E. Mallaiah Vs. the State of A.P., (Through Proh. and Excise Inspector, Sho), Rep. by Public Prosecutor, High Court of A.P. - Court Judgment

Excerpt:
criminal - bailable offence - rules 24 and 34 of andhra pradesh excise (arrack and toddy licence general conditions) rules, 1969, sections 36 and 81 (1) of andhra pradesh excise act, 1968 and section 438 of criminal procedure code - petition for anticipatory bail filed by petitioner suspected for adulteration of toddy - punishment under such offence two years - classification of offences under a.p. excise act as to whether bailable or non-bailable not given for offences falling under other than indian penal code - if punishment is less than three years offence is bailable and where punishment is more than three years non-bailable - offence in instant case is bailable - section 438 has no application to bailable offences - held, petition for anticipatory bail not maintainable. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. orderk.c. bhanu, j.1. it is the case of the prosecution that the excise police visited the licensed toddy shop of the petitioner. they suspected adulteration of toddy and therefore, they drew some samples and sent them to the concerned authority for analysis. the analyst after analysis gave opinion that the toddy sample contained diazepam and therefore it was adulterated. the violations against the present petitioner are under rules 24 and 34 of the a.p. excise (arrack and toddy licence general conditions ) rules 1969, and under section 36 read with section 81(1)(b) of the a.p. excise act, 1968. 2. rule 24 of the above said rules deals with drawal of samples while rule 34 deals with the power of excise officials to enter and inspect any shop and test arrack or toddy therein. there is no section 81(1)(b) of the a.p. excise act. the act contains only 73 sections in all. 3. section 36 of the excise act deals with penalty for misconduct of licensees etc. the charge levelled against the petitioner is under section 36 of the a.p. excise act whereunder the maximum imprisonment does not exceed two years. 4. learned counsel for the petitioner contended that as there is no classification of offences under the a.p. excise act as to whether they are bailable or non-bailable, one has to look into the schedule of the code of criminal procedure. the learned public prosecutor did not deny or dispute the same. 5. as rightly contended by the learned counsel for the petitioner, in the absence of classification of the offences under the a.p. excise act, viz., whether they are bailable or non-bailable, regard should be had to schedule ii of the code of criminal procedure, which provides for classification of offences against laws other than the indian penal code, in order to ascertain whether a particular offence under the a.p. excise act is bailable or non-bailable. as per that schedule, if an offence is punishable with imprisonment for less than three years, the offence is bailable. as i have already observed above, the charge levelled against the petitioner is under section 36 of the a.p. excise act and since the maximum imprisonment provided thereunder is less than two years, the offence is bailable. therefore, section 438 cr.p.c. has no application to the facts of the case, and hence the present petition for anticipatory bail is not maintainable, inasmuch as the offence alleged against the petitioner is bailable. 6. in the result, the petition is dismissed.

Judgment:
ORDER

K.C. Bhanu, J.

1. It is the case of the prosecution that the Excise Police visited the licensed toddy shop of the petitioner. They suspected adulteration of toddy and therefore, they drew some samples and sent them to the concerned authority for analysis. The analyst after analysis gave opinion that the toddy sample contained Diazepam and therefore it was adulterated. The violations against the present petitioner are under Rules 24 and 34 of the A.P. Excise (Arrack and Toddy Licence General Conditions ) Rules 1969, and under Section 36 read with Section 81(1)(b) of the A.P. Excise Act, 1968.

2. Rule 24 of the above said Rules deals with drawal of samples while Rule 34 deals with the power of Excise Officials to enter and inspect any shop and test arrack or toddy therein. There is no Section 81(1)(b) of the A.P. Excise Act. The Act contains only 73 Sections in all.

3. Section 36 of the Excise Act deals with penalty for misconduct of licensees etc. The charge levelled against the petitioner is under Section 36 of the A.P. Excise Act whereunder the maximum imprisonment does not exceed two years.

4. Learned counsel for the petitioner contended that as there is no classification of offences under the A.P. Excise Act as to whether they are bailable or non-bailable, one has to look into the schedule of the Code of Criminal Procedure. The learned Public Prosecutor did not deny or dispute the same.

5. As rightly contended by the learned counsel for the petitioner, in the absence of classification of the offences under the A.P. Excise Act, viz., whether they are bailable or non-bailable, regard should be had to Schedule II of the Code of Criminal Procedure, which provides for classification of offences against Laws other than the Indian Penal Code, in order to ascertain whether a particular offence under the A.P. Excise Act is bailable or non-bailable. As per that Schedule, if an offence is punishable with imprisonment for less than three years, the offence is bailable. As I have already observed above, the charge levelled against the petitioner is under Section 36 of the A.P. Excise Act and since the maximum imprisonment provided thereunder is less than two years, the offence is bailable. Therefore, Section 438 Cr.P.C. has no application to the facts of the case, and hence the present petition for anticipatory bail is not maintainable, inasmuch as the offence alleged against the petitioner is bailable.

6. In the result, the petition is dismissed.