Dismissed

Jayaprakash v. State of Kerala

Kerala HC1 Aug 2016Crl.MC/3269/2013

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition to quash an FIR for alleged sale and storage of Indian Made Foreign Liquor under the Abkari Act, the Kerala High Court held that the petition for quashal under Section 482 CrPC could not succeed as the investigation was incomplete and a chemical analysis report was missing, preventing the court from concluding the offense was merely a breach of license conditio

What did the court decide?

The petition for quashing the FIR was dismissed with no interim relief granted.

Jayaprakash Vs State of Kerala — Quashing and FIR | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938

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Crl.MC.No. 3269 of 2013

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CRIME NO. 472/2013 OF PULINKUNNU POLICE STATION , ALAPPUZHA

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PETITIONER(S)/ACCUSED NO. 3 :

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JAYAPRAKASH, S/O.RAJAPPAN, PUTHENPARAMBU HOUSE, PONGA VILLAGE, KAVALAM.

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BY SRI.C.C.THOMAS (SENIOR ADVOCATE) ADV. SRI.NIREESH MATHEW

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. THE STATION HOUSE OFFICER, PULINKUNNU POLICE STATION, ALAPPUZHA DISTRICT, PIN-688 504.

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3. BINU, THE CIRCLE INSPECTOR OF POLICE, PULINKUNNU POLICE STATION, ALAPPUZHA DISTRICT, PIN-688 504.

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4. THE WELFARE FUND INSPECTOR, OFFICE OF THE KERALA TODDY WORKERS WELFARE FUND BOARD, THIRUVAMPADY, ALAPPUZHA, PIN-688 002.

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ADDITIONAL R5 IMPLEADED

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5. THOMASKUTTY, S/O.XAVIER, VILAYIL, KAVALAM P.O., KUNNUMMA, KUTTANAD, ALAPPUZHA DISTRICT- 688 030.

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ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 28.06.2016 IN CRL.M.A.NO.6417 OF 2016.

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R1 TO R3 BY PUBLIC PROSECUTOR SRI.ROY THOMAS R4 BY ADV. SRI.JOY GEORGE, S.C ADDL.R5 BY ADVS. SRI.N.RAGHURAJ

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SMT.K.AMMINIKUTTY

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-07-2016, THE COURT ON 01-08-2016 PASSED THE FOLLOWING:

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Msd.

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Crl.MC.No. 3269 of 2013

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE I:	CERTIFIED COPY OF THE F.I.R IN I.R. IN CRIME NO.472/2013 OF PULINKUNNU POLICE STATION.
ANNEXURE II:	TRUE COPY OF THE SEIZURE MAHAZER IN CRIME NO.472/2013 OF PULINKUNNU POLICE STATION.
ANNEXURE III:	TRUE COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT IN RESPECT OF THE 1ST ACCUSED IN CRIME NO.472/2013 OF PULINKUNNU POLICE STATION.
ANNEXURE IV:	TRUE COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT IN RESPECT OF THE 2ND ACCUSED IN CRIME NO.472/2013 OF PULINKUNNU POLICE STATION.
ANNEXURE A:	PHOTOCOPY OF THE JUDGMENT DATED 29.01.2016 IN W.P(C).NO.20871/2015 PASSED BY THIS HON'BLE COURT.
ANNEXURE B:	PHOTOCOPY OF THE CITATION, MOHANAN VS. STATE OF KERALA REPORTD IN 2007(1)KLT 845.
ANNEXURE C:	PHOTOCOPY OF THE CITATION, RAJAN & OTHERS VS. STATE OF KERALA REPORTED IN 2010(3) KLJ 461.
ANNEXURE D:	PHOTOCOPY OF THE CITATION, JITH & ORS. VS. STATE OF KERALA REPORTED IN 2013(3)KHC 138.
ANNEXURE E:	PHOTOCOPY OF THE CITATION, STATE OF KERALA VS. UNNI REPORTED IN 2007(1) KLT 151 (SC).
ANNEXURE F:	PHOTOCOPY OF THE CITATION, SABU VS. STATE OF KERALA REPORTED IN 2003(2) KLT 173.
ANNEXURE G:	PHOTOCOPY OF THE ORDER NO.XA7-20145/2013 DATED 30.06.2015 PASSED BY THE EXCISE COMMISSIONER
ANNEXURE H:	PHOTOCOPY OF THE CITATION, ARJUNAN VS. STATE OF KERALA REPORTED IN 2007(2)KLT 958(SC).
ANNEXURE I:	PHOTOCOPY OF THE CITATION, PURUSHAN VS. STATE OF KERALA REPORTED IN 2002(2) KLT 661.
ANNEXURE J:	PHOTOCOPY OF THE CITATION, MURALEEDHARAN VS. S.I OF POLICE REPORTED IN 2007(2) KLT 662.
ANNEXURE K:	PHOTOCOPY OF THE CITATION, RAVI VS. STATE OF KERALA REPORTED IN 2011(3) KLT 353.

