Abdul Salam vs. State Of Kerala - Kerala High Court, 30 June 2020

[ Bail Appl.3138/2020, Bail Appl.3251/2020 ] Dated this the 30th day of June 2020 Applications for regular bail under Section 439 of the Cr.P.C.

The petitioner in B.A.No.3138/2020 is the 1st accused and the petitioner in B.A.No.3251/2020 is the 2nd accused in Crime No.372/2020 of Chottanikkara Police Station for having allegedly committed the offence punishable under Section 55(a) of the Abkari Act initially, and subsequently, under Sections 55(i) and 62 of the Act were also incorporated.

The prosecution case in brief is that on 29.04.2020 at about 4.55 PM the 1st accused was found to be in possession of 2495 litres of spirit stored in his house at Kureekkad Village. He was arrested on that day and remanded to judicial custody. On 30.04.2020 the 2nd accused was arrested for the allegation that he is the person who transported the said contraband to the 1st accused in a vehicle. The contraband articles

B.A.Nos. 3138 & 3251 of 2020 -4- contained 499 small cans of spirit containing five litres each. 248 carton boxes contain two of these cans. Three cans were found kept separately on the floor. The cans had a printing “Hand Sanitizer” and the carton boxes suggested that it was produced in bottles by “See Bhal Mikelin Distillery Pvt.Ltd., Goa”. The police officials confirmed that it was spirit and prepared Annexure-A search list. The 1st accused mentioned that the contraband articles were sanitizers and he also produced bills/invoices indicating that the goods were delivered to him by M/s NAAJ Medicals, Companypady, Aluva. However, not being satisifed with the explanation offered by the 1st accused, the police officials proceeded with the case. The petitioner states that they are innocent and that 1st accused is a representative of M/s NAAJ Medicals, a company having a valid GST registration and deals with various medicines, drugs, including masks and hand sanitizers. In consequence to the outbreak of COVID-19 pandemic, there was huge demand for mask and sanitizer, and accordingly, they were brought under the valid licence

B.A.Nos. 3138 & 3251 of 2020 -5- from Goa. Chemical name of hand sanitizers are “Cluo Hand Sanitizer” and “Anton Braniff Hand Sanitizer” respectively, and the components of Anton Braniff are 70% Ethanol, Glycerine, Hydrogen Peroxide and water, added with perfume; while in Cluo Hand Sanitizer, the ingredients are 70% Ethanol with Glycerine, water and colour.

The Government of India had issued special order as S.O.1087/E dated 13.03.2020 by the Minitry of Consumer Affairs, Food and Public Distribution, including “surgical masks and hand sanitizers” under the Essential Commodities Act, 1955. As per the said Notification at Annexure A1 in B.A.No.3138/2020 was intended to prevent spread of COVID-19. S.O.1169(E) dated 19.03.2020 of Government of India at Annexure A2 in the above B.A. allows production and distribution of hand sanitizers by virtue of the powers conferred under Sub-section 2A and Section 3 of the Essential Commodities Act. Annexure A3 in the above B.A. is the copy of the provisional manufacturing licence No.989 dated 24.03.2020 issued by the Ministry of Food and Drug Administration, Government of Goa.

B.A.Nos. 3138 & 3251 of 2020 -6-

Annexure A5 in above B.A. is a copy of the invoice in favour of M/s NAAJ Medicals for purchase of the articles. Delivery to M/s NAAJ Medicals was made in accordance with the statutory formalities required, including payment of GST and e-Way bills (Annexure A6). The 1st accused had taken delivery of denatured spirit in the form of hand sanitizer from the master supplier M/s NAAJ Medicals and supplies it to various distributors in the local market. Due to Kottayam being declared a Red Zone, the border between Ernakulam and Kottayam was closed. Hence, the 1st accused was not in a position to supply those hand sanitizers there and temporarily unloaded the same at his residence at Chottanikkara for the sake of convenience, intending to be shifted to Kottayam District once the border was opened. It was at that time, that the police from Chottanikkara Police Station came to the residence of the petitioner and inspected the premises and misunderstood that the liquid hand sanitizer was plain spirit. In consequence of that, the Station House Officer, Chottanikkara Police Station regisered the

B.A.Nos. 3138 & 3251 of 2020 -7- crime. The 1st accused was arrested and remanded to judicial custody and the 2nd accused driver, who transported the articles, was also arrested on the following day. Bail application moved before the Judicial First Class Magistrate Court, Chottanikkara was dismissed on 06.05.2020 vide Annexure A8 in the above B.A.

It is submitted on behalf of the 1st accused that Rule 8 of the Kerala Rectified Spirit Rules, 1972 allows release of rectified spirit from the distillery without payment of any dues for the manufacture of medicinal and toilet preparations containing alcohol and the Kerala Abkari Rules also excludes alcohol contended sanitizers and it does not attract under the penal provisions of Abkari Act.

The 2nd accused submits that he is innocent and had nothing to do with the acquiring of the spirit or sanitizer and he too has produced photocopies of the manufacturing licence to the distillery as also the copies of invoice along with way-bills. It is submitted that he was only the driver of the vehicle

B.A.Nos. 3138 & 3251 of 2020 -8- and had the required bills/invoice to transport the articles, and therefore, his role is very limited. However, consequent to his arrest, he moved the Judicial First Class Magistrate Court, Chottanikkara for bail and the same was rejected by the learned Magistrate vide Annexure F in B.A.No.3251/2020. The Sessions Court too dismissed the bail vide Annexure A9. The learned Sessions Judge also dismissed the application for bail vide Annexure G. It is submitted that the petitioner does not have any antecedents and that he may be released on bail.

