High Court of KeralaSingle Judge2016-11-24Section 55(a) charges quashed; jurisdiction res...

T.P Narayanan, Reji Mathew and Valsan v State of Kerala

Case / Petition Number:Crl.M.C. No. 7496 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2016-11-24
Court Decision / Holding: The petition is allowed in part. Prosecution under section 55(a) is quashed. Petitioners are liable to be proceeded against under section 56(b) of the Abkari Act, which is compoundable under section 67A(1). The petitioners may approach the authorities for composition of the offence if desired.
Final Disposition: Section 55(a) charges quashed; jurisdiction restored under Section 56(b) with potential for composition under 67A(1).

Parties to the Case

Appellants / Petitioners

T.P Narayanan
Reji Mathew
Valsan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• M. Ramesh Chander (Sr.)
• K.A. Sanjeetha
• John Thitheemos
• Smt. Divya S Kumar

Counsels for Respondents

• Public Prosecutor Sri. T.R. Renjith

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Crl.M.C. No. 7496 of 2016) in the Kerala High Court concerning accused Nos. 3 to 5 in SC No. 79 of 2012, who stand indicted under section 55(a) of the Abkari Act for alleged liquor activity at a Kannur hotel. The petition challenges the initiation/continuation of prosecution under 55(a) on the grounds that it does not lie for licensee misconduct; the liquor was stored outside the licensed room and dispensed after hours by the third petitioner with knowledge of petitioners 1 and 2. The court examines whether section 55(a) applies to such facts, and whether the proper remedy is under section 56(b) (license violations) which is compoundable under section 67A(1). It acknowledges evidentiary details from Annexures showing alcohol stored within hotel premises but outside licensed premises and dispensation after hours. The court cites established authorities—Surendran v. Excise Inspector, Mohanan v. State of Kerala, and Sabu v. State of Kerala among others—to state that 55(a) deals with illegal import/export/possession during illegal import, and cannot be sustained where the facts show licensee misconduct. Consequently, the court quashes the 55(a) prosecution, while directing that the petitioners may be proceeded against under 56(b) and may pursue composition under 67A(1). The order emphasizes the possibility of settlement by composition and restricts the scope of 55(a) charges in similar licensee misconduct cases.

Provisions of Law Cited

Section 55(a) of the Abkari ActSection 56(b) of the Abkari ActSection 67A(1) of the Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that section 55(a) of the Abkari Act is not attracted to the facts, as there is no illegal import, export, or possession during import. At best, an offence under section 56(b) for licensee misconduct is made out, which is compoundable under section 67A(1). They rely on precedents including Ambika v. State of Kerala (2011) and Sabu v. State of Kerala (2003) to support that licensee violations fall under section 56(b) and not 55(a).

Contentions of Respondents

The Public Prosecutor contends that these issues are for trial and not appropriate for disposal at the Crl.M.C. stage; the court should not interfere with the ongoing prosecution. The core factual allegations—storing liquor outside the licensed room and dispensing liquor after hours—are argued to be within the ambit of the Abkari Act’s regulatory framework, and the proper remedy may involve trial on the merits or composition under applicable provisions.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Surendran v. Excise Inspector	2004 (1) KLT 404	Positive	Cited to confirm that Section 55(a) covers illegal import/export/possession and not licensee misconduct; supports non-application of 55(a) in the present facts.
Mohanan v State of Kerala	2007 (1) KLT 845	Positive	Adopts the view that licensee misconduct falls under Section 56(b) rather than 55(a).
Sabu v State of Kerala	2003 (2) KLT 173	Positive	Supports categorization of licensee violations under Section 56(b).
Ambika v State of Kerala	2011 (3) KLT 35	Positive	Precedent aligning with the view that 55(a) is not applicable in these facts.
Nobbey and Another v State of Kerala	2011 (1) KLD 11	Positive	Reiterates the position that licensee misconduct falls under 56(b) and not 55(a).