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Crl.MC.No. 3269 of 2013

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RESPONDENT(S)' ANNEXURES :

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ANNEXURE R5(A): TRUE PHOTOCOPY OF THE ORDER DATED 13.05.2016 IN SPECIAL LEAVE TO APPEAL (C)NO.13656/2016 OF THE HONOURABLE SUPREME COURT.

//TRUE COPY//

P.S.TO JUDGE

Msd.

RAJA VIJAYARAGHAVAN, V., J.

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Crl.M.C. No.3269 of 2013

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-----------------------------------------Dated this the 1^st day of August, 2016

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O R D E R

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1.The petitioner is the 3^rd accused in Crime No.472 of 2013 of Pulinkunnu Police Station. The aforesaid crime was registered on 11.7.2013 against the petitioner and two others alleging offence punishable under Sections 56(b), 55(a) and (i) of the Abkari Act, 1 of 1077 (hereinafter referred to as the 'Act 1 of 1077' for brevity ).

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2.The prosecution allegation, as is borne out from the earliest records, is that on 11.7.2013, the Sub Inspector of Police, Pulinkunnu Police Station, while on routine patrol duty, received reliable information that Indian Made Foreign Liquor (IMFL) was being sold in the toddy shop bearing T.S.No.76 of Thonnuchira. He along with his subordinate officers inspected the toddy shop and found two persons, allegedly the Manager and salesman, selling

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IMFL. His inspection further revealed that they had stored, for the purpose of sale, 8 bottles of brandy and one bottle of rum. A sum of Rs.250/- and some glasses and soda were also found inside the room. The items were seized as per Annexure-II mahazar and Annexure-I crime was registered as aforesaid on 11.7.2013 alleging offences punishable under Section 55 (a), 55 (i) and under 56 (b) of the Abkari Act. The petitioner is arrayed in his capacity as the licensee of the toddy shop.

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3.The instant petition was filed on 2.8.2013 itself, contending that the allegations in the FIR was inherently improbable and absurd and the petitioner prays that the proceedings be quashed invoking the extraordinary inherent powers of this Court.

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4.In the course of proceedings, an application to implead himself in the instant proceeding was filed by the additional 5^th respondent claiming that he was also interested in the outcome of the matter. It was asserted that after the registration of the crime, the privilege

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granted to the petitioner was canceled and the toddy shop was re-auctioned. He had participated in the auction and became the successful bidder. A see-saw battle for the privilege of running the toddy shop in pursuance to the auction ensued between the petitioner and the 5^th respondent before various authorities and also this Court. The petitioner herein finally emerged successful before the Excise Commissioner and it was held that he would have a preferential right. A Writ Petition was filed by the 5^th respondent challenging the said order, which was dismissed by a Single Judge. The same was challenged in appeal but the Writ Appeal met with the same fate. The matter was taken up before the Hon'ble Supreme Court and by order dated 9.3.2016 in SLP (Civil) No.13561/2016, the Apex Court had disposed of the matter directing that the instant petition be heard and disposed off as the contention raised by the rival parties was inextricably linked on the stay granted by this Court in the instant crime. No objection was raised either by the

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petitioner or the Public Prosecutor to the application and hence, the same was allowed and the additional 5^th respondent was impleaded.

