 14th day of August, 2024
ORDER
These two criminal miscellaneous cases are connected and therefore, I am disposing these cases by a common order. Petitioner in Crl.M.C. No.7178/2016 is the 2nd accused and the petitioner in Crl.M.C. No.6088/2016 is the 3rd accused in C.P.No.275/2015 on the file of the Judicial First Class Magistrate Court, Kasaragod.
2. Petitioner in Crl.M.C. No.7178/2016 is the Assistant Vice-President (Public Relations & Corporate Social Responsibility) of M/s AVT Natural Products Limited, a company incorporated under the Companies Act, 1956. Petitioner in Crl.M.C. No.6088/2016 is the Managing Director of Kancor Ingredients Limited, a company incorporated under the Companies Act, 1956. The petitioners' 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 4 companies have manufacturing units at Ernakulam. The companies are engaged in the manufacture of Spice Oils, Marigold Oleoresins and botanical extracts, which are exported to foreign countries. The Spice Oils are extracted from spices like pepper, cardamom, chilly. ginger, turmeric, celery etc. It is submitted that these are 100% export oriented units. The companies are exporting the above food ingredients to various countries all over the world like U.S.A., U.K., France, Japan, Korea, Australia, Russia, Mexico etc. is the submission. It is also submitted that the companies earn considerable foreign exchange every year from its exports.
3. It is the case of the petitioners that the companies require for use of their manufacturing process, rectified spirit or Ethyl Alcohol of absolute strength of 100% purity. In order to maintain the quality of their product, the manufactured articles have to be constantly checked. For the above purpose, the companies have fully equipped Quality Control Department is the submission. According to 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 5 the petitioners, the companies also have well-equipped laboratory for testing their products with the object of ensuring that their quality is of international standards. The rectified spirit is used by the companies only as a solvent in the manufacturing process, for extraction of essence from the spices or for the laboratory testing, as stated above is the submission. The companies have taken licence under the Abkari Act, as evident by Annexure-A1 in these cases is the further submission. Accordingly, the companies have been bringing rectified spirit to the factory and using the same in their manufacturing process.
4. While so, the companies had placed order for the supply of Absolute Alcohol AR Grade, in units of 500 ml bottles. The order was placed on the importers of the product from abroad, M/s Kiran Traders, Mumbai. The importer despatched the product through M/s.Kerala Roadways Pvt. Ltd, a Parcel Service Operator for delivery to the companies. Annexure-A2 is the invoice. Copy of the consignment notes are produced as Annexure-A3 in these 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 6 cases. Annexure-A4 is the Lorry Receipts. However, when the consignment reached Manjeswaram, Kerala, the Excise Party detained the consignment at the Excise Check Post. According to the them, the articles could not be either imported or transported for the reason that it was absolute Alcohol. Therefore, the lorry, consignment and its driver were taken into custody and Crime No.14/2007 of Kumbala Excise Range was registered. Annexure-A5 is the Occurrence Report in these cases. Annexure-A6 is the Mahazar. Annexure-A7 is the Chemical Analysis Report. It is submitted that as per Annexure-A6, the product is branded and imported from China. After investigation, a final report is filed, alleging offence punishable under Section 55(a) of the Abkari Act against the accused arraigned therein. Annexure-A8 is the the final report. Pursuant to Annexure-A8, C.P.No.275/2015 was registered by the Judicial First Class Magistrate Court, Kasaragod. As per Annexure-A8, the petitioner in Crl.M.C. No.7178/2016, who was then the General Manager of M/s.AVT Natural 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 7 Products Limited, has been arraigned as the 2nd accused and M/s. Kancor Ingredients Limited has been arrayed as the 3rd accused. The driver of lorry in which the consignment was transported has been arraigned as the 1st accused. It is the case of the petitioners that even if the entire allegations are accepted, no offence is made out against the petitioners. Hence these criminal miscellaneous cases.
5. Heard the learned Senior Counsel Sri.P. Vijaya Bhanu, instructed by instructing counsel and also Sri.Paul Kuriakose.
6. The short point raised by the petitioners is that the offence alleged against the petitioners are not attracted in these cases for the simple reason that the alleged articles were not reached the hands of the petitioners. The Public Prosecutor submitted that it is a matter of evidence and the petitioners have to face the trial.
