IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Crl.MC.No. 2762 of 2009 --------------------------------------- LP.79/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER/ACCUSED NO.1: HARIKUMARAN NAIR, AGED 45 YEARS, S/O.NARAYANA PILLAI, HARITHA, NEAR C.R.P. CAMP, PALLIPPURAM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, KAZHAKOOTTAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2762 of 2009 -------------------------- ORDER Petitioner is the first accused in C.P.No.39/2001, now pending as L.P.No.79/2003, on the file of Judicial First Class Magistrate's Court-III, Thiruvananthapuram. Prosecution case is that petitioner was the licensed Abkari contractor and accused 2 and 3 were sales men in T.S.Nos.39 and 43 of Kazhakkoottam Excise Range and on 15.5.2000, Sub Inspector of Police, Kazhakkoottam conducted search and took samples of toddy and sent it for chemical analysis. Under Annexure-F chemical analysis report, it was found that toddy contained 18.24 and 15.36 percent by volume of ethyl alcohol and it is alleged that they, thereby, committed the offence under Section 57(a) of Abkari Act, which was taken cognizance by the learned Magistrate. As petitioner was absconding, the case as against him was removed to the long pending register. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that petitioner was never a licensee of a toddy shop as alleged by the prosecution CRMC 2762/09 2 and he was not conducting T.S.Nos.39 and 43 of Kazhakkoottam Excise Range and therefore, petitioner cannot be prosecuted. 2. It is contended by the petitioner that in any case, when the allegation is that toddy contained excess percentage of ethyl alcohol, Rule 7(2) of Kerala Abkari Shops (Disposal in Auction) Rules, 1974 was struck down by this Court and it was upheld by the Apex Court in State of Kerala v. Unni (2007 (1) KLT 151) and the subsequent Rule came into effect only from 14.2.2007, petitioner cannot be prosecuted based on the subsequent Rule, which was not existing and similar cases were struck down by this Court, evidenced by Annexures-J and K orders and other judgments, the proceedings as against the petitioner is to be quashed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Petitioner was prosecuted mainly on the basis that he is a licensed abkari contractor. It is the specific case of the petitioner that he was never a licensee, but was only a power of attorney holder of Chandrababu and Sathy, evidenced by Annexures-A and B CRMC 2762/09 3 power of attorney and he was only authorised to represent them in the auction sale and to produce necessary records before the authorities and he was not authorised to conduct any toddy shop and therefore, petitioner cannot be prosecuted. It is also submitted that in view of the decision of the Apex Court in Unni's case (supra), when the alleged seizure was on 15.5.2000 and the Rule, which was existing on 15.5.2000 (Rule 7(2)), was struck down by this Court and the amended Rule 9(2) came into effect only on 14.2.2007, the proceedings as against the petitioner is to be quashed as has been done in Annexures-J and K orders. 5. Though it is alleged that petitioner was a licensed abakri contractor, no material was produced, along with the final report, to establish that fact. On the other hand, Annexures-A and B power of attorney establish that petitioner was only a power of attorney holder and even by the said power of attorney, petitioner was not authorised to conduct a toddy shop. Therefore, on the basis that petitioner is a licensed abkari contractor, he cannot be prosecuted. CRMC 2762/09 4 6. Even if it is taken that there was a search and seizure, in view of the decision of the Apex Court in Unni's case (supra) and the decision of this Court, evidenced by Annexures-J and K orders, prosecution as against the petitioner can only be quashed, as Rule 7 (2), which was subsisting on the date of search was subsequently struck down and the amended Rule came into effect only from 14.2.2007. In such circumstances, petition is allowed. L.P. No.79/2003 on the file of Judicial First Class Magistrate's Court-III, Thiruvananthapuram is quashed. 9th October, 2009 (M.Sasidharan Nambiar, Judge) tkv