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5.I have heard the submissions advanced.

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6.The learned Senior Counsel appearing for the petitioner would contend that even if the entire allegations in Annexure-I and Annexure-II are admitted as true and correct, the offence under section 55 (a) and (i) of Act I of 1077 will not be attracted. Much reliance was placed on the judgment of the learned Single Judge in WP(C) No. 20871 of 2015 to nail home the said point. Referring to Annexure-A judgment, it is submitted that the learned Single Judge had held, after a meticulous analysis of law on the point, that for any breach of license conditions, which may have been, incidentally an offence under the other provisions of the Act, the licensee could be made answerable only under section 56 of the Act. It is further contended that the aforesaid judgment of the learned Single Judge was confirmed in appeal and though the

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same was taken up before the Apex Court, the findings were not interfered. There is no reason to take a different view is the submission.

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7.It is the contention of the learned Senior Counsel that what was found in the toddy shop was IMFL purchased from the Beverages Corporation and referring to Chapter VI of Abkari Shops Disposal Rules, 2002, which deals with the general conditions applicable to licensees of Toddy or Foreign Liquor 1 Shops, it is argued that in case of violation of conditions of license, only the offence under section 56(b) will be attracted. Much reliance was placed by the learned senior counsel on the orders of this Court in Mohanan V State of Kerala ( 2007 (1) KLT 845) Rajan and others V State of Kerala and another [2010 (3) KLJ 461] and Jith and Others v State of Kerala [2013(3) KHC 138] to bring home this point. According to the learned counsel, even if it is admitted that the accused Nos. 1 and 2 had kept IMFL in the toddy shop which is licensed and the said violation amounts to a

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violation of the Abkari Shops Disposal Rules, 2002, only the offence under section 56 (b) of Act 1 of 1077 will be attracted.

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8.Referring to Annexure-I FIR and Annexure-II mahazar, it is contended by the learned Senior Counsel that it is indisputable that the liquor seized was IMFL and not illicit liquor. Annexure-II would also reveal that the unopened bottles were found sealed. The officers were also convinced that what was seized was IMFL and if that be the case, the initiation of prosecution under Section 55(a) or (i) cannot be justified. Elaborating further, it is contended that mere possession of IMFL will not attract the offence unless the prosecution has a case that the same was illegally imported or exported or stored for the prohibited purposes. In other words, according to the learned Senior counsel, for the simple violation of Rule 7 (5) of the Kerala Abkari Shops Disposal Rules, 2002 ('Rules 2002' for brevity) the consequence that will visit the petitioner would only be one under Section 56 (b) of

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Act 1 of 1077.

9.An alternate contention is raised by the learned senior counsel that Annexures-III and IV certificates would reveal that the accused Nos. 1 and 2 are not employees of the petitioner and even if they were found in possession of IMFL within the permissible limit, no mens rea can be attributed to the petitioner for invoking any grave offence except the offence under section 56 (b) of Act 1 of 1077. Reference is also made to Annexure-G order dated 30.6.2015 of the Excise Commissioner which according to the learned counsel would show that the accused Nos. 1 and 2 are not the employees of the petitioner. According to the learned counsel, the possibility of rivals securing the services of the accused Nos. 1 and 2 to get the petitioner herein disqualified also could not be ruled out.

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10.According to the learned senior counsel, the presumption under section 64 of the Act will be attracted only if it is proved that the offence was committed with the knowledge and consent of the licensee. It is argued that

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the existence of mens rea is a necessary ingredient to avail the presumption under the statute. Reference is made to the judgment of the Apex Court in Arjunan v State of Kerala [2007 (2) KLT 958].

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11.Per contra, the learned Public Prosecutor after refuting the submissions of the learned Senior Counsel contended that immediately after the registration of the crime on 11.7.2013, the instant petition was filed on 2.7.2013. All further proceedings were stayed on 26.8.2013. The linchpin of the contention raised by the learned counsel

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that the offence under section 55 (a) and (i) will not be attracted is based on the assumption that what was seized was licit. According to the learned Public Prosecutor, without sending the sample for analysis and without securing a report of analysis of the sample, it would be premature for this Court to come to a conclusion that the offence under Section 55 will not be attracted. The learned prosecutor also reminded this Court that it is by now settled that this Court would venture to quash the FIR

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only in the rarest of rare cases. According to the learned Public Prosecutor, the facts are hazy and disputed and this Court would not be justified in interfering at this stage.

