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2010 DIGILAW 907 (KER)

Joby Jacob v. State of Kerala

2010-11-18

M.SASIDHARAN NAMBIAR

body2010
ORDER : Petitioners 1 and 2 are the employees and petitioners 3 to 7 are the joint licensees of toddy shops 57 to 61 of Group X of Kanjirappally Excise Range. Based on an inspection made by the second respondent, Circle Inspector of Excise, Kanjirappally registered C.R.54/2010 of Kanjirappally Excise Range. He prepared Annexure-A crime and occurrence report for the offences under Section 55(a), 55(i), 56(b) and 58 of Kerala Abkari Act, on the allegation that even though being Gandhi Jayanthi day, sale of toddy is prohibited about 50 Ltrs. of toddy of Sago Palm (Choondapana) was found stored in the toddy shop No.61 and petitioners thereby committed the offences. Petition is filed under Section 482 of Code of Criminal Procedure to quash the registration of the case for the offences under Sections 55(a), 55(i) and 58 of Abkari Act contending that if at all, only an offence under Section 56(b) is attracted. Petitioners would contend that two of the petitioners along with other licensees of the group No.X of Kanjirappally Excise Range had submitted Annexure-I complaint to the Excise Commissioner pointing out that second respondent is attempting to extract money illegally from the toddy shop owners. It is contended that because of that complaint false case was registered without any bonafide. It is contended that there was no sale of toddy from the toddy shop on 2/10/2010 as alleged and though tree tax was not paid for all the trees in respect of the toddy shops, it was not wilful. It is the case that evidenced by Annexure-J, tree tax was paid for shop No.57 on 1/10/2010 and when tree tax for remaining shops were tendered, it was reported that tree tax need be paid by 15/10/2010, as reported in Annexure-H newspaper report and therefore, tree tax was not paid on or before 1/10/2010 in respect of the remaining shops and even if, it is taken that toddy found in the toddy shop was tapped from trees for which tax was not paid, it will not attract an offence under Section 55 (a) or 55(i) or 58 of Abkari Act and therefore, continuation of the proceedings for those offences is only an abuse of process of the court and hence it is to be quashed. 2. Assistant commissioner of Excise, Kottayam filed a statement justifying the registration of the case and opposing the prayer for quashing the offences. 3. 2. Assistant commissioner of Excise, Kottayam filed a statement justifying the registration of the case and opposing the prayer for quashing the offences. 3. Learned Senior counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned Senior counsel pointed out that evidenced by Annexure-J, receipt for remittance, tree tax for shop No.57 was paid on 1/10/2010 and subsequently after this court admitted this Crl.M.C and passed an order on 8/10/2010 clarifying that application for bail is to be considered, as if the offence under Section 56(b) of Abkari Act alone was committed, Annexure-K petition was filed before the second respondent seking permission to pay the tree tax for the remaining shops. When it was rejected by Annexure-L, permission was sought to remit the amount from Deputy Commissioner, Kottayam. It was permitted. As evidenced by Annexure-M tree tax was paid for all the remaining shops paid on 14/10/2010. It is argued that tax was to be paid on or before before 15/10/2010 as stated in Annexure-H paper report and once the tax was paid and license is issued, it should necessarily relate back to 1/10/2010 and therefore, it cannot be said that toddy tapped was from trees without payment of tree tax. 5. Learned Senior counsel pointed out that as held by this court in Mohanan v. State of Kerala ( 2007 (1) KLT 845 ) an offence under Section 55(a) is not attracted, in the absence of an allegation that toddy was stored in the toddy shop either for export or in the course of import. It is also pointed out that as held by this court in Annexure-D order passed in Crl.M.C.648/2009, and confirmed by the Honourable Supreme Court, sale of liquor on a prohibited day will not attract an offence under Section 55(a) or 58 of Abkari Act and it would attract only an offence under Section 56 (b) of Abkari Act. It is also argued that unless possession of liquor or intoxicating drug was without lawful authority, an offence under Section 58 is not attracted and when petitioners are lawfully entitled to have possession of the toddy, an offence under Section 58 is not attracted. It is argued that prosecution of the petitioners for the offences under Section 55(a), 55(i) and 58 of Abkari Act are to be quashed. 6. It is argued that prosecution of the petitioners for the offences under Section 55(a), 55(i) and 58 of Abkari Act are to be quashed. 