Kerala High Court
George Issac vs State Of Kerala on 4 February, 2004
Equivalent citations: 2004(1)KLT752
ORDER G. Sasidharan, J.
1. Crl.M.C.4557/2003 is filed by the third accused and the other criminal miscellaneous case is filed by Accused Nos. 2 and 4 in Crime 654/2003 of Central Police Station, Ernakulam for quashing the first information report. The petitioner in Crl.M.C. 4557/2003 and the first petitioner in the other Crl.M.C. are partners in the partnership firm which runs Hotel Embassy in Ernakulam. The second petitioner in Crl.M.C. 4678/2003 is an employee in Hotel Embassy. Crime 654/2003 was registered in Central Police Station, Ernakulam under Section 55(a) and (i) of the Abkari Act. The allegation is that on 1.9.2003, a day on which the licensed premises for sale of liquor in respect of all the licences issued shall remain closed being the first day of an English calendar month, liquor was being sold in Room No. 27 in the first floor of Hotel Embassy and thereby petitioners committed offences under Section 55(a) and (i) of the Act. It is stated that there was F.L.3 licence issued for conducting sale of liquor in the above hotel.
2. According to the petitioners, it is only for the purpose of wreaking vengeance upon them because they did not meet the illegal demands made by the investigating officer that they were falsely implicated in the crime. Annexure 2 is the copy of a complaint filed by the petitioner before the Police Commissioner stating that the petitioners were falsely implicated in the crime. One of the grounds the petitioners would urge for quashing the proceedings is that they were falsely made accused in the crime because the investigating officer is having grudge towards them since they did not pay heed to the illegal demands made by him. The submission made by the learned senior counsel appearing for the petitioners is that a report about the enquiry conducted on Annexure-2 complaint may be obtained by this Court and that report also may be taken into consideration for quashing the proceedings. It is not necessary that such a report has to be obtained for deciding these petitions. It is not proper on the part of this Court to quash the first information report on the basis of a report obtained from the police on the enquiry conducted on Annexure-2 complaint.
3. Another ground urged is that the offences under Section 55(a) and (i) of the Act are not made out. The learned senior counsel appearing for the petitioners submits that the allegation against the petitioners is only in respect of violation of conditions of licence issued by the authorities and hence, the offence will only be under Section 56(b) of the Act.
4. Section 55(a) of the Act deals with import, export, transport, transit or possession of liquor or any intoxicating drug in contravention of the provisions of the Act or any rule or order made under the Act. Section 55(i) deals with sale or storing for sale of liquor or any intoxicating drug in contravention of the provisions of the Act or any rule or order made under the Act. It is in Rule 28A of the Foreign Liquor Rules that it is seen that the licensed premises for sale of liquor in respect of all the licences issued under the Rules shall remain closed on the first day of all English calender months. Keeping open licensed premises and selling liquor from there is violation of Rule 28A of the Foreign Liquor Rules. The investigating agency has a case that it was not in the licenced premises that the liquor was sold on 1.9.2003 even though sale was done in Room No. 27 in the first: floor of the hotel. The submission is that Room No. 27 in the first floor of the hotel cannot be said to be a licensed premises. Even if the sale is conducted in licensed premises on the first day of an English calender month, that will be violation of Rule 28A of the Foreign Liquor Rules.
5. Pointing out Rule 34 of the Foreign Liquor Rules it is maintained by the learned senior counsel appearing for the petitioners that infraction of any of the rules or conditions of licences issued under the Rules either by the licensee or by a person in his employment shall entail on the licensee or his agent or both (i) a fine of Rs. 5000/-, or (ii) cancellation of the licence, or (iii) both. According to the petitioners, even if there is violation of rules, they could be proceeded against under Rule 34. In Rule 35 of the Foreign Liquor Rules it is said that the imposition of a fine or the cancellation of a licence under the Rules shall not however relieve the licensee or his agents from liability to be prosecuted for any specific offence committed against the Abkari Act or under the Rules. The above rule makes it clear that in spite of the fact that fine is imposed or licence is cancelled as provided in Rule 34 for infraction of any of the rules or conditions of licence, the licensee or his agents can be prosecuted for violation of offences under the Abkari Act or under the Rules.
