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2000 DIGILAW 483 (KER)

Circle Inspector v. Prasad

2000-09-05

A.LEKSHMIKUTTY

body2000
Judgment :- A. Lekshimikutty, J. The petitions are filed by the Circle Inspector of Excise, Chittoor Range to quash the orders passed in Crl. M.Ps. 590/2000, 607/2000 and 589 of 2000 respectively in Crime No. 11/2000 of Chittoor Excise Range of the Court of Session, Palakkad and arrest the accused persons and commit them into custody. The respondent in Crl. M.C. No. 2504 of 2000 is the 16th accused, respondents in Crl. M.C. No. 2517 of 2000 are accused Nos. 6 to 15 and respondents in Crl. M.C. No. 2518 are accused Nos,1 to 5 in Crime No. 11 of 2000 of Chittoor Exchange Range. 2. The offences levelled against the respective respondents are punishable under Ss.55(a), 56, 57, 56(A) of the Abkari Act I of 1077. 3. The allegation against the accused persons is that they were found engaged in manufacturing artificial toddy in Building Nos. XI/174 and XI/175 of Nallappally Panchayat. On getting secret information regarding the manufacture of artificial toddy in the said buildings the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Thrissur and the police party under the Supervision of the Additional Superintendent of Police, Palakkad made a surprise raid at about 5 A.M. at the toddy depot on 6.5.2000 and seized 26,170 litres of artificial toddy, 5 kgs. of paste like chemical substance and 50 kgs. of sugar which were kept for manufacturing artificial toddy. The contraband articles were seized under a mahazar. The artificial toddy has been stored in the depot as well as packed in crates laden with vehicles. Besides the above said vehicles the petitioner and other officials have seized 7 Mini Lorries, 2 Mahindra Jeeps and 1 Mahindra pick-up van. Six pump sets were seen at the spot which were used for delivering, stirring and mixing water and other ingredients of the artificial toddy. The vehicles were produced before the Assistant Excise Commissioner, Palakkad for initiating confiscation proceedings under S.67-B of the Act. Accused Nos.1 to 5 who were engaged in the manufacture of artificial toddy were arrested from the spot itself. Accused Nos. 6 to 15 are the licensees of toddy shop Nos.1 to 90 for the year 2000-2001 of Chittoor Excise Range. The 16th accused is doing the above business with the active participation and co-operation of accused Nos. 6 to 15. Accused Nos. 6 to 15 are the licensees of toddy shop Nos.1 to 90 for the year 2000-2001 of Chittoor Excise Range. The 16th accused is doing the above business with the active participation and co-operation of accused Nos. 6 to 15. He is the real owner who conducts the shops by proxy with the assistance and co-operation of other accused. 4. The Sessions Court, Palakkad granted bail to accused Nos.1 to 5 as per order in Crl. M.P. No. 589 of 2000, bail to accused No. 16 as per order in Crl. M.P. No. 590 of 2000 and anticipatory bail to accused Nos. 6 to 15 as per order in Crl. M.P. No. 607 of 2000. These orders are challenged by the petitioner in the above said Criminal Miscellaneous Cases. 5. Heard the learned Additional Director General of Prosecution and the learned counsel for the respondents. 6. The question to be considered is whether the orders under challenge can be quashed. Crime No. 11 of 2000 of Chittoor Excise Range is registered against the accused under Ss.55(a), 56, 57 and 57-A of the Abkari Act and R.4 of the Depot Licence Rule. As per the prosecution, on getting secret information regarding the manufacture of artificial toddy at the depot sanctioned to the licensees of toddy shop Nos.1 to 90 for the year 2000-2001 of Chittoor Excise Range, the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Thrissur and the police party under the supervision of Additional Superintendent of Police, Palakkad made a surprise raid at about 5 A.M. at the toddy depot housed in Building Nos. XI/174 and XI/175 of Nallappilly Panchayat. Accused Nos. 6 to 16 are the licensees of the shops. The specific case of the petitioner is that the accused persons conspired together and manufactured artificial toddy. Accused Nos.1 to 5 were seen engaged in the manufacture of artificial toddy. They were arrested at the spot itself and search was conducted in the toddy depot. The Excise officials and Police Officials detected 5 kgs. of paste like chemical substance, 50 kgs. of sugar kept for manufacture of artificial toddy and 26,170 litres of artificial toddy. The contraband articles were seized after preparing mahazar. As per the learned Additional Director General of Prosecution, the artificial toddy has been stored in the depot as well as packed in crates laden with vehicles. of paste like chemical substance, 50 kgs. of sugar kept for manufacture of artificial toddy and 26,170 litres of artificial toddy. The contraband articles were seized after preparing mahazar. As per the learned Additional Director General of Prosecution, the artificial toddy has been stored in the depot as well as packed in crates laden with vehicles. They have also seized 7 Tata Mini Lorries, 2 Mahindra Jeeps and 1 Mahindra Pick-up Van used for transporting the illicit toddy. So prima facie it can be seen that the accused persons have committed offences punishable under Ss.55(a), 56 57 and 57-A of the Abkari Act. The allegation is denied by the respondents. It is submitted by the learned counsel that the accused persons are innocent and the allegations levelled against them are false. The 16th accused has nothing to do with the alleged offences. The report of the chemical analysis shows that out of the 18 samples sent for analysis, only 2 samples contained excess quantity of (16.97 and 16.57 percentage) Ethyl alcohol and sodium lauryl sulphate. 