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2021 DIGILAW 182 (KER)

Binu v. State of Kerala

2021-02-24

V.G.ARUN

body2021
ORDER : 1. Petitioners are the accused in Crime No.498 of 2020 of the Punalur Police Station, registered for offences under S.188 read with 34 of IPC and Sections 55(a) and (i) of the Abkari Act, now pending as C.P.No.94 of 2020 on the files of the Judicial First Class Magistrate Courtr-III, Punalur. The prosecution allegation is that petitioners 1 and 2, being the employees and the 3rd petitioner, the Manager of a Bar attached Hotel named ‘Kumar Palace’, had indulged in sale of Indian Made Foreign Liquor on 25.3.2020, violating the lock down restrictions imposed by the Government. 2. Sri.C.C.Thomas, the learned Senior Counsel appearing for the petitioners, challenges the registration of proceedings for the offences under S.55(a) and (i) of the Abkari Act (for short, ‘the Act’). It is contended that, even accepting the prosecution allegation in its entirety, only the offence under S.56(b) of the Abkari Act is made out. In support of the contention, reliance is placed on the decisions in Ambika v. State of Kerala ( 2011 (3) KLT 35 ) and Mohanan v. State of Kerala ( 2007 (1) KLT 845 ). 3. According to Sri.Suman Chakravarthy, learned Senior Public Prosecutor, conduct of business in violation of the Government orders issued in the wake of the rampant spread of the Covid-19 pandemic should be dealt with seriously. It is submitted that the petitioners are liable to be prosecuted for the offences under the Kerala Epidemic Diseases Ordinance, 2020 and the Disaster Management Act, 2005 also. 4. The petitioners having limited their challenge against prosecution for the offences under S.55(a) and (i) of the Abkari Act, I am not venturing into the question as to whether the petitioners are liable to be prosecuted for offences under the Kerala Epidemic Diseases Ordinance and the Disaster Management Act. The offence under S.55(a) of the Act is attracted when a person imports, exports, transports, transits or possesses liquor or any intoxicating drug in contravention of the Act or of any Rule or order made under the Act, S.55(i) will get attracted, when a person sells or stores for sale, liquor or any intoxicating drug. The possession of liquor by the petitioners being in terms of the FL-III licence, they cannot be penalised for the offence under S.55(a). The possession of liquor by the petitioners being in terms of the FL-III licence, they cannot be penalised for the offence under S.55(a). The penalty under S.55(i) for sale of liquor can be imposed only when such sale is in contravention of the Act or of any Rule or order made under the Act. The Government order imposing lock down is not an order made under the Abkari Act and therefore even if the sale was conducted in violation of the Government order it will not be an offence under S.55(i). On the other hand, S.56(b) specifically deals with breach of any of the conditions of the licence or permit, not otherwise provided for in the Act. An identical situation had arisen in Ambika (supra). The learned single Judge placing reliance on the earlier decisions in Mohanan (supra) and Nobbey v. State of Kerala (2011(1) KLT SN 51 (C.No.68)), held the sale after the prescribed working hours to be a violation of the permit condition punishable under S.56(b) of the Act. It was held that the offences punishable under S.55(a) and (i) of the Act cannot be attributed to the petitioners therein. 5. The above mentioned reasons persuade me to uphold the contention of the Senior Counsel that the petitioners cannot be proceeded against for commission of the offences under S.55(a) and (i) of the Act. In the result, the Crl.M.C. is allowed. Annexure B final report and further proceedings against the petitioners for the offences under S.55(a) and (i) of the Act is quashed. It is made clear that this order does not preclude the court from continuing the proceedings with respect to the other offences.