ABDUL SALAM vs THE STATE OF KERALA & ORS

The petitioner herein seeks orders under Section 482 Cr.P.C. quashing the prosecution against him under Section 13 read with Section 63 of

the Kerala Abkari Act in CR. No. 49 of 2015 of the Excise Range, Ernakulam, (now pending as S.T. No. 2721 of 2015 before the Additional

Chief Judicial Magistrate Court, Ernakulam). The prosecution case is that on 14.05.2015, at about 7.20 p.m., the petitioner was found possessing

5.2 litres of beer contained in eight bottles. The petitioner''s case is that only four bottles of beer were in fact seized from him by the Excise

Inspector, and the Excise Inspector brought a false prosecution against him alleging possession of 5.2 litres. The petitioner has also produced the

copy of a purchase bill dated 14.05.2015, showing purchase of four bottles of beer from the Kaloor outlet of the KSCCF Ltd.

The third respondent herein is said to be the petitioner''s surety. He has filed objection to the effect that the four bottles of liquor purchased by

him from the beer outlet were also seized by the Excise Inspector, and he was unnecessarily detained at the Excise Office for hours. It appears that

the petitioner''s case is that the four bottles seized by the Excise Inspector from the third respondent were also added to the quantity seized from

him to make the total quantity beyond the permitted quantity, to bring a false prosecution. The third respondent has also produced the copy of a

bill showing purchase of four bottles of beer.

It is in fact a matter for decision on trial, whose case is true and believable. Eight bottles of beer were produced in court by the Excise

Inspector. The third respondent has also produced the complaint made by him before the higher authority. I am not inclined to make any comments

on this complaint, or the statement of the third respondent in support of the petitioner. It is a fact that the Excise Inspector has produced eight

bottles of beer in court. As per the Government notification issued as S.R.O.No. 96 of 2012, later modified by S.R.O.No. 410/2012, the quantity

of beer permitted to be possessed without license by a person is 3.5 litres as on the date of detection. Mere possession of excess quantity is

punishable only under Section 13 read with Section 63 of the Kerala Abkari Act, and that is the final report submitted by the Excise Inspector in

this case.

The merits of the case cannot be now examined by this Court under Section 482 Cr.P.C.; whether the Excise Inspector had actually seized

eight bottles of beer from the petitioner, or whether only four bottles were in fact seized from him, as he would contend. The supporting approach

of the third respondent also will have to be examined by the trial court during trial. If it is found by the trial court that the case of the petitioner and

the third respondent is true, that the four bottles purchased by the third respondent were in fact added to the other four bottles of the petitioner to

bring a prosecution under Section 63 of the Kerala Abkari Act, the petitioner can very well obtain an acquittal. Those are matters to be probed

into, examined and decided by the trial court. The truth or falsity of the case on either side cannot be now decided by this Court under Section 482

Cr.P.C. It appears that there is something to doubt. On the basis of some doubt alone, a prosecution cannot be quashed. Let the facts be

examined thoroughly by the trial court to find out the truth.

In the result, this application is disposed of, giving liberty to the petitioner to raise all his objections to the prosecution, before the trial court.