Kerala High Court
Nobbey vs State Of Kerala on 3 December, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4416 of 2010()
1. NOBBEY,S/O.KURIAKOSE,KOLATHU VEETTIL,
... Petitioner
2. MATHEW,S/O.JOHN,ALIEDATH VEETTIL,
Vs
1. STATE OF KERALA,REP.BY SUB INSPECTOR
... Respondent
2. THE DISTRICT SUPERINTENDENT OF POLICE,
3. THE DEPUTY COMMISSIONER OF EXCISE,
For Petitioner :SRI.NIREESH MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/12/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
---------------------------------------------
CRL.M.C.NO.4416 OF 2010
---------------------------------------------
Dated 3rd December, 2010
O R D E R
Petitioners are the accused in Crime No.411/2010 of Karimkunnam Police Station registered under Annexure-C FIR for the offence under Section 55(a) of Abkari Act. The allegation in Annexure-C FIR is that on 23/10/2010 at about 2.15 p.m, on getting information by a telephonic message that petitioners are transporting huge quantity of liquor in an autorickshaw, Sub Inspector of Police, Karinmkunnam Police Station intercepted autorickshaw No.KL-38-7190 driven by the first petitioner, with second petitioner seated in the back side. On verification it was found that without any license or permit to Crmc 4416/10 2 transfer liquor in excess of the permissible quantity provided under Foreign Liquor Rules, 86 bottles in seven cartons of Indian Made Foreign Liquor were being transported. They were arrested and samples from each carton was taken and the crime was registered. The remaining 79 bottles seized were produced in court. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings initiated on Annexure-C FIR, except to the extent of the proceedings under Section 63 of Abkari Act. A direction was sought against the third respondent to compound the offence as provided under Section 67 A of Abkari Act introduced by Kerala Abkari (Amendment) Act 3 of 2010, contending that Indian Made Foreign Liquor was purchased from Kerala State Beverages Corporation and were Crmc 4416/10 3 being taken to his residence for a function and no offence as alleged was committed except an offence under Section 63 of Abkari Act.
2. Learned Senior counsel appearing for the petitioners and learned Public Prosecutor were heard.
3. As it is the specific case of the petitioners that the Indian Made Foreign Liquor seized in the case from the autorickshaw were purchased from KSBC and Annexure-A mahazar does not disclose the same, it is not specifically disclose the same, Sub Inspector of Police who seized the liquor, was directed to file a statement. The statement filed by the Sub Inspector shows that it was under a bonafide belief that an offence under Section 51(a) of Abkari Act is involved, petitioners were arrested and taken to the Police Station and Crmc 4416/10 4 contraband articles were seized. Later as instructed by the Court, all 79 bottles kept in the Police Station were again inspected on an application sent to the shop-in-charge of Kerala State Beverages Corporation, Karimkunnam asking to give a report whether those articles were sold by them. As per letter dated 19/11/2010, shop-in-charge of KSBC certified that all the bottles of liquor specified in the letter were sold by them as shown in Ext.R1(a) communication and bills issued by KSBC were not produced by the petitioners.
4. It is thus clear that 86 bottles of Indian Made Foreign Liquor which was seized, while petitioners were transporting it in the autorickshaw, were purchased from KSBC shop at Karimkunnam. Question is what is the offence attracted.
Crmc 4416/10 5
5. This Court in Sabu v. State of Kerala (2003 (2) KLT 173) considered an identical question and held that when there is no case for the prosecution that accused were transporting illicity liquor or they have illegally imported liquor or the liquor was adulterated or they have manufactured the liquor or liquor was transported for illegal second sale, an offence under Section 55(a) is not attracted and 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 excess quantity of liquor than in permissible under the law. Though petitioner purchased the Indian Made Foreign Liquor legally from KSBC, offence would come only under Section 63 of the Kerala Abkari Crmc 4416/10 6 Act. The position has been reiterated by the Division Bench in Mohanan v. State of Kerala (2007 (1) KLT 845). In such circumstances, it can only be found that only an offence under Section 63 of Kerala Abkari Act is attracted.
6. As rightly pointed out by the learned Senior counsel, by Abkari (Amendment) Act 3 of 2010, repealing Abkari Amendment Ordinance 6 of 2010, Section 67 A was inserted to the principal Act by Section 12. It provides that the Commissioner of Excise or the Deputy Commissioner of Excise of the district concerned or any Abkari Officers specially empowered by the Government in this behalf by notification in the Gazette, may accept, from any person reasonably suspected of having committed any of the offences specified in column (1), a sum of money as Crmc 4416/10 7 Specified in column (3) of the Table, by way of composition for the offence which may have been committed. Where any property has been seized, the same shall be confiscated to Government or disposed of, in such a manner as may be prescribed. Under Sub Section 2 of Section 1, the Amending Act shall deemed to have come into force on 30/3/1996 and the remaining provisions shall be deemed to have come into force on 7/12/2009. Therefore, Section 67 A which was inserted by Abkari (Amendment) Act 3 of 2010 came into force w.e.f. 6/12/2009. In such circumstances, if the offence alleged was committed it can only b under Section 67 A. Petitioners are entitled to get the offence compounded. Column (1) shows the offence, which could be compounded under Section 67A. First item is transporting Crmc 4416/10 8 of liquor or intoxicating drug in excess of the quantity prescribed by the Government by notification. Column (2) shows corresponding section, namely Section 10 of Kerala Abkari Act. Compounding fee is fixed in column No.(3), namely Rs.5,000/-. Section 10 of Abkari Act provides that no liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provisions of the next following section. Section 10 does not provide for penalty. Hence as provided under Section 63 whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act, or of any rule or order made under the Crmc 4416/10 9 Act, and not otherwise provided for in the Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission as provided therein. Therefore, when the only offence attracted against the petitioners is only under Section 63 of the Act which is penal provision for violation of Section 10 of the Act, as provided under serial No.1 of table to Section 67 A of Kerala Abkari Act, the offence is compoundable. As provided under Sub Section 1 Commissioner of Excise or the Deputy Commissioner of Excise of the District concerned or any Abkari Officer specially empowered by the Government in this behalf by notification in the Gazette, has to accept willingness of the accused to compound the offence. Third respondent, being the Deputy Commissioner of Excise of the District within Crmc 4416/10 10 whose jurisdiction the offence was committed, is therefore, to accept the willingness of the petitioners to compound the offence as provided under Sub Section 1 of Section 67 A of Kerala Abkari Act.
Petition is allowed. Annexure-C FIR to the extent it relates to an offence under Section 55(a) of Abkari Act is quashed. It is declared that only an offence under Section 63 A of Abkari Act is attracted. As provided under Section 67 A (1) of Abkari Act, petitioners are entitled to get the offence compounded. Third respondent is therefore, to accept the willingness of the petitioners to compound the offence as provided under Section 67 A (1). As provided Sub Section (1) of Section 67 A Indian Made Foreign Liquor seized shall be confiscated to the Government or disposed in such a manner Crmc 4416/10 11 as prescribed. As provided under Section 67 B, for confiscation the Indian Made Foreign Liquor seized in the case are to be produced before the third respondent for confiscation. As it is with the permission of the learned Magistrate 79 bottles are now kept in the custody of the Police, they are to be produced before the third respondent for initiating confiscation proceedings.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.