7. As per S.41A of the Abkari Act "the offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974 (a) every offence punishable under this Act shall be cognizable, (b) no person accused of an offence punishable for a term of imprisonment of three years or more under the Abkari Act shall be released on bail or on his own bond unless (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release and (ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail". 8. It is submitted by the learned Additional Director General of Prosecution that the lower court has failed to consider these aspects while granting bail to the accused persons. 9. S.41-A of the Abkari Act is in paramateria with S.37 of the N.D.P.S. Act. So before granting bail to the accused persons, the learned Sessions Judge ought to have considered the mandate contained in S.41-A of the Abkari Act. 9. S.41-A of the Abkari Act is in paramateria with S.37 of the N.D.P.S. Act. So before granting bail to the accused persons, the learned Sessions Judge ought to have considered the mandate contained in S.41-A of the Abkari Act. On the basis of the mahazar, the Assistant Excise Commissioner cancelled the licence of the accused. Against the cancellation of licence, the licensees filed O.P. No. 13562 of 2000 before this court and this court directed the Excise Commissioner to consider the matter after giving an opportunity to the parties to present their case. The Excise Commissioner passed an order on 18.7.2000 and set aside the order of the Assistant Excise Commissioner as per order No. P5-3930/2000 dated 9.5.2000 permission was granted to the petitioners therein for opening the toddy shops, and conducting the business in Chittur Range with immediate effect. So, according to the learned counsel, a competent authority has found that the allegation against the accused persons is not correct. This argument of the learned counsel cannot be accepted. In my view, S.41-A of the Abkari Act is in paramateria with S.37 of the Narcotic Drugs and Psychotropic Substances Act. The mandate in the said Section is that if bail application is opposed by the Public Prosecutor, the court must satisfy that there are reasonable grounds for believing that the accused is not guilty of such offence, then only bail can be granted. This position is dealt with in the decisions in Union of India v. Merajuddin ((1999) 6 SCC 43) and Union of India v. Ram Samujh and another ((1999 9 SCC 429). 10. The orders under challenge show that the lower court while granting bail to the accused persons did not consider the above said mandate. The Sessions Court granted bail to the accused persons on the sole ground that the search and seizure were made without prior sanction of the Magistrate. 11. 10. The orders under challenge show that the lower court while granting bail to the accused persons did not consider the above said mandate. The Sessions Court granted bail to the accused persons on the sole ground that the search and seizure were made without prior sanction of the Magistrate. 11. As per S.11 of the Abkari Act "whenever the (Commissioner of Excise) or any (abkari officer not below such rank as may be specified by the Government in this behalf or any Police Officer) not below the rank of (Sub Inspector) or a Police Station Officer, has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act". So the Sessions Court is apparently wrong in holding that the search and seizure were conducted without prior sanction of the Magistrate. 12. As per the learned Additional Director General of Prosecution accused No. 16 is the 7th accused in Crime No. 18/2000 registered by the Excise Range, Karthikappally under S.55(a) of the Abkari Act. 13. The report of the chemical analysis shows that item No. 1(6)F and 11(7G) were found to be artificial toddy since they contained higher percentage of ethyl alcohol and sodium lauryl sulphate, a synthetic emulsifying agent. It is submitted that the proceedings passed by the Excise Commissioner is stayed by this court. On the basis of the available records, I am not satisfied that the accused persons are prima facie not guilty of the offence as claimed. Besides accused No. 16 is accused in similar offence. The grant of anticipatory bail will seriously and adversely affect the smooth investigation. So, I am constrained to set aside the order passed in Crl. M.P. 590 of 2000 and Crl. M.P. 607 of 2000 of the Sessions Court, Palakkad. 14. Besides accused No. 16 is accused in similar offence. The grant of anticipatory bail will seriously and adversely affect the smooth investigation. So, I am constrained to set aside the order passed in Crl. M.P. 590 of 2000 and Crl. M.P. 607 of 2000 of the Sessions Court, Palakkad. 14. As far as accused Nos.1 to 5 are concerned, they were in judicial custody for more than 10 days and the petitioner herein has no case that their presence is required for any investigation purpose. So, I am not inclined to interfere with the order passed in Crl. M.P. 589 of 2000. The Crl. Miscellaneous Cases are disposed of as above.