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12.The learned Counsel appearing for the additional 5^th respondent would support the contentions of the learned Public Prosecutor. Elaborating on the same, it is contended that the statements in Annexures-I and II as regards the nature of the IMFL seized cannot be the basis for concluding that Section 55(a) or (i) of Act 1 of 1077 will not be attracted. This is more so when no one has a case that the liquor was sourced from an authorized vendor.

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13.It is further contended that under Section 64 of the Act there is a statutory presumption regarding the commission of an offence and that the said presumption applies to any offence under Section 55 of the Act. In the case on hand the proceedings have been initiated against the petitioner under Section 55(a) and (i) of the Act 1 of 1077 and the question whether the accused had mens rea or otherwise

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cannot be adjudicated at this stage. It is also pointed out that violation of Section 15 of the Act will attract the offence under Section 63 of the Act and the prayer of the petitioner to quash Annexure-I FIR is untenable. It is further urged assiduously that Section 55 of the Act would be attracted against a licensee as well, in certain fact scenarios, and the contention of the petitioner that only Section 56(b) of the Act will be attracted is untenable.

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14.After having heard the diametrically opposite interpretations on facts and law advanced by the learned

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Counsel, it is felt that it will only be appropriate to scan through the relevant statutory provisions. Section 55 of the Act reads as follows :-

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"55. For illegal import, etc.:- Whoever in contravention of this Act or of any rule or order made under this Act

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(a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or -

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(b) xxxx; or (c) xxxx; or (d) xxxx; or (e) xxxx; or (f) xxxx; or (g) xxxx; or

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(h) xxxx; or

(i) sells or stores for sale liquor or any intoxicating drug; shall be punishable

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(1) for any offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and

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(2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. Explanation: - xxxxx”

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15.Section 56 penalizes a licensee for any misconduct. In

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the case on hand we are concerned with section 56 (b) of

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the Act which reads as follows:-

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"56. For misconduct by licensee, etc.-Whoever, being the holder of a licence or permit granted under this Act [or being in the employment of such holder and acting on his behalf -]

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(a) xxxx; or

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(b) willfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for in this Act; or."

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16.It would also be apposite to refer to Rule 7(5) and Rule

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9(1) of the Abkari Shops Disposal Rules, 2002.

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“Rule 7(5): The Possession or sale at a

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licensed premises of any liquor other than that to which the license relates is prohibited.

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Rule 9.(1): The right conferred by a licensee under this Chapter extends only to the manufacture and sale of fermented toddy and not other kinds of liquors. No toddy depot will be granted to any licensee.”

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17.The argument of the petitioner centers around the ratio of the Judgment of a Division Bench of this Court in

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Surendran v. Excise Inspector [2004 (1) KLT 404] wherein it was held that when a person is in possession of liquor while illegally importing or transporting imported liquor, it will be covered under S.55 (a) of the Act and mere possession of illicit liquor or liquor will only come under section 58. In paragraph 10 of the Division Bench judgment, it was stated as follows:

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"10. The matter can be looked at from another angle also. Keeping in view the slight similarity in language it is permissible to refer to the heading of the provision. S.55 is labelled as - "for illegal imports etc." Thus, the Legislature is providing for penalty in a case where a person illegally imports alcohol. S.58 makes the "possession of illicit liquor" culpable. Resultantly, it is clear that when a person is in possession of liquor while illegally importing it the case would be

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covered under S. 55(a). In a case where the possession is of illicit liquor the case would fall within S.58. In other words, we hold that the view as expressed in Rajeevan v. Excise Inspector and Purushan v. State of Kerala is correct."

