High Court of KeralaSingle Judge2021-04-09The petition is allowed; 55(a) and 55(i) offenc...

State of Kerala v. K. Baiju and Others

Case / Petition Number:Crl.MC.No.5537/2020 (B)

Neutral Citation:

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-04-09
Court Decision / Holding: Crl.MC.5537/2020 is allowed. Annexure A FIR and all further proceedings against the petitioners under Sections 55(a) and 55(i) of the Abkari Act are quashed. The court clarifies that this order does not preclude the investigation into other offences, if any, for which proper material exists.
Final Disposition: The petition is allowed; 55(a) and 55(i) offences are quashed; investigation into other possible offences may continue.

Parties to the Case

Appellants / Petitioners

K. Baiju
Mahesh M.S
Harikumar
Anil
Manojkumar
Adarsh
Arun Pillai

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Nireesh Mathew

Counsels for Respondents

• Suman Chakravarthy, Senior Government Pleader

Case Synopsis & Summary

This is a criminal miscellaneous case (Crl.MC.5537/2020) filed by seven petitioners challenging an FIR (Annexure A) and proceedings arising from Crime No.3922/2020 at Kottarakkara Police Station, under the Abkari Act provisions (Sections 55(a), 55(i), and 56(b)). The petitioners run a bar under an FL-3 licence. The FIR alleged sale of 83 bottles of Indian Made Foreign Liquor and 15 bottles of beer beyond the permitted hours. The central issue is whether offences under Sections 55(a) and 55(i) can be attracted for sale beyond hours or whether such conduct falls within breach of licence conditions under Section 56(b). The petitioners contend that sale beyond hours constitutes only violation of permit conditions, not offences under 55(a)/(i), and rely on prior Kerala decisions including Ambika v. State of Kerala and Mohanan v. State of Kerala. The State counters that COVID management directives, state guidelines, and lockdown measures could implicate offences beyond permit conditions and may attract other provisions, including the Disaster Management Act and IPC 188, necessitating investigation. The court, upholding settled law, holds that the petitioners cannot be proceeded against under 55(a) and 55(i). It relies on Ambika (supra), Mohanan (supra), and Nobbey v. State of Kerala to affirm that after-hours sale is a violation of licence conditions and punishable under Section 56(b). Consequently, the Crl.M.C is allowed; Annexure A FIR and proceedings under 55(a)/(i) are quashed, while investigation into other possible offences may continue.

Provisions of Law Cited

Abkari Act Sec. 55(a)Abkari Act Sec. 55(i)Abkari Act Sec. 56(b)Disaster Management ActKerala Epidemic Diseases OrdinanceIPC Sec. 188

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that sale beyond the prescribed hours would amount to violation of permit conditions and, at best, would attract only the offence under Section 56(b) of the Abkari Act, not Sections 55(a) or (i). They rely on Ambika v. State of Kerala (2011) 3KLT 35 and Mohanan v. State of Kerala (2007) 1 KLT 845 to support the position that 55(a)/(i) cannot be invoked when the sale is beyond hours; the lockdown directive is not issued under the Abkari Act and need not trigger 55(a)/(i). They ask for quashing of 55(a)/(i) prosecutions and for allowing investigation to proceed only for licensing/permit violations.

