K.R. Vijaya v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 CRL.MC NO. 6720 OF 2021 ``` ## **`PETITIONER/ACCUSED:`** ``` K.R.VIJAYA AGED 48 YEARS, W/O. KOCHUMON, KALLUPALATHINKAL HOUSE, VARANDARAPPILLY, THRISSUR DISTRICT, PROPRIETRIX, HARITHA PHARMACEUTICALS, VARANADARAPPILLY, THRISSUR DISTRICT,PIN-680 303 ``` ``` BY ADVS.V.M.KRISHNAKUMAR P.R.REENA ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031` - `2 STATE OF KERALA, REPRESENTED BY SECRETARY, AYUSH (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN695 001` - `3 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, EXCISE ZONAL COMPLEX, KACHERIPADI, ERNAKULAM-682 018` - `4 CIRCLE INSPECTOR, KOTHAMANGALAM EXCISE RANGE, THANKALAM JUNCTION, KOTHAMANGALAM, ERNAKULAM-686 691` - `5 EXCISE INSPECTOR, KUTTAMPUZHA EXCISE RANGE, KUTTAMPUZHA, KOTHAMANGALAM, ERNAKULAM DIST,PIN-686 681` ``` BY SENIOR PUBLIC PROSECUTOR, SRI.RENJITH GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl. M.C. No. 6720 of 2021 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - Crl. M.C. No. 6720 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of August, 2022 ## O R D E R Petitioner is the proprietor of M/s.Haritha Pharmaceuticals, an Ayurvedic Medicine manufacturing proprietorship functioning for the past 26 years. Petitioner is holding L2 Licence under the Medicinal Preparation Rules as well as SP VI and SP VII Licences under the Kerala Spirituous Preparations (Control) Rules, 1969 (for short ‘the Rules’) for running wholesale and retail trade of ayurvedic medicines. True copies of the wholesale licence and retail licence held by the petitioner for possession and sale of Spirituous Preparations are produced alongwith the petition on hand as Annexures I and II. M/s.Haritha Pharmaceuticals is run under the proprietorship of the petitioner for the past 26 years and it gained recognition as one among the premier ayurvedic medicine manufacturing units in the State of Kerala. It has been awarded with certificate of excellence for its performance. Crl. M.C. No. 6720 of 2021 -:3:- 2. While Ayurvedic medicines were transported in petitioner’s vehicle on 14.12.2021, the Excise Inspector of Kuttampuzha Excise Range intercepted the vehicle and directed the driver of the vehicle to take the vehicle to the Excise Office on the premise that the transportation of the medicines was in violation of Rule 9 and 10 of the Rules. Therefore, alleging that the petitioner has committed offences punishable under Sections 63, 56(b) and 67B of Abkari Act (for short ‘the Act’). Crime No.51/2021 was registered against the petitioner for the above offences, true copy of which is produced alongwith the petition on hand as Annexure VII. Petitioner’s vehicle and the Ayurvedic medicines boarded in it were taken into custody. An inventory of the articles seized was prepared by the 3[rd] respondent. Seizure mahazar was also prepared from the spot. True copies of the aforesaid documents are produced alongwith the petition on hand as Annexure VIII and IX. Vehicle seized has been transferred to the 2[nd] respondent and confiscation proceedings are pending. 3. It is submitted that Crime above registered against the petitioner is purely an abuse of process of law by the respondents and therefore, is illegal. Crl. M.C. No. 6720 of 2021 -:4:- 4. The learned counsel for the petitioner has relied on Priyamvada P.G. (Dr.) v. State of Kerala and Others [2015 (5) KHC 63] which has been confirmed by a Division Bench of this Court in W.A. No.546 of 2016 to fortify his contention on the illegality involved in registration of the crime. Copies of the above judgments are produced alongwith the petition on hand as Annexure III and IV. 5. It has been held by a Single Bench of this Court in Priyamvada supra that “Arishtams” and “Asavas” are ayurvedic medicines and cannot be treated as ‘liquor’ under Section 3(1) or Section 56(b) or 67B(a) of the Act. Single Bench held further that at the most, those can be intoxicating drugs, but being unnotified, stands outside the purview of the Act and therefore, transportation of those is unlikely to form an offence. It was further held that a licence is not required by the provisions of the Act for transportation of Ayurvedic medicines and therefore it cannot be said that there has been violation of any conditions of licence and consequently offence under Sections 56(b) and 67B(a) are not attracted. 