IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.MC.No. 4537 of 2008() --------------------------------------- C.R.NO.10/2005 OF EXCISE INSPECTOR, CHANGANACHERRY RANGE .................... PETITIONER(S): ------------------------- PONNAPPAN,S/O. NARAYANAN, PARAYIL VEEDU, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.G.SUKUMARA MENON SMT.DEEPTHI S.MENON RESPONDENT(S): --------------------------- STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE CHANGANACHERRY AND THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2008 ALONG WITH CRMC NO. 4555 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J. ---------------------- Crl.M.C.No.4537 & 4555 of 2008 ---------------------------------------- Dated this the 4th day of December 2008 O R D E R Petitioners face indictment in two separate prosecutions both under the Kerala Abkari Act. The crux of the allegations against them in the respective cases is that they, being licensees of toddy shops, were found to keep in their possession in the toddy shops, toddy containing ethyl alcohol in excess of the percentage prescribed under Section 9(2) of the Abkari Shop Disposal Rules in action Rules 2002. 2. The learned counsel for the petitioners prays, the learned Public Prosecutor does not oppose the said prayer and I am satisfied that in the light of the decision in State of Kerala v. Unni (2007(1) KLT 151 SC] as per which the said Rule 9(2) has been struck down, the prosecution against the petitioners is liable to be quashed. In the absence of opposition from the learned Public Prosecutor, it is not necessary for me to advert to facts in any greater detail in this order. The learned Public Prosecutor submits that the alleged offences in these cases were detected on 23/12/2004 and 15/10/2005, on which dates the Crl.M.C.No.4537 & 4755 of 2008 2 relevant rule was Rule 9(2) of the Abkari Shop Disposal Rules in action Rules 2002 which has been struck down as per the decision in State of Kerala (Supra). 3. In the result, a) These Crl.M.Cs are allowed. b) C.C.No.327/06 registered against the petitioner in Crl.M.C.No.4555/08 on the basis of the final report submitted in O.R.No.31/2005 of Changanassery Excise Range is quashed. c) The prosecution against the petitioner in Crl.M.C.No.4537/2008 pending before the learned J.F.C.M- Changanassery on the basis of the final report in Crime No.10/2005 of Changanassery Excise Range - vide charge sheet No.23/06 is hereby quashed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.4537 & 4755 of 2008 3 Crl.M.C.No.4537 & 4755 of 2008 4 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008