Purushothaman and T.U. Biju v State of Kerala and Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 CRL.MC NO. 4988 OF 2023 ``` ``` CC 821/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ``` ## **`ERNAKULAM`** ## **`PETITIONERS/ACCUSED NOS.1 & 2:`** ``` 1PURUSHOTHAMAN AGED 66 YEARS, S/O. UTHAMAN, RESIDING AT SHASTHAPARAMBIL HOUSE, MARAVANTHURUTHU, NAYARAMBALAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT ., PIN - 682509 2T.U. BIJU AGED 40 YEARS, S/O. UNNIKRISHNAN, RESIDING AT THERKAYIL HOUSE AMBALLUR VILLAGE, MUKUNDAPURAM TALUK, VATTANATHRA KARAYIL, ERNAKULAM DISTRICT., PIN - 680733 BY ADVS. RESHMA E. O.MINCY ANAKHA KRISHNA ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE EXCISE INSPECTOR CRIME NO, 59 OF 2020 OF ERNAKULAM RANGE OFFICE), ERNAKULAM DISTRICT., PIN - 689698 3THE DEPUTY COMMISSIONER OF EXCISE POWER HOUSE ROAD, COCHIN, ERNAKULAM, PIN - 682018 SMT.SEENA C, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..No.4988/2023 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.4988 of 2023** **---------------------------------------------Dated this the 07[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973. 2. Petitioners are accused Nos.1 and 2 in Crime No.59/2020 of Ernakulam Excise Range, Ernakulam. The offence alleged against the petitioners are punishable under Sections 57(aa) and 56(b) of the Kerala Abkari Act. 3. The prosecution allegation is that, on 27.11.2019, at about 07.00 pm, the Excise Officials took samples of toddy from the Toddy Shop bearing T.S.No.38/2019-2020 at Ernakulam and on analysis of the sample marked as “A”, it was found that starch is present in the sample. On chemical examination it was found that toddy contained starch, which is violative of rule/condition of the licence. On the basis of a chemical analysis report, the case was registered. It is submitted that the petitioners are innocent and they have not committed any offence. The 1[st] petitioner is the shop manager CrlM.C..No.4988/2023 **3** and the 2[nd] petitioner is the licensee of the toddy shop. After completing the investigation, final report was filed alleging offences punishable under Sections 57 (aa) and 56(b) of the Abkari Act, and the case is now pending before the Judicial First Class Magistrate Court-II, Ernakulam as C.C. No.821 of 2021. Annexure-A1 is the final report. 4. It is submitted that Annexure-A1 final report include offences under Sections 57(aa) and 56(b) of the Abkari Act. It is also submitted that Section 56(b) is compoundable as per Section 67A of the Abkari Act. It is submitted that the offence under Section 56 can be compounded as per Table in Section 67A of the Abkari Act. The petitioners are ready and willing to compound the offence is the submission. It is further submitted that Section 57 (aa) of the Abkari Act is also compoundable as per Table in Section 67A. The petitioners approached the lower court for permitting them for compounding the offence, but those petitions were dismissed as not pressed since the offence under Section 57(aa) alone cannot be compounded. Section 57(aa) was introduced as per the Abkari (Amendment) Act 2018, for the specific violation of adding starch/presence of starch in the toddy. Section 56(b) is CrlM.C..No.4988/2023 **4** the general provision for the misconduct by licensee etc, especially for the willful omission or act to do anything in breach of any conditions of his license or permit not otherwise provided for the Act. It is submitted that the inclusion of both Sections 56(b) and 57(aa) simultaneously against the petitioners are violative of the settled position of law. It is further submitted that the general provision under Section 56(b) and specific provision under Section 57(aa) won’t attract together. The petitioners relied on the judgment of this Court in **Ani & Another v. State of Kerala & Another [2021 (6) KHC 176]** wherein it is stated that when a charge sheet alleging commission of an offence under Section 57(aa) is there, prosecution is highly unjustified in incorporating the offence under Section 56(b) also in charge sheet. AnnexureA2 is the judgment. Relying upon the same, it is submitted that the offence under Section 56(b) of the Abkari Act is not maintainable in Annexure-A1 final report. Hence this criminal miscellaneous case. