P.K. Chandran; Rejeendran K.; Rajan M. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939** ## **WP(C).No. 17399 of 2014 (Y)** ## **----------------------------** ## **PETITIONER(S):** **------------------------** **1. P.K.CHANDRAN, AGED 44 YEARS, S/O. CHANDU, POYALOORAKUDIYIL HOUSE, PERAMBRA.P.O.,** **KOZHIKODE DISTRICT.** **2. REJEENDRAN.K., AGED 32 YEARS, S/O. K. KUNJAN, KUTTIPPURATHU HOUSE, MAMPATTA, MUKKOM.P.O.,** **KOZHIKODE DISTRICT.** **3. RAJAN.M., AGED 52 YEARS, S/O ACHUTHAN NAIR, PARAPPIL HOUSE,** **MENJANYAM DESOM, PERAMBRA.P.O., KOZHIKODE DISTRICT.** ## **BY ADVS.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY COMMISSIONER OF EXCISE, KOZHIKODE-678 001.** **4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHITTUR-678 101, PALAKKAD DISTRICT.** **R1 TO R4 BY SR GOVERNMENT PLEADER SRI.P.M.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON 23-08-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 17399 of 2014 (Y)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **P1. PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 651/14-15/ID/1HY DATED 2-4-2014 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE PALAKKAD.** - **P2. PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 388/14-15/ID/1HY DATED 30-3-2014 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE PALAKKAD.** - **P3. PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO. 652/14-15/ID/1HY DATED 2-4-2014 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE PALAKKAD.** - **P4. PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR. NO. 37/2014 OF CHITTUR EXCISE RANGE.** - **P5. PHOTOCOPY OF THE MAHAZAR DATED 29-6-2014 PREPARED BY THE C.I. OF EXCISE, CHITTUR.** - **P6. PHOTOCOPY OF THE DECISION SOBHANAM & OTHERS VS. STATE OF KERALA REPORTED 2011(2) KLD 66.** - **P7. PHOTOCOPY OF THE DECISION RAJAN & OTHERS VS. STATE OF KERALA REPORTED 2010(3) KLJ 461.** - **P8. PHOTOCOPY OF THE DECISION SURESH VS. STATE OF KERALA REPORTED 2011 (1) KLT 614.** - **P9. PHOTOCOPY OF THE ORDER DATED 29-6-2012 IN CRL. M.C. NO. 2236/2012 PASSED BY THIS HON'BLE COURT.** - **P10. PHOTOCOPY OF THE JUDGMENT DATED 22-7-2010 IN WPC NO. 13813/2010 PASSED BY THIS HON'BLE COURT.** - **P11. PHOTOCOPY OF THE JUDGMENT DATED 11-1-2010 IN WPC NO. 175/2010 PASSED BY THIS HON'BLE COURT.** - **P12. PHOTOCOPY OF THE DECISION ANILKUMAR VS. STATE OF KERALA, REPORTED IN 2013(3) KLT 358.** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.17399 of 2014 ----------------------------------------------Dated this the 23[rd] day of August, 2017** ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Ext.P4 crime and occurrence report in Crime No.37/2014 on the files of the J.F.C.M Court, Chittur, alleging offence under Sec.55(a) and Sec.67B of the Abkari Act. Material facts for the disposal of the writ petition are as follows: 2. First petitioner is the licensee of the toddy shops in Group No.VII of Balussery Excise Range, Kozhikode Division. Second petitioner is the licensee of toddy shops in Group No.II of Kunnamangalam Excise Range in Kozhikode Division, and the 3rd petitioner is the licensee of the toddy shops in Group No.II in Balussery Excise Range in Kozhikode Division. They are conducting the toddy shops as per the allotment and the licenses granted in the year 2014-15 on preferential basis. 3. As per Exts.P1 to P3, toddy transport permits, they are transporting 1410 litres of toddy every day. According to the petitioners, they are falsely implicated as accused Nos.3 to 2 **W.P.(C) No.17399 of 2014** 5 in Crime No.37/2014 of Excise Range, Chittur, evident from Ext.P4 crime and occurrence report, alleging offences under Sections 55(a) and 67B of the Abkari Act. Section 67B is not an offence, is the contention. 4. The prosecution case is that the petitioners possessed excess quantity of toddy than permitted as per 3 toddy transport permits, in the property from where the toddy was tapped. The toddy kept in a shed was seized and a Van with 1200 litres of toddy was also seized. According to the petitioners, the number of the said vehicle is shown in the permits and the vehicle is having permit to transport toddy. The 1st accused is the driver of the Van, and the 2nd accused is a friend of the 1st accused who accompanied the 1st accused. It is also the contention of the petitioners that, on the allegation that toddy might be adulterated, accused Nos.1 and 2 are arrested and the crime was registered. That apart, it is contended that, even accepting the entire allegations, the proceedings can only be under Sec.56(b) of the Abkari Act until the report of the chemical analysis, discloses adulteration. 5. As per Rule 8(3) of the Rules, 2002, no crime can be registered until the chemical analysis report is received and 3 **W.P.(C) No.17399 of 2014** the said report shows some positive result. Petitioners place reliance on Exts.P6 to P11 judgments rendered by this Court. It is also contended that, due to the registration of Ext.P4 crime for the offence under Sec.55(a), there is every likelihood of arresting the petitioners and also suspending the licenses of the petitioners. Since the allegation is only possession of excess quantity of toddy, which is punishable only under Sec.56(b) of the Abkari Act, the same is compoundable. Therefore, according to the petitioners, all further proceedings in pursuance of Ext.P4 crime and occurrence report except for the offence under Sec.56(b) is illegal, and hence liable to be kept in abeyance till the receipt of the chemical analysis report. Petitioners are entitled to conduct the licensed toddy shops without being suspended or canceling the licenses till the receipt of the chemical analysis report. 