ORDER : The petition on hand is filed by the 1st accused in SC No.668/16 pending before Assistant Sessions Court, Thrissur, registered there based on the final report submitted in Crime No.542/16 of Mannuthy Police Station. The petitioner alongwith other accused were chargesheeted for the offences punishable under Sections 55 (a), 55(i), 58(a) of the Abkari Act (for short 'the Act') and Rules 9, 10 and 17 of the Kerala Spirituous Preparations (Control) Rules, 1969 (for short, 'the Rules, 1969). The relief sought by the petitioner is to quash all further proceedings in SC No.668/16 as far as the petitioner is concerned. The case of the prosecution as averred by the petitioner in the petition on hand is to the following effect: At 17 hours on 11.03.2016 the second and third accused were found selling Arishtam in the shop owned by the petitioner. The Arishtam manufactured by Haritha Company as 'Harithamrutham' was found sold therein by accused Nos.2 and 3, who were not holding a licence for selling the same. The offence alleged was detected by the S.I. of police, Mannuthy Police Station and based on that, the Crime was registered against the petitioner and co-accused and that led to the laying of a final report (Annexure I), before Judicial First Class Magistrate Court-III, Thrissur. By proceedings initiated as CP No. 50/16, the case was committed to Court of Sessions, Thrissur and made over to Assistant Sessions Court, Thrissur wherein SC No.668/16 was registered. 2. Dr.K.P. Satheesan, the learned Senior Counsel appeared for the petitioner and advanced arguments on his behalf. According to him, the petitioner is the owner of a shop room wherefrom sample of 'Arishtam' was taken which when analysed by a Chemical Laboratory, the offence alleged was detected. Petitioner's wife is having the licence issued by Nadakkathara Grama Panchayat for selling Ayurveda Medicines. The true copy of the said licence is produced alongwith the petition on hand as Annexure II. An Ayurvedic Medicine namely Harithamrutham was manufactured by 'Haritha Pharmaceuticals'. The petitioner's wife was appointed as it's authorised selling agent by the said Company. True copy of the certificate issued by Haritha Pharmaceuticals appointing the wife of the petitioner as authorised selling agent is produced alongwith the petition on hand as Annexure III. Haritha Pharmaceuticals is a company engaged in manufacturing Haritha products which also includes Harithamrutham, on the strength of a licence obtained by them. True copy of the certificate issued by Haritha Pharmaceuticals appointing the wife of the petitioner as authorised selling agent is produced alongwith the petition on hand as Annexure III. Haritha Pharmaceuticals is a company engaged in manufacturing Haritha products which also includes Harithamrutham, on the strength of a licence obtained by them. According to the learned Senior Counsel, the licence is SP-VII licence with No.11/97-98 produced alongwith the petition on hand as Annexure IV. Annexure IV licence is renewed successively, annually and is valid till date. 3. Seven samples were taken by the 2nd respondent at the time of detection from Harithamrutham found kept in the shop for sale and the same was sent for chemical analysis. True copy of the report of the Chemical Examiner's Laboratory dated 29.04.2017 is produced alongwith the petition on hand as Annexure V. It is stated in Annexure V that the percentage of Ethyl Alcohol in the seven samples examined there are below 12%. The grievance of the petitioner projected by the learned Senior Counsel was that despite receipt of Annexure V certificate after analysis of samples of 'Harithamrutham' from the Chemical Examiner's laboratory certifying that the Ethyl Alcohol contents on those are below 12%, the second respondent proceeded to file the final report chargesheeting the petitioner and others for the offences as aforesaid. According to him, in view of Annexure V, the final report itself is unsustainable in law and therefore, the case registered by the Assistant Sessions Judge on its basis as SC No.668/16 is not maintainable. It is further contended by the learned Senior Counsel that the holder of Annexure III and II was none other than petitioner's wife Smt.Kamala and being so respectively from 2011 and 2015, the 2nd respondent is highly unjustified in laying a final report as Annexure I, chargesheeting the petitioner for the alleged offences. The learned Senior Counsel has drawn the attention of this Court to Rule 3(l) of the Rules, 1969 which defines 'spurious preparation' to contend that since Annexure V produced alongwith the petition on hand reports the alcohol contents in the seven samples analysed therein as below 12%, it cannot be treated as spurious preparation and therefore the prosecution initiated against the petitioner is patently illegal. According to him, as per the note appended to Rule 2(k)(l), Asavas and Arishtas and all other preparations containing self generated alcohol, shall be deemed as spurious preparations, if the alcohol content of any such preparation exceeds 12% by volume, unless otherwise declared by the expert committee and therefore, the alcohol content in the samples examined in the case on hand being less than 12% by volume, the contraband seized, to any extent of imagination, cannot be spurious preparation. According to him, the contraband is only spirituous