In support of the prosecution story is that the contraband articles was intended to be used for manufacture of illicit arrack and IMFL, the learned Public Prosecutor appearing for the State very vehemently opposes the granting of bail to the accused. It is pointed out that the Inspector of Police, Chottanikkara Police Station had received a secret information that spirit was stored unauthorisedly in the house of the 1st accused and in consequence of that, he had conducted a search of the house and recovered

B.A.Nos. 3138 & 3251 of 2020 -9- the aforesaid quantity of spirit. It is admitted that the bill of M/s NAAJ Medicals, Aluva was produced. It is submitted that the 1st accused is a native of Chottanikkara and a taxi driver there. Investigation revealed that he has no experience with the marketing and production of hand sanitizers or other medical products. Despite that, he had stored huge quantity of spirit. It is on the basis of the confession statement given by the 1st accused that the name of the 2nd accused, being the driver of the vehicle which transported the spirit, was revealed, in consequence of which he was arrested. It is submitted that the 6th accused Siyad is closely associated with the 2nd accused in transporting the spirit. The names of “Indian Roller Deluxe Rum” and “Indian Roller Deluxe Whiskey” were provided on the cartons, which was loaded into the vehicle, though the 2nd accused has noticed that, he did not question or suspect anything about the contents of the load. He also had concealed the load with plastic sheet so as to hide it from the view of the public as well as the police. The learned Public Prosecutor

B.A.Nos. 3138 & 3251 of 2020 -10- would further indicate that the bill in favour of the 1st accused was only for 290 cans, but what was loaded into the vehicle and delivered to him was 499 cans. The 1st accused did not questioned about the quantity in excess of the bill, which would indicate that the 1st accused as well as the 2nd accused were glove in hand for transporting the contraband articles. During the investigation, it was revealed that Abdul Jaleel, who is the owner of M/s NAAJ Medicals is an accused in Crime No.934/2020 of Kalady Police Station and his drug licence expires on 25.11.2020. It is submitted by the learned Public Prosecutor that sanitizers without any licence is spirit and as per the licence referred to above, the owner of M/s NAAJ Medical is only licensed to sell, store or exhibit for sale or distribution of retail drug as per Drugs and Cosmetics Rules, 1945. It is also submitted that the bill produced by the 1st accused purportely to be that of M/s NAAJ Medicals was fake and it did not contain the licence number, which is mandatorily to be mentioned as per the Rules. The owner of M/s NAAJ Medicals has also violated the rules

B.A.Nos. 3138 & 3251 of 2020 -11- by allegedly selling the stock to the 1st accused for the reason that he did not have the licence for wholesale as required under the Rules. The investigation further revealed that the 4th accused Regikumar is a notorious criminal and is involved in several abkari cases and he is acqainted with the 1st accused and that is how they hatched the conpsiracy to transport spirit under the guise of it being hand sanitizer. In Crime No.934/2020 of Kalady Police Station, it is revealed that the accused persons there had used the very same spirit as liquor and sell it for human consmption as IMFL. It is the very same product, which was seized from Chottanikkara in the instant cae from the 1st accused, the stickers of the can were also similar. From these, what could be deduced was that the actual motive of the 1st accused was to distribute spirit as IMFL or illicit arrack under the guise of it being hand sanitizers. The 2nd accused had knowingly transproted the said articles and for that reason he is also equally liable.

B.A.Nos. 3138 & 3251 of 2020 -12-

After having heard both sides, I find that the picuture is not as rosy as projected by the accused. The fact that Kottayam District was declared as Red Zone was known to the 1st accused. The 2nd accused also knew where he had to transport the articles loaded in his vehicle. The 1st accused admittedly did not have licence to stock the articles in his house at Chottanikkara, and therefore, the intentions were bonafide and he should have taken delivery of the articles from M/s NAAJ Medicals only on getting a clerance for proper transporting and storing the articles.

10.

The argument of the learned Counsel for the 2nd accused that there is no chemical examination report to confirm that the contraband articles seized is not hand sanitizer and is actually spirit, and therefore, the prosecution case has not legs to stand on. It is however pertinent to note that the bills were only for transporting and selling of 290 cans; whereas what was found stored was 499 cans. The stock is connected to crime registered at Kalady Police Station, in which the

B.A.Nos. 3138 & 3251 of 2020 -13- authorities had seized spirit being sold as IMFL. The clandestine manner in which the petitioners herein had transproted the articles to Chottanikkara also incidates that their intentions were not as holy as is attempted to be portrayed by the accused. True, there are certain questions to be answered by the prosecution. But they still have time, and in case they do not within the stipulated time complete the investigation, the accused are at liberty to approach the juri ictional Court for statutory bail as provided under Section 167(2) of the Cr.P.C. Releasing the accused at this point in time would give a wrong signal to the society at large, which needs to be protected from the illicit liquor which flows in hampering the health of the common man. I am therefore, of the view that the bail applications need to be dismised and I do so. dkr ASHOK MENON JUDGE