6. Learned Public Prosecutor would argue that as tree tax is to be paid twice in a year and payment for the second half should be made on or before 1/10/2010 and no tree tax was paid in respect of shops 58 to 61 of Group No.X of the Excise Range and hence toddy found in the toddy shop No.61 stored for sale on a prohibited day was not lawful toddy and in any case, it was stored with the knowledge that duty payable for tapping toddy was not paid and therefore, an offence under Section 58 is attracted. Learned Public Prosecutor would also argue that when the tax payable under the Tree Tax Act was not paid on the due date and it was paid only on a later date, such payment will not validate tapping of toddy prior to the payment of tax and therefore, by payment of tree tax on 14/10/2010, petitioners cannot contend that they have been permitted to tap toddy on 2/10/2010, the day on which toddy was seized from shop No.61. Learned Public Prosecutor argued that when toddy found in shop No.61 was not tapped by paying tree tax, it would attract an offence under Section 55(a) also. 7. Rule 4 of Tree Tax Rules provide that for the purpose of issue of licences and levy of tree tax in the case of coconut and sago trees, each financial year shall be divided into two halves, namely from the first April to the last day of September and from first October to the last day of March. A separate license shall be issued for each half year and "such license shall be valid only during the half year for which it is issued irrespective of the date of issue of the licence". It is thus clear that as provided under Rule 4 tree tax is to be paid twice in a year. First half is for the period from first April to thirtieth September and second half is from first April to thirty first March. License shall be obtained for each half year. It is thus clear that as provided under Rule 4 tree tax is to be paid twice in a year. First half is for the period from first April to thirtieth September and second half is from first April to thirty first March. License shall be obtained for each half year. Rule 4 specifically provide that license so issued for the one half year "shall be valid only for the financial year in which it is issued irrespective of the date of issue of the licence". It is thus clear that when tree tax is payable for first half on or before first April and payment was not made on or before the due date, but was paid later, licence issued would be valid for that half year period irrespective of the date of issuance of the licence. If that be so, when tree tax is admittedly paid on 14/10/2010, evidenced by Annexure-M challan receipt, it should necessarily relate back to 1/10/2010. If so, it cannot be contended that no tree tax was paid for the Sago trees from which toddy was tapped and found on toddy shop No.61 on 2/10/2010, though on that day tree tax was not paid. 8. Question whether an offence under Section 56(b) was committed is not to be considered in this petition as the petitioners have not challenged that aspect and learned Senior counsel submitted that petitioners would challenge the said question before the trial court at the appropriate stage. 9. In view of the decision of the Division Bench of this Court in Surendran v. State of Kerala ( 2004 (1) KLT 404 as reiterated in Mohanan v. State of Kerala ( 2007 (1) KLT 845 ) an offence under Section 55(a) is not attracted in the absence of a case that toddy seized in the case was kept there illegally for export, or in the course of import. Even sale of toddy on Gandhi Jayanthi day, a prohibited day, will not attract an offence under Section 55(a), 55(i) as held by this court in Annexure- D and Mohanan's Case (supra). It is also not disputed that Annexure-E decision was confirmed by the Honourable Supreme Court. 10. The only question remains is whether an offence under Section 58 is attracted. It is also not disputed that Annexure-E decision was confirmed by the Honourable Supreme Court. 10. The only question remains is whether an offence under Section 58 is attracted. To attract an offence under Section 58 of Abkari Act, accused should have been in possession of liquor or any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing that the duty, tax or rental payable under this Act has not been paid. Added to this, it is to be alleged that accused was in possession of the liquor without lawful authority. As rightly pointed out by the learned Senior counsel being licensees of toddy shop No.61, petitioners are legally entitled to be in possession of the toddy. Possession of the toddy by the petitioners seized by the second respondent from toddy shop No.61 on 2/10/2010 cannot be said to be in their possession, without lawful authority. If that be so, on that sole ground, it is to be found that an offence under Section 58 of Abkari Act is not attracted. 11. In view of the findings, it can only be declared that offences under Sections 55(a), 55(i) and 58 of Abkari Act are not attracted. Petitioners cannot be prosecuted for the said offences, though they could be prosecuted for the offence under Section 56(b) of Abkari Act. Petition is allowed. Registration of CR/54/2010 of Kanjirappally Excise Range for the offence under Section 55(a), 55(i) and 58 of Abkari Act is quashed. It is made clear that the crime can be proceeded for the offence under Section 56(b) of Abkari Act.