P. Ajayakumar and S. Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 20TH DAY OF MARCH 2014/29TH PHALGUNA, 1935** ## **Crl.MC.No. 4182 of 2010** **----------------------------------** **AGAINST THE ORDER IN CMP 4134/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE CRIME NO.28/2010 OF EXCISE RANGE OFIFCE, KOZHIKODE** **--------------** **PETITIONER(S)/ACCUSED: -------------------------------------** **1. P.AJAYAKUMAR, S/O.P.KANDANKUTTY, MANAGING PARTNER, M/S. SEA QUEEN HOTEL, BEACH ROAD, CALICUT-673032.** **2. S.VIJAYAN, M/S. SEA QUEEN HOTEL, BEACH ROAD, CALICUT-673032.** **BY ADV. SRI.MANJERI SUNDERRAJ** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **STATE OF KERALA, REP. BY EXCISE INSPECTOR, KOZHIKODE RANGE-CR 28/10, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 4182 of 2010** ## **----------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **----------------------------------------** - **ANNEXURE I: COPY OF THE ORDER DATED 9/9/10 OF THE JFCM COURT I KOZHIKODE IN CMP 4134 OF 2010 IN KOZHIKODE EXCISE RANGE CRIME NO.28/10** - **ANNEXURE 2: COPY OF THE PETITION IN CMP 4134/10 FILED BY THE PETITIONERS U/S 451 CRPC** - **ANNEXURE 3: COPY OF THE NOTICE DATED 18/10/2010 FROM RESPONDENT TO PETITIONERS** - **ANNEXURE 4: COPY OF THE REPLY DATED 29/10/2010 BY PETITIONER TO THE RESPONDENT** - **ANNEXURE 5: COPY OF THE NOTICE DATED 16/10/2010 FROM RESPONDENT TO PETITIONERS WITH REPLY** - **ANNEXURE 6: COPY OF THE ORDER OF THIS HON'BLE COURT IN CRLMC 3618 & 3706 OF 2010 PASSED ON 7/10/10.** ## **RESPONDENTS' ANNEXURES** **-------------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No. 4182 of 2010 ---------------------------------------------Dated this the 20[th] day of March, 2014 ## **ORDER** This petition is filed u/s.482 of Cr.P.C. to quash Annexure-1 order in CMP 4134/2010 in Crime No.28/2010 of Kozhikode Excise Range, which is pending before Judicial First Class Magistrate Court-1, Kozhikode for offence punishable u/s.56 (b) of the Abkari Act r/w.Rule 16 and 34 of Foreign Liquor Rules, by invoking the inherent jurisdiction. The petitioners are accused in the above case and the petitioners are the licencees of Bar Hotel namely, M/s. Sea Queen Hotel and Bar, Kozhikode with valid permit and licence issued under the competent authority. The respondents conducted a sham search and registered the above crime and seized certain liquor from the Bar Hotel. The petitioners contended that they are licencees of the Crl.M.C.No.4182/10 2 particular shop and there is only a violation of licence condition. According to the petitioners, the respondents have no authority to conduct a search and confiscate the articles, since there was no violation of licence condition. In the circumstances, the petitioner approached this Court to invoke the inherent jurisdiction to quash Annexure-1. 2. The respondents' case is that on 13.7.2010, the Circle Inspector of Excise, Kozhikode, as per the direction of the Excise Commissioner, Kerala, inspected the Hotel licence NO.D4/82-83 and seized the liquor bottles and he also found an unauthorised additional bar counter functioning in the same hotel and on the same day, Crime No.28/10 registered in the Excise Range Office, Kozhikode and the Circle Inspector of Excise, Vadakara was entrusted with the further investigation of the case. The liquors found in the additional counter, totalling 155.99 litres of IMFL and 85.59 litres of Beer were seized and the same is under the safe custody. Subsequently, they issued a notice for confiscation of the aforesaid articles. Crl.M.C.No.4182/10 3 In the circumstances, the petitioners had approached the Judicial First Class Magistrate Court-I, Kozhikode with Anneuxre-2 petition and the learned Magistrate passed Annexure-1 order on that petition. Aggrieved by that order, the petitioners approached this Court with this Crl.M.C. 3. The learned counsel appearing for the petitioners contended that 1[st] respondent has no authority to seize the IMFL and Beer from the counter, since there was only a violation of licence condition. The 1[st] respondent has responsibility to release those articles to the petitioners, since it was purchased by the petitioners as per Rule. The learned counsel relied the decision of this Court in _**Gopakumar**_ v. _**State of Kerala**_ [2011 (1) KLT 505]. 4. The learned Public Prosecutor submitted a statement filed by the 1[st] respondent and admitted that the seized articles were not released to the petitioners and it can be released to the petitioners only after chemical Crl.M.C.No.4182/10 4 examination. The petitioners and the 1[st] respondent admitted that the petitioners are licensed owners of a Bar Hotel and they are conducting the hotel, according to the Foreign Liquor rules. The Excise Inspector also admitted that fact. A learned Single Judge of this Court in _**Gopakumar's case**_ (supra) held as follows (para 7 and 8): “7. Condition No.7 provides that the sale or possession except subject to the rules applicable to unlicensed persons by the licensee, of any liquor outside the limits of his licensed premises is prohibited. There is no allegation in Annexure B or C that there was any sale or possession by the licensee of any liquor outside the limits of his licensed premises as provided in Annexure A license. As rightly pointed out by the learned senior counsel, there is no allegation that even a single bottle of Indian made foreign liquor was illicit or was not bought from the Beverages Corporation as provided under the license. The very case is that the cash counter is within the licensed premises. The only case is that storing for sale Indian made foreign liquor in the cash counter is in violation of the conditions of the license and the Rules. In such circumstances, it cannot be said that any offence was committed