Gopalan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931** ## **WP(C).No. 8533 of 2010(N)** **-------------------------** ## **PETITIONER(S):** **---------------------** **GOPALAN, S/O.NANU,AGED 50 YEARS,THAIKKUTTATHIL HOUSE, KANJAR P.O.,KUDAYATHOOR, THODUPUZHA.** **BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN** ## **RESPONDENT(S):** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.** **2. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM.** ## **3. DISTRICT COLLECTOR, IDUKKI,** **4. EXCISE INSPECTOR, IDUKKI EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **5. DEPUTY COMMISSIONER OF EXCISE, IDUKKI DISTRICT.** **6. ASSISTANT EXCISE COMMISSIONER,IDUKKI.** **7. PREVENTIVE OFFICER, IDUKKI EXCISE RANGE OFFICE, IDUKKI.** **GOVT.PLEADER SMT.K.R.DEEPA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC, J.** ## **-------------------------------------------------W.P.(C) NO. 8533 OF 2010 () -------------------------------------------------Dated this the 16[th] day of March, 2010** ## **J U D G M E N T** Petitioner was the licensee of Toddy Shop No.22/2007-08 (Cheruthony) of Idukki Excise Range. A copy of the licence is Ext.P1. By Ext.P2, licence was again granted for the year 200809 and thereafter it was again granted for 2009-2010. According to the petitioner, he is one of the accused in Crime No.7/2008 registered by Idukki Excise Range and the case is pending before the Judicial First Class Magistrate Court, Idukki. It is stated that, the Investigating Officer has submitted the final report but the committal proceedings have not been completed and charge as provided under Section 211 Cr.P.C has not been framed against him. In the circumstances, petitioner submits that, in view of Exts.P4 and P5 judgments of this Court, he cannot be denied preference under Rule 5(1)(a) of the Abkari Shops Disposal Rules 2002 nor can be excluded from participating in the auction for the conduct of the toddy shops. **WPC.No.8533 /2010** **:2 :** 2. Learned Sr. Counsel for the petitioner, contended that neither under Rule 5(1)(a) nor under Rule 5(3)(i) of the Abkari Shops Disposal Rules 2002 can a person be excluded from allotment of Toddy Shops for the reason that he is an accused in a case involving offences under the Abkari Act, unless charge is framed by the Trial Court. Apart from Exts.P4 and P5, learned Senior Counsel relied on the judgments of the Apex Court in _**Suresh Budharmal Kalani Alias Pappukalani v. State of Maharashtra**_ **(1998 (7) SCC 337),** _**State of Orissa v. Habibullah Khan**_ **(2003 (12) SCC 129)** and of this Court in _**Parameswaran v. State of Kerala**_ **(1989 (1) KLT 35)** and _**Vijayan v. Excise Commisioner**_ **(2002 (3) KLT 646)** in support of this contention. 3. On the other hand learned Government Pleader pointed out that charge sheet has been filed and case has been numbered as CP No.35/2009 on the file of the Judicial First Class Magistrate Court, Idukki. According to her, since a case has been registered and as prosecution is pending against the petitioner he is neither entitled preference as contemplated in Rule 5(1)(a) nor is he eligible in terms of Rule 5(3)(i) of the Rules for the grant of **WPC.No.8533 /2010** **:3 :** privilege. 4. Rule 5(1)(a) provides for preference to those who satisfy the conditions provided in the said Rule. This rule specifically provides that a person will be entitled to preference only if there is no abkari case registered against him for offenses other than under Section 56 of the Abkari Act. Similarly, when it comes to Rule 5(3)(i), the Rule provides that no applicant will be eligible for the privilege if he is charged with an offence relating to illicit liquor or prosecution proceedings are pending against such applicant before a court of law. Therefore, to be ineligible for the grant of preference provided under Rule 5(1)(a) there need only be a case registered against the person concerned for offenses under the Abkari Act other than under Section 56 and for attracting the ineligiblity under Sub Rule (3)(1) there should either be charge framed against the person or prosecution proceedings should be pending against him. 5. In this case, admittedly the petitioner is an accused in C.P.No.35/2009 on the file of the Judicial First Class Magistrate Court, Idukki and offence alleged is under Section 55 of the Abkari Act. If that be so, petitioner is ineligible for the preference **WPC.No.8533 /2010** **:4 :** as contemplated under Rule 5(1)(a) since an Abkari case is registered against him. In so far