Petitioners are accused in Crime No.17/2012 of Thiruvalla Excise Range. The first petitioner/first accused is the licensee of Toddy Shop Nos.7, 8, 11 and 12/2011-12 in Group II of Thiruvalla Excise Range and the second petitioner is the close relative of the first petitioner. Annexure-II is the permit granted to the first petitioner to transport toddy from Alathur to Thiruvalla and it was valid up to 31.3.2012. The case against the petitioners is that on 27.3.2012 at about 7.25 p.m, they were seen unloading a jerry can containing 50 litres of toddy in the courtyard of Toddy Shop No.11 from a car owned by second petitioner. Consequently, Annexure-I Crime & Occurrence Report and mahazar was prepared alleging commission of offence under sections 55(a) and 67(b) of the Abkari Act against the petitioners. This petition is filed seeking quashment of Annexure-I on the ground that even if the entire allegations in Annexure-I are taken as true and correct, they would not attract offence under section 55(a) and 67(b) of the Abkari Act and it would attract only offence under section 56(b) of the Abkari Act in the light of the decision of this Court in Pradeep v. State of Kerala reported in 2010 (3) KLT 99.
2. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. I have already adverted to the case of the prosecution as revealed from Annexure-I. Admittedly, the first petitioner is the licensee of T.S.Nos.7, 8, 11 and 12/2011-12 in Group II of Thiruvalla Excise Range. Going by the allegation, incident took place from the courtyard of T.S.No.11. The allegation is that from the car belonging to the second petitioner, the petitioners were seen unloading jerry can containing 50 litres of toddy, which on query, said to be brought to T.S.No.12/2011-12. Annexure-II dated 25.10.2011 would reveal that the first petitioner was issued with permit to transport toddy from Alathur to Thiruvalla and the same was valid up to 31.3.2012. The alleged incident occurred within the validity period of Annexure-II. Going by Annexure-II, the petitioner was permitted to transport 75 litres of toddy and going by the allegation, the petitioners were seen unloading jerry can containing 50 litres of toddy in the courtyard of T.S.No.11. The learned Public Prosecutor submitted that after complying with statutory mandate, samples were collected and forwarded for analysis. On analysis, it was found that the ethyl alcohol content in the sample was 5.28% v/v which is admittedly within the permissible limit. Going by the case of the prosecution, the vehicle in question from which jerry can containing 50 litres of toddy was found unloaded is not the vehicle permitted under Annexure-II. The case of the petitioners is that they were constrained to use the said vehicle as the vehicle permitted under Annexure-II broke down during transit. Whatever that be, in the light of the decision in Pradeep's case (supra), taking into account the admitted fact that the first petitioner is the licensee of Toddy Shop Nos.7, 8, 11 and 12/2011-12 in Group II of Thiruvalla Excise Range and that the toddy transported was within the permissible limit, it would not attract offence under sections 55(a) and 67(b) of the Abkari Act and at the same time, it would attract only offence under section 56(b) of the Abkari Act for violation of conditions of license. The learned counsel for the petitioners, in such circumstances, submitted that by virtue of the provisions under 67A of the Abkari Act, the Commissioner of Excise or Deputy Commissioner of Excise of the district concerned or any abkari officer specifically empowered by the Government, by the notification in the Gazette is having the power to compound the offence. Taking into account the totality of the circumstances, this Crl.M.C is allowed. It is made clear that the petitioners could be prosecuted only for offence under section 56(b) of the Abkari Act and the investigation can be proceeded for the offence under section 56(b). The petitioners are also left at liberty to approach the competent officer to compound the offence as the offence under section 56(b) is compoundable under 56(a) of the Abkari Act.
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C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010