7. This Court considered the contentions of 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 8 the petitioners and the respondents. The admitted prosecution case is that, on 12.03.2007, the contraband articles were transported in a lorry to Kerala and the Excise Party at Manjeswaram intercepted the lorry. It is an admitted fact that the allegation against the petitioners is that the articles contained in the lorry are to be delivered to the petitioners. Admittedly, the petitioners are having licence as per the Abkari Act. As long as the articles are not reached the hands of the petitioners, I am of the considered opinion that the offence under Section 55(a) of the Abkari Act is not attracted as far as the petitioners are concerned. The transportation of the articles was not done by the petitioners. The articles were not seized from the petitioners. It will be better to extract Section 55(a) of the Abkari Act:
"55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act
(a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or
(b) XXXX XXXX XXXX XXXX 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 9
(c) XXXX XXXX XXXX XXXX
(d) XXXX XXXX XXXX XXXX
(e) XXXX XXXX XXXX XXXX
(f) XXXX XXXX XXXX XXXX
(g) XXXX XXXX XXXX XXXX
(h) XXXX XXXX XXXX XXXX (I) XXXX XXXX XXXX XXXX shall be punishable (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."
8. The petitioners are admittedly consignees. A consignee cannot be prosecuted for import, export, transport, transit or for possession of the contraband. In such circumstances, there cannot be any prosecution against the petitioners under Section 55(a) of the Abkari Act. Therefore, I am of the considered opinion that the continuation of the prosecution against the petitioners 2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 10 alone based on Annexure A8 final report is to be quashed.
Therefore, these Criminal Miscellaneous Cases are allowed. All further proceedings as against the petitioners alone in C.P.No.275 of 2015 on the file of the Judicial First Class Magistrate Court, Kasaragod arising from Crime No.14/2007 of Kumbala Excise Range are quashed.
sd/-
P.V.KUNHIKRISHNAN
DM/ JV JUDGE
2024:KER:62804
Crl.MC Nos.6088 & 7178 of 2016
11
APPENDIX OF CRL.MC 6088/2016
PETITIONER ANNEXURES
ANNEXURE-A1: PHOTOSTAT TRUE COPY OF LICENCE DATED
11.6.1999 UNDER THE ABKARI ACT (1 OF
1077).
ANNEXURE-A2: PHOTOSTAT TRUE COPY OF INVOICE OF
M/S.KIRAN TRADERS, MUMBAI DATED
7.3.2007.
ANNEXURE-A3: PHOTOSTAT TRUE COPY OF CONSIGNMENT NOTE
DATED 7.3.2007 IN RESPECT OF THE GOODS DESPATCHED.
ANNEXURE-A4: PHOTOSTAT TRUE COPY OF LORRY RECEIPT DATED 8.3.2007 OF KERALA ROADWAYS PVT. LTD. IN RESPECT OF THE GOODS.
ANNEXURE-A5: PHOTOSTAT TRUE COPY OF CERTIFIED COPY OF THE OCCURRENCE REPORT DATED 12.3.2007 PREPARED BY THE RESPONDENT. ANNEXURE-A6: PHOTOSTAT TRUE COPY OF MAHAZAR DATED 12.3.2007 PREPARED BY THE RESPONDENT WHILE TAKING THE GOODS INTO CUSTODY.
ANNEXURE-A7: PHOTOSTAT TRUE COPY OF CHEMICAL ANALYSIS REPORT DATED 08.05.2007.
ANNEXURE-A8: CERTIFIED COPY OF THE FINAL REPORT DATED 14.1.2015.
2024:KER:62804 Crl.MC Nos.6088 & 7178 of 2016 12 APPENDIX OF CRL.MC 7178/2016 PETITIONER ANNEXURES ANNEXURE A1 PHOTOSTAT TRUE COPY OF LICENCE DATED 1- 09-2003 UNDER THE ABKARI ACT (1 OF 1077) ANNEXURE A2 PHOTOSTAT TRUE COPY OF PURCHASE ORDER DATED 5-3--2007 ISSUED BY M/S. AVT NATURAL PRODUCTS LIMITED ANNEXURE A3 PHOTOSTAT TRUE COPY OF INVOICE OF M/S. KIRAN TRADERS, MUMBAI DATED 6-3-2007 ANNEXURE A4 PHOTOSTAT TRUE COPY OF LORRY RECEIPT DATED 8-3-2007 OF KERALA ROADWAYS PVT LTD IN RESPECT OF THE GOODS ANNEXURE A5 CERTIFIED COPY OF THE OCCURRENCE REPORT DATED 13-3-2007 PREPARED BY THE RESPONDENT ANNEXURE 6 PHOTOSTAT TRUE COPY OF MAHAZAR DATED 12-3-2007 PREPARED BY THE RESPONDENT WHILE TAKING THE GOODS INTO CUSTODY ANNEXURE A7 PHOTOSTAT TRUE COPY OF CHEMICAL ANALYSIS REPORT DATED 08-05-2007 ANNEXURE A-8 CERTIFIED COPY OF THE FINAL REPORT DATED 14-1-2015