Showing posts with label kerala high court. Show all posts
Showing posts with label kerala high court. Show all posts

Tuesday, December 21, 2021

Read Judgment - PM Modi's Photo on COVID Vaccine Certificate: HC Dismisses Plea for Removal - Free Reading

Read Judgment for free - PM Modi's Photo on COVID Vaccine Certificate: HC Dismisses Plea for Removal

Click on link to read judgment for free:  https://drive.google.com/file/d/1LMZbLaLan0S0z7-UciCsjkVKt10uQypT/view?usp=sharing

WP-C No. 21560/2021 Peter Myaliparambil Vs. Union of India and Another

Friday, April 30, 2021

Tuesday, November 17, 2020

Read Judgment Free - Kerala Plane Crash Judgment by Kerala High Court - CBI Probe Denied

The Kerala High Court has dismissed as premature a petition seeking a probe by a former Supreme Court or high court judge into the crash landing of Air India Express flight 1344 at Kozhikode Calicut International Airport (CCJ) on August 7th this year

To read judgment, click the link - Opens in Google Drive -  https://drive.google.com/file/d/1v3RUqmyO2FC0jS9-lRRN0y7Unukp6wTC/view?usp=sharing

Thursday, August 09, 2018

Possession of Obscene Books Not an Offence: Kerala HC [READ JUDGMENT]

CLICK TO READ FULL JUDGMENT FOR FREE

KOCHI: Mere possession of obscene books or materials without exhibiting it for sale or circulation is not an offence, says the Kerala High Court.
The decision by justice P Ubaid came on a petition (Crl. RP No. 1366/2006) filed by Mohammed Rafeeque of Perinthalmanna through advocate Shajin S Hameed. After seizing obscene books from a shop, police had booked the petitioner, who was present there, for selling obscene books (Section 292(1)(a) of Indian Penal Code).
In the judgment, the court said, “An accused can be found guilty and convicted under Section 292(1)(a) IPC only if there is evidence to show that he had sold, or distributed, or publicly exhibited, or in any manner put in circulation, or has in his possession, any obscene matter. Mere possession of some obscene material without exhibiting it for sale, or circulation, cannot be punished under Section 292(1)(a) IPC. PW1 (investigating officer) admitted fairly that the books seized by him were not in fact kept there for sale, or that he had not seen such materials being kept or exhibited there for sale or circulation. If so, there cannot be a conviction under Section 292(1)(a) IPC.”
Even if it is assumed that the books were kept there for sale or that the shop owner possessed it for sale or circulation, the evidence of the investigating officer does not contain anything to show that the accused is the shop owner or employee, the court pointed out.

The obscene books were seized in a raid conducted by Perinthalmanna circle inspector at a shop on May 2, 2001. A trial court had found the petitioner guilty and convicted him. Allowing the revision petition, the court set aside the conviction and acquitted the petitioner.

Monday, July 24, 2017

HC Declines Bail to Actor Dileep [READ ORDER]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                         THE HONOURABLE MR. JUSTICE SUNIL THOMAS

                  MONDAY, THE 24TH DAYOF JULY2017/2ND SRAVANA, 1939

                                         Bail Appl..No. 5098 of 2017 ()
                                              -------------------------------
   CRIME NO. 297/2017 OF NEDUMBASSERY POLICE STATION, ERNAKULAM DIST.
                                                           .......


PETITIONER/ACCUSED:
------------------------------------

                     P.GOPALAKRISHNAN @ DILEEP,
                    AGED 49 YEARS, S/O.G. PADMANABHA PILLAI,
                    PADMASAROVARAM HOUSE, KOTTARAKADAVU ROAD,
                    ALUVA, ERNAKULAM DISTRICT.


                     BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE.
                          ADVS. SRI.T.RAMPRASAD UNNI,
                                    SRI.S.M.PRASANTH,
                                    SRI.M.MANOJKUMAR (CHELAKKADAN),
                                    SMT.R.S.ASWINI SANKAR.

RESPONDENTS/STATE & COMPLAINANT:
------------------------------------------------------------

        1.           STATE OF KERALA,
                     REPRESENTED BY THE PUBIC PROSECUTOR,
                     HIGH COURT OF KERALA, ERNAKULAM-682 031.

        2.           THE STATION HOUSE OFFICER,
                     NEDUMBASSERY POLICE STATION,
                     ERNAKULAM DISTRICT.


                 BY SRI.C. SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION.


                    THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
                    ON 20-07-2017, THE COURT ON 24/07/2017 PASSED THE
                    FOLLOWING:
rs.



                      SUNIL THOMAS,J
                      ------------------------
                    B.A.No..5098 of 2017
                     --------------------------
            Dated this the 24th day of July 2017

                           O R D E R



      The 11th accused in Crime No.297/2017 of Nedumbassery

Police station for offences punishable under sections 120(B),

342,366,376(D),411,506(1),201,212 & 34 IPC and sections 66

(E) & 67(A) of the Information Technology Act,2008,is the

petitioner herein.

      2. The crux of the prosecution case, as is discernible

from the available records, is as follows:

      3. The petitioner herein is a prominent Malayalam cine

artist, having acted in several films in the main role. The

victim is an unmarried, well known cine actress, who has

several films to her credit. The petitioner herein had married

a leading actress and a child was born in the matrimonial

relationship. Subsequently, matrimonial disputes arose in

their family, ultimately leading to a judicial separation. The

petitioner herein suspected that, the victim herein, who was a

close friend of his erstwhile wife, was instrumental in the

disruption of his matrimonial life. To wreak     vengeance, he

allegedly conspired with      the first accused, to abduct the

victim and to take her nude photographs, on an offer that, the

BA No.5098/2017                2

first accused would be paid Rupees One and Half Crores. The

first accused was a driver, who used to get associated with

film production units, and had a criminal track record.

      4. On 17/2/2017, at about 7 p.m., the victim started from

her house at Thrissur to proceed to Cochin, in a Mahendra

XUV.vehicle, sent to her by the film production unit, to join

the work in a film. The vehicle proceeded along the National

Highway. The second accused was the driver of that

vehicle,who was a stranger to the victim. It is alleged that,

the first accused and his co-accused waited in a van near the

Airport Junction and when the vehicle of the victim reached

the spot, the first accused stage managed a fake accident, by

hitting the van on the rear side of the XUV. Thereafter, third,

fourth and sixth accused forcefully entered into the vehicle

and wrongfully confined the victim to the rear seat. They

drove the vehicle towards the Kochi city, followed by the van

driven by the first accused.     Thereafter, the first accused

entered the vehicle and sexually molested her in the moving

vehicle. While she was being sexually abused, first accused

simultaneously video graphed with his mobile phone the entire

incident, with close shots of the body of the helpless victim.

In the course of the sexual act, he had directed her to co-

BA No.5098/2017                3

operate with him and divulged that, it was done by him on a

quotation entrusted to him, by another person. The ordeal of

the victim continued upto 11 p.m., in spite of her persistent

plea for release. She was thereafter left off by the      main

accused.     The second accused driver took the mentally

shattered victim to the house of a film director, to whom she

revealed the entire episode.    Immediately, the matter was

informed to the police.