preparation, for manufacturing which SP-VII license is held by Smt.Vijaya, the proprietrix of 'Haritha Pharmaceuticals'. Smt.Kamala, the wife of the petitioner was granted with a certificate appointing her as an authorised selling agent by the manager of Haritha Pharmaceuticals for sale of Harithamrutham, a spirituous preparation, reported by the chemical laboratory after analysis as not spurious preparation, the sale conducted in the petitioner's shop, is only an authorised sale and the prosecution is highly unjustified in chargesheeting the petitioner for the same. It is contended by the learned counsel that the petitioner has been transacting the sale of Harithamrutham as supplied by its manufacturer on the strength of Annexure II and III. The learned counsel has also invited the attention of this Court to Rule 17 of Rules 1969 to contend that, if at all an offence is attracted from the allegations, that is only infraction of any of the rules or conditions of a licence or permit issued under the rules either by a licencee or by any person in his employment and it shall entail only the licensee, a fine upto Rs.30,000/-or cancellation of his licence or both. According to the counsel, in that context, the prosecution is highly unjustified in chargesheeting the petitioner for the offences. According to him, rather than proposing to prosecute the petitioner, it ought to have imposed penalty on the licensee, who is the wife of the petitioner, as the offence involved is infraction of conditions of licence. According to him, by proposing to prosecute the petitioner by filing the final report before a court of law without invoking the authority under Rule 17 of Rules 1969, the prosecution has acted illegally and for that reason itself the proceedings sought to be quashed are devoid of any basis. According to him, by proposing to prosecute the petitioner by filing the final report before a court of law without invoking the authority under Rule 17 of Rules 1969, the prosecution has acted illegally and for that reason itself the proceedings sought to be quashed are devoid of any basis. According to the learned Senior Counsel, the offences alleged against the petitioner will not sustain and therefore, he seeks to quash Annexure A1 and SC No.668/16, registered on the files of Assistant Sessions Court, Thrissur as against the petitioner. 4. In the backdrop of the arguments raised as above, it is relevant to have an understanding of the allegations levelled against the petitioner and other accused in Annexure I final report. IN OTHER LANGUAGE 5. As per the allegations of the prosecution contained in the extract above, the first accused was the owner of a shop situated at Chirakkakode junction and the second accused was the owner, who alongwith the third accused were running a company namely 'Haritha Company' at Varandappilly, for manufacturing Harithamrutham. As the allegations state, the second and third accused have given 'Harithamrutham' unauthorisedly to the first accused for sale, who was not holding a license or other required documents for possessing and selling the same. 36 liters of a liquid containing alcohol were found in 72 bottles and those were seized from the sop of the first accused. 6. There is absolute absence of allegation in Annexure A1 that spurious preparations were seized from the shop owned by the first accused. What was allegedly seized was Arishtam namely Harithamrutham, manufactured at Haritha Company, Varandarappilly. Even as per Annexure V, the certificate of Chemical analysis of 7 samples of Harithamrutham, forwarded to the Chemical Examiner's Laboratory for analysis, the alcohol content detected per volume is less than 12% and also free from noxious substances. Therefore, there is no scope even for a doubt to entertain that the contraband seized is a spurious preparation. Since such an allegation is lacking in Annexure I, a further discussion on that line is unwarranted. 7. Then the question that requires consideration is whether the petitioner herein has got the authorisation to conduct sale of Harithamrutham in the shop owned by him. Since such an allegation is lacking in Annexure I, a further discussion on that line is unwarranted. 7. Then the question that requires consideration is whether the petitioner herein has got the authorisation to conduct sale of Harithamrutham in the shop owned by him. The case of the petitioner was that he was conducting sale of Harithamrutham in the shop bearing No.X/455A, on the strength of Annexure II licence issued by the Panchayat under Sections 232, 233, 234 and 254 of the Kerala Panchayat Raj Act, 1994 and issued to his wife, which is valid from 01.04.2015 till 31.03.2016, and Annexure III, a certificate issued to his wife appointing her as authorised selling agent of M/s.Haritha Pharmaceuticals by the Manager, valid only with effect from 25.07.2011. The argument advanced by the learned counsel that Smt.K.R.Vijaya was the proprietrix of Haritha Pharmaceuticals, Varandarapilly, Thrissur and also the holder of Annexure IV licence valid till 31.03.2016 is not liable to be disputed. According to the learned Public Prosecutor also, the licence contemplated under Rule 11 is mandatory for retail sale of 'Harithamrutham', which is a spirituous preparation. But, the argument of the learned Senior Counsel that in view of Annexure III certificate appointing the wife of the petitioner