SHAFEEKKA Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS in Crl. MC 3618/2010 are accused 1 and 2 in CR No. 52/2010 of Excise Range, Kothamangalam. Petitioner in Crl. MC 3706/2010 is the accused in CR 50/2010 of Excise Range, Thiruvananthapuram. She is the licensee of a Three Star Hotel having FL-3 licence at Thiruvananthapuram. Second petitioner in Crl. MC 3618/2010 is the licensee and first petitioner is the Manager of Hotel Maria International, Kothamangalam having a bar licence FL-3. Both the crimes were registered on the allegations that in violation of the conditions of license, licensee had put up an additional counter and the respective accused thereby committed the offence under Section 56(b) of Abkari Act. These petitions are filed under Section 482 of the Code of Criminal Procedure to quash the crimes registered contending that an offence under Section 56(b) of Abkari Act is not attracted.

(2.) LEARNED senior counsel appearing for the petitioners and learned Public Prosecutor were heard.

(3.) CONDITIONS 1, 2, 3 and 7 of the licence was considered by this Court in detail in Annexure E order. Condition No. 2 provides that no liquor shall be sold under the licence for removal outside the hotel, to anyone including residents of the hotel providing that liquor may be sold and served to residents of the hotel in the rooms wherein they reside or in the restaurants where they partake food, by the employees of the bar. It is further provided that liquor can be served along with meals by the side of swimming pools, lawns and the roof gardens of the hotel, on obtaining special annual permit from the Excise Commissioner, it is further provided that such a hotel should have an exclusive restaurant for the use of families and others, where no liquor shall be served. Though the conditions of licence provide for showing the boundaries of the licenced premises and boundaries of the bar room separately, there is no condition providing that sale of liquor could only be within the boundaries of the bar room. On the other hand, Condition No. 2 itself makes it sufficiently clear that, conditions of the licence provide for sale of liquor even outside the boundaries of the bar room. Condition No. 2 provides that liquor can be sold and served to the residents of the hotel, in their rooms or in the restaurant, where they partake food. At the same time as far as swimming pools and lawns and roof gardens are concerned, Condition No. 2 provide that though liquor cannot be sold there though it can be served along with the meals by the side or swimming pools, lawns and the roof gardens. Thus Condition No. 2 makes a distinction between the restaurant and a roof gardens or lawns or swimming pools. As far as swimming pools, lawns and roof gardens of a hotel are concerned, the licensee is not entitled to sell liquor and can only serve liquor there. On the other hand, as far as the restaurant is concerned, licensee is entitled to sell as well as serve liquor inside the restaurant, though such sale could only be to the residents of the hotel. So also serving liquor along with the meals, by the side of swimming pools, lawns and roof gardens could only be to the inmates of the hotel. Therefore when condition No. 2 makes a distinction with reference to the restaurant and roof gardens, where under sale is permitted inside the restaurant but not permitted inside the roof gardens or lawns, it is clear that contention that sale is permitted only inside the bar room cannot be accepted. If that be the case, it cannot be said that putting up a counter in the restaurant or outside the bar room and within the licensed bar premises, would be violation of Condition No. 2 as found by this Court in Annexure E order.