Devarajan and Others v. State of Kerala and The Commissioner of Excise

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **OP(Crl.).No.2113 OF 2013(Q)** ## **PETITIONER/S:** |**1**||**DEVARAJAN,**| |---|---|---| |||**AGED 43 YEARS, S/O.MADHAVAN,**| |||**POONTHANAM.P.O., TACHINGANADAM VILLAGE,**| |||**MALAPPURAM-679 325.**| |**2**||**E.SUBRAMANIYAN,**| |||**AGED 41 YEARS, S/O.KUNJUNNI,**| |||**ELIPATTA, KEEZHATTOOR VILLAGE,**| |||**MALAPPURAM - 679 325.**| |**3**||**T.K.SHAJI,**| |||**AGED 41 YEARS, S/O.VELU,**| |||**THEKKINKATTU HOUSE, KEEZHATOOR VILLAGE,**| |||**PERINTHALMANNA, MALAPPURAM-679 325.**| |||**BY ADVS.**| |||**SMT.K.S.SUMITHA**| |||**SRI.ABDUL JALEEL.A**| |||**SMT.K.JASMIN BABY**| |||**SRI.S.GOPAKUMAR**| |||**SRI.R.SANJITH**| |||**SMT.C.S.SINDHU KRISHNAH**| |**ENT/S**|**:**|| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY SECRETARY,**| |||**EXCISE DEPRATMENT, SECRETARIAT,**| |||**THIRUVANANTHAPURAM, PIN-695 001.**| |**2**||**THE COMMISSIONER OF EXCISE,**| |||**EXCISE COMMISSIONERATE,**| |||**THIRUVANANTHAPURAM.**| ## **RESPONDENT/S:** _OP(Crl) No.2113 of 2013_ 2 - **3 THE DEPUTY COMMISSIONER OF EXCISE, MALAPPURAM EXCISE DIVISION, MALAPPURAM, PIN-676 505.** - **4 CIRCLE INSPECTOR OF EXCISE, PERINTHALMANNA RANGE, PERINTHALMANNA, MALAPPURAM, PIN-679 322. BY SRI HASHIR K.M, P.P.** ## **OTHER PRESENT:** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11-10-2019, THE COURT ON 22-10-2019 DELIVERED THE FOLLOWING:** _OP(Crl) No.2113 of 2013_ 3 ## **JUDGMENT** ## **Dated this the 22nd day of October 2019** The petitioners are licencees under the Abkari Act authorised to conduct six toddy shops in Group No.3 of Perinthalmanna Range, Malappuram Excise Division for the period 2012-13 as per Exts.P1 to P6 licences. 2. On 14.05.2013 at about 2.30 PM the 4[th] respondent Excise Circle Inspector, Perinthalmanna Range while on patrol duty collected samples from shop No.12 belonging to the petitioners and thereafter on getting some information, the party searched and vide Ext.P8 mahazar seized 150 litres of toddy from a building near the residence of one Narayanamani against whom Ext.P7 crime and occurrence report as Crime No.64/2013 was registered for an offence punishable under Sections 55(a) and (i) of the Abkari Act. 3. On 23.05.2013 the 4[th] respondent submitted Ext.P9 report before the Judicial First Class Magistrate Court-II, Perinthalmanna arraigning the petitioners as accused 2 to 4 along with the the 1[st] _OP(Crl) No.2113 of 2013_ 4 accused, aforesaid Narayanamani. 4. The petitioners would contend that they are not in any manner connected with the alleged seizure of the toddy from the possession of Narayanamani. It is understood that Narayanamani has given a statement to the effect that he had purchased the toddy from the shops belonging to the petitioners. In fact the petitioners had not sold any toddy to the said 1[st] accused in excess of the permitted quantity. The petitioners are maintaining statements and reports pertaining to the toddy received and sold from their shops. True copies of such statements pertaining shop Nos.12, 13 and 45 referred to by the 1[st] accused in the crime are at Ext.P10, which would indicate that the petitioners had never sold any toddy in bulk as alleged against them. It is also contended that the respondents have not conducted any inspection of the toddy shops belonging to the petitioners in order to verify the authenticity of the statements allegedly made by the 1[st] accused. Ext.P9 report filed by the 4[th] respondent is an afterthought which took him ten days _OP(Crl) No.2113 of 2013_ 5 after the alleged seizure to file. The petitioners cannot be implicated for any abkari offence, much less than an office under Sections 55(a) and (i) of the Act. 5. Even if the allegation against the petitioners of having sold toddy in excess quantity is to be believed, it would attract only an offence under Section 56(b) for violation of the licence condition. Because of the registration of a crime against the petitioners, they are prevented from participating in subsequent auction of toddy shops. The petitioners therefore seek interference of this Court, to call for the records leading to the issuance of Exts.P7 and P9 and to quash the same. 6. Heard the learned Counsel appearing for the petitioners and also the learned Public Prosecutor, representing the respondents. A perusal of the records would indicate that the case was registered only against the 1[st] accused Narayanamani, who was found to be in unauthorised possession of 150 litres of toddy. It