as authorised selling agent of M/s.Haritha Pharmaceuticals, the possession of the alleged Arishtam at the shop owned by the petitioner and the sale of the same conducted therein cannot be termed as unauthorised and illegal one as contended by the prosecution, is difficult to be swallowed as such for the reason that the Rules, 1969 provides in Rule 11 that for the conduct of retail sale of spirituous preparation, holding of SP-VII license is mandatory. When a Rule makes a license mandatory for holding sale of something, the party who proposes to get himself engaged in sale, must obtain the same. The authorisation mandated by law cannot be gained from any other source other than the authority specified under the Rule. 8. It is pertinent to note from Annexure IV that it is a licence granted to Smt.Vijaya, the 2nd accused who was the proprietrix of M/s.Haritha Pharmaceuticals at Varandarappilly for sale of spirituous preparations in retail. The authorisation mandated by law cannot be gained from any other source other than the authority specified under the Rule. 8. It is pertinent to note from Annexure IV that it is a licence granted to Smt.Vijaya, the 2nd accused who was the proprietrix of M/s.Haritha Pharmaceuticals at Varandarappilly for sale of spirituous preparations in retail. The grant of licence is specifically confined to retail sale of Harithamrutham as described in the Schedule appended to Annexure IV at a shop as specifically described in the schedule for a period till 31.03.1998 subject to conditions and stipulations enumerated therein. Condition No.1 states that the privilege under the license extends to sale of spirituous preparation in retail. As per condition No.3 the quantity sold in retail at any one time shall not exceed the quantity which the person is authorised to possess at any one time under the license. Under condition No.5 the sale or possession by the licensee of any spirituous preparation outside the limits of licensed premises is prohibited. Under condition No.7, the licensee shall not lease out, sell or otherwise transfer his license without the written consent of the Assistant Excise Commissioner. Under Condition No.9 it is provided that the Commissioner may after giving the licensee an opportunity to show cause why such an order should not be passed, by an order in writing stating the reason therefore, cancel the license or suspend it for such period as he thinks fit either wholly or in part, if in his opinion, the licencee has failed to comply with all or any of the provisions of the Act or Rules. 9. It is revealed from Annexure IV that though it was issued originally for a period till 31.03.1998, it was successfully renewed provisionally till 31.03.2016, subject to the outcome of writ petitions pending against the licensee during 2014-15. Under condition No.14 infraction of any of the rules or the conditions of the license either by the licensee or by any person in his employment shall entail on the licensee a fine upto Rs.2,000/-or cancellation of the license or both. Clause 15 provides that Assistant Excise Commissioner is also competent to fine the licensee upto Rs.1,000/-at a time for infraction of any of the conditions of licence either by the licensee or any person in his employment. Clause 15 provides that Assistant Excise Commissioner is also competent to fine the licensee upto Rs.1,000/-at a time for infraction of any of the conditions of licence either by the licensee or any person in his employment. It appears that condition No.14 and 15 in Annexure IV were incorporated therein on the basis of Rule 17 of Rules 1969. It is true that infraction of any rules or conditions of a licence or permit by the licensee or any person under his employment would be met with penalty contemplated under Rule 17 of Rules 1969 or conditions 14 and 15 of Annexure IV. But in view of sub-rule (3) of Rule 17 which provides that the imposition of fine or cancellation of a licence under the rules shall not however relieve the licensee or his agents from liability to be prosecuted for any specific offence committed against the provisions of Abkari Act 1 of 1077 or Rules 1969. Therefore, a licensee or his agents are not exempted from facing prosecution for offences committed by them involving infraction of conditions or stipulations of licence and violation of provisions of the Act or Rules. 10. The contention of the learned Senior Counsel was that Form SP-VII licence was issued to Haritha Pharmaceuticals and the Company has issued a certificate appointing the wife of the petitioner as agent to transact sale of Harithamrutham manufactured by the Company on behalf of them. According to the learned counsel, in view of the appointment of the wife of the petitioner as agent of Haritha Pharmaceuticals, a licence as contemplated under Rule 11 (SP-VII) is not required for the petitioner to transact the sale of Harithamrutham. 11. As already stated, Annexure IV (SP-VII) licence was issued to Haritha Pharmaceuticals for retail sale of Harithamrutham and not for manufacture of the product, Harithamrutham as contended by the learned Senior Counsel. For manufacture of spirituous preparation, the licence required is the one as contemplated under Rule 6, which reads: “6. Manufacture.-(1) No person shall manufacture any spirituous preparation except under a licence under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956.” 