     5. FIS of the victim was recorded on 18/2/2017 at 3

a.m.and she underwent medical examination. Investigation

commenced.      Her statement under section 164 Cr.P.C.was

also recorded before the Magistrate. It emerges that, in the

course of the    incident, the victim had identified the first

accused, who had earlier driven her car while she was on a

film shooting at Goa. In the course of investigation, the driver

was arrested, which ultimately led to the arrest of seven

persons. Arraying them as accused, final report was laid on

17/4/2017. Accused 1 to 6 were        the persons who were

involved in the main crime and seventh accused was charged

with offence of harbouring the accused.

     6. In the final report, it was clarified that, an advocate

was also involved in the crime, against whom a separate

BA No.5098/2017                 4

charge sheet was proposed to be filed.        The right of the

investigating agency to investigate into the larger conspiracy

was also reserved.      The matter is     now pending as CP

No.17/2017     of  Judicial  First Class Magistrate Court,

Angamaly. The investigation into the conspiracy, however,

continued. The involvement of the petitioner herein was not

revealed at that time.

     7. In the meanwhile, on 22/4/2017, the petitioner herein

submitted a written        complaint dated 20/4/2017, to the

Director General of Police, alleging that, few social media

groups and unknown sources were trying to defame him and

harass him in connection with the above incident involving

the film actress. It was stated that, his friend Nadirshah had

received a telephone call from one Vishnu, claimed to be on

behalf of the first accused, seeking financial help, with a

threat that in case of failure, to connect the petitioner herein

with the above case. Further, on 18/4/2017, his driver

Appunni had received a letter by Whats up, allegedly written

by the first accused addressed to the petitioner, demanding

two crores of Rupees from him and in case of failure, to spoil

the career of the petitioner.

     8. In the course of investigation, the petitioner herein,

BA No.5098/2017                5

Nadirshah and Appunni were questioned in detail. Thereafter,

the petitioner was arrested on 10/7/2017 on an allegation that,

the petitioner had engaged the first accused to take nude

photographs of the victim on an offer to pay Rupees One and

Half Crores. A sum of Rs.10,000/- was allegedly paid by the

petitioner as advance in December,2015. Petitioner is in

custody since the date of arrest. The petitioner, contending

that he is absolutely innocent and is sought to be roped in the

crime consequent to a deep rooted conspiracy, seeks bail.

      9. It was contended by the learned senior counsel for the

petitioner that, none of the 19 circumstances mentioned in

the remand report was connected with the petitioner. There

was not even an iota of evidence to connect him with the

incident, much less, with any part of the conspiracy. It was

further contended that, even assuming that the first accused

was available at places where the petitioner, himself being a

popular artist, was present, that by itself is not sufficient to

establish conspiracy. It was further contented that, the

petitioner was questioned initially for 13 hours and

subsequently for ten hours, prior to his arrest. Thereafter, he

was given the police custody for three days. Hence, the

petitioner is not required   any further, for the purpose of

BA No.5098/2017                 6

investigation and consequently his further custody is not

justified, contented the learned senior counsel.

      10. Per contra, learned Director General of Prosecution

contended that, the petitioner is the king pin of the crime. He

had given quotation to the first accused, a known criminal, to

commit     the   nefarious    crime.  It was contended that,

engaging criminals on quotation for committing sexual abuse

on a victim to wreak vengeance was unheard of.           It was

further contended that, there were cogent,clinging, direct,

indirect, circumstantial and scientific evidence to establish

that the petitioner had conspired with the first accused .

      11.No doubt, conspiracy is hatched in secrecy and direct

evidence is rarely available. The prosecution is trying to allege

the conspiracy and to connect the petitioner herein with the

case, on the basis of circumstantial evidence. It emerges

that, investigating agency is proceeding on a premise that, the

petitioner herein had a definite stand that he did not know the

first accused and never had occasion to meet him.       Another

premise on which the investigation proceeded was that, the

complaint dated 20/4/2017 submitted by the petitioner to the

Director General of Police was a clever move to preempt a

possible revelation of the involvement of the petitioner in the

BA No.5098/2017                  7

crime, by the first accused.    The learned Director General of

Prosecution relied on the materials available on record to

contend that investigation has gathered sufficient materials to

establish the role of the petitioner in the conspiracy. They fall

into two categories. Those       materials prior to the actual

commission of offence and the conduct of the accused

subsequent to the commission of offence.

     12. Definitely, the incident that happened on 17/2/2017

is very serious. A young actress was abducted in the busiest

National Highway, taken through the city for about two and

half hours, subjected to the shocking ordeal of sexual assault

and video graphed, inside a moving car. The victim had

identified the first accused in the car itself.    At the initial

stage itself, matter was reported to the police and the second

accused driver whose conduct appeared to be doubtful was

arrested, immediately after the incident. The commission of

crime is so cruel and diabolic        and liable to shake the

conscience of the society.

     13. The investigation agency alleges that, the petitioner

herein had a definite motive to commit crime. It was alleged

that, the petitioner herein suspected that the victim       was

instrumental for the disruption            of his matrimonial

BA No.5098/2017                 8

relationship.  The petitioner believed that, the victim had

spoiled his family life by conveying information about the

petitioner to the former wife. There are enough materials

available on record to show that, the relationship of petitioner

with victim was strained. There are versions of few persons

that, the victim lost few       opportunities to act in films

thereafter, which affected her professional career also.

      14. The conspiracy angle is sought to be established by

alleging that the petitioner herein had met the first accused at

five different specified places, where the conspiracy was

hatched. One was in a hotel wherein the petitioner allegedly

instructed the first accused to commit the act and offered to

pay the huge amount. Hotel records are relied on by the

prosecution to establish that room was booked in the name of

the petitioner herein. The presence of both the petitioner and

the accused at all the five places at the same time is sought to

be established by call record details, tower location of mobiles

or by direct oral evidence, gathered by the investigation. The

disclosure made by the first accused about the conspiracy

hatched with the petitioner, in the investigation and those

made to others have led to discovery of several crucial

materials and facts.

BA No.5098/2017                 9

      15. The prosecution has a case that, the tenor and tone

of the letter allegedly sent by the first accused did not

evidence that it was in the form of a threatening letter or

intended to blackmail the petitioner. Versions of          some

persons, to whom first accused         allegedly disclosed the

conspiracy, are available. It is on record that, after the arrest

of the first accused, a mobile phone was stealthily taken inside

the jail by first accused and he had contacted several persons.

Call details both of the above mobile phone and that from the

coin box land line provided in the jail show the continuous

phone calls made       by the first accused to few doubtful

persons,some persons connected with the petitioner and inter

se calls among them. Details of several inter connected phone

calls are also unearthed by the investigating agency, with the

tower location of each person.    Details of attempts made by

Vishnu to contact petitioner through few sources are also on

record. Records indicate that the first accused had written

the letter from the jail itself.     Materials to indicate that,

immediately after the commission of crime, the accused along

with a co-accused had attempted to hand over the mobile and

memory card to the associates of petitioner.

      16. The above facts, show that prima facie there are

BA No.5098/2017                10

materials to suspect the involvement of the petitioner in the

crime. Investigation is still progressing. It is still at a crucial

stage. It was submitted by the learned Director General of

Prosecution that, the manager Appunni is absconding and the

lawyer involved has to be effectively questioned. The

possibility of implicating other persons in the crime has also

not been ruled out by the learned DGP. Investigation seems to

be progressing.