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18.In Mohanan v. State of Kerala [2007(1) KLT 845] the

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question was whether a toddy tapper who had tapped toddy from a licensed coconut tree and was transporting the same in a bicycle could be proceeded against under Section 55(a) of the Abkari Act. A Division Bench of this Court after meticulous evaluation of the relevant provisions had held that he could not be convicted under Section 55(a) and only an offence under Section 63 of the Act was made out. This Court after profusely referring to the statutory provisions and also the judgment in Surendran (supra), held in paragraph 10 as follows:

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“10. Now, the matter is settled by the Division Bench decision of this Court in Surendran v. Excise Inspector, 2004 KHC 72 : 2004 (1) KLT 404 wherein it was held that S.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 S.55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing.

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The observations made in Karthikeyan v. State of Kerala, 2000 KHC 692 : 2000 (2) KLJ 649 : 2000 (3) KLT 639, Balan v. State of Kerala, 2002 KHC 748 : 2002 (2) KLJ 196 : ILR 2002 (3) Ker. 438 : 2002 (3) KLT 161 and George Issac v. State of Kerala, 2004 KHC 121 : ILR 2004 (2) Ker. 218 : 2004 (1) KLT 752 contrary to the decision made in Surendran's case (supra) are no more good law. It is true that if a licensee illegally manufacture liquor or intoxicating drugs, apart from S.56, he may be guilty under S.55(b). Further, if he makes of sells denatured spirit fit for human consumption or adulterate liquor, he will be punishable under the other sections also like S.57, 57A etc. But, S.55(a) will not be attracted merely because he sells the liquor on a prohibited day, but, punishment can be imposed under S.56. As far as S.55 is concerned, sub clause (a) deals with illegal imports and exports of liquor or intoxicating drugs or transports or possesses such liquor covered under import or export. Sub clause (b) deals with manufacture of the same. Sub clauses (d) and (e) deal with illegal toddy tapping or drawing of toddy from trees. S.55 (f) deals with engagement in construction or works relating to illegal distillery, brewery etc. and clause (g) deals with possession of utensils or implements or apparatus for manufacturing illegal liquor. S.55(h) deals with bottling of liquor for the purposes of sale without licence and clause (i) deals with illegally storing of liquor for selling the same. Other abkari offences are specifically dealt with in various other provisions.”

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19.In other words it was made clear in Mohanan (supra)

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that S.55(a) is applicable only when a person illegally imports or transport liquor or is in possession of liquor while illegally importing it. It was also held that if a licensee illegally manufacture liquor or intoxicating drugs, apart from S.56, he may be guilty under S.55(b). Further, if he makes of sells denatured spirit fit for human consumption or adulterate liquor, he will be punishable under the other Sections also like S.57, 57A etc. But, S.55(a) will not be attracted merely because he sells the liquor on a prohibited day, but, punishment can be imposed under S.56.

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20.The learned Counsel had addressed much as to the intention of the legislature in carrying out the amendment to Section 55(a) of the Act. By Act 16 of 1997, the words, “or of any license or permit obtained under this Act” was omitted. Prior to the amendment, the principal part of Section 55 had treated a stranger and a licensee alike. Therefore, when a licensee commits violation of the Rules of 2002, he cannot be said to have infringed Section 55 of

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the Abkari Act. Section 56 is confined to the licensees and the permit holders and in the light of the amendment, the intention of the legislature was to bring out the licensees from the ambit of Section 55 if the violation was of the Rules of 2002.

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21.In Rajan and Others v. State of Kerala [2010(3) KLJ 461], a Single Judge of this Court had occasion to consider the question as to whether the storing of toddy outside the licensed premises would attract Section 55(a) and (i) of the Abkari Act. It was held that storing of toddy outside the licensed premises would violate only sub rule (5) of Rule 7 of Kerala Abkari Shops Disposal Rules which provides that possession or sale of any liquor other than to which the license relates is prohibited. It was held that the act of a licensee of a toddy shop who violates the Rules will only attract Section 56(b) of the Abkari Act and not Section 55(a) of the Act. It was held as follows:

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Question then is whether an offence under S.55(i) is attracted. S.55(i) before its amendment by Act 16 of 1997, provides