6. The 3rd respondent has filed a counter affidavit disputing the claims and demands raised by the petitioners. Among other contentions, it is stated that, as per Exts.P1 to P3 permits, the 1st and 2nd petitioners can transport toddy in vehicle Nos.KL-57-D-8156 or KL-57-F-6180. But, the 3rd petitioner can transport toddy only in vehicle Nos.KL-57-D- 4 **W.P.(C) No.17399 of 2014** 8156 or KL-56-J-04694. As, on the date of detection of the case, i.e. 29.06.2014, about 1200 litres of toddy was seized from the vehicle bearing No.KL-57-F-6180. As per the permits seized, the 1st and 2nd petitioners can only transport the toddy in the seized vehicle bearing Reg.No.KL-57-F-6180. But, 150 litres of toddy was in excess in the vehicle. The toddy seized were that of 1st, 2nd and 3rd petitioners. The averment of the petitioners that they transported toddy every day in vehicle No.KL-57-D-8156 is not correct, since on the date of detection of the case, toddy was seen transported in vehicle No.KL-57-F6180. That apart, from a thatched shed, about 2650 litres of liquor, looks like toddy was seized. On the day of detection of the case about 1200 litres of toddy was loaded in the vehicle and about 2650 litres of liquor was stored in the shed. However, as per the permit conditions, all the tapped toddy has to be transported and not to be stored. Hence the huge quantity of 3850 litres of toddy seized are illegally stored by the petitioners. The averment of the petitioners that the production of toddy is very high due to rain is not acceptable, since in the year in question, till the date of detection of the case, the yield of toddy is less due to less rain. **W.P.(C) No.17399 of 2014** 5 7. It is also submitted that, on 29.06.2014, the Circle Inspector of Excise, Chittur and party, upon information received from the Additional Excise Commissioner (E), Thiruvananthapuram, searched a Coconut Tree plantation owned by one Ravichandran situated on the eastern side of Meenakshipuram-Gopalapuram road of Ramarpanna Desom, Moolathara Village of Chittur Taluk. A vehicle with register No.KL-57-F-6180 Pick up Van was parked inside the plantation and in front of a thatched shed. Two persons, i.e. A1Bhagyesh and A2-Babu who were the driver and cleaner of the vehicle respectively, were inside the thatched shed. From accused No.1, Exts.P1 to P3, three inter Division Toddy Transport permits were seized. A vehicle with 1200 litres of toddy was also seized. A1 and A2 were arrested and altogether 3850 litres of toddy were seized. A1 and A2 informed that the toddy was kept as per the direction of the petitioners for transporting to the licensed shops mentioned in the Permits in the coming days. The _thondy_ articles were seized as per Ext.P5 Mahazar prepared and thereupon, the crime was registered. The petitioners who were licensees were impleaded as accused Nos.3 to 5 respectively in the crime. **W.P.(C) No.17399 of 2014** 6 Therefore, according to the 3rd respondent, the action of registering crime under Sec.55(a) of the Abkari Act was in accordance with law. That apart, it is contended that, as per the permits, the tapped toddy has to be lifted from the tapping place and transported to the concerned shops on the same day and the quantity of toddy to be tapped are decided by the licensees themselves. Here also the contention of the petitioners that the toddy was stored in excess, is not acceptable, because such a huge quantity shall not be there since the tapped toddy is to be transported every day. The genuineness of the seized toddy are to be ascertained legally by Chemical Analysis and the report received as per Certificate no.5350/2014 dated 23.07.2014 of the Assistant Chemical Examiner to Government, shows that the seized articles is toddy itself. 8. The registration of the case against the petitioners are not for adulteration or variation of license condition alone. They are found in possession and transportation of toddy and hence the case. Therefore, according to the respondents, the respondents may be allowed to proceed under Sec.56(b) of the Kerala Abkari Act, especially due to the fact that toddy were **W.P.(C) No.17399 of 2014** 7 seized after a search by the Circle Inspector of Excise, Chittur and not on any inspection in the licensed premises. Crime is not on the ground that toddy seized is artificial or adulterated, but for the unauthorized possession in excess of what is permitted. Therefore, according to the respondents, petitioners have not made out any case justifying interference of this Court under Article 226 of the Constitution of India. 9. Heard learned counsel for the petitioners and the learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 10. The fundamental contention advanced by learned counsel for the petitioners is that, even if the allegations in Ext.P4 crime and occurrence report are taken into account as a whole, no offence under Sec.55(a) is attracted, since the transportation and process of toddy is only a violation of the permit condition. And therefore, Sec.56(b) alone is attracted. Section 55(a) of the Abkari Act read thus: _“_ _**55. For illegal import, etc** .- Whoever in contravention of this Act or of any rule or order made under this Act_ _(a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or_ |**W.P.