as Rule 5(3)(i) is concerned, I find merit in the contention of the learned Government Pleader that the said rule applies only to fresh applicants and not existing licensees. Even if the said Rule is held applicable, petitioner is ineligible for the benefit of the said rule also. This is for the reason that persons against whom prosecution proceedings are pending are also made ineligible for the benefit of the said rule. In the context of Section 320 of the Cr.P.C, this court had occasion to consider the expression 'prosecution' in _**Yesudas and Others v. Sub Inspector of Police, Kalamassery and Others**_ **(2008(1) KLT 245)** and it has been held as follows: “To understand the words of the Statute, not only the text but also the context must be taken into account. The expression 'prosecution' is not defined in the Code of Criminal Procedure. The State prosecutes the offender. Prosecution etymologically is the process by which the State ensures that an offender is punished. In that sense of the term, the expression 'prosecution', going by language and law, must be the process under which the State, the deemed victim in a crime, undertakes proceedings to ensure punishment of the guilty. In the context of S.320 Cr.P.C. such a wider meaning must be assigned to the expression 'prosecution' and it cannot be limited to mean only the process which starts from **WPC.No.8533 /2010** **:5 :** the formal act of taking of cognizance by the Court. In the sweep of the expression 'prosecution' in the context in which it is used in S.320(2) Cr.P.C. investigation must be a part. When investigation commences, the police reports the matter to the Court and the composite proceedings of “prosecution”, (from investigation, passing through cognizance and final verdict of guilty or acquittal, which must all be held to fall within the sweep) commences. In this view of the matter, it is not necessary to understand the expression 'prosecution' in S.320(2) Cr.P.C. in any limited sense as to exclude investigation from its purview. The investigation is carried on by the police after lodging the F.I.R. before the court and during the period of such investigation, the 'prosecution' must be held to be pending before such Court. In the context of S.320(2) Cr.P.C. the expression 'prosecution' must certainly receive such a wider interpretation. 6. Having given my thoughtful consideration to the issue raised, I feel that the principle laid down in the aforesaid judgment should apply in all respects to the case in hand and this judgment is a complete answer to the contention that in the absence of the court framing charge against the accused prosecution cannot be said to be pending. In this case, admittedly case has been registered and charge also has been laid against the petitioner. In such a case, I am not prepared to accept the contention that for the reason that charge has not **WPC.No.8533 /2010** **:6 :** been framed by the court concerned, no prosecution is pending against the petitioner and therefore the accused should be eligible for the benefit of Rule 5(3)(i). If that be the case, the petitioner suffers the ineligibility provided under Rule 5(3)(i) as well. 7. In so far as the judgments relied on by the learned Sr. Counsel for the petitioner are concerned, in _**Suresh Budharmal Kalani alias Pappukalani v. State of Maharashtra**_ **(1998 (7) SCC 337)** the Apex Court was concerned with the manner in which the charge was framed in that case. Similarly, in _**State of Orissa v. Habibullah Khan**_ **(2003(12) SCC 129)** the Apex Court only held that the court before which final report is filed is not bound always to accept the final report and that it is for the court concerned to examine the facts and to decide whether to accept or not to accept the conclusion of the Investigating Officer. In so far as _**Parameswaran v. State of Kerala**_ **(1989 (1) KLT 35)** which was followed in _**Vijayan v. Excise Commissioner**_ **(2002 (3) KLT 646)** this court has held that the judicial proceedings can commence only when a Magistrate take cognizance of the offence either on a complaint or a report **:7 :** ## **WPC.No.8533 /2010** of the Police Officer. None of these judgments persuade me to take the view that as at present the petiitoner is eligible for the benefit of Rule 5(1)(a) or Rule 5(3)(i) of the Rules. Therefore these judgments do not have any impact on the facts of this case. 8. The petitioner is not entitled to any relief in the writ petition. Writ Petition is dismissed. **(ANTONY DOMINIC) JUDGE** vi/