     17. The case is unique, considering its seriousness,

meticulous planning, cruel nature of execution and being a

crime executed to wreak vengeance on a woman by engaging

criminals, to    sexually abuse     her.    Courts have to be

circumspect in granting bail in such cases.

     18.There is yet another major reason which prompts

rejection of bail application.    The crucial material object

which is the mobile phone used for recording the sexual

assault and the memory card in which the video graphed

materials are stored have not been recovered. The memory

card is a potential threat to the life of the victim and there is

every possibility of any of the accused attempting to interfere

in the investigation and the prosecution with the memory

card.

BA No.5098/2017                  11

     18.     The petitioner, being a noted film actor, is also

involved in the distribution and production of films and is

also owner of a      theater. Definitely, he must be wielding

considerable command on the industry. Hence, the possibility

of the petitioner influencing or threatening the several

witnesses, who are also from the same industry, cannot be

ruled out.

     Having considered the above facts, I feel that it is too

early at this stage to grant bail to the petitioner. Accordingly,

bail application fails and is dismissed.

                                        Sd/-

                                   SUNIL THOMAS
                                        Judge.
Dpk                          /True copy/          PS to Judge.




Thursday, July 20, 2017

Women Employees Can Avail 2-yr Child Care Leave at a Stretch: Kerala HC [READ JUDGMENT]

Central government institutions cannot insist that its female employees cannot avail the 730-day child care leave (CCL) at a stretch, the Kerala High Court has held. It is up to the female employee to decide whether CCL should be availed in a single stretch or not, the court said.

The ruling by a single bench of the court was after considering a petition (WP-C No. 18830/2017) filed by Beena S, who is a constable with Central Reserve Police Force’s Pallipuram unit. She is the mother of two children, aged 7 and 4 years and had sought CCL as there was nobody else to take care of the kids. Introduced as part of the 7th Pay Commission recommendations, a female employee of a central government institution can avail CCL up to 730 days (2 years) during the entire service period for taking care of minor children.

Link to judgment: https://drive.google.com/open?id=0B917iCHIrxbtc2UzNXpxOFhxTUE

Beena S Vs Union of India and Ors

Thursday, June 29, 2017

(READ JUDGMENT) Exemption for Building House in Paddy Land Only for Original Owner, Not Buyers of Land in Parcels: Kerala HC

K.S.THANKACHAN  Vs.  THE DISTRICT COLLECTOR

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

      TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939

                   WP(C).No. 3466 of 2017 (G)
                   ---------------------------

PETITIONER(S):
-------------

            K.S.THANKACHAN,
            AGED 65 YEARS
            S/O. SOURIYAR, JUDY NIVAS,
            MITHRAKARI P.O., ALAPPUZHA - 689 595.

            BY ADVS.SRI.S.SANAL KUMAR
                   SMT.BHAVANA VELAYUDHAN
                   SMT.T.J.SEEMA
RESPONDENT(S):
--------------

         1. THE DISTRICT COLLECTOR,
            ALAPPUZHA - 688 001.

         2. THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR &
            CHAIRMAN OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE,
            ALAPPUZHA - 688 001.

         3. THE VILLAGE OFFICER,
            EDATHUA VILLAGE,
            RAMANKARY P.O.,
            ALAPPUZHA 689 595.

         4. THE AGRICULTURAL OFFICER,
            KRISHI BHAVAN,
            RAMANKARY, ALAPPUZHA & CONVENER OF LOCAL LEVEL
            MONITORING COMMITTEE OF EDATHUA VILLAGE,
            OFFICE OF THE AGRICULTURAL OFFICER,
            EDATHUA - 689 573, ALAPPUZHA DISTRICT.

         5. THE PRINCIPAL AGRICULTURAL OFFICER,
            PRINCIPAL AGRICULTURAL OFFICE, ALAPPUZHA - 688 001.

            BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR

       THIS WRIT PETITION (CIVIL)  HAVING BEEN FINALLY HEARD
       ON  06-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
       FOLLOWING:


msv/

WP(C).No. 3466 of 2017 (G)
---------------------------

                            APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.52/2004 DATED 06-01-2014
           OF AMBALAPUZHA S.R.O.

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY,
           RAMANKARY GRAMA PANCHAYATH DATED 18-03-2014.

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE
           OFFICER, EDATHUA DATED 25-04-2014.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER
           BEFORE THE SUB COLLECTOR, ALAPUZHA DATED 18.11.2015.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 14.12.2015 OF THE
           4TH RESPONDENT TO THE 2ND RESPONDENT WITH THE REPORT
           OF THE LOCAL MONITORING COMMITTEE.

EXHIBIT P6 TRUE COPY OF THE ORDER OF THE PRINCIPAL AGRICULTURAL
           OFFICER, ALAPUZHA ISSUED ON BEHALF OF THE DISTRICT
           LEVEL AUTHORIZED COMMITTEE DATED 11-11-2016.

RESPONDENT(S)' EXHIBITS
-----------------------
                           NIL
                                      //TRUE COPY//



                                      P.S.TO JUDGE
Msv/



                                                             'C.R.'



             K. VINOD CHANDRAN, J.
              ------------------------------------------
             W.P.(C) No. 3466 of 2017 (G)
              ------------------------------------------
                  Dated: 06th June, 2017


                     J U D G M E N T

    The petitioner is aggrieved with the fact that the

petitioner's application,         before        the     Local Level

Monitoring Committee (LLMC) and the District Level

Authorised Committee (DLAC) for exemption for

constructing a homestead, was rejected.

    2.   The petitioner purchased the above land as

per Ext.P1 deed. The petitioner then applied for an

exemption under the Kerala Conservation of Paddy

Land and Wet Land Act, 2008 ('Paddy Land Act' for

short).  The petitioner relied on the certificates at

Exts.P2 and P3, which evidence that the petitioner does

not have any land anywhere else in the locality for

W.P.(C) No. 3466/2017
                           -2-



constructing a residential house.      The petitioner's

application before the LLMC, however, was not

considered favourably. The LLMC, by its minutes at

Ext.P5, found that the petitioner's family has a

residential house and, hence, refused to recommend the

proposal for exemption. The petitioner then approached

this Court with a writ petition.  In the writ petition a

judgment was passed at Ext.P8.

     3.    The petitioner sought for a direction to the

DLAC to consider the recommendation. The DLAC, as

per sub section (8) of Section 9 of the Paddy Land Act,

could not have considered the matter without a

recommendation for exemption from the LLMC. In fact,

the specific condition under which the LLMC refused to

recommend exemption to the petitioner, was the fact of

his family owning another piece of land.

W.P.(C) No. 3466/2017
                             -3-




     4.    The petitioner's application was considered by

the DLAC and rejected, again, for reason of the

petitioner's son having a residence. There is an appeal

provided under sub section (6) of Section 9 of the Paddy

Land Act from Ext.P6 order to the District Collector,

which was not availed by the petitioner. The petitioner,

cites as a reason, the Contempt of Court case filed by

the petitioner, in which the order of the DLAC was

produced. The Contempt of Court case was closed on

25.01.2017. The petitioner again sought to challenge

the same before this Court by the above writ petition,

which was filed on 01.02.2017.

     5.    The petitioner relies on a decision of this

Court, reported in Joseph Thomas v. Agricultural

Officer, Alappuzha and others - 2015 (5) KHC 103.