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that whoever in contravention of this Act or of any Rule or order made under this Act or by any licensee or permit obtained under this Act, import, export, transports or possesses liquor or any intoxicating drug, he is punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than twenty five thousand rupees. By amendment Act of 16 of 1997 invoking S.55 against the licensee for contravention of the provisions of the licence or permit obtained under the Act was excluded by deleting the words 'or of any licence or permit obtained under this Act'. As a result, if there is a violation of the conditions of the licence or permit, alone by a licensee, an offence under S.55(a) or 55 (i) will not be attracted. So also, 'storing for sale of liquor' though originally not included within the ambit of S.55(i), subsequent to amendment Act 16 of 1997, whoever in contravention of the Act or of any rule or order made under the Act sells or stores for sales liquor or any intoxicating drug is also liable for punishment under the said section. So also sentence for the offences were enhanced to imprisonment for ten years and with fine which shall not be less than rupees one lakh. Therefore, w.e.f. 03/06/1997, if a licensee has violated the terms of the licence or permit and stored liquor outside the licensed premises, an offence under S.55(i) will not be attracted against the licensee or his employees, if they are acting under the licensee.

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22.In Jith and others v. State of Kerala [2013(3) KHC 138], the question was whether transportation or storage of toddy in excess of prescribed quantity would attract Section 55(a) or (i) of the Abkari Act. It was held that the accused could not be prosecuted for violation of Section 55(a) and (i) of the Abkari Act and the only offence attracted will be under Section 56(b) of the Abkari Act.

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23.In Ravi v. State of Kerala [2011(3) KLT 353], this Court relying on Thomas V State of Kerala [2005 KHC 1786] held that possession of IMFL, which is not a prohibited liquor, simplicitor, is not an offence under section 55 (a) of the Act.

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24.The question as to whether this Court in exercise of its jurisdiction Under Section 482 of the Code can quash the first information report itself is integrally and inexorably intertwined with the jurisdiction and power of the police officer to investigate into commission of a cognizable case. Catena of decisions are referred by the learned Senior Counsel appearing on behalf of the petitioners, the

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learned Public Prosecutor and the learned counsel

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appearing for the 5^th respondent. The distinction in law between the powers of the Court to take cognizance of a case and their powers of inquiry and trial on the one hand and the powers of a police officer to investigate into a case relating to commission of a cognizable offence on the other hand are too well recognized. It has been observed by higher Courts that function of the judiciary and the police are complementary and not overlapping. It has been clearly held that the Court's functions begin when a charge is preferred before it and not until then. In Emperor v. Khwaja Nazir Ahmad [AIR (32) 1945 P.C. 18] the Privy Council speaking through Lord Porter observed as follows :

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"In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not

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interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course-subject to the right of the Court to intervene in an appropriate case when moved Under Section 491. Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present-however, the Court's functions begin when a charge is preferred before it and not until then (emphasis of mine). It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable

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offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad. 129". (emphasis supplied )

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25.A Full Bench of the Hon'ble Supreme Court in Som Mittal Vs Government of Karnataka [2008 (3) SCC

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574], after surveying a series of judgments rendered by the Apex Court delineated the scope of exercise of powers

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of this Court under Section 482 of the Code in the matter

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of quashing of an FIR and it was held as follows :-

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11. We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice.

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12. In State of Bihar v. J.A.C. Saldanha 1980 CriLJ 98 this Court pointed out at SCC p. 574:

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The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

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13. In Hazari Lal Gupta v. Rameshwar

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Prasad 1972 CriLJ 298 this Court at SCC p. 455 pointed out:

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In exercising jurisdiction under Section 561A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is 'reliable or not'. Where again, investigation into the circumstances of an alleged cognizable, offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

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14. In Jehan Singh v. Delhi Administration 1974 CriLJ 802 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.

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15. In Kurukshetra University v. State of Haryana 1977 CriLJ 1900, this Court pointed out:

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It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the

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complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (emphasis supplied)

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16. In State of Bihar v. Murad Ali Khan 1989 CriLJ 1005 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.

