BY AD vs P.THOMAS GEEVERGHESE

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 EXCISE CIRCLE INSPECTOR - 1, EXCISE CRIME BRANCH, SOUTH ZONE, THIRUVANATHAPURAM, PIN - 695001 OTHER PRESENT: SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

10.03.2025, THE COURT ON 13.03.2025 PASSED THE FOLLOWING: Crl.MC No.10999/24 3 V.G.ARUN, J = = = = = = = = = = = = = = = = = Crl.M.C.No.10999 of 2024 = = = = = = = = = = = = = = = = = = Dated this the 13th day of March, 2025 O R D E R Petitioner is the 1st accused in O.R.No.65 of 2023 registered at the Kayamkulam Excise Range, now pending as C.C.No.800 of 2023 on the files of the Judicial First Class Magistrate-I, Kayamkulam. The prosecution allegations are to the following effect; The petitioner had obtained licence for conducting six toddy shops in Group I of Kayamkulam Excise Range. Later, it was revealed that the petitioner is only a name lender and the toddy shops are being conducted by A.C.Sreedharan, her father-in-law. By obtaining licence in her name and permitting another person to conduct the toddy shops, petitioner has Crl.MC No.10999/24 4 committed the offence punishable under Section 56(b) of the Abkari Act 1 of 1077, read with Rule 7(23) of the Kerala Abkari Shops Disposal Rules, 2002 ('Disposal Rules' for short).

2. Heard, Adv.P. Thomas Geeverghese for the petitioner and Public Prosecutor, M.C.Ashi for the respondents.

3. Learned counsel for the petitioner contended that the Investigating Officer proceeded on the premise that the petitioner is the benamidar of Sreedharan for the reason that the amount of Rs.3,60,100/- remitted towards licence fee was drawn by way of Demand Draft from Sreedharan's bank account. Even though the State is entitled to cancel the licence based on suspicion, for initiating criminal prosecution, clear proof of the licencee having committed illegal acts punishable under the Abkari Act is required. Moreover, even if the allegations are deemed to be true, there is no corresponding penal provision in the Act, empowering the State to initiate criminal prosecution. To attract the offence under Section Crl.MC No.10999/24 5 56(b), the holder of the licence should have wilfully done or omitted to do something in breach of the conditions of his licence. The allegation against the petitioner is only that she had remitted the licence fee with her father-in-law's help. To attract Rule 7(23) of the Disposal Rules, the licencee should have sold, transferred, leased out or sub-let the privilege or licence granted to him/her. Mere remittance of licence fee through another person's Demand Draft cannot be termed as sale, transfer, lease or sub-letting of the privilege. The allegation in the final report that the petitioner is conducting the toddy shops as 'benamidar' of Sreedharan cannot be countenanced in the light of the meaning of benami in Section 2(9) of the Prohibition of Benami Property Transactions Act,

4.Learned Public Prosecutor submitted that W.P. (C).No.16711 of 2023 filed by A.C.Sreedharan raising similar contentions, as well as the writ appeal against that judgment Crl.MC No.10999/24 6 were dismissed by this Court. The petitioner is not being prosecuted merely for reason of remitting the licence fee with a demand draft drawn from her father-in-law's account. The enquiry conducted by the South Region Intelligence Bureau Assistant Excise Commissioner revealed Sri.A.C.Sreedharan was conducting almost 90 toddy shops in various Excise Ranges through his relatives, employees and other name lenders. Other than licence fees, the rental fees, wages of employees etc. of these shops were being remitted from Sreedharan's account. A Hard Disk containing incriminating materials was seized from Sreedharan's office functioning in the Chennithala-Triparunthura Grama Panchayat. It is submitted that, as per Rule 5(7), an application for licence to conduct toddy shops should be accompanied by requisite documents, including a declaration disclosing the source of fund being utilised for purchase of the toddy shops. Therefore the petitioner was bound to disclose the source of fund as that Crl.MC No.10999/24 7 of A.C.Sreedharan, which she had not done. Thus, the licence itself was obtained by suppressing relevant information.

5. The contention based on the provisions of the Prohibition of Benami Property Transactions Act need not be gone into, as the expression 'benami' is used in the final report in a generic sense, the thrust being on the violation of Rule 7(23). As regards the allegation in respect of the violation of Rule 7(23), the following observation in the judgment by which the writ petition filed by A.C.Sreedharan was dismissed is of some relevance; “A reading of the above provision in unequivocal terms demonstrates that a licensee shall not lease or sub-let a whole or any portion of the privilege or the licence granted to him.” As per order of the Excise Commissioner dated

10.05.2023 produced along with the final report shows that, examination of the computer system in the office of A.C.Sreedharan on 16.03.2023 had revealed that all documents, including the licence application pertaining to the petitioner's Crl.MC No.10999/24 8 toddy shop, were stored in that Hard Disk. Verification of bank account statements of A.C.Sreedharan revealed that Demand Drafts for the rental fees, monthly wages etc. were drawn from his account. Although learned counsel for the petitioner contended that there is no proof of Sreedharan having actually conducted the petitioner's shops, absence of such proof cannot be a ground for quashing the proceedings in the light of recovery of the Hard Disk containing incriminating materials and the entries in the account statement. The question whether there is actual sub-letting, lease or transfer of the licence is to be decided based on the evidence to be tendered during trial. The power under Section 528 of the BNSS is to be used sparingly, only when the allegations and materials do not even make out a prima facie case. For the aforementioned reasons, the Crl.M.C. is dismissed. sd/- V.G.ARUN, JUDGE Crl.MC No.10999/24 9 APPENDIX OF CRL.MC 10999/2024 PETITIONER ANNEXURES Annexure.A Annexure.B THE CERTIFIED COPY OF THE CRIME AND OCCURRENCE REPORT IN CR.65/2023 EXCISE RANGE OFFICE, KAYAMKULAM DATED.16.5.2023 CERTIFIED COPY OF THE FINAL REPORT FILED IN CC.800/2023ON FILES OF JFCM- 1,KAYAMKULAM