Full Judgment
G. Sasidharan, J.
1. The petitioners are accused in Excise Crime No. 12 of 2001 of NeyyattinkaraExcise Range. On 15.6.2001 at about 9 p.m. petitioners were going in a scooter andthe exercise party intercepted and seized 12 bottles of beer. Crime and occurrencereport was filed in the Court alleging that they committed the offences under Sections 8(1)and (2), 55(a) and 67B of the Abkari Act. Annexure-1 is the crime and occurrencereport filed in Court by the Assistant Excise Inspector, Neyyattinkara Range.
2. According to the petitioners, the crime and occurrence report and the furtherproceedings in the Court in pursuance of that have to be quashed for the reason thatthe allegations against them will not constitute commission of the offences mentionedin the crime and occurrence report. The learned counsel appearing for the petitionerswould submit that the bottles of beer were purchased by the petitioners and their threefriends together from the shop run by the Beverages Corporation. The statement inthe petition is that the 12 bottles of beer purchased by the petitioners and three otherswere being carried by the second petitioner in a single bag when he was riding pillionin the scooter.
3. The allegation in the crime and occurrence report that the petitioners committedthe offences under Sections 8(1) and (2) of the Abkari Act cannot be sustained for thereason that possessing and carrying beer is not made an offence under the abovesection of the Act. In respect of the allegation that the petitioners committed theoffence punishable under Section 55(a) of the Abkari Act the allegation is that the secondpetitioner when he was riding pillion in the scooter was carrying in a bag 12 bottles ofbeer i.e., 7.8 litres of beer. Government of Kerala, by G.O. (P) No. 22/99/TD dated5th February, 1999, in exercise of the powers conferred by Sections 10 and 30 of theAbkari Act, fixed the quantity of beer one can possess. As per the above notification,no person shall have in his possession or shall transport exceeding 4.5 litres of beer.Possessing or transporting beer the candidate of which is 4.5 litres or less than that willnot become an offence under Section 55(a) of the Abkari Act.
4. The submission made for and on behalf of the petitioners is that beer wasbeing carried by both of them in the scooter and since each of them can possess ortransport 4.5 litres of beer the total quantity of beer they were having in their possessionis within the permissible limits. On going through the Annexure-1 crime occurrencereport it is seen that both the petitioners are alleged to have committed the offencepunishable under Section 55(a) of the Abkari Act. That would indicate that according tothe officer, who gave crime and occurrence report, both of them were possessing andtransporting beer. If that be so, the total quantity of beer both of them could possessand transport comes upto 9 litres of beer. If the allegation was that one of the petitionerscommitted the offence under Section 55(a) of the Abkari Act for the reason that he waspossessing and transporting the entire quantity of beer seized by the excise officers,then there would have been no allegation against the other person that he committedthe offence. Since the allegation is that both of them committed the offences the totalquantity of beer both of them can possess and transport can be upto 9 of beerand since the allegation here is that there was only 7.8 litres of beer the statements inthe crime and occurrence report will not prima facie show that the petitioners committedthe offence under that section. Section 67B of the Abkari Act mentioned in the crime andoccurrence report is not a penal provision and that it is a provision which gives powerof confiscation to the abkari officers. For the above reasons, Annexure-1 crime andoccurrence report and the proceedings in pursuance of that can be quashed.
This petition is allowed on quashing Annexure-1 and all proceedings initiated inpursuance of the same.