Cri. M. C. No. 1475 of 2006. Case: Unni alias Jayakumar Vs State of Kerala. Kerala CEGAT & CESTAT High Court
| Case Number | Cri. M. C. No. 1475 of 2006 |
| Counsel | For Petitioner: R. T. Pradeep, V. Vijulal and T. A. Prasanth, Advs. and For Respondents: K. Harilal, P. P. |
| Judges | K. P. Balachandran, J. |
| Issue | Kerala Abkari Act (1 of 1077) - Section 33(2) |
| Citation | 2006 CriLJ 3887 |
| Judgement Date | June 16, 2006 |
| Court | Kerala CEGAT & CESTAT High Court |
Order:
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Petitioner is the 2nd accused in Crime No. 7/2003 of Thirupuram Excise Range. Theoffence alleged as against him is an offence under Section 33(2) of the Abkari Act. The allegation against him is that when an attempt was made to effect arrest and to register a case as against A1 for offence under Sections 8 (i) and 8(ii) of the Abkari Act, obstruction was caused by the petitioner thereto and thereby he has committed an offence punishable under Section 33 (2) of the Act.
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Petitioner seeks for an order quashing Annexure-II final report on the ground that Section 33 (2) of the Abkari Act is not a punitive section nor does it prescribe any duty on the part of a citizen not to obstruct the Excise Officer, when only Section 33 (2) read with Section 63 of the Abkari Act will be an offence punishable under Section 63 of the Act.
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It is worthy to note that Section 63 prescribes punishment for offences not otherwise provided for. The section is extracted below for easy reference.
"63. For offences not otherwise provided for: whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine (which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both).
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In order to have application of Section 63, a person must be guilty of either any act or an intentional omission and that should be in contravention of any of the provisions of the Abkari Act or any rule or order made under the said Act. If so, when there is no punishment prescribed under any other provisions of the Abkari Act the person so found guilty, on conviction before a Magistrate, be punished as per the said section. Section 33(2) with its proviso is also extracted below for easy reference.
33(2). An Abkari Officer may without an order or without a warrant from a Magistrate, arrest and detain any person who obstructs him while in the execution or discharge of his duty or who has escaped from his lawful custody:
Provided that every person who is arrested and detained in custody shall be produced before the Magistrate within a period of twentyfour hours or such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be...
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