12. For manufacture of spirituous preparation, the licence required is the one as contemplated under Rule 6, which reads: “6. Manufacture.-(1) No person shall manufacture any spirituous preparation except under a licence under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956.” 12. Though it was urged by the learned counsel that Annexure IV is a licence issued to Haritha Pharmaceuticals for manufacture of spirituous preparation, a perusal of it would reveal that it is not a licence as contemplated under Rule 6 of Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. On the contrary, it is revealed from the face of Annexure IV that it is a licence issued in Form SP-VII for retail sale of Harithamrutham, which is a spirituous preparation. As contemplated under Rule 11, licence in Form SP-VII shall be obtained for the retail sale of spirituous preparation. Therefore, a licence in Form SP-VII is a mandatory requirement for conduct of retail sale by a person. In the case on hand as revealed from the materials made available alongwith the petition on hand, the petitioner's wife is only an agent appointed by a retail seller holding SP-VII licence. Such an appointment is out of purview of Rules, 1969. Going by the allegations in Annexure I final report, the petitioner was alleged as owning a shop, wherein retail sale of Harithamrutham is held. Therefore, it is mandatory that he must hold Form SP-VII licence. It is not revealed from any of the materials that the petitioner is holding Form SP-VII licence for the conduct of retail sale of alleged Harithamrutham seized from his shop. Therefore, he cannot be an authorised retail seller on the strength of Annexure II and III as canvassed by the learned Senior Counsel. 13. The argument of the learned Senior Counsel that Annexure III is a valid authorisation issued in favour of the wife of the petitioner by M/s.Haritha Pharmaceuticals, Varandarapilly will not also sustain for the reason that in the Schedule appended to Annexure IV wherein the boundaries of the licence premises are described and the licensed retail sale license was confined to Ward No.V, Room No.422A of Varandarapilly Panchayat owned by Smt.K.R.Vijaya and strictly not to any other premises. Whereas, in Annexure III, the wife of the petitioner was appointed by the Manager of M/s.Haritha Pharmaceuticals to hold sale of, its product 'Harithamrutham' outside the purview of the premises mentioned in Annexure IV. 14. Since it is prima facie evidenced from the above discussion that the petitioner had conducted retail sale of Harithamrutham which comes within the purview of intoxicating drug, in the shop belonging to him without holding SP VII licence as contemplated by Rule 11 of the Rules 1969, he has transacted in contravention of the provisions of the Rules, 1969 which was formulated in exercise of the powers conferred by Section 29 of the Act. Section 55(a) of the Act provides that whoever in contravention of this Act or any rule or order made under the Act sells or stores for sale, liquor or any intoxicating drug shall be liable to be punished. The word “whoever” will undoubtedly takes in the petitioner herein and the transaction allegedly committed by him being in contravention of Rule 11 of the Rules, 1969, will prima facie attract an offence under Section 55(a) of the Act. 15. There is no provision as Section 58(a) in the Abkari Act. When that was brought to the notice of the learned Public Prosecutor, it was stated by him that it is nothing but Section 58A. Therefore Section 58A is required to be extracted hereunder: “58A. For sale of certain preparations.-Whoever sells any preparation which he knows or has reason to believe is intended to serve as a substitute for alcohol or intoxicating drug shall, on conviction before a competent court be punished with imprisonment which may extend to five years or with a fine which may extend to fifty thousand rupees, or with both.” For an offence under Section 58A to be attracted, there must be allegation that the petitioner while engaged in the sale of 'Harithamrutham', has knowledge or has reason to believe that the same was intended to serve as a substitute alcohol or intoxicating drug. A reading of Annexure I would make it clear that allegations of the above nature are totally lacking. Therefore the offence under Section 58A is unlikely to be attracted against the petitioner. A reading of Annexure I would make it clear that allegations of the above nature are totally lacking. Therefore the offence under Section 58A is unlikely to be attracted against the petitioner. Violations under Rules 9, 10 and 17 of the Rules, 1969 were also alleged against the petitioner in Annexure I. Rule 9 is unlikely to be attracted, whereas Rule 10 is found prima facie attracted from the allegations in Annexure I. As far as Rule 17 is concerned, for the reason that it takes in the agent of the licensee also, the offence will be prima facie attracted against the petitioner, not for the purpose of imposition of penalty, but for prosecution. In view of the above discussion, Crl.M.C stands allowed in part. Annexure A1 to the extent it chargesheets the petitioner for the offences under Section 58A of the Act and Rule 9 of the Rules, 1969 and all further proceedings initiated by Assistant Sessions Court, Thrissur in SC No.668/16 registered on its file after taking cognizance of it shall stand quashed.