6. State went in appeal challenging the above judgment and the Division Bench observed that the quantity of Ayurvedic Crl. M.C. No. 6720 of 2021 -:5:- medicines being transported in the vehicle of the respondent before it being well within the purview of the quantity permitted to be transported by the licence possessed by the petitioner under the Rules, an offence under Rule 9 of the Rules is not made out. Since the quantity transported being the quantity permitted by the licence, it was found by the Division Bench that conditions of licence or permit cannot be said to have been violated by the petitioner and accordingly the prosecution against the petitioner under Rule 10 of the Rules was held to be unsustainable. The Division Bench further upheld the view of the Single Bench that the transportation of Ayurvedic medicines being dealt with under the Rules and not under the Act, the crime registered for offences coming within the purview of the Act viz Sections 56(b) and 67(B) are also not attracted in the factual context, available. 7. The facts of the case on hand when viewed in the backdrop of the factual situation in the decisions discussed above, are found identical. Annexures I and II are Licences held by the petitioner under the Rules and the contraband transported in the vehicle and seized by the respondent being Ayurvedic medicines and not being drugs notified under the Act, the Crl. M.C. No. 6720 of 2021 -:6:- petitioner need not possess a licence under the Act. When a licence under the Act is not contemplated for transportation of Ayurvedic medicines in a vehicle, the prosecution is erred in alleging violation of licence conditions under the Act and to arraign the petitioner as accused for commission of offences under Sections 56(b) or 67B(a) of the Act. 8. Licences under the Rules alone are required for transportation of the ayurvedic medicines manufactured for the purpose of sale. Annexures I and II are the wholesale as well as the retail licence issued in favour of the petitioner, who was a renowned dealer of Ayurvedic medicines under the name and style M/s.Haritha Pharmaceuticals. The quantity transported being 97 liters of Raktha Sudhi and 92 liters of Haritha Tone, undoubtedly would come within the quantity permitted to be transported by the licence it holds. Therefore, there cannot also be any violations of Rules 9 & 10 of the Rules, as alleged by the prosecution. In view of the discussion made hereinabove, Annexure VII being illegal is liable to be quashed. 9. Crl.M.C succeeds and is allowed. Annexure VII is quashed forthwith. This Court is constrained to issue the Crl. M.C. No. 6720 of 2021 -:7:- following directions for consideration in future dealings by the Excise Officials. Law enforcing agencies have to be more vigilant while registering crimes. They cannot exercise the power without having any idea about the legal provisions and the position of law settled by a Single Bench in Priyamvada (supra) and confirmed by Division Bench and the Apex Court. The exercise of power should not be in a manner to harass innocent persons. The authorities cannot have recourse to law in accordance with their whims and fancies. Practice of the nature must have to be deprecated in future. Registry shall forward a copy of this order to the Departmental heads of Excise within the State of Kerala for creating an awareness on the falsity and illegality involved in registration of crimes of the nature and to restrain them from exercising the power in a meaningless manner. Sd/- MARY JOSEPH, JUDGE. ttb Crl. M.C. No. 6720 of 2021 -:8:- ## **`APPENDIX OF CRL.MC 6720/2021`** ``` PETITIONER’S ANNEXURES : ``` ``` Annexure ITRUE COPY OF SPVI LICENSE ISSUED TO THE PETITIONERS ESTABLISHMENT M/S HARITHA PHARMACEUTICALS ``` ``` Annexure IITRUE COPY OF SPVI LICENSE ISSUED TO THE PETITIONERS ESTABLISHMENT M/S HARITHA PHARMACEUTICALS ``` ``` Annexure IIITRUE COPY OF THE JUDGMENT REPORTED IN 2015 (4) KLT SN 103 (C.N.131) Annexure IVTRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA 546/2016 DATED 04.04.2016 ``` ``` Annexure VTRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE KL 08Z 4101 Annexure VIITRUE COPY OF THE CRIME AND OCCURRENCE REPORT INC R 51/2021 OF KUTTAMPUZHA EXCISE RANGE ``` ``` Annexure VIIITRUE COPY OF THE INVENTORY OF VEHICLE PREPARED BY THE 3RD RESPONDENT DATED 14.12.2021 ``` ``` Annexure IXTRUE COPY OF THE MAHZAR PREPARED BY THE 3RD RESPONDENT DATED 14.12.2021 ```