Contentions of Respondents

The respondents submit that COVID-management directives and state guidelines limiting sale hours can create violations beyond permit conditions and may attract offences under the Abkari Act, Disaster Management Act, and IPC 188. They urge continuation of investigation into all possible offences, asserting that public health considerations justify broader criminal scrutiny and that the order should not prematurely terminate investigations.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ambika v. State of Kerala	2011 3KLT 35	Positive	Cited as authority for treating sale beyond prescribed hours as a potential violation of permit conditions, not necessarily an offence under 55(a)/(i).
Mohanan v. State of Kerala	2007 1 KLT 845	Positive	Supportive authority that post-hours sales may fall under permit condition breaches rather than 55(a)/(i).
Nobbey v. State of Kerala	2011(1) KLT SN 51	Positive	Previously held that after-hours sale breaches permit conditions (56(b)); cited to reinforce the 56(b) rationale.
Gopakumar v. State of Kerala	2011(1) KLT 450	Mentioned Only	Cited in Appendix; not discussed in the judgment's reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **Crl.MC.No.5537 OF 2020(B)** **CRIME NO.3922/2020 OF Kottarakkara Police Station , Kollam** ## **PETITIONER/S:** |**1**|**K.BAIJU**| |---|---| ||**AGED 56 YEARS**| ||**S/O. KARUNAKARAN (LATE), HOTEL AMBALAKKARA REGENCY,**| ||**PULIMON, KOTTARAKKARA, KOLLAM DISTRICT.**| |**2**|**MAHESH M.S,**| ||**AGED 34 YEARS**| ||**S/O. MURALEEDHRAN, MANAGER, HOTEL AMBALAKKARA**| ||**REGENCY, PULIMON, KOTTARAKKARA, KOLLAM DISTRICT,.**| |**3**|**HARIKUMAR**| ||**AGED 20 YEARS**| ||**EMPLOYEE, HOTEL AMBALAKKARA REGENCY, PULIMON,**| ||**KOTTARAKKARA, KOLLAM DISTRICT,.**| |**4**|**ANIL**| ||**AGED 20 YEARS**| ||**EMPLOYEE, HOTEL AMBALAKKARA REGENCY, PULIMON,**| ||**KOTTARAKKARA, KOLLAM DISTRICT,.**| |**5**|**MANOJKUMAR**| ||**AGED 23 YEARS**| ||**EMPLOYEE, HOTEL AMBALAKKARA REGENCY, PULIMON,**| ||**KOTTARAKKARA, KOLLAM DISTRICT,.**| |**6**|**ADARSH**| ||**AGED 23 YEARS**| ||**EMPLOYEE, HOTEL AMBALAKKARA REGENCY, PULIMON,**| ||**KOTTARAKKARA, KOLLAM DISTRICT,.**| |**7**|**ARUN PILLAI**| ||**EMPLOYEE, HOTEL AMBALAKKARA REGENCY, PULIMON,**| ||**KOTTARAKKARA, KOLLAM DISTRICT,.**| ||**BY ADV. SRI.NIREESH MATHEW**| **STATE OF KERALA** **RESPONDENT/S:** _**Crl.MC.5537/2020**_ 2 **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**Crl.MC.5537/2020**_ 3 ## **V.G.ARUN, J.** **----------------------------------------------Crl.M.C.No.5537 of 2020 ----------------------------------------------Dated this the 9[th] day of April, 2021** ## **O R D E R** The 1[st] petitioner is conducting a bar on the strength of an FL-3 licence issued to him under Rule 13(3) of the Foreign Liquor Rules. The 2[nd] petitioner is the Manager and pioneers 3 to 7, employees of the 1[st] petitioner. The challenge in the Crl.M.C is against Annexure A FIR and further proceedings in Crime No.3922 of 2020 registered at the Kottarakkara Police Station for offences under Sections 55(a) and (I), 56(b) and 62 of the Abkari Act. The crime is registered on the allegation that the petitioners had kept 83 bottles of Indian Made Foreign Liquor and 15 bottles of Beer for sale beyond the time permitted for conducting business. The challenge against the proceedings is on the ground that, even if the entire allegations are accepted, no offence under Sections 55(a) and (I) is attracted and that, at best, only the offence under Section 56(b) will be attracted. 2. Sri.C.C.Thomas, learned Senior Counsel appearing for the petitioners contended that, sale beyond prescribed hours will only amount to violation of permit conditions and therefore, would not attract Section 55(a) and (I) of the Abkari Act. That, the legal position has been categorically laid down by a catena of decisions of this court, _**Crl.MC.5537/2020**_ 4 including the decisions in _**Ambika v. State of Kerala**_ [2011 3KLT 35] and _**Mohanan v. State of Kerala**_ [2007 1 KLT 845] 3. Sri.Suman Chakravarthi, learned Senior Government Pleader submits that the Central Government has issued directives regarding covid management under the Disaster Management Act. Based on the Central Government notification, the Government of Kerala has issued guidelines limiting the time for sale of Indian Made Foreign Liquor through bars and other outlets from 9.00 a.m to 5.00 p.m. It is submitted by Senior Government Pleader that conduct of sale beyond the prescribed time would not only amount to violation of the licence conditions, but may attract other offences also under the Disaster Management Act and under Section 188 of IPC. These are aspects to be investigated and hence, the investigation cannot be stopped, is the submission. 