is only on the basis of his statement that he had purchased the toddy from shops of the petitioners that they are sought to be implicated in the crime. _OP(Crl) No.2113 of 2013_ 6 7. The allegation of the prosecution is that the 1[st] accused Narayanamani was allegedly conducting Toddy Shop Nos.12 and 45 in partnership with the petitioners, who are the licencees of those shops along with other shops in Group No.3 of Perinthalmanna Range. There is not a scintilla of evidence referred to by the respondents regarding the involvement of the petitioners in such an unauthorised sale or storage of toddy. There is also nothing to show that there was a partnership as alleged. Even the version of the 1[st] accused made in the statement recorded at the time of seizure has been altered and modified in his subsequent statement. The respondents have not taken any action to seize the records pertaining to the storage and sale of toddy in the toddy shops of the petitioners. The oral statements of the 1[st] accused indicating the involvement of the petitioners is not at all sufficient to implicate them in the abkari crime registered. There is also nothing to show that the petitioners have knowledge or consent to the unauthorised storage of toddy in the premises belonging to the 1[st] accused and _OP(Crl) No.2113 of 2013_ 7 therefore no offence could have been alleged against the petitioners under Sections 55(a) and (i) of the Abkari Act. Violation of any Rules under the Kerala Abkari Shops Disposal Rules has to be proceeded separately. 8. The learned Prosecutor has pointed out that the remedy available to the petitioners is one under Section 482, Cr.P.C. and a petition either under Article 226 or Article 227 of the Constitution of India is not maintainable. 9. The learned Counsel appearing for the petitioners relying on the decision in _**Pepsi Foods Ltd.**_ _**& another v. Special Judicial Magistrate & others,**_ _**(1998) 5 SCC 749**_ , wherein the Hon'ble Supreme Court relied on an earlier decision in State of _**Haryana v. Bhajan Lal, 1992 Supp.(1) SCC 335**_ , observed that extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code of Criminal Procedure which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to _OP(Crl) No.2113 of 2013_ 8 secure the ends of justice. It is also observed by the Hon'ble Supreme Court that the nomenclature under which the petition is filed is not quite relevant and that does not debar the court from exercising the jurisdiction which otherwise it possesses, unless there is a special procedure prescribed which procedure is mandatory. If in a case like the present one, the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code for revision and appeal but some time for immediate relief, Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed _OP(Crl) No.2113 of 2013_ 9 against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. 10. In the instant case, there is no doubt that materials are lacking to implicate the petitioners as accused in the Crime No.64/2013, and therefore, Exts.P7 and P9 as against the petitioners shall stand quashed. The Original Petition is allowed. No costs. **Sd/-** _dkr_ **ASHOK MENON JUDGE** _OP(Crl) No.2113 of 2013_ 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.8 BEARING LICENSE NO.32/201213. EXHIBIT P2 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.9 BEARING LICENSE NO.33/201213. EXHIBIT P3 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.11 BEARING LICENSE NO.34/201213. EXHIBIT P4 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.12 BEARING LICENSE NO.35/201213. EXHIBIT P5 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.13 BEARING LICENSE NO.36/201213. EXHIBIT P6 COPY OF LICENSE ISSUED TO THE PETITIONERS FOR SHOP NO.45 BEARING LICENSE NO.37/201213. EXHIBIT P7 COPY OF THE FIRST INFORMATION REPORT. EXHIBIT P8 COPY OF THE MAHAZAR PREPARED BY THE 4TH RESPONDENT DT. 14.05.13. EXHIBIT P9 COPY OF REPORT DATED 23.05.13 BEFORE THE LEARNED MAGISTRATE COURT. EXHIBIT P10 COPIES OF THE STATEMENTS AND REPORTS OF SHOP NOS.12,13 AND 45.** _OP(Crl) No.2113 of 2013_ 11 ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A) EXHIBIT R3(B) EXHIBIT R3(C) EXHIBIT R3(D)** **COPY OF THE STATEMENT DATED 20.05.2013. COPY OF THE STATEMENT DATED 21.05.2013. COPY OF THE STATEMENT DATED 21.05.2013.** **COPY OF THE TODDY TRANSPORT PERMIT DATED 29.09.2012.** **EXHIBIT R3(E)** **COPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE.** **EXHIBIT R3(F) EXHIBIT R3(G)** **COPY OF THE STATEMENT DATED 05.06.2013. COPY OF THE STATEMENT DATED 07.06.2013.**