under the Act in respect of the liquor seized, so as to be confiscated as provided u/S.65 of Abkari Act. When the cash counter is within the licensed premises, it cannot be said that keeping bottles of the liquor there would be violation of the conditions of license or the Foreign Liquor Rules unless there is a specific bar against it. 8. Section 65 provides what things are liable to Crl.M.C.No.4182/10 5 confiscation. Under the section, in any case in which an offence has been committed under the Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect or by means of which an offence has been committed shall be liable to confiscation. It also provides that any liquor or intoxicating drug lawfully imported, exported, transported, manufactured had in possession or sold or toddy lawfuly drawn or tapped along with, or in addition, to any liquor, intoxicating drug or toddy are liable to confiscation. So also receptacles, packages and coverings in which any such liquor, intoxicating drug, materials, still, utensil, implement or apparatus is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals, carts, vessels or other conveyance used in carrying the same, shall likewise be liable to confiscation. Therefore, to confiscate Indian made foreign liquor seized from the cash counter under Annexure B mahazar, there should be a case that with that liquor or in respect of the liquor an offence was committed. When the only allegation is that in violation of the Conditions of License, bottles of Indian made foreign liquor seized under Anneuxre B were found stored in the cash counter, they are not liable to confiscation as provided u/S.65 of the Act. Moreover, if the liquor seized is liable to be confiscated u/S. 65, the procedure as provided u/S.67B is to be followed. Under sub-s.(1) of S.67B, notwithstanding anything contained in the Act or in any other law where any liquor, intoxicating drug, material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained, the officer seizing the same shall produce the same Crl.M.C.No.4182/10 6 before an officer authorised by the Government in that behalf by notification in the Gazette, without any unreasonable delay and under subs.(2) where an authorised officer seizes and detains any property specified in sub-s.(1) or where any such property is produced before an authorised officer and he is satisfied that an offence under the Act has been committed in respect of or by means of that property and that such property is liable to be confiscated, such authorised officer whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof. Therefore, if the bottles of liquor which were seized from the bar hotel, are liable to confiscation u/S.65, the procedure to be adopted by the Excise Officer, is to produce them before the Deputy Commissioner, the authorised officer to be confiscated, as provided u/S.67B of the Act. But the liquor seized in this case were not produced before the authorised officer but before the Magistrate. The Magistrate cannot order confiscation as confiscation could only be made as provided u/S. 67B and that too only by the authorised officer only which could be on production of the liquor before him.” 5. The facts and circumstances of this case show that there is only a violation of the licence condition alone. The learned Magistrate at the time of passing Annexure-1 order disallowed to release that articles u/s.451 of Cr.P.C. In the statement filed by the 1[st] respondent, it is admitted Crl.M.C.No.4182/10 7 that the liquor found in the additional counter at the time of occurrence were seized and the same is now under safe custody in the office of the Excise Inspector, Kozhikode. Paragraph 3 of the statement reads as follows: “3. It is submitted that, the State filed SLP (Crl) No.8874/2012 against the order in Crl. MC No.5056/2010 which was dismissed by the Honourable Supreme Court on 02.09.2013. In the light of the judgment in the baove SLP, the seized liquor in CR No.28/2010 of Kozhikode Range can be released to the license of the above Bar Hotel. It may be kindly brought to the notice of this Honourable Court that the seized liquor totaling 155.99 litres of IMFL and 85.59 litres of Beer in various brand have already been in custody for more than a period of three years since the registration of the case. During this period there is every probability for occurring sedimentation in the liquor. Moreover, it is clearly mentioned in the labels of the Beer bottles that “Best before six months from manufacture”. Hence such a liquor cannot be released for potable purpose without conducting chemical analysis to ensure that the liquor is free from noxious material and is fit for human consumption.” The charge sheet was submitted before JFMC-I, Kozhikode on 30.3.2011, which was quashed by this Court by virtue of order in Crl.M.C.No.5056/2010 dated 3.8.2011 and admitted that the seized articles in Crime No.28/2010 can be released to the licencee of the Bar. There is every 8 Crl.M.C.No.4182/10 possibility of occurring sedimentation to the liquor and moreover, the validity of the Beer was only for six months from the date of manufacturing. Therefore, such liquor cannot be released for portable purpose without conducting any chemical analysis. 6. I am of the view that the seizure conducted by the 1[st] respondent is an illegal one and there is only violation of licence condition. Therefore, this is a fit case to invoke the inherent jurisdiction and accordingly, Annexure-1 order of Judicial First Class Magistrate CourtI, Kozhikode is hereby quashed. However, it is directed that, the Excise Inspector, who is custodian of the seized articles, shall dispose the matter, after conducting proper chemical examination and assessing the value. The Crl.M.C. is disposed accordingly. **P.D. RAJAN, JUDGE.** acd