(C) No.17399**|**of**|**2014**||8|||| |---|---|---|---|---|---|---|---| |_(b)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(d)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(e)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(f)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(g)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(h)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_(i)_|_x_|_x_|_x_|_x_|_x_|_x_|_x_| |_shall be_||_punishable_|||||| _(1) for any offence, other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh, and_ _(2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both.”_ 11. According to the learned counsel for the petitioners, mere transportation of excess quantity will attract only Sec.56 (b), since the same is in breach of the conditions of the license or permit. Learned counsel has also relied on the judgment of this Court in _**'Rajan & others v. State of Kerala & another**_ ' [2010 (3) KLJ 461] to canvass the proposition that mere possession of toddy in a place other than the licensed premises will not attract Sec.55(a) of the Abkari Act. However, the facts and circumstances of the said case are entirely different from the facts and circumstances involved in this writ petition. There, the case was that toddy was stored outside the licensed premises of the toddy shop, there was no case that excess 9 **W.P.(C) No.17399 of 2014** toddy was stored or the same was transported or possessed in excess of quantity. Here is a case where from the allegations contained in Ext.P4 crime and occurrence report, excess toddy was transported in a different vehicle, other than the allotted vehicle, for transportation of toddy to the 3rd petitioner, and huge quantity of toddy stored in a thatched shed was also seized. It is not disputed that the toddy tapped in accordance with the permitted quantity, is to be transported every day. Therefore, the petitioners cannot be heard to contend that the toddy tapped and stored in the thatched shed was to be transported for the purpose of the licensees, because a portion of the toddy stored in the vehicle waiting in the premises was in excess, apart from the toddy stored in the thatched shed. Therefore, in my considered opinion, the facts in the judgment cited have no bearing to the facts and circumstances of this case. 12. So also, learned counsel has invited my attention to the judgment of this Court in ' _**Suresh v. State of Kerala**_ ' [2011 (1) KLT 614]. There also, as per Annexures A and B, the case set up by the excise officials was that petitioners were found carrying toddy in excess of quantity permitted under the **W.P.(C) No.17399 of 2014** 10 permits issued to the licensee concerned. There was no dispute regarding the authenticity of the license issued and it was also not disputed that the documents were produced by the petitioners at the time of interception by the Excise Officials. Obviously, it is a case where excess quantity of toddy in violation of the permitted quantity is being transported, however, there was no dispute with the vehicle in which transportation was done in accordance with the permit. 13. Further, learned counsel for the petitioners also relied on the judgment in ' _**Sasidharan v. State of Kerala'**_ [2007 (1) KLT 1062]. Therein also, the question considered was violation of condition in the license for transporting excess quantity of toddy prescribed in the permit and therefore, held that offence under Sec.56(b) alone is attracted. But, in the case on hand, the 3rd petitioner was not entitled to transport the toddy in the vehicle in question parked in the premises and there was huge storage of excess toddy. 14. In Ext.P5 mahazar, it is alleged that, the permit produced by accused No.1 viz., Bhagyesh, the vehicle number specified is No.KL-57/F-6180, and on questioning, it was stated by accused No.1 that the toddy was loaded in the **W.P.(C) No.17399 of 2014** 11 vehicle to transport to the shop of the 3rd petitioner. _Prima facie_ , the 3rd petitioner did not have the permit to transport the toddy in the vehicle bearing No.KL-57/F-6180. That apart, the premises wherein search was conducted was in Chittur at Palakkad District, while petitioners were all licensees of Kozhikode Division. Therefore, in my considered opinion, petitioners are not entitled to get the benefit of the proposition of law laid down by this Court in the afore-quoted judgments. There is no case for the prosecution that the toddy found in the vehicle and in the thatched shed are in any manner adulterated. Therefore, in my considered opinion, Ext.P4 crime and occurrence report and Ext.P5 mahazar allegedly shows that petitioners were _prima facie_ in possession of excess quantity of toddy, and excess quantity of toddy was kept ready for transporting, and at this stage of the proceedings, it cannot be said that the crime and occurrence report and the mahazar prepared are bad in any manner, and the allegations only attract an offence under Sec.56(b) of the Abkari Act, which thus means, ingredients to constitute offence of Sec.55(a) of the Act is alleged. 12 ## **W.P.(C) No.17399 of 2014** 15. Therefore, I have no hesitation to hold that petitioners have not made out a case of any illegality or arbitrariness, justifying interference of this Court under Article 226 of the Constitution of India. However, I make it clear that the observations and findings are made, to arrive at a conclusion so far as concerning a proceeding under Article 226 of the Constitution of India, which will not stand in the way of the trial court considering the case on merits. Resultantly, writ petition fails, and it is accordingly dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/16.08.2017