IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 9831 of 2006(U) ------------------------------------- PETITIONER: ------------------- MAOHANAKUMARAN NAIR, SHARATH NIVAS, MUTTAIKKATTU, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ----------------------- 1. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE EXCISE INSPECTOR, VAMANAPURAM. BY GOVERNMENT PLEADER SRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9831 OF 2006-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LICENCE GRANTED TO THE PETITIONER DATED 17.7.2004 EXT.P2 TRUE COPY OF THE REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ATTINGAL DATED NIL EXT.P3 TRUE COPY OF THE CHEMICAL ANALYSIS REPORT DATED 19.10.2004 HARUN-UL-RASHID, J. ------------------------------------------- W.P.(C) No.9831 of 2006 ------------------------------------------ Dated, this the 26th day of February, 2009 JUDGMENT The petitioner is a licensee of toddy shop for the abkari year 2005-06 and for subsequent years. The Excise Inspector, Vamanapuram collected samples from the petitioner's shop and C.R.No.22 of 2005 was registered against the petitioner and two employees for the alleged violation of Section 57(a) of the Abkari Act and Section 7(2) of the Abkari Shops Disposal Rules, 2002. Ext.P2 is the complaint lodged before the Judicial First Class Magistrate, Attingal. The prosecution was initiated for the reason that the ethyl content is in excess of 8.1% and therefore liable to be punished for violation of Section 57(a) of the Abkari Act. 2. Learned counsel for the petitioner brought to my notice a decision of this Court reported in Unni v. State of Kerala (2003 (3) K.L.T.306) rendered in a similar context. This Court took the view that the ethyl alcohol content of toddy drawn from coconut palm fixed as 8.1% v/v in Rule 9(2) of the Abkari Shops Disposal Rules, 2002 is unreasonable and arbitrary. This Court also held that the rule makers have not taken into account the various factors mentioned in the W.P.(C) No.9831 of 2006 2 preceding paragraphs which had a direct bearing on the ethyl alcohol content of toddy drawn from the coconut palm. This Court declared that Rule 9(2) of the said Rules to the extent it prescribes that the ethyl alcohol content of toddy drawn from coconut palms kept or offered for sale should not exceed 8.1% v/v is arbitrary and unreasonable. This Court also held that if there is no adulteration or admixture as contemplated under Section 57(a) of the Abkari Act, there is no justification in prosecuting the petitioners for an offence punishable under the Section. This Court had quashed the complaint in the said case. The question was elaborately discussed by this Court and concluded that Rule 9(2) of the Rules is arbitrary and unreasonable and therefore cannot be acted upon. 3. The above decision of this Court was affirmed by the apex Court in the decision reported in State of Kerala v. Unni 2007 (1) K.L.T.151. In the light of the above decisions this writ petition is allowed and Ext.P2 complaint is quashed. HARUN-UL-RASHID, JUDGE vns