A reading of the decision indicates that 'Family' as

W.P.(C) No. 3466/2017
                            -4-



referred under Section 9(8)(ii) of the Paddy Land Act

was found to be the family consisting of applicant, his

wife and children and it cannot be stretched to an

extent to include his father or grandfather. On facts the

present case can be distinguished. In the present case,

the father claims exemption and the rejection has been

on the ground that the family has another property. If

each member of the family is excluded according to the

person before Court, then, the statutory restriction

would be rendered ineffective and otiose.



     6.    It is also to be noticed that the purpose of

exemption is for building a residential house in a paddy

land held by the owner. The specific words employed in

Section 9 of the Paddy Land Act is '... considering the

applications for reclamation of paddy land for the

construction of residential building to the owner of

W.P.(C) No. 3466/2017
                              -5-



paddy land' (emphasis supplied). The intention is to

provide     the   cultivator/farmer/agriculturist with a

residence within his cultivable paddy land. Here, about

10 cents of paddy land was purchased by the petitioner

for the purpose of constructing a residential building,

that too, in 2014 after the implementation of the Kerala

Conservation of Paddyland and Wetland Act, 2008. It is

the said land which was sought to be exempted.

     7.    Such an exercise could lead to gross misuse,

since, then, large extents of paddy land could be cut up

into small properties and sold to different individuals,

who could then separately seek exemption. Different

members of a family could also claim exemption for

small tracts of land, out of a commonly held paddy land;

citing a desire to have an independent existence. That

would be defeating the very object of the enactment,

which has the preservation of paddy lands at its core.

W.P.(C) No. 3466/2017
                             -6-



This Court is not inclined to permit such exemption,

especially since both the LLMC and DLAC has declined

the claim and a contrary direction would go against the

clear statutory interdict.

        The writ petition, hence, would stand dismissed.

No Costs.


                                          Sd/-
                                 K.VINOD CHANDRAN,
                                          JUDGE


jjj 6/6/17




Saturday, February 04, 2017

Rape Victim Has Right to Speedy Trial to Resume Life: Kerala HC [READ JUDGMENT]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                        ----------

   PETITIONER/DEFACTO COMPLAINANT  :
   ------------------------------


   RESPONDENT/STATE :
   ----------------

          THE STATE OF KERALA,
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031
          FOR THE SUB INSPECTOR OF POLICE,

     THIS CRIMINAL MISC. CASE  HAVING COME UP FOR ADMISSION
     , THE COURT ON THE SAME DAY PASSED THE
     FOLLOWING:

bp


---------------------------

                           APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------

ANNEXURE A:     TRUE COPY OF THE F.I.R. AND F.I.S.

ANNEXURE B:     TRUE COPY OF THE MEMORANDUM OF EVIDENCE AND
                CHARGE


RESPONDENT(S)' EXHIBITS         :         NIL.

                                          //TRUE COPY//



                                          P.A. TO JUDGE
bp



              RAJA VIJAYARAGHAVAN.V, J
           ----------------------------------------

           -----------------------------------------


                          O R D E R

1.The petitioner is the de facto complainant in a sessions case on the file of the Special Court for Trial of

  Offences against Women and Children, Manjeri. The

  accused in the said case is being proceeded against under

  section 376 and 323 of the IPC.

2.The petitioner has approached this Court with a fervent

  prayer to expedite the proceedings. It is submitted that

  her marriage is scheduled to be held in the last week of

  January 2017. As many as 13 witnesses have been cited

  in the above case to prove the prosecution case. She fears

  that if she is called upon to give evidence after her

  marriage, it would adversely affect her matrimonial life .

  Her prayer is to direct the learned Sessions Judge to

  expedite the trial or at least to complete the recording of

  her evidence.



3.It is submitted across the bar that the charge has already

  been framed and the case is ripe for trial. Calling upon a

  victim of Rape to state her version of a gory incident,

  while she is on the verge of setting up a new life should

  be avoided as far as possible. She is definitely entitled to

  have her evidence recorded expeditiously. It appears that

  CW's 1 to 3 are the witnesses who have been cited to

  prove the incident.

4.Having considered the attendant facts and circumstances,

  on pure humanitarian considerations and to secure the

  interest of justice, the court below is directed to issue

  summons to CW 1 to 3 and take all steps to record the

  evidence of the said witnesses, as far as possible on or

  before 24.1.2017.

  The petition is disposed of with the above directions.




                                        Sd/-
                             RAJA VIJAYARAGHAVAN.V.
                                        JUDGE

vps



Note: Details of the victim has been removed from this judgment. For more information, contact mahirhaneef@gmail.com

