Allowed

Aju Joseph v. State of Kerala

Kerala HC8 Jul 2014Crl.MC/372/2013

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition, the High Court invoked Section 482 CrPC to quash the final report in a liquor possession case. Finding that possession of excess authorized liquor without illicit proof did not satisfy Section 55(a) Abkari Act and the offence was compoundable under Section 63 and 67A, the Court allowed the petition.

What did the court decide?

The final report in Crime No.247 of 2010 was quashed.

Aju Joseph Vs State of Kerala — Writ and Judicial Review | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936

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Crl.MC.No. 372 of 2013 ()

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CP 12/2012 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (ECONOMIC OFFENCES), ERNAKULAM CRIME NO. 247/2010 OF ERNAKULAM TOWN SOUTH POLICE STATION , ERNAKULAM

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PETITIONER(S)/ACCUSED:-:

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AJU JOSEPH, AGED 27, S/O.JOSEPH, ADICHIYIL HOUSE, BUND ROAD THYKKOODAM, POONITHURA VILLAGE.

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BY ADVS.SRI.T.A.SHAJI (SENIOR ADVOCATE) SRI.M.A.ASIF

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RESPONDENT(S)/COMPLAINANT:-:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM (REPRESENTING THE SUB INSPECTOR OF POLICE ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM).

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BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO.372/2013

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PETITIONER(S) EXHIBITS

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ANNEXURE A. TRUE COPY OF THE BILLS DATED 14.02.2010 ISSUED FROM THE BEVERAGES CORPORATION.

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ANNEXURE B. TRUE COPY OF THE MAHAZAR DATED 14.02.2010 IN CRIME NO.247/2010 OF ERNAKULAM TOWN SOUTH POLICE STATION.

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ANNEXURE C. TRUE COPY OF THE FINAL REPORT DATED 05.06.2010 IN CRIME NO.247/2010 OF ERNAKULAM TOWN SOUTH POLICE STATION.

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ANNEXURE D. TRUE COPY OF THE SUMMONS DATED 01.09.2012 IN C.P.12/12.

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RESPONDENTS' EXHIBITS : NIL

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//TRUE COPY//

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A.HARIPRASAD, J.

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Crl.M.C. No.372 of 2013

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Dated this the 8^th day of July, 2014.

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ORDER

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Petitioner is before this Court requesting to invoke the jurisdiction under Section 482 of the Code of Criminal Procedure to quash Annexure-C final report in Crime No.247 of 2010 of Ernakulam Town South Police Station registered under Section 55(a) of the Abkari Act (in short, “the Act”).

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Prosecution case as borne out from Annexure-C final report is that the petitioner/accused was found possessing 6.75 litres of Indian Made Foreign Liquor (IMFL) at about 9.00 p.m. on 14.02.2010. He was carrying the liquor in a cardboard box. The detecting officer restrained him and after being satisfied that the petitioner has committed the offence, the former arrested him. After completing the formalities, the case was registered.

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Heard Shri T.A.Shaji, learned Senior Counsel for the petitioner and Smt.Bindu Gopinath, learned Public Prosecutor.

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Shri T.A.Shaji, learned Senior Counsel submitted that the prosecution of the accused under Section 55(a) of the Act is per se illegal because the statements in the final report itself would reveal no ingredients

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Crl.MC No.372/2013

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of the offence. To buttress this contention, three cash bills were produced as Annexure-A to show that the contraband was purchased from an authorised outlet of the Kerala State Beverages Corporation (KSBC). On perusal of Annexure-A cash bills, it can be seen that three bills in quick succession were issued to a purchaser showing that he had purchased 6.75 litres of IMFL. Learned Prosecutor submitted that there is no name in the bills to show that the petitioner himself purchased the liquor. Answering this contention, learned Senior Counsel submitted that the bills were produced along with the bail application at the first opportunity to show the bonafides of the accused. Further, the accused has raised a contention that the liquor was purchased for his own use. Learned Senior Counsel on the basis of these facts submitted that if at all any offence is made out, it can only be one under Section 63 of the Act. Section 63 of the Act reads as follows:

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“ For offences not otherwise provided

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for :-Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine which may extend to five thousand rupees or

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Crl.MC No.372/2013

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with imprisonment for a term which may extend to two years or with both.”

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In order to fortify the submission that the entire case diary statements and the prosecution allegations against the accused will not show commission of an offence under Section 55(a) of the Act, learned Senior Counsel placed reliance on the decisions of this Court in Sabu v. State of Kerala (2003 (2) KLT 173) and Muraleedharan v. Sub Inspector of Police (2014 (2) KLT 1043) . This Court has taken a view that an accused in possession of excess quantity of liquor than the quantity permissible under law will not fall within the contours of Section 55(a) of the Act. Admittedly, in this case the petitioner was in possession of excess quantity of 3.75 litres IMFL. Prosecution has no case that it was illicit liquor. The case of the accused that he purchased the liquor from KSBC outlet is probabilised by production of the cash bills. Therefore, I find that the submission of the learned Senior Counsel in this respect is legally acceptable.

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Relying on the decision rendered by this Court in Nobbey v.

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State of Kerala (2011 (1) KLT SN 51 (case No.68)), it is contended that the offence under Section 63 of the Act is a compoundable one as per the provisions of Section 67A of the Act. My attention is drawn to Section 67A of the Act wherein, it is stated that the possession of liquor in excess of the

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Crl.MC No.372/2013

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quantity prescribed is compoundable by the persons authorised in the above provision. Therefore, I find that the prosecution of the petitioner under Section 55(a) of the Act is legally unsustainable.

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In the result, the petition is allowed. Annexure-C final report in Crime No.247 of 2010 of Ernakulam Town South Police Station is hereby quashed.

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All pending interlocutory applications will stand dismissed.

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A. HARIPRASAD, JUDGE.

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cks

Aju Joseph v. State of Kerala

Case brief

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What did the court decide?

Aju Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

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