Crl.M.C. No. 3281 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933** **Crl.MC.No. 3281 of 2011** **CRIME C.R.34/2011 OF EXCISE RANGE, TRICHUR** **------------------------------------** **PETITIONERS:** - **-------------------** **1. SIBY JOSE, S/O.JOSEPH, AGED 42, KOCHUPURAYIL HOUSE, POONJAR P.O., KOTTAYAM.** **2. K.P.SAJU, S/O.PRABHAKARAN, KANYAKONNIL HOUSE, CHANGANASSERY, KOTTAYAM.** **3. RAJAPPAN, S/O.NARAYANAN, NELLIKKAL HOUSE, MELUKAVU, KOTTAYAM.** **4. SAJEEV SALU, S/O.SALU, MAPRIYIL HOUSE, THEEKKOY P.O., KOTTAYAM.** **5. VIPIN VASU, S/O.VASU, KANAMATTATHIL HOUSE, KATTAMBRAKU KARA, NETTOOR VILLAGE, VAIKOM TALUK, KOTTAYAM.** **6. RAJU, S/O.RAGHAVAN, CHATHANIKCAL HOUSE, MELUKAVU, KOTTAYAM.** **7. M.T.SURESH, AGED 42, S/O.THANKAPPAN, MANATHANATHU HOUSE, POONJAR, THEKKEKARA, KOTTAYAM.** **8. JOSE GEORGE, S/O.GEORGE, KUNNEL HOUSE, VELLIKULAM, THEEKKOY, KOTTAYAM.** **9. K.P.ANIL KUMAR, S/O.PRABHAKARAN, KOSHAPPALLIL HOUSE, VAYALA, ELAKKATTU VILLAGE, MEENACHIL, KOTTAYAM.** **10. JOBY AUGUSTINE, S/O.AUGUSTINE, EDAKARA HOUSE, EZHACHERRY, VELLILAPPALLY VILLAGE, MEENACHIL, KOTTAYAM.** **11. E.V.SHAJI, S/O.VELAYUDHAN, ERATTIKAL HOUSE, POONJAR P.O., KOTTAYAM.** **12. M.N.THANKAPPAN, S/O.NARAYANAN, MANGALATHEL HOUSE, THIDANADU P.O., KOTTAYAM.** **Crl.MC.No. 3281 of 2011 --2--** **13. R.SANDEEP, S/O.RAJAPPAN, NELLIKAL HOUSE, MELUKAVU, KOTTAYAM.** **14. P.G.AJAYAKUMAR, S/O.GOPALAKRISHNAN, PUTHENPURACKAL HOUSE, PANNUR, KARIMANNUR, THODUPUZHA.** **BY ADV. SRI.S.SREEKUMAR, SENIOR ADVOCATE ADV. SRI.S.NIDHEESH ADV. SRI.SABU S.KALLARAMOOLA** **RESPONDENTS:** **----------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR, SRI.T.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MM** **Crl.MC.No. 3281 of 2011** **APPENDIX** |**PETITIONER(S)**|**EXHIBITS**| |---|---| |**ANNEXURE-1.**|**TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT**| ||**TO THE PETITIONERS 1 TO 3 FOR CONDUCTING**| ||**T.S.NO.14/2010-11.**| |**ANNEXURE-2.**|**TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT**| ||**TO THE PETITIONERS 1 TO 3 FOR CONDUCTING**| ||**T.S.NO.16/2010-11.**| |**ANNEXURE-3.**|**TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT**| ||**TO THE PETITIONERS 1 TO 3 FOR CONDUCTING**| ||**T.S.NO.18/2010-11.**| |**ANNEXURE-4.**|**TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO THE**| ||**TODDY SHOP NOS.14,16,18/2010-11.**| |**ANNEXURE-5.**|**TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT**| ||**TO THE PETITIONERS 4 TO 6 FOR CONDUTING**| ||**T.S.NO.26/2010-2011.**| |**ANNEXURE-6.**|**TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO**| ||**TODDY SHOP NO.26/2010-11.**| |**ANNEXURE-7.**|**TRUE COPY OF THE RELEVANT PAGES OF THE LICENSE ISSUED**| ||**BY THE 3RD RESPONDENT TO THE PETITIONERS 7 TO 10 FOR**| ||**CONDUCTING T.S.NO.48/2010-11.**| |**ANNEXURE-8.**|**TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO**| ||**TODDY SHOP NO.47,48/2010-11.**| |**ANNEXURE-9.**|**TRUE COPY OF THE RELEVANT PAGES OF LICENSE ISSUED TO**| ||**PETITIONERS 11 TO 13 FOR CONDUCTING TODDY SHOP**| ||**NO.54/2010-11.**| |**ANNEXURE-10.**|**TRUE COPY OF THE RELEVANT PAGES OF LICENSE ISSUED TO**| ||**PETITIONERS 11 TO 13 FOR CONDUTING TODDY SHOP**| ||**NO.55/2010-11.**| |**ANNEXURE-11.**|**TRUE COPY OF THE RELEVANT PAGES OF LICENSE ISSUED TO**| ||**PETITIONERS 11 TO 13 FOR CONDUCTING TODDY SHOP**| ||**NO.56/2010-11.**| |**ANNEXURE-12.**|**TRUE COPY OF THE TODDY TRRANSPORT PERMIT ISSUED TO**| ||**TODDY SHOP NO.54,55,56/10-11.**| |**ANNEXURE-13.**|**TRUE COPY OF THE LICENSE ISSUED TO 14TH PETITIONER TO**| ||**CONDUCT TODDY SHOP NO.18/2010-11 GROUP V.**| |**ANNEXURE-14.**|**TRUE COPY OF THE RELEVANT PAGES OF LICENSE ISSUED TO**| ||**14TH PETITIONER TO CONDUCT TODDY SHOP NO.43/2010-11**| ||**GROUP V.**| ## **Crl. M.C. NO.3281 OF 2011 -2-** **ANNEXURE-15. TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO TODDY SHOP NO.18, 43/2010-11. ANNEXURE-16. TRUE COPY OF THE OCCURRENCE REPORT O.R.34/2011 REGISTERED BY EXCISE INSPECTOR, THRISSUR RANGE. ANNEXURE-17. TRUE COPY OF MAHAZAR DATED 2.8.2011 PREPARED BY EXCISE INSPECTOR, THRISSUR. ANNEXURE-18. TRUE COPY OF THE ORDER DATED 2/9/2011 IN W.P.(C) NO.23665/2011. ANNEXURE-19. TRUE COPY OF THE ORDER DATED 2/9/2011 IN W.P.