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17. In State of Haryana and Ors . (appellant) v. Bhajan Lal and Ors. (respondents) 1992 CriLJ527 , this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are:

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if

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any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or

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where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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18. We may observe here that despite this Court's consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to' secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold . (emphasis supplied )

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26.I have bestowed my anxious considerations to the facts

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of the instant case and also the precedents cited at the bar. Admittedly, the petitioner herein, who has been arrayed as the 3^rd accused in Annexure-I FIR is the licensee of toddy shop No.76 of Thonnuchira in group

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No.21 of Kuttanadu range. Specific allegations in Annexures-I and II is that the accused Nos. 1 and 2 who are the Manager and salesman were found selling IMFL in the Managers Room of the toddy shop. The petitioner disputes the fact that accused Nos. 1 and 2 are his employees. He relies on Annexures-III and IV to contend that they are employees of another toddy shop. Question whether they are employees of the another toddy shop or otherwise is a matter of evidence and in this petition, this Court will not be in a position to judge on the veracity of the said claim. However, it is borne out from AnnexuresI and II , that the contents of the open bottle found in the premises was tested using olfactory and gustatory senses by the detecting officer and the attesters and they prima facie came to the conclusion that the seized items was in fact IMFL.

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27.The olfactory and gustatory senses of experienced officers to identify liquor through smell and taste will not ordinarily be enough for a court of law to conclude that

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the seized liquid is licit liquor, or for that matter, to hold that IMFL was procured from a legal vendor. The report of a public Analyst would be the minimum requirement to arrive at such a conclusion. However, for the purpose of registering a crime, there is no embargo in the officer relying on his senses. Admittedly, no chemical analysis was obtained as investigation was stayed .

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28.I am of the firm view that, that in a proceeding under Section 482 of the Code, when this Court is called upon to quash the Criminal Proceedings at the threshold stage, the fact that the prosecution was prevented from securing a proper report of analysis to ascertain the exact nature of the seized liquor would dissuade this Court from holding that the only offence attracted is under Section 56(b) of Act 1 of 1077. If the analysis report was before this Court and it was reported that the item seized was indeed IMFL, the result would have been different. The possibility of the Investigating agency concluding that certain offences incorporated in the FIR was not made out in the Final

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report also could not be ruled out. All these factors hinge on the investigation to be carried out by the police consequent to the registration of the crime. In view of the above, I am unable to conclude at this stage that the proceedings are frivolous or vexatious and the same is liable to be quashed .

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29.The precedents cited by the learned senior counsel will come to the rescue of the petitioner only if on analysis , it is revealed that the liquor seized was licit and procured legally. At this stage, this Court is not able to accept the contention of the learned senior counsel that the liquor found in the premises was lawfully procured from an authorized vendor. When the petitioner has distanced himself from accused Nos. 1 and 2, it is inconceivable as to how he can assert that the IMFL found in the room of the Manager was licit and the same was procured from the State owned Corporation, the authorized dispenser of IMFL, in the State of Kerala. The question whether accused Nos. 1 and 2 are the employees of the petitioners

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or are strangers are all matters which cannot be decided by this Court at this stage.

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30.I am not oblivious of the judgment rendered by a Single Judge of this Court where it was held that for any breach of the license conditions, which may have been, incidentally, an offence under the other provisions of the Act, the licensee could be made answerable only under Section 56 of the Act and not under the other Penal provisions. There cannot be any dispute with regard to the said fact and the said position has been laid down by this Court in a catena of judgments, some of which have been referred above .

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31.However, in the instant petition, where the question is whether the proceedings can be quashed at the threshold stage itself on the ground that the alleged offences are not made out, different considerations would prevail.

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32.As has been consistently held by the Apex Court, the scope of exercise of powers at the stage of registration of the FIR is limited. Powers under section 482 are to be

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exercised sparingly and with circumspection and this Court will not be justified in embarking upon a roving enquiry to find out whether the allegations in the FIR are likely to be established in the course of Investigation. At this stage, it will not be possible or appropriate for this Court to express any opinion on merits and I find it difficult to hold that the petitioner has made out a case for interference with the registration of the FIR at this stage. Consequently, the petition will stand dismissed.

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Sd/RAJA VIJAYARAGHAVAN. Ps JUDGE

Jayaprakash v. State of Kerala

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Jayaprakash v. State of Kerala

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