4. In my opinion, going by the settled legal position, investigation cannot proceed for the offences under Section 55(a) and 55(i) of the Abkari Act. 5. The petitioners having limited their challenge against prosecution for the offences under Sections 55(a) and (i) of the Abkari Act, I am not venturing into the question as to whether the petitioners are liable to be prosecuted for offences under the Kerala Epidemic Diseases Ordinance and the Disaster Management Act. The offence under Section 55(a) of the Act is attracted when a person imports, _**Crl.MC.5537/2020**_ 5 exports, transports, transits or possesses liquor or any intoxicating drug in contravention of the Act or of any Rule or order made under the Act, Section 55(i) will get attracted, when a person sells or stores for sale, liquor or any intoxicating drug. The possession of liquor by the petitioners being in terms of the FL-III licence, they cannot be penalised for the offence under Section 55(a). The penalty under Section 55(i) for sale of liquor can be imposed only when such sale is in contravention of the Act or of any Rule or order made under the Act. The Government order imposing lockdown is not an order made under the Abkari Act and therefore even if the sale was conducted in violation of the Government order it will not be an offence under Section 55(i). On the other hand, Section 56(b) specifically deals with breach of any of the conditions of the licence or permit, not otherwise provided for in the Act. An identical situation had arisen in _**Ambika (supra).**_ The learned single Judge placing reliance on the earlier decisions in _**Mohanan (supra)**_ and _**Nobbey v. State of Kerala**_ [2011(1) KLT SN 51 (Case No.68)], held the sale after the prescribed working hours to be a violation of the permit condition punishable under Section 56(b) of the Act. It was held that the offences punishable under Section 55(a) and (i) of the Act cannot be attributed to the petitioners therein. 6. The above mentioned reasons persuades me to uphold the contention of the Senior Counsel that the petitioners cannot be _**Crl.MC.5537/2020**_ 6 proceeded against for commission of the offences under Sections 55(a) and (i) of the Act. In the result, the Crl.M.C is allowed. Annexure A FIR and all further proceedings against the petitioners for the offences under Sections 55(a) and (i) of the Act is quashed. It is made clear that this order does not preclude the investigation with respect to the other offences, if any made out. Sd/- ## **V.G.ARUN, JUDGE** _vgs_ _**Crl.MC.5537/2020**_ 7 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A**|**CERTIFIED COPY OF THE FIR IN CRIME NO.**| ||**3922/2020 OF KOTTARAKKARA POLICE STATION.**| |**ANNEXURE B**|**CERTIFIED COPY OF THE MAHAZAR DATED**| ||**20.11.2020.**| |**ANNEXURE C**|**PHOTOCOPY OF THE NOTIFICATION SRO NO.**| ||**325/2020 ISSUED BY THE GOVERNMENT OF**| ||**KERALA.**| |**ANNEXURE D**|**PHOTOCOPY OF THE LETTER DATED 21.11.2020**| ||**SENT TO THE C.I OF POLICE AND S.I OF**| ||**POLICE, KOTTARAKKARA.**| |**ANNEXURE E**|**PHOTOCOPY OF THE ORDER DATED 24.11.2020 IN**| ||**CMP NO.2797/2020 IN CRIME NO. 3922/2020 OF**| ||**KOTTARAKKARA POLICE STATION, PASSED BY THE**| ||**JUDL.FIRST CLASS MAGISTRATE COURT 0I,**| ||**KOTTARAKKARA.**| |**ANNEXURE F**|**PHOTOCOPY OF THE ORDER DATED 01.12.2020 IN**| ||**CRL.M.C NO. 1776/2020 PASSED BY THE**| ||**SESSIONS COURT, KOLLAM.**| |**ANNEXURE G**|**PHOTOCOPY OF THE DECISION, GOPAKUMAR**| ||**VS.STATE OF KERALA, REPORTED IN 2011(1) KLT**| ||**450.**| |**ANNEXURE H**|**PHOTOCOPY OF THE DECISION, AMBIKA VS. STATE**| ||**OF KERALA, REPORTED IN 2011(3) KLT 35.**| |**ANNEXURE I**|**PHOTOCOPY OF THE DECISION, MOHANAN VS.**| ||**STATE OF KERALA, REPORTED IN 2007(1)KLT**| ||**845.**| |**ANNEXURE J**|**PHOTOCOPY OF THE ORDER NO.EXC/5158/2020/XC**| ||**7 DATED 27.11.2020 PASSED BY THE EXCISE**| ||**COMMISSIONER.**| |**ANNEXURE K**|**A PHOTOCOPY OF THE SAID ORDER IN CMP NO.**| ||**1009/2020 IN CRIME NO.1800/2020 OF**| ||**CHADAYAMANGALAM POLICE STATION, PASSED BY**| ||**THE JUDL. FIRST CLASS MAGISTRATE COURT,**| ||**KADAKKAL.**| |**ANNEXURE L**|**PHOTOCOPY OF THE ORDER DATED 23.09.2020 IN**| ||**BA NO.5722/2020 PASSED BY THIS HON'BLE**| ||**COURT.**| _**Crl.MC.5537/2020**_ 8