Tuesday, January 24, 2017

Speed Governor: Non-implementation of SC Order in Kerala Questioned at Kerala HC

IN THE HIGH COURT OF JUDICATURE, KERALA
Writ Petition.(Civil).No…3 9 9 4 6......of 2016
Major.M.G.C.Nair………………………………………….…….…………..Petitioner
Vs.
Union of India and others ........................................Respondent
S Y N O P S I S
Hon’ble High Court and Supreme Court of India issued directions for the installation of speed governors in public transport vehicles. The Central Motor Vehicles Rules, Rule 118 contemplated the installation of speed governors in heavy goods vehicle and passenger vehicles. Now the said rule is amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all medium goods and medium passenger. Invoking the power given to the State Government for insisting speed governors on existing vehicles the Government of Kerala has issued Exhibit.P.3. But the Government of India exercising its powers under Sec. 110 (3) (a) has granted exemption from the said provisions till 31st January,2017 without any valid reasons. Therefore speed governors cannot be made mandatory. The result is that accidents are increasing causing deaths of many innocent. Every day in Kerala around eleven people die and 150 get injured in road accidents and if speed governor is installed at least some life could be saved.
Counsel for the Petitioner
P a g e | 2
IN THE HIGH COURT OF JUDICATURE, KERALA [SPECIAL ORIGINAL JURISDICTION] WRIT PETITION (CIVIL).No…3 9 9 4 6...of 2016 BETWEEN PETITIONER: Major M.G.C.Nair (Retired) , aged 80 years son of Late N.Govindan Nair, residing at Rajalakshmi Nivas, 129 BMRA, BalakrishnaMenon Road, Edapppally, Cochin-682024. AND RESPONDENTS: 1. Union of India, Ministry of Road Transport and High Ways, Represented by its Principal Secretary, Transport Bhawan,1, Parliament Street, New Delhi-110001 2. State of Kerala, represented by its Secretary, Motor Vehicles Department, Thiruvananthapuram- 3. The Transport Commissioner, Transport Commissionerate, 2nd Floor, Trans Towers, Vazhuthacaud, Thycaud P.O. Thiruvananthapuram-695014. All process to the petitioner be served on his counsel M/s. P.B.SAHASRANAMAN, T.S.HARIKUMAR, K.JAGADEESH, RAAJESH.S. SUBRAHMANIAN, Advocates, Sahasram Associates, Narayaneeyam Buildings, Chittoor Road, Cochin-682011. All process to the respondents be sent on their above addresses or on their advocates, if any engaged. WRIT PETITION FILED UNDER ARTICLE. 226 OF THE CONSTITUTION OF INDIA. Statement of Facts. The petitioner above named states as follows:-
1. The petitioner is a resident of Cochin Corporation. He has filed many public interest litigation before this Hon’ble Court and Hon’ble
P a g e | 3
Supreme Court of India so as to protect the life of the people from many of the evils. This Hon’ble Court had the occasion to deal with the issue of Bundhs, Hartals, Processions causing nuisance to the public, etc in the public interest litigation filed by this petitioner. It was year’s back he had supported the cause for compulsory singing of national anthem at schools. He has recently got himself impleaded in the writ petition filed to ban the burning of plastic and other waste which will adversely affect the health of the people and global warming and consequent climate change. Through this public interest litigation, this petitioner wanted to implement the installation of speed governors in all public transport vehicles wherein the public are being carried for hire and the speedy motor vehicles.
2. As per the road accident data compiled by the National Transportation Planning and Research Centre (NATPAC), Kerala has become the second most accident-prone State in the country after Maharashtra. Kerala stands third in India in terms of road accidents with 4,000 deaths and 40,000 injuries every year. The statistics kept by the Motor Vehicle Department of Kerala will show that 39014 motor vehicles accidents have taken place in the year 2015. The said statistics will show a growing trend in number of accidents. Last year 4196 persons have been killed and 43735 persons have been injured. Road accident was the third major cause of death and disability in Kerala. Every day in Kerala around eleven people die and 150 get injured in road accidents.
3. The main causes of the increasing death rates in the Road accident is the aggressive driving behavior of Heavy vehicle drivers especially Private Buses & Tipper Lorries and over speeding. It is to curtail over speeding Speed Governors (speed limiting device or speed limiting function) are directed to be installed in all public transport vehicles as per Rule 118 of the Central Motor Vehicles. {hereinafter referred
P a g e | 4
to as “the said Rule”) But the said Rule was not implemented. When the Private Bus Operators challenged the imposition of condition to install speed governor in the stage carriage permits issued it was challenged before this Hon’ble Court. This Hon’ble Court has affirmed the jurisdiction of the Regional Transport Authority in imposing such a condition of installation of speed governors in the permits, [Ernakulam District Private Bus Operators Association vs RTO. 1986 KLT 712.]. But the said Rule 118 of CMV Rules were not implemented for unknown reasons. Thus the necessity to have speed governors in such vehicles was affirmed by this Hon’ble Court as early as in 1986.
4. When the accidents increased this Hon’ble High Court in a public interest litigation directed the Government of Kerala to implement the said Rule 118 by insisting on the installation of speed governors in all public transport vehicles. (Radhakrishnan vs State of Kerala 2003 (1) KLT 383) The said decision was challenged by the State as well as by the operators before the Hon’ble Supreme Court of India. But the Hon’ble Supreme Court dismissed the same affirming the need to have speed governors in all such vehicles. [Rajasekharan vs Joseph. (2005)12 SCC 32]. Thus speed governors are a must for transport vehicles where the public are carried for hire. The Rule was at the relevant time made applicable to heavy goods and heavy passenger vehicles.
5. When the 2nd and 3rd respondents started implementing the insistence for speed governors the Tipper lorry operators have challenged the GO(P) No. 5/2006/Tran. dated 13-1-2006 issued by the 2nd respondent notifying that all Tipper Lorries shall be fitted, by the operators of such vehicles, with a speed governor (speed controlling device) conforming to the standard AIS:018, as amended from time to time, in such a manner that the Speed Governor can be sealed with an official seal of the State Transport Authority or the
P a g e | 5
Regional Transport Authority, in such a way that it cannot be removed or tampered with, without the seal being broken. The said notification has come into force on 13-1-2006. It was affirmed by this Hon’ble High Court. The said judgment was reported as Sukumaran E.S. vs State of Kerala, AIR 2006 Kerala 250.
6. There after certain stage carriage operators used to get permits from the nearby Karnataka State so as to circumvent the judgment of this Hon’ble Court. The Karnataka State Government was also lethargic in implementing the provisions of the said Rule. In public interest litigation the Karnataka High Court has directed to implement the insistence of speed governors in all public vehicles where people are carried for hire. The said judgment is reported as Y.N.Nanjappa vs State of Karnataka. AIR 2008 Kant 199.
7. The maxi cab operators approached the Hon’ble Karnataka High Court alleging that they shall be exempted from installing the speed governors. But the High Court refused to interfere with the said order which mandates the installation of speed governors. The said judgment is reported as Raghupathy Bhat and ors vs State of Karnataka. AIR 2008 Kar 203.
8. Thus it is the settled law that speed governors must be installed in all public transport vehicles where the people are carried for hire. Such a direction was issued in public interest so as to protect their life guaranteed under Art. 21 of the Constitution of India.
9. Now the said Rule 118 was amended as per GSR 290(E), dated 15th April, 2015 making it mandatory for the installation of speed governors in all transport vehicles which are notified by the Central Government under sub-section (4) of Section 41 of the Motor Vehicles Act, 1989. For medium goods and medium passenger vehicles it is mandatory from 1st October, 2015. For old vehicles the
P a g e | 6
time has been granted time up to 31st March, 2016. A true copy of notification issued by the 1st respondent ,GSR 290(E) , dated 15th April, 2015, published the Gazette of India, Extraordinary, No.233, dated 15th April, 2015, referred to above is produced herewith and marked as Exhibit.P.1.
10. Exhibit.P.1 notification stipulates that on or before 1st October, 2015 the State Government was bound to issue a notification to insist for the categories of transport vehicles registered prior to the 1st October, 2015, which are not already fitted with speed governors and are not covered under the first proviso to sub-rule 1 that such transport vehicles shall be equipped or fitted by the operators of those vehicles on or before 1st April, 2016 with a speed governor having a maximum pre-set speed of 80 kms/hour or such lower speed specified by the State from time to time. The 2nd respondent by G.O.(P) No. 59/2016/Tran, dated 27-10-2016 has notified that every transport vehicle notified by the 1st respondent under sub-section (4) of section 41 of the Motor Vehicles Act, 1988 , except two wheelers, three wheelers, quadricycles and four wheeled and used for carriage of passengers and their luggage, with seating capacity not exceeding eight passengers in addition to driver seat (M1 Category) and not exceeding 3500 kgs gross vehicle weight, fire tenders, ambulances, police vehicles, verified by a testing agency specified in rule 126 to have maximum rated speed of not more than 80 km/hr that are manufactured before 1st October, 2015 shall be equipped or fitted with a speed governor having a maximum pre-set speed of 80 kms per hour conforming to the prescribed standards. A true photostat copy of the said G.O. (P) No. 59/2016/Tran, dated 27-10-2016 issued by the 2nd respondent is produced herewith and marked as Exhibit.P.2.
11. Thus the 2nd respondent has started the implementation of the installation of speed governors in all public transport vehicles as
P a g e | 7
directed by this Hon’ble Court in its letter and spirit. Now in view of the Amendment made to the said Rule the 2nd respondent also issued a notification as required by the amendment for the same. But the 1st respondent has issued orders exempting the said vehicles notified by the State Government up to 31st January, 2017 from installation of speed governors. A true photostat copy of the said S.O. 3604(E), dated 1-12-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.3.
12. It is not for the first time the 1st respondent is exempting the said vehicles from installation. By order dated 22nd April, 2016 the time limit was extended by 31st July, 2016. Again by order dated 1st August, 2016 the time was extended by 31st October, 2016. A true photostat copy of the said order No. 1472(E), dated 22-04-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.4. A true photostat copy of the said order No. 2574(E), dated 01-08-2016 issued by the 1st respondent is produced herewith and marked as Exhibit.P.5.
13. It is respectfully submitted that now by granting exemption to the vehicles wherein the public are carried for hire the 1st respondent has forced the 2nd respondent in implementing the directions of this Hon’ble Court. The Hon’ble Supreme Court as well as this Hon’ble Court has issued directions to install speed governors in all public vehicles taking into consideration all aspects and it is rightly implemented by the Kerala Government. The 1st respondent has not taken into consideration the above judgments which have protect the life of the people while issuing Exhibits. P.3 to P.5. No proper reason has been given by the 1st respondent for granting exemption. It is the settled proposition of law that enactment of law and tolerating infringement is equivalent to not enacting the law at all. The non-implementation of Exhibit.P.1 amendment within the prescribed time has caused loss of life of many. Frequent road
P a g e | 8
accidents are common and the main reason is the non-implementation of speed controlling devices in transport vehicles. It is respectfully submitted that nowadays many of the two wheelers, which are having more speed are causing accidents and are a threat to the life of the people. Their speed is also to be controlled by suitable amendments to the said Rule.
14. The Central Government is playing with the life of the people of Kerala without any valid reason. The life of the petitioner who rides in motor cycle is in threat. Any time a speedy vehicle may hit him in violation of the said Rule 118. Therefore in these circumstances this petitioner has no other remedy than to invoke this Court's extraordinary jurisdiction under Article.226 of the Constitution of India on the following among other grounds:
G R O U N D S
A. Exhibits.P.3 to P.5 orders are issued without any valid reason. The said orders are arbitrary and contrary to the directions issued by this Hon’ble Court and Supreme Court of India.
B. The power to grant exemption under Sec. 110 (3) (a) of the Motor Vehicles Act , 1988 cannot be used to circumvent the directions issued by Courts. By way of executive orders the judgment rendered by the Hon’ble Court cannot be violated.
C. The time limit prescribed for the implementation of Rule 118 of the CMV Rules has lapsed on 1st April, 2016. But certain officers working under the 1st respondent are illegally helping the operators who do not want to abide law and who have lost the case.
D. The first respondent is personally bound to compensate the victims of motor accidents that may cause on account of the non-
P a g e | 9
implementation of Rule 118 of the CMV Rules. The said loss should be recovered from the officers who have issued Exhibits P.4 to P.6.
E. To impose suitable restrictions so as to control the speed of motor vehicles which are capable of driving at higher speed and recklessly.
For the reasons set out above and in the affidavit filed herewith the petitioner prays that the following:
R E L I E F S
i. To issue a writ, direction or order in the nature of certiorari calling for the records leading to Exhibit.P.3 and quash the same;
ii. To issue a writ, direction or order declaring that the power to grant exemption under Sec. 110 of the Motor Vehicles Act, 1988 cannot be used to restrain the installation of speed governors which is done as directed the Hon’ble High Court and Supreme Court;
iii. Such other relief’s which this Hon'ble Court deems fit and necessary in the circumstances of the case for the implementation of Rule 118 of the Central Motor Vehicle Rules, 1989 as amended on 15th April, 2015, Exhibit.P.2;
iv. To issue a writ, direction or order in the nature of mandamus commanding the respondents to take appropriate steps to curtail the high speed of motor vehicles which ply through the roads of Kerala state.

