Judgment · High Court

MANJULA CHELLUR Ag. C.J. &V. CHITAMBARESH, J---------------------------------------W.A. NO. 436 OF 2012----------------------------------Dated this the 11th day of April, 2012JUDGMENTManjula Chellur, Ag. C. J.Heard the learned counsel for the appellants as well asthe learned counsel for the 4th respondent.

It is not in dispute that the respondents hereinapproached the learned single Judge in a petition under Article 226 of the Constitution of India to quash the FIR andlater by an amendment sought for quashing the criminal caseproceedings under Abkari Act registered against them. Thefacts that led to the registration of a case against the writpetitioner and others in brief are as under.

On 19.12.2007, during the night hours, the officialsbelonging to the Excise Department came across anabandoned vehicle containing 475 litres of toddy. As therewas no one to claim either the vehicle or the toddy the casecame to be registered against unknown persons. Later on, after tracing out the details, it reveal that A1 was the 2WA No. 436/2012registered owner and according to A1 the said vehicle was soldto the 5th accused. Therefore A1 and A5 came to be arrayed asaccused. Subsequently, during the course of investigation, itwas found, apart from A1, these writ petitioners were also jointlicence holders along with A1. These writ petitioners were alsomade accused. Aggrieved by the same, they approached thelearned single Judge as stated above on the ground that exceptfor the fact that the writ petitioners were joint licence holdersalong with A1, there was not even an iota of evidence of anynature connecting with the crime in question. Therefore therewas prima facie material against them. Hence the criminalprosecution has to be quashed. Incidentally they also sought forpreferential and previlage claim under Rule 5 of Kerala AbkariShops Disposal Rules of 2002.3.The learned Judge after referring to the contentionsraised and also the material ultimately opined that except thestatement of CW19 indicating that writ petitioners along with A1were joint licencees for the period 2007-08, there was absolutelyno other material connecting the petitioner with the crime. Therefore the writ petition deserves to be allowed. Accordingly 3WA No. 436/2012it was allowed and certain directions also came to be given. Aggrieved by the same, State is before us in this case.

According to the learned Government Pleader, thefact that writ petitioners were the joint licence holders toconduct the business in toddy at the relevant point of time wouldindicate that they were knowing what exactly was the businessdone in the shop. Apparently A1 is the registered owner and A5alleges to have purchased the said vehicle. Some doubts arealso expressed by the department that false documents arecreated in order to escape the trail or the consequences ofcriminal prosecution, i.e., against A1 and A5.

It is not in dispute that for the year 2007-08 thesewrit petitioners also conducted toddy business along with A1 inall 13 shops in two groups. The fact remains they were partnersin the business or licence holders to conduct the business in 13shops, who was managing the business, who was actually at thehelm of affairs and at whose instructions the toddy was removedfrom the shop and how it was removed from the shop, how it wasfound in the vehicle, which was registered in the name of A1 arethe matters to be decided in a regular trial after giving 4WA No. 436/2012opportunity to the parties. The complainant has to establish thecharges beyond reasonable doubt to punish the accused.

The fact remains A1 was the registered owner andwas the joint licence holder along with these writ petitioners atthe relevant point of time to conduct any business in toddy. These facts alone are enough for the present case to say thatrelief sought in the writ petition could not have been granted. Under these circumstances, as there is enough material to pointout a prima facie case against the writ petitioner as well, we areof the opinion, the appeal deserves to be allowed. The trialcourt shall dispose of the matter without being untrammelled byany of the observation in the above judgment. MANJULA CHELLUR ACTING CHIEF JUSTICEV. CHITAMBARESH JUDGEncd