Roben Gilbert, Albert Santhosh, Roni Sijo, Sreenath and Dennis Raphel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 16[TH] DAY OF MAY 2023 / 26TH VAISAKHA, 1945 CRL.MC NO. 2128 OF 2022** **CP 36/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA** ## **PETITIONER/S:** 1 ROBEN GILBERT AGED 44 YEARS S/O. SAVIER ADIMURI, ADIMURI HOUSE, PIPE LANE KARA, PALARIVATTOM, ERNAKULAM, PIN - 682024 2 ALBERT SANTHOSH AGED 49 YEARS S/O. A. R.JOSE, ALAPPAT HOUSE, P.J. ANTONY ROAD, PALARIVATTOM, EDAPALLY SOUTH, ERNAKULAM, PIN - 682024 3 RONI SIJO AGED 45 YEARS S/O. SAVIER ADIMURI, ADIMURI HOUSE, PIPE LANE KARA, PALARIVATTOM, ERNAKULAM, PIN - 682024 4 SREENATH AGED 32 YEARS S/O. K.K. VISWANATH, PUNNAKKATTIL HOUSE, ASHRAMAM ROAD, KALADI DESAM, ALUVA, ERNAKULAM, PIN - 683574 5 DENNIS RAPHEL AGED 45 YEARS S/O. RAPHEL, BALYAPADATHU HOUSE, THAYKOTTUKARA, CHOORNNIKKARA VILLAGE, ALUVA, ERNAKULAM, PIN - 683101 BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA M.B.SANDEEP ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 **OTHER PRESENT:** Crl.M.C.No.2128 of 2022 **==> picture [16 x 8] intentionally omitted <==** SRI.RENJITH GEORGE-SR.PP **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.03.2023, THE COURT ON 16.05.2023 DELIVERED THE FOLLOWING:** Crl.M.C.No.2128 of 2022 -3- ## **ORDER** Dated this the 16[th] day of May, 2023 Petitioners are the office bearers of an association of bikers called 'Bullethood'. They are arrayed as accused in OR No.18/2018 alleging commission of offences under Sections 55(a) and (i) of the Abkari Act. The crime is registered alleging that, during a raid conducted at the venue of the annual celebration of Bullethood on 08.12.2018, the Excise Party found liquor being served from a bar like counter on presentation of tokens. Enquiry revealed that the tokens had been issued on payment of cash. Hence, the activity amounted to illegal sale of liquor. On submission of the final report, cognisance of the offences for which the crime was registered was taken by the committal court, where the matter is now pending as CP No.36 of 2021. This Crl.M.C is filed seeking to quash all further proceedings in Crl.M.C.No.2128 of 2022 -4- CP No.36 of 2021 on the files of the Judicial First Class Magistrate Court-I, Aluva. 2. Learned Counsel for the petitioners contended that even accepting the prosecution allegations in _toto_ , the offences are not made out against the petitioners, since the offence under Section 55(a) is attracted only when the liquor exported, transported, possessed or sold is found to be illicit. In support of this contention, reliance is placed on a series of decisions, including the Division Bench decision in _**Mohanan v. State of Kerala [2007 (1) KLT 845].**_ The offence under Section 55(i) is also not attracted, since the liquor was being served to the members of the Association, which cannot be termed as sale. To buttress the contention, the decisions in _**Sidhan @ Sidharthan v. State of Kerala [2014 (2) KLT 893]**_ and _**Alex V.Chacko v. Director General of Police (Law & Order) and others [2017(3) KLT 73]**_ are pressed into service. ## Crl.M.C.No.2128 of 2022 -5- 3. Learned Public Prosecutor refuted the submission that there was no sale of liquor by submitting that there is categoric evidence to the effect that tokens were issued on payment of cash and liquor was served only to those members who presented their tokens. It is contended that the grounds urged in the Crl.M.C are not sufficient to invoke this Court's power under Section 482 Cr.P.C. 4. The offence under Section 55(a) of the Abkari Act is attracted when a person imports, exports, transports, transits or possesses liquor or any intoxicating drug, in contravention of the Act or any Rule or Order made under the Act. Interpreting the provision, a Division Bench in ## _**Surendran v Excise Inspector [2004(1) KLT 404]**_ held that Section 55(a) deals with only illegal import, export, or transport, transit etc. It was made clear that Section 55(a) is applicable only when persons illegally import or transport ## Crl.M.C.No.2128 of 2022 -6- liquor or are found in possession of liquor during the course of such illegal import or transportation. The above legal position was reiterated by another Division Bench in _**Mohanan** (supra)_ . In the instant case, there is no allegation that the petitioners were found in possession of illicit liquor. On the other hand, the labels on the bottle reveal that the liquor the liquor was purchased from authorised outlets. Mere possession of excess quantity of liquor will not attract the offence under Section 55(a) of the Abkari Act, as held by this Court in _**Sobichan @ Joseph v. State of Kerala and another [2013 KHC**_ _**3358].**_ Therein it was clarified that possession of excess quantity of Indian Made Foreign Liquor purchased from the Kerala State Beverages Corporation will not amount to an offence under Section 55(a) and at the most, it can only constitute an offence under Section 53 of the Abkari Act. Going by the precedents, there seems Crl.M.C.No.2128 of 2022 -7- to be substance in the contention that the allegations are not sufficient to constitute the offence under Section 55(a) of the Abkari Act. 5. The offence under Section 55(i) of the Abkari Act is constituted when a person holds or stores for sale liquor in contravention of the Act, Rule or order made thereunder. Here, the specific case is that the Excise Party found liquor being served from a counter. The prosecution alleges that the liquor was served on submission of tokens purchased earlier and as such, what was being carried out is nothing but sale of liquor. In _**Sidhan @ Sidharthan** (supra_ ), the word 'sells' in Section 55(i) was interpreted to hold that the sale should be ' _in presenti'._ The decision in _**Alex V.Chacko** (supra)_ is also not applicable since the allegation therein was with respect to serving of liquor to the guests in a house during a private function. In my opinion, the trial court which is Crl.M.C.No.2128 of 2022 -8- posted with all relevant materials, is best suited to decide whether there was actual sale and whether the sale was _in presenti._ In the result, the Crl.M.C is allowed in part. All further proceedings in OR No.18/2018 now pending as CP No.36 of 2021, insofar as it relates to the offence under Section 55(a) of the Abkari Act, is quashed. The prayer for quashing the further proceedings with respect to the offence under Section 55(i) is rejected, reserving the petitioners' liberty to seek discharge before the trial court. If such a petition is filed, the court shall pass a reasoned order, after adverting to the relevant provision and the precedents. Ordered accordingly. Sd/- ## **V.G.ARUN JUDGE** Scl/ Crl.M.C.No.2128 of 2022 -9- ## **APPENDIX OF CRL.MC 2128/2022** PETITIONER ANNEXURES Annexure1 A TRUE COPY OF THE SEIZURE MAHAZAR Annexure2 A TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CR NO.18/2018 OF ALUVA EXCISE RANGE, ALUVA Annexure3 CERTIFIED COPY OF THE FINAL REPORT IN CR NO.18/2018 OF ALUVA EXCISE RANGE