(C) NO.23656/2011. ANNEXURE-20. TRUE COPY OF THE REPORT DATED 30.8.2011 PREPARED BY EXCISE INSPECTOR THRISSUR RANGE.** **RESPONDENTS' EXHIBITS** **NIL** **TRUE COPY** **P.A. TO JUDGE** **MM** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.M.C. No.3281 of 2011 ----------------------------------Dated this the 10[th] day of October 2011** ## **O R D E R** Petitioners 1 to 3 are the joint licensees of toddy shops in Group No.III of Erattupetta Range. Petitioners 4 to 6 are stated to be the licensees of Group No.V of Erattupetta Range. It is further alleged that petitioners 7 to 10 are the joint licensees of Group No.IX of Erattupetta Range and petitioners 11 to 13 are stated to be the licensees of Group No.X of that Range. It is alleged that their licence was valid only up to 30.9.2011. As a matter of policy, the Government extended the licence of all existing toddy shops to one month from 1.9.2011 and thereafter for six months from 1.10.2011 to 31.3.2012. Petitioners contended that they are actually entitled to get the said renewal and extension in the light of the decision taken by the Government. But, in view of Crime No.34/2011 registered by the Excise Range, Crl.M.C. No.3281 of 2011 -: 2 :- Thrissur they would be dis-entitled to get the renewal of the licence. 2. It was alleged that the crime was registered since the driver, cleaner and owner of the vehicle bearing No.KL9X-4565 was found transporting toddy without permission/ permit. According to the petitioners, they were permitted to take toddy as per the permit issued for the vehicles bearing Nos.KL-17F-8487 or KL-Y-4410. It is contended that on 2.8.2011, the Circle Inspector of Excise, Thrissur intercepted the vehicle bearing No.KL-9X-4565. On inspection it was found that the total quantity permissible as per the permit was 550 litres whereas the vehicle was found to contain 1050 litres. As per the five Inter Division Toddy Transport Permit which was found in the vehicle the licensees of toddy shop Group Nos.III, V, IX, X of Erattupetta Range and Group No.V of Muvattupuzha Range were allowed to transport only 546 litres of coconut toddy. The transport was to be had daily once in vehicle bearing Crl.M.C. No.3281 of 2011 -: 3 :- Nos.KL-17F-8487 or KL-17H-3015. But instead of those two vehicles, the toddy was seen transported in vehicle bearing No.KL-9X-4565. But it was stated that the Circle Inspector of Excise, Chittur had granted permit to transport toddy temporarily in vehicle bearing No.KL-9X-4565. It was subject to the approval of the Deputy Commissioner of Excise, Palakkad. The temporary permit was issued for three days from 2.8.2011 to 4.8.2011. Here, the detection was on 2.8.2011. According to the respondents, the certificate was produced by the accused when it was intercepted and checked on 2.8.2011. In order to ascertain the veracity of the said certificate, the Excise Inspector Mr.P.O.Poulose has contacted the Circle Inspector of Excise, Chittur (Mr.Jacob Francis) and then it was informed by the Circle Inspector in writing that he had not issued such a certificate from his office to anybody. Hence, according to the respondents 1050 litres of toddy was actually transported illegally by making use of forged Crl.M.C. No.3281 of 2011 -: 4 :- certificate. It is further contended by the respondents that it was because of that reason the registered owner of the vehicle was also impleaded as the 3[rd] accused in the case. The toddy and the vehicle were seized as per mahazar. Based on the same, crime was registered as Crime No.34/2011 under Sec.55(a) of the Abkari Act. According to the respondents, since the crucial point in this case is the creation of a forged document in order to transport toddy illegally, this case has to be distinguished from other cases. It is also pointed out that on enquiry it was made to understand by the petitioners that the vehicle which was mentioned in the permit had sustained serious mechanical problem in the brake system etc., the vendor licensee at Palakkad assured to transport the toddy in another vehicle after getting due licence from the competent authority. The respondents would contend that the