Thursday, January 19, 2017

Qualified Pharmacists Must in Medical Shops: Kerala HC [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

        THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938

                                   WP(C).No. 11396 of 2016 (Y)
                                      ----------------------------


PETITIONER(S):
-----------------------

                     KERALA PHARMACISTS ORGANIZATION,
                    REG. NO.WYD/CA/17/2016,
                    REG. OFFICE ARPITHA, CHOLAVAYAL,
                    KALPETTA -673 121, REPRESENTED BY ITS SECRETARY,
                    PREMJI M.P


                     BY ADV. SRI.BIJU .C. ABRAHAM.

RESPONDENT(S):
-------------------------

        1.           THE STATE OF KERALA,
                     REPRESENTED BY THE SECRETARYTO GOVERNMENT,
                     DEPARTMENT OF HEALTH & FAMILYWELFARE,
                     GOVERNMENT SECRETARIAT,
                     THIRUVANANTHAPURAM- 695 001.

        2.           THE DIRECTOR OF HEALTH SERVICES,
                     THIRUVANANTHAPURAM -695 001.

        3.           THE DRUGS CONTROLLER,
                     OFFICE OF THE DRUGS CONTROLLER,
                     THIRUVANANTHAPURAM- 695 001.

        4.           THE REGISTRAR,
                     KERALA STATE PHARMACY COUNCIL,
                     THIRUVANANTHAPURAM- 695 001.


                     R1 TO R3 BY SR. GOVT. PLEADER SMT.K.R. DEEPA.
                     R4 BY ADV. SRI.P.B.SAHASRANAMAN, SC.


                    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
                    ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE
                    FOLLOWING:
rs.

WP(C).No. 11396 of 2016 (Y)

                                APPENDIX

PETITIONER'S EXHIBITS:-


EXT.P1:     TRUE COPY OF THE PRESCRIBED FORM OF DECLARATION OF
            REGISTERED PHARMACIST TO BE SUBMITTED FOR RENEWAL
            OF DRUGS LICENSE.

EXT.P2:     TRUE COPY OF THE RELEVANT PORTION OF THE PHARMACY ACT
            1948 AND THE RELEVANT RULES AND GUIDELINES.

EXT.P3:     TRUE COPY OF THE CIRCULAR DATED 20/10/2015 ISSUED BY
            THE 1ST RESPONDENT.

EXT.P4:     TRUE COPY OF THE NEWSPAPER REPORT APPEARED IN
            MATHRUBHOOMI DAILY DATED 08/02/2016.

EXT.P5      TRUE COPY OF THE NEWSPAPER REPORT IN JENMABHOOMI
            DATED 28/02/2016.

EXT.P5(A)   TRUE COPY OF THE NEWSPAPER REPORT IN MATHRUBHOOMI
            DATED 10/02/2016.

EXT.P5(B)   TRUE COPY OF THE NEWSPAPER REPORT DATED 28/02/2016.


RESPONDENT'S EXHIBITS:-       NIL.




                                              //TRUE COPY//


                                              P.S.TO JUDGE


rs.



                    SHAJI P. CHALY, J.
               -------------------------------
               W.P.(C)No. 11396 of 2016
               -------------------------------
      Dated this the 1st day of December, 2016

                       J U D G M E N T
                      -------------------

     Petitioner    is    a   registered   organisation    of

Pharmacists. The grievance voiced by the petitioner in

this writ petition is that, in violation of the provision of

the Pharmacy Act, 1948, Drugs and Cosmetics Act, 1940

and the Rules 1945, Pharmacy Practice Regulations 2015,

and the law regulating the working hours of the

Pharmacist etc. are being flouted.        According to the

petitioner, the dispensation of medicine is done in the

absence of pharmacist qualified as per the provisions of

the aforesaid acts, and the Government is not taking any

steps to ensure that the illegalities committed by various

medicine dispensation units in private and public sector

are being done in accordance with the provisions of the

Act and Rules specified above. These are the background

facts of this writ petition.

