Kerala High Court
Unnikrishnan vs State Of Kerala on 27 June, 2023
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
CRL.MC NO. 1741 OF 2022
AGAINST THE ORDER IN C.P NO.68/2021 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, MALAPPURAM
PETITIONERS/ACCUSED :-
1 UNNIKRISHNAN, AGED 31 YEARS
S/O. THAMI, PALERI HOUSE, THEENDEKKAD,
KANNAMANGALAM P.O., MALAPPURAM DISTRICT, PIN - 676304
2 MUHAMMED MUSTHAFA, AGED 43 YEARS
S/O. KOYAMU, PANJI HOUSE, KANNAMANGALAM P.O.,
THEENDEKKAD, MALAPPURAM DISTRICT, PIN - 676304
BY ADV K.RAKESH
RESPONDENTS/STATE & COMPLAINANT :-
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER
VENGARA POLICE STATION, MALAPPURAM DISTRICT,
PIN - 676304
SRI. T R RENJITH, SR. PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 1741 OF 2022 2
ORDER
This petition is filed seeking to quash all further proceedings in C.P.No. 68/2021 on the file of the Judicial Magistrate of the First Class, Malappuram. In the above case, the petitioners are accused of having committed offence punishable under Section 55(a) of the Kerala Abkari Act, 1077.
2. The prosecution allegation is that on 28.06.2021 at about 05.20 pm, the petitioners herein indulged in the transportation of 31 liters of Indian Made Foreign Liquor (IMFL) in an autorickshaw bearing Reg. No. KL-65C-4154 and thereby violated the provisions of the Kerala Abkari Act, 1077.
3. The learned counsel appearing for the petitioners submitted that from the mahazar prepared by the investigating officer, it is evident that the liquor seized was in sealed bottles, and the same was purchased from the Beverages Corporation. According to the learned counsel, the only offence that would be attracted in the scenario in Section 63 of the Abkari Act for possessing an excess quantity of liquor than what is permissible under law. It is submitted that in identical circumstances, this Court in Nobbey & another v. State of Kerala & others1, Sobichan @ Joseph v. State of Kerala & another 2 and Sabu v. State of Kerala 3, has held that only an offence under Section 63 would be attracted.
4. I have heard the learned Public prosecutor who submitted that 1 [2011 (1) KLT SN 68] 2 [2013 (3) KLT SN 93] 3 [2003 (2) KLT 173] CRL.MC NO. 1741 OF 2022 3 the contentions are to be raised before the Trial Court, and this Court will not be justified in exercising powers under Section 482 of the Code.
5. I have considered the submissions.
6. Undisputedly, what has been seized from the petitioners are 31 liters of IMFL purchased from the Beverages Corporation. The bottles are sealed and unopened.
7. This Court in Sabu v. State of Kerala4 considered an identical question and held that when there is no case for the prosecution that the accused were transporting illicit liquor, or they have illegally imported liquor, or the liquor was adulterated, or they have manufactured the liquor or liquor was transported for the illegal second sale, an offence under Section 55(a) is not attracted. When the liquor was purchased from KSBC for own consumption, and there is no question of illegal import or transporting or possessing illicit liquor, the only offence alleged is for possession of an excess quantity of liquor than in permissible under the law. As the Indian Made Foreign Liquor was purchased legally from KSBC, the offence that would be attracted would only be Section 63 of the Kerala Abkari Act. The position has been reiterated by the Division Bench in Mohanan v. State of Kerala5. In such circumstances, it is held that only an offence under Section 63 of the Kerala Abkari Act is attracted.
8. This Court in Nobbey (supra), had occasion to hold that when 4 (2003 (2) KLT 173) 5 (2007 (1) KLT 845) CRL.MC NO. 1741 OF 2022 4 the offence attracted is under Section 63 of the Act, the same is compoundable under Section 67A of the Abkari Act. However, as provided under Sub Section (1) of Section 67A, if the petitioners choose to compound the offence, the IMFL seized shall be confiscated by the Government or disposed of in the manner as prescribed.
In that view of the matter, this petition will stand party allowed. All further proceedings against the petitioner under Section 55(a) of the Abkari Act will stand quashed. It is held that only an offence under Section 63 of the Abkari Act would be attracted. It is made clear that it would be open to the petitioners to express their willingness to compound the offence, and if the same is done, the concerned respondent shall act in accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE SMA CRL.MC NO. 1741 OF 2022 5 APPENDIX OF CRL.MC 1741/2022 PETITIONER ANNEXURES :-
Annexure A A TRUE COPY OF THE FIR AND FIS IN CRIME NO.180/2021 OF THE VENGARA POLICE STATION DATED 28-6-2021 Annexure B TRUE COPY OF THE SEIZURE MAHASSER PREPARED BY THE POLICE IN CONNECTION WITH THE CRIME Annexure C TRUE COPY OF THE FINAL REPORT AND MEMORANDUM OF EVIDENCE FILED BEFORE J.F.C.M, MALAPPURAM