number of vehicle in which toddy was to be transported was specifically mentioned in order to ensure that the toddy is not illegally Crl.M.C. No.3281 of 2011 -: 5 :- transported. There is no case for the petitioners that the vehicle allowed to have been used for transporting was not in a plying condition or that when it was proceeding from its destination that fact of transporting toddy in another vehicle was intimated to the Circle Inspector of Excise. Whether the permit which was shown by the accused is a forged one is to be found out during investigation. The learned counsel for the petitioners would submit that on going through the mahazar it can only be seen that the transport was in violation of the permit. Though the words violation of the permit is seen mentioned in the mahazar that does not mean that the permit shown by the accused was not forged. 3. It was vehemently argued by the learned Public Prosecutor that since the main issue in this case is the creation of forged document, made in order to make it appear that the permit was issued by the Circle Inspector, Excise, Chittur, it has to be found that there was no permit Crl.M.C. No.3281 of 2011 -: 6 :- at all. But the learned counsel for the petitioners would submit that with regard to the alleged forgery of the permit/letter produced by the petitioners, separate crime was registered and that crime was under investigation by the police officer of the Peechi Police Station and so, that cannot be projected as a ground to contend that there was no permit. 4. It is not disputed that the permit was actually issued for transport of toddy. The numbers of the two vehicles to be used for transport of the toddy were also mentioned. But at the time of detection, it was found that the toddy was seen transported in another vehicle. If there was only violation of permit it cannot be said that the toddy seized in this case was illicit toddy or that the transport of toddy would attract an offence under Section 55(a) of Abkari Act. The learned senior counsel would submit that in view of the fact that there was actually a permit for transport of toddy but the quantity of toddy transported was Crl.M.C. No.3281 of 2011 -: 7 :- found to be in excess of the permitted quantity, it would attract only an offence under Section 56(b) of the Act which in view of the subsequent amendment is a compoundable offence. In this connection, the learned counsel has also relied upon the decision in **Pradeep. T.P. and others** V. **State of Kerala [2010 (2) KHC 945]** where it was held: “ When the only case if the prosecution is that 1995 litres in excess of 1005 litres of toddy was transported in the pick up van, when it was intercepted and seized by the excise officials, and it is the admitted case that petitioners 1 and 2 are authorised to trasnport1005 litres of toddy, it is only a case of transporting excess quantity of toddy than the permissible limit under the license. If so the offence attracted is only under Section 56(b). Hence it is to be declared that petitioners can be prosecuted only for the offence under Section 56(b) and not declared that petitioners can be prosecuted only for the offence under Section 56(b) and not under Section 58 of the Abkari Act. As by order dated 31/08/2005 an order of stay of investigation was granted which was extended from time to time. The third respondent is entitled to proceed with the investigation of Ext.P4 crime and occurrence report for the offence under Section 56(b) of the Abkari Act”. Crl.M.C. No.3281 of 2011 -: 8 :- ## 5. In **Sasidharan** v. **State of Kerala** [2000 (1) KLT ## 1062] also, it was held: “I find that this court has repeatedly held that violation of a condition in the license or rules by licensee will amount only to an offence under S.56(b) of the Abkari Act and no offence would lie under S.55 for that act. (See the decisions of Mariamma & Anr. v. State of Kerala reported in 1998*1) KLT 286 and Sabu v. State of Kerala reported in 2003 (2) KLT 173 = 2003 (1) KLJ 462” In the light of what is stated above, the prosecution against the petitioners for offence under Sec.55(a) of Abkari Act will stand quashed. **N.K.BALAKRISHNAN, JUDGE.** Jvt