     2.   Fourth respondent has filed a counter affidavit

W.P.(C)No. 11396 of 2016    2


stating that, the Kerala State Pharmacy Council is

established under the Pharmacy Act, 1948 with the main

objective of the Council to regulate the profession and

practice of pharmacy in Kerala. Based on that council is

giving registration as a registered pharmacist to those

qualified persons under Section 32(2) of the said Act. The

council has also appointed Pharmacy Inspectors in all

districts for the strict implementation of the pharmacy

Act, Rules, Pharmacy Practice Regulations, 2015.      It is

also stated that Pharmacy Inspectors are regularly

inspecting the medical stores which are storing medicines

and dispensing the same.         The Pharmacy Practice

Regulations, 2015 was notified in the Gazette of India on

15.01.2015 and on the basis of which Ext.P3 Circular has

been issued. It is also submitted that medical shops are

to comply with the Rules and Regulations in vogue. It is

also stated all the medicine dispensing units of the State

Government also is to absolutely follow the provisions of

law and Regulations, 2015.

       3.    Third respondent has also filed a Counter

W.P.(C)No. 11396 of 2016     3


affidavit almost in similar lines, and the contentions raised

in the counter affidavit need not be repeated because 3rd

respondent is also of the opinion that without a

pharmacist dispensation of medicines cannot be carried

out either in the private sector or in the public sector.

       4.    Taking note of the respective submissions made

across the bar and perusal of the documents and

pleadings put forth by the respective parties, I am of the

considered opinion that, the medical shops in private

sector as well as in public sector and all medicine

dispensing units in the private sector and public sector

are bound to follow the provisions of respective Acts and

Rules and Regulations, 2015. That being the situation,

there will be a direction to the respondents to ensure

that, the medicines are dispensed by the said units

absolutely following the provisions and regulations and

employing qualified pharmacist in the said units. If any

violation is committed by any medical shops or other

dispensing unit severe action shall be taken against the

said persons without fail. Respondents shall also ensure

W.P.(C)No. 11396 of 2016      4


that working hours provided under the rules and

regulations are also strictly implemented.

       Writ petition is disposed of accordingly.

                                               Sd/-
                                        SHAJI P. CHALY,
                                             JUDGE.

rmm/2/12/2016




                                 [ True copy]

                                 P.A. to Judge




Monday, January 09, 2017

Customers Have No Right to Drink Liquor Near Retails Outlets, Says Kerala HC [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:
   THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
                               &
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
   FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938
                  WP(C).No. 28136 of 2016 (S)
                  ----------------------------
PETITIONER(S) :-
-------------
     1.   M.I.VARGHESE, AGED 62 YEARS, S/O.IYPE
          MALIKUDY HOUSE, IRINGOLE P.O.
     2.   K.A.SUNNY, AGE3D 58 YEARS, S/O.K.P.ABRAHAM
          KARIPRA, KURUPPAMPADY.
     3.   MATHEW VARGHESE, AGED 63 YEARS, S/O.P.VARKEY
          MANNAKKATTUKUDY, KURUPPAMPADY P.O.
     4.   PAUL THOMAS, AGED 57 YEARS, S/O.THOMAS
          PABRIKKARAN, IRINGOLE P.O.
     5.   M.C.VARUGHESE, AGED 68 YEARS, S/O.CHACKO,
          MALIKKUDY, IRINGOLE P.O.
     6.   C.M.DOBY, AGED 56 YEARS, S/O.VARGHESE
          OORAHAMKUDY HOUSE, RAYAMANGALAM P.O.
          PERUMBAVOOR.
     7.   M.P.VARGHESE, AGED 72 YEARS, S/O.PAULOSE
          MALIKKUDY, IRINGOLE P.O.
          BY ADVS.SRI.G.D.PANICKER
                  SMT.JEENA JOSEPH
RESPONDENT(S) :-
-----------------
     1.   KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)
          CORPORATION LTD., P.B.NO.2266,
          SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM P.O.,
          TRIVANDRUM - 695 010 REPRESENTED BY
          ITS REGIONAL MANAGER C-2, MR.G.MOHANAN.
     2.   RAYAMANGALAM GRAMA PANCHAYAT
          REPRESENTED BY ITS SECRETARY
          RAYAMANGALAM P.O., KURUPPAMPADY
          ERNAKULAM DISTRICT, PIN - 683 545.
WP(C).No. 28136 of 2016
ADDL.3.   THE COMMISSIONER OF EXCISE,
          KERALA STATE, THIRUVANANTHAPURAM - 695 001.
          IS IMPLEADED AS ADDITIONAL RESPONDENT No.3 VIDE ORDER
          DATED 28.9.2016 IN I.A.13905/16.
ADDL.4.   SMT.LETHA RAJAN, W/O.RAJAN N.K.,
          NJALUPADY, IRINGOL, KURUPPAMPADY,
          PERUMBAVUR, ERNAKULAM DIST.
ADDL.5.   RAJAN N.K., NJALUPADY, IRINGOL,
          KURUPPAMPADY, PERUMBAVUR, ERNAKULAM DIST.
          ARE IMPLEADED AS ADDITIONAL RESPONDENT Nos.4 AND 5
          VIDE ORDER DATED 31.10.2016 IN I.A.No.14808/16.
ADDL.6.   REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.
          IS IMPLEADED SUO MOTU AS ADDITIONAL RESPONDENT No.6
          VIDE ORDER DATED 2.11.16 IN WP(C).
          R1 BY SRI.NAVEEN.T., SC
          R2 BY SRI.N.RAJESH
                SRI.GEORGE VARGHESE KIZHAKKAMBALAM
          ADDL.R4 & R5 BY SRI.N.SUKUMARAN (SR.)
                          SRI.N.K.KARNIS
          ADDL.R6 BY SR.GOVERNMENT PLEADER SRI.M.A.ASIF
       THIS WRIT PETITION (CIVIL)  HAVING BEEN FINALLY HEARD  ON
02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 28136 of 2016 (S)
----------------------------
                            APPENDIX
PETITIONER(S)' EXHIBITS :-
-----------------------
EXT.P1 : TRUE COPY OF THE PHOTOS TAKEN AT THE SITE REGARDING THE
PROTEST OF THE PETITIONERS.
EXT.P2 : TRUE COPY OF THE COMPLAINT PREFERRED BY THE LOCAL
RESIDENTS INCLUDING THE PETITIONERS.
EXT.P2(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF EXT.P2.
EXT.P3 : TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT LOCATION
AS WELL AS THE FUNCTIONING OF THE OUTLET.
EXT.P4 : TRUE COPY OF THE LETTER OF THE RAYAMANGALAM PANCHAYATH
DT.26-2-2016 TO THE BUILDING OWNERS.
EXT.P4(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF THE EXT.P4
EXT.P5 : TRUE COPY OF THE RESOLUTION DT.2-3-2016 OF THE
RAYAMANGALAM GRAMA PANCHAYATH.
EXT.P5(A) : TRUE COPY OF THE ENGLISH TRANSLATIONS OF THE EXT.P5.
EXT.P6 : TRUE COPY OF THE LETTER ADDRESSED TO THE EXCISE
COMMISSISSIONER.
EXT.P6(A) : TRUE COPY OF THE ENGLISH TRANSLATION OF THE EXT.P6.
EXT.P7 : TRUE COPY OF THE ORDER DATED 26.8.2016.
EXT.P7 IS ADDED AS PER ORDER DATED 20.9.2016 IN I.A.14590/16.
RESPONDENT(S)' EXHIBITS :-
---------------------------
EXT.R1(a) : TRUE COPY OF THE ORDER DATED 24.2.2016 ISSUED BY THE
DEPUTY EXCISE COMMISSIONER, ERNAKULAM.
EXT.R1(b) : TRUE COPY OF THE lICENCE ISSUED BY THE EXCISE
DEPARTMENT TO THE 1ST RESPONDENT CORPORATION TO CONDUCT THE FL1
SHOP DT.11.4.2016.
EXT.R1(c) : TRUE COPY OF THE INTERIM ORDER DATED 21.3.2016 IN WPC
No.10796/2016 ISSUED THIS HON'BLE COURT.
EXT.R1(d) : TRUE COPY OF THE ORDER DATED 6.9.2016 ISSUED BY THIS
HON'BLE COURT IN I.A.No.14000/2016 IN WPC No.10796/2016.
WP(C).No. 28136 of 2016 (S)
----------------------------
EXT.R4(a) : TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT
DATED 9.10.2015.
EXT.R4(b) : TRUE COPY OF THE REPLY TO EXT.P4 SUBMITTED BY
RESPONDENTS 4 AND 5 DT.29.2.2016.
EXT.R4(c) : TRUE COPY OF THE REPLY TO EXT.P7 SUBMITTED BY
RESPONDENTS 4 AND 5 DT.29.8.2016.
EXT.R4(d) : TRUE COPY OF THE PERMIT ISSUED BY THE 2ND RESPONDENT
DATED 17.9.2016.