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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 RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **Crl.MC.No. 7496 of 2016 () ---------------------------** **AGAINST THE SC 79/2012 of ADDL.SESSIONS JUDGE,THALASSERY CRIME NO. 918/2008 OF KANNUR TOWN POLICE STATION.** **PETITIONER(S)/ACCUSED:** **---------------------** **1. T.P NARAYANAN S/O.NARAYANAN, AGED 46 YEARS, THAZHEPADIKKAL ILLOM, KALARIVATHUKKAL, VALAPATTANAM.** **2. REJI MATHEW S/O.MATHEW, PARAPLAKKIL HOUSE, VADAKKETHALA (H), THALAPPALLI, PAYYANNUR.** **3. VALSAN S/O.KUMARAN, NIMMI NIVAS, EDAKKAD AMSOM, DESOM, NEAR KAIRALI VAYANASALA.** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.K.A. SANJEETHA SRI.JOHN THITHEEMOS SMT.DIVYA S KUMAR** **RESPONDENT/COMPLAINANT & STATE:** **----------------------------------** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **BY PUBLIC PROSECUTOR SRI. T.R. RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7496 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **-----------------------** **ANNEXURE A1 PHOTOSTAT COPY FIRST INFORMATION REPORT. ANNEXURE A2 PHOTOSTAT COPY OF THE CHARGE.** **ANNEXURE A3 TRUE COPY OF THE SUMMONS ISSUED BY THE COURT TO THE PETITIONERS.** **RESPONDENT'S ANNEXURES: NIL -----------------------** ## **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 7496 of 2016 - - - - - - - - - - - - - - - - Dated 24[th] November, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners herein are the accused Nos. 3 to 5 in S.C. No.79 of 2012 on the file of the Additional Sessions Judge. In the said case, they stand indicted under section 55(a) of the Abkari Act. - 2.The prosecution alleges that on 23.11.2008 at 00:00 hrs the Additional Sub Inspector, Kannur Police Station and his patrol party chanced across four persons consuming alcohol in the public place in front of Hotel Sky Palace, Kannur. They managed to intercept two persons who were in an inebriated stage and when they were questioned they are alleged to have disclosed that the liquor was purchased from the watchman of Sky Palace Hotel. A Crl.M.C. No.7496 of 2016 -2- search was conducted after securing orders from the jurisdictional court and on inspection, it was revealed that liquor bottles were secreted in a cabin outside the licensed room but inside the hotel premises. The contraband articles were seized as per mahazer. Consequently section 55(a) of Abkari Act was incorporated and the petitioners herein, being the licensee, the Manager and the watch man respectively were arrayed as accused No 3 to 5. According to the prosecution, the liquor was dispensed by the 3[rd] petitioner with the knowledge and concurrence of the the petitioners 1 and 2. - 3.Learned Counsel appearing for the petitioner and the learned public prosecutor were heard. - 4.The learned Counsel drew the attention of this Court to section 55 (a) of the Abkari Act and contended that the the said penal provision will not be attracted against the petitioners herein. According to the learned Counsel, at Crl.M.C. No.7496 of 2016 -3- best an offence under Section 56(b) of the Abkari Act will be made out which incidentally is compoundable in terms of the provisions under Section 67A of the Abkari Act.Profuse reliance is made on the decision of this Court in **Ambika V State of Kerala [** 2011 (3) KLT 35] to bring home his point. - 5.The learned Public Prosecutor on the other hand opposed the submissions and contended that these are matters which are to be raised at the stage of trial and there is no reason for this Court to interfere at this stage. - 6.I have considered the rival submissions. - 7.It is evident from Annexure-A1 FIR and Annexure-2 Final Report that the allegations against the petitioners are two fold. - (a) They had stored liquor outside the licensed room - but within the premises of the Hotel Crl.M.C. No.7496 of 2016 -4- - (b) The liquor was dispensed after the licensed hours. 8.A Division Bench decision of this Court in **Surendran v. Excise Inspector [** 2004 (1) KLT 404] has held that Section 55(a) of the Act deals with only illegal import, export or transport, transit etc. on such import or export. It was made clear that Section 55(a) is applicable only when persons illegally imports or transports liquor or in possession of liquor while illegally importing. The same view was taken in **Mohanan V State of Kerala [** 2007 (1) KLT 845]. Having gone through the records, I find that the prosecution has no case that the petitioners herein had illegally imported the liquor or that they were in possession of liquor while it was being illegally imported. 9.Quite on the contrary, the specific case is that the first petitioner is the licensee and that he had violated the licence condition by permitting his worker, the third petitioner, to dispense liquor after the hours prescribed in Crl.M.C. No.7496 of 2016 -5- the license, and also stored liquor outside the licensed room. - 10.As held by this Court in **Sabu V State of Kerala [** 2003 (2) KLT 173] and also in **Mohanan** (Supra), in a case where licensee violates the conditions of licence or commits misconduct, it will come only under Section 56(b) of the Act. The same view has been taken in **Ambika** ( supra ) and **Nobbey and Another V State of Kerala** [2011 (1) KLD 11 ]. 11.In that view of the matter , it is held that the prosecution of the petitioners under section 55 (a) of the Abkari Act cannot be sustained under law. The same is hereby quashed. However, the petitioners are liable to be proceeded against under section 56 (b) of the Abkari Act, which is compoundable under Section 67A (1) of the Abkari Act. Crl.M.C. No.7496 of 2016 -6- The petitioners may approach the authorities seeking composition of the offence, if they so desire. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-24.11.16