Dismissed

George Mathew v. State of Kerala

Kerala HC12 Aug 2016WA/1527/2016

Case brief

AI extract

What is this about?

On a writ appeal against the dismissal of a writ petition, the High Court held that the learned Single Judge failed to express an opinion on merits and limited observations were based only on an occurrence report. The Court dismissed the appeal, noting the appellant had already moved the appellate authority.

What did the court decide?

The writ appeal stands dismissed with observations that the lower court did not express an opinion on merits and the appellant should rely on the appellate authority's order.

George Mathew Vs State of Kerala — Criminal Trial and Appeal | 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 P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938

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WA.No. 1527 of 2016 () IN WP(C).17195/2016

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AGAINST THE JUDGMENT IN WP(C) 17195/2016 of HIGH COURT OF KERALA DATED 26-05-2016

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APPELLANT(S)/PETITIONER:

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GEORGE MATHEW, S/O.MATHEW AGED 62, PARAPPAT HOUSE, VETTAMPARA P.O, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.ALEXANDER JOSEPH

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RESPONDENT(S)/RESPONDENTS:

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STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001. 2. THE COMMISSIONER OF EXCISE THIRUVANANTHAPURAM, PIN: 695 001.

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THE DEPUTY COMMISSIONER OF EXCISE PALAKKAD, PIN: 678 001. 4. THE EXCISE INSPECTOR EXCISE RANGE OFFICE, ALATHOOR, PALAKKAD, PIN: 678 001. 5. THE EXCISE INSPECTOR INTELLIGENCE BUREAU, PALAKKAD -678 001.

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BY SENIOR GOVERNMENT PLEADER SRI. BIJOY CHANDRAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.R. RAMACHANDRA MENON

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ANIL K. NARENDRAN, JJ.

JUDGMENT

Ramachandra Menon, J.

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The appellant was the petitioner in W.P.(C) No. 17195 of 2016. The case is in relation to transportation of toddy based on the valid permit issued by the competent authority and the shortage detected in the due course.

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The appellant is owner of the vehicle bearing No. KL 44 D 4402, which was stated as given on rent for transporting toddy from Chittur in Palakkad district to Kothamangalam in Ernakulam district. It is stated that as per the relevant permit, a quantity of 2655 litres was possible to be transported. On 27.04.2016, 2055 litres alone were lifted and the same was being transported in the vehicle as per the check post entries. Immediately after conducting inspection at the check post, when the vehicle proceeded further about 1 k.m., it was intercepted by the 4^th respondent, who verified the facts and figures at the check post. It was revealed that the total quantity which was being transported at that point of time was about 1560

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W.A. No. 1527 of 2016

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: 2 :

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litres, thus resulting in shortage of 495 litres. This was stated as a valid instance of violation of permit condition, thus attracting an offence under Section 56 (b) of the Kerala Abkari Act as well. It was accordingly, that a crime was registered as O.R. No. 51 of 2016 of the Alathur Excise Range, proceeding with further steps.

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The appellant contends that the proceedings are per se wrong and unsustainable in all respects and that there was no shortage at all. According to the appellant there was no machinery/infrastructure at the check post or with the 4^th respondent to have taken measurement of the toddy and as such, the inference drawn as per the Mahazar is purely on the basis of surmises and conjectures, which cannot attract any offence. It was in the said circumstances, that the appellant sought to file W.P.(C) No. 17195 of 2016 to quash all further proceedings. During the course of hearing, the learned single Judge observed that the petitioner had to pursue the remedy before the statutory authority. Referring to the sequence of events, especially Ext. P8 occurrence report, the learned Judge held that there was a prima facie finding that there was reduction in the quantity of toddy concerned and hence there was violation of the permit condition, to be proceeded against under the Abkari Act.

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W.A. No. 1527 of 2016

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: 3 :

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Since the competent authority dealing with the issue was the 3^rd respondent, the writ petitioner was relegated to move the said authority. Reserving the rights and liberties in this regard, interference was declined and the writ petition was dismissed. This in turn is under challenge in this appeal.

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Heard the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondents.

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During the course of hearing, it is brought to the notice of this Court that, pursuant to the direction issued by the learned single Judge, Ext. P9 preferred by the petitioner was considered by the 3^rd respondent and a detailed order came to be passed, which has been produced as Annexure A1 along with I.A. No. 952 of 2016. As per the said order, the competent authority arrived at a finding against the appellant/writ petitioner and the said position was let known to him, also alerting him as to his right to prefer appeal before the Addl. Excise Commissioner within the stipulated time, in tune with the relevant provisions of law. The learned counsel for the appellant submits that the basic contention raised before the authority and also before the learned single Judge was that no measurement was taken at any point of time and that, if at all any crime was registered and

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W.A. No. 1527 of 2016

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: 4 :

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proceeded against, it could only be for the shortage, adding that the confiscation proceedings will not lie. This aspect has not been considered by the learned single Judge, submits the learned counsel. It is also pointed out that, while relegating the petitioner to move the statutory authority, the Bench held in paragraph 9 of the judgment that the learned judge was of the considered opinion that there was violation of permit condition and as such, the petitioner was liable to be proceeded against under the relevant provisions of the Abkari Act. This observation stands against the rights and liberties of the appellant and that the concerned authority under the Statute would be carried away by the said observation. It is brought to the notice of this Court that the appellant has already moved the appellate authority by filing an appeal. It is also stated that the appeal was heard on 10.08.2016, but the order is still to be pronounced.

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After hearing both the sides, this Court finds that the observation made by the learned single Judge in paragraph 9 of the judgment cannot be isolated to be read and understood that there was a finding on merit. This is discernible from the judgment itself that the said observation is with reference to Ext. P8 occurrence report. In any view of the matter, since the appellant/writ petitioner

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W.A. No. 1527 of 2016

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: 5 :

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is permitted to pursue the matter before the statutory authority, any observation made by this Court will be detrimental to the rights and interests of the appellant. This Court makes it clear that the learned single Judge has not expressed anything with regard to the merits of the case. It is also open for the appellate authority to look into the matter with reference to the facts and figures and the relevant provisions of law, and arrive at a finding, passing a speaking order in this regard.

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The appeal stands dismissed with the above observations.

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The fate of this appeal and the observations made herein before are required to be communicated by the learned senior Government Pleader to the appellate authority.

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sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN, JUDGE

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kmd

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/True copy/

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P.A. to Judge

George Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

George Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

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