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. This Court considered the similar point in CrlM.C..No.4988/2023 **5** ## Annexure-A2 judgment, which is extracted hereunder: “This petition is filed by accused Nos.1 and 2 in C.C No.615/2020, pending on the files of Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. 2. The case of the prosecution was that sample of toddy was taken from toddy shop No.3 and was found to contain starch and for the violations Annexure-C final report was filed chargesheeting the petitioner for offences punishable under Sections 57(aa) and 56(b) of the Abkari Act (for short, ‘the Act’). 3. The grievance of the petitioners was that Section 57(aa) was introduced into the Act in the year 2018 and prior to the introduction only a general provision as 56(b) was available and punishment for violation of conditions of licence or permit was provided for thereunder. According to the learned counsel, with the introduction of Section 57(aa) in the year 2018, adding of starch into the toddy in particular was made an offence and the punishment for that was also provided thereunder. 4. It is submitted by Sri.Nireesh Mathew, the learned counsel that when a particular provision providing for violations of conditions of licence or permit and its punishment is introduced later, the petitioner cannot be made liable under the general provision providing for those which was there CrlM.C..No.4988/2023 **6** originally. According to him, therefore, there is every reason to quash Annexure-C final report to the extent it incorporates an offence under Section 56(b) of the Act also therein. 5. Section 56(b) of the Act is extracted hereunder; “56) xxx (b) Wilfully does or omits to do anything in breach of any of the conditions of his license or ” permit not otherwise provided for in this Act; (Emphasis supplied) The words emphasised as above make it clear that when the alleged acts are not otherwise made an offence under the Act alone the person responsible for it can be made liable under the general provision available. 6. It is undoubtedly clear from the words emphasised that for chargesheeting a person for an offence punishable under sub-section (b) of Section 56, and be imposed with punishment thereunder, there must not be a provision providing for punishment separately. It is pertinent to note that Section 57(aa) has been introduced into the Act in the year 2018, which indisputably is a special provision to punish a person, guilty for adding starch into toddy, which is out of purview of the terms of licence or permit issued in his favour 7. The petitioners having been chargesheeted for strict disobedience to the terms of licence or CrlM.C..No.4988/2023 **7** permit issued in their favour are liable to be punished under the specific provision of Section 57(aa). When a chargesheet alleging commission of an offence under Section 57(aa) is there, the prosecution is highly unjustified in incorporating the offence under Section 56(b) also in the chargesheet (Final Report). The investigating agency fails to take note of the words explicitly makes provision in the Act itself for its exclusion. Crl.M.C succeeds for the reason and is allowed in part. Annexure C Final Report is quashed to the extent it chargesheets the petitioners for an offence under Section 56(b) of the Act.” 7. In the light of the above judgment, I am of the considered opinion that continuation of the prosecution in Annexure-A1 final report as far as Section 56(b) of the Abkari Act is not permissible. Therefore, this Criminal Miscellaneous Case is allowed in part. Annexure-A1 final report is quashed to the extent it charge-sheets the petitioners for an offence under Section 56(b) of the Abkari Act. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV CrlM.C..No.4988/2023 **8** ## **`APPENDIX OF CRL.MC 4988/2023`** ``` PETITIONER ANNEXURES Annexure A1CERTIFIED COPY OF CHARGE SHEET DATED 25.02.2021 IN CRIME NO. 59 OF 2020 OF ERNAKULUM EXCISE RANGE OFFICE Annexure A2TRUE COPY OF THE JUDGMENT DATED 12.10.2021 IN CRL M.C.NO.4100 OF 2021 OF THIS HON'BLE COURT ( ANI & ANOTHER V STATE OF KERALA & ANOTHER,2021(6) KHC 176) ```