                          //TRUE COPY//
                          P.A. TO JUDGE

             MOHAN M. SHANTANAGOUDAR, C.J
                                     &
                         SATHISH NINAN, J.
           -------------------------------------------------------
                    W.P.(C) No.28136 of 2016
                  ----------------------------------------
           Dated this the 2nd day of December 2016
                           J U D G M E N T
Mohan M. Shantanagoudar, C.J
      This public interest litigation is filed by the residents of
Kuruppampady within the area of Rayamangalam Grama
Panchayat, Ernakulam District.
           According to the petitioners, the area in question is
purely a residential area and contiguous to the main road. The
people therein are industrious and most of the workers are
employed in and around Kuruppampady. Most of them are peace
loving and are co-operative for public cause.
           There was an outlet of the Beverages Corporation (for
short, 'the Corporation') at Kuruppampady Junction in a rented
building owned by one Mrs.Mini Varghese. It seems that the rent
was not paid and hence, the landlord demanded the Corporation to
shift the outlet from the building in question. Consequently, the
Corporation shifted the outlet to a temporary shed owned by
Sri.Rajan and Smt.Rajan, Njalupadi veedu at Theater Canal
W.P.(C) No.28136 of 2016
                                -: 2 :-
Kavala. According to the petitioners, the shed is in the midst of
the residential area, wherein the petitioners and a number of
others are living peacefully.    It is a common sight that a few
trouble mongers, after purchasing liquor, consume it at the road
and throw the bottles helter-skelter at the road to the dismay and
discomfort of the tourists and people walking through the road.
The serenity and the beauty of nature is lost because of the said
foreign liquor shop. There are two schools working in this area
with a number of students and the students going to the school
and coming back are using the road wherein the shop is situated.
Despite a number of dharnas and protest, the Corporation has not
chosen to shift the shop to any other unobjectionable place.
            The sum and substance of the case of the petitioners is
that the said shop is against the best interests of the public at
large. They made a number of representations, but the same are
not acceded to and hence, the writ petition is filed.
     2.     Smt.Jeena Joseph, learned counsel appearing on behalf
of the writ petitioners submits that a direction may be issued to
the Corporation to shift the liquor shop to some other
unobjectionable place, inasmuch as the shop which is being run in
W.P.(C) No.28136 of 2016
                                  -: 3 :-
the present location is causing nuisance to the people in that
locality.  A lot of dirt is generated because of the drunkards
usually throwing empty bottles and other waste materials to the
nearby properties.      Virtually, the hooligans are preventing the
people in the locality to enjoy life with their family members in
their home. They cannot even walk on the street in question. For
all these grounds, the learned counsel prays for allowing the writ
petition.
      3.    Learned counsel for the Panchayat, supporting the case
of the writ petitioners, contends that the Panchayat has not issued
licence in favour of the Corporation and hence, it is not open for
the Corporation to run the said outlet.
      4.    Per contra, Sri.T.Naveen, learned Standing Counsel for
the Corporation, taking us to the provisions of the Kerala Abkari
Shops Disposal Rules, 2002 and Foreign Liquor Rules, submits
that the shop in question is situated in an unobjectionable place
and it is after obtaining due permission from the concerned
authorities to run the shop, the same is established. He submits
that though an application was filed by the Corporation for
establishing the liquor shop, the same was not considered
W.P.(C) No.28136 of 2016
                               -: 4 :-
deliberately.    He further submits that the matter is pending
consideration in that regard before this Court in W.P.(C) No.10796
of 2016, wherein, an order of status quo is granted in favour of the
Corporation. Based on the said order, the Corporation is running
the shop in the premises in question. However, he denies the
submission made by the petitioners about the conduct of the
customers of the shop. It is also submitted that it is open for the
police to initiate action against such persons, who take law into
their own hands.
      5.    We have gone through the materials on record and are
satisfied that the liquor shop does not violate any of the rules
mentioned above. The only contention of the petitioners is that
the public at large are highly aggrieved by the establishment of
the shop in the premises in question, inasmuch as the behaviour of
the customers visiting the liquor shop cannot be tolerated by any
human being.
            If any person misbehaves in the locality in whatsoever
manner, it is open for the residents of the Village or the affected
person to complaint to the police and the police will take action in
accordance with law.
W.P.(C) No.28136 of 2016
                                 -: 5 :-
            Since prima facie we are satisfied that the distance rule
etc. are complied with by the Corporation while establishing the
shop, no comment can be made at this stage, more particularly,
when the question regarding granting licence is pending
consideration in W.P.(C) No.10796 of 2016.           However, it is
needless to observe that every person in the society should behave
properly and the customers of the Corporation have got no right to
create any law and order situation in the area in question.     It is
the responsibility of the Corporation also to control its customers
if any problem is created by them.        If the customers create
problems by throwing bottles etc. to the road, it is open for the
people in the locality to lodge complaint before the police, which
shall be seriously taken note of by the jurisdictional police and
necessary action shall be taken by them.
            With these observations, this writ petition stands
disposed of. We clarify that any of the observations made during
the course of this judgment are deemed to have been made only
for the disposal of this writ petition. The said observations do not
influence the learned Single Judge while disposing of W.P.(C)
No.10796 of 2016 on merits, in accordance with law. All questions
W.P.(C) No.28136 of 2016
                                -: 6 :-
raised in the said writ petition are left open to be decided. It is
open for the petitioners to get themselves impleaded in W.P.(C)
No.10796 of 2016. In the mean while, it is open for the concerned
authorities to consider the request of the petitioners for shifting
the shop to any other unobjectionable place, keeping in mind the
interest of the public at large.
                                             Sd/-
                                MOHAN M. SHANTANAGOUDAR
                                        CHIEF JUSTICE
                                             Sd/-
                                       SATHISH NINAN
                                            JUDGE
Jvt/5.12.2016