6. Section 56(b) of the Act provides that whoever, being the holder of a licence or permit granted under the Act or being in the employment of such holder and acting on his behalf, wilfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for the Act, shall be punishable as provided in that Section. The above clause deals only with breach of any of the conditions of licence or permit. Condition 20A(vii) is that the licensed premises shall remain closed on the first day of all English calender months. Keeping open the licensed premises on the first day of an English calender month is violation of Condition 20A(vii) of F.L.3 licence. Violation of that condition in the licence can be punishable under Section 56(b). That does not mean that keeping open the licensed premises and conducting sale of liquor on the first day of an English calender month is violation only of a condition in F.L.3 licence. It is also violation of Rule 28A(vii) of the Foreign Liquor Rules. When it becomes the violation of a rule in Foreign Liquor Rules, there will be infraction of rules as provided in Rule 34 of the Rules. By virtue of Rule 35 of the Rules, he can be prosecuted for commission of the offence under the Act.
7. Section 55(a) says that whoever in contravention of the Act or of any rule or order made under the Act, imports, exports, transports, transits or possesses liquor or any intoxicating drug shall be punishable as provided in the Section. It is alleged that foreign liquor was kept in Room No. 27 in the first floor of the hotel. That can be said to be possession of the liquor in contravention of the Foreign Liquor Rules. Rule 16 of the Foreign Liquor Rules says that no premises shall be used for the sale or for possession and use of liquor unless they have been approved by the Excise Commissioner. Rule 29 days that possession or sale upon any licensed premises of any liquor other than that to which the licence relates, is prohibited. Keeping of liquor in a premises unless use of that premises for sale or keeping of liquor is permitted/is violation of Rule 16. Possession or sale in a licensed premises of any liquor other than to which the licence relates is violation of Rule 29. When the above rules are violated by a person in whose favour licence is issued, that will be an offence punishable under Section 55(a) of the Act.
8. Section 55(i) of the Act says that when in contravention of the provisions of the Act or any rule or order made under the Act sale or storing for sale of liquor or any intoxicating drug is done, that will be an offence punishable under the Act. Here, the allegation is that sale of liquor was done on a day on which the licensed premises had to be kept closed. Conducting sale even if it is in licensed premises on the first day of English calender month is in violation of Rule 28 A of the Foreign Liquor Rules and that will be an act done in contravention of the provisions of the Rules. When a licensee conducts sale of liquor in contravention of any rule, that will be an offence under Section 55(i) of the Act.
9. In Mariamma and Anr. v. State of Kerala and Ors. (1998 (1) KLT 286) a learned Judge of this Court said that the accused in that case had violated the licence conditions and rules which would be an offence under Section 56(b) of the Act. There it was said that the learned Advocate General conceded that on the basis of the earlier judgments of this Court the offences in that case would come only under Section 56(b) of the Act. The above observations made by the learned Judge cannot be treated as proposition of law laid down that when violation of rules is alleged the offence will only be under Section 56(b) of the Act. That question has not been specifically considered by the learned Single Judge and hence it cannot be said that there was a conscious consideration of that question and a decision was rendered on such consideration. Section 56(b) deals with doing or omitting to do anything in breach of any of the conditions of licence or permit not otherwise provided for in the Act by the holder of a licence or permit granted under the Act. When there is violation of rules it will come under Section 55 of the Act because the above section starts by saying "whoever in contravention of the Act or any rule or order made under the Act" and that would indicate that violation of rule by a person even if he is a licence holder will be an offence under the Act.
10. In Sabu and Ors. v. State of Kerala, (2003 (2) KLT 173 = 2003 (1) KLJ 462), the very same learned Judge of this Court, who rendered the other decision, said that the words, imports, exports, transport, transit or possession of liquor read with the heading to the section show that it is applicable to "illegal liquors". That was a case in which liquor was purchased from the Kerala State Beverages Corporation for own consumption and hence there was no question of illegal import or transporting or possessing of "illicit liquor". That decision has to be understood as one by which it was held that import, export, transport, transit or possession pf "illicit liquor" will also be an offence which would come under Section 55 of the Act. In Section 55 the word "illegal liquor" is not used and the term used is "liquor". Liquor is defined in Section 3(10) of the Act. The above decision relied on by the learned counsel appearing for the petitioners will not in any way help the petitioners to say that the allegations in the first information report will constitute only an offence under Section 56(b) of the Act. On going through the allegations in the first information report regarding the commission of the offences, the offences punishable under Sections 55(a) and (i) are prima facie made out. There is no reason for quashing the first information report in the crime.
There is no merit in the petitions. Petitions are dismissed.