IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WP(C).No. 36994 of 2010(Y) -------------------------- PETITIONER(S): --------------- MURALEEDHARAN.C., S/O.VELUKKUTTY, CHEMBAN HOUSE, ARAVANGARA, VALLUVAMBRAM.P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE EXCISE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY COMMISSIONER OF EXCISE, WYNAD, KALPETTA.P.O. 673 121. BY GOVERNMENT PLEADER SRI.M.MANU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.36994 of 2010 ----------------------------------------- Dated this the 13th day of December, 2010 JUDGMENT Ext.P7 order passed by the Commissioner of Excise cancelling the licences issued to the petitioner to run toddy shop Nos.1 to 5 , 12 and 13 in Group No.1 of Kalpetta Excise Range is under challenge in this writ petition. Ext.P7 order was passed pursuant to a report of analysis which disclosed that toddy which was seized from shop No.2 of Group No.1 of Kalpetta Excise Range contained starch thereby violating rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002. The petitioner contends relying on the decision of a learned single Judge of this Court in Balu v. State of Kerala, 2007(1) KLT 401 that addition of starch to toddy does not attract sections 56 and 57(a) of the Kerala Abkari Act for the reason that addition of starch does not add to the actual or apparent intoxicating quality or strength of toddy. Referring to the decision of the Apex Court in State of Kerala v. Unni, 2007 (1) KLT 151 (SC) it is contended that though rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 was declared W.P(C).No.36994 of 2010 -:2:- ultravires by the Apex Court and rule 9(2) was later amended, no material change has been brought about to the rule and therefore the petitioner is not liable to be proceeded against. 2. As regards the second contention the point raised by the petitioner is no longer res integra in view of the decision of a Division Bench of this Court in Komalan v. State of Kerala, 2009 (2) KLT 744. As regards the first contention, it has to be noticed that rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, as amended, stipulates that nothing shall be added to toddy to increase its intoxicating quality or strength or to alter its natural composition or for any other purpose. On the terms of the aforesaid rule it is not necessary that the substance added to toddy should increase its intoxicating quality or strength. It is enough if the substance added to toddy alters its natural composition or is meant for any other purpose. The petitioner has no case that if starch is added to toddy it would not amount to altering its natural composition. In such circumstances in the light of rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 as amended the petitioner cannot rely on the decision in Balu v. State of Kerala, 2007(1) KLT 401, which was rendered prior to the amendment to contend that addition of starch does not add to the actual or apparent intoxicating quality or strength of toddy and W.P(C).No.36994 of 2010 -:3:- therefore, addition of starch to toddy is of no consequence. 3. The Government have, in G.O(P)No.25/2007/TD dated 14.2.2007 stipulated that toddy tapped, stored, transported or offered for sale shall conform to the specifications and comply to the restrictions prescribed therein. The said Government order reads as follows: “S.R.O.No.145/2007.--Under clause (n) of rule 2 of the Kerala Abkari Shops Disposal Rules, 2002, issued under G.O(P)No.24/2002/TD dated the 30th March, 2002 and published as S.R.O.No.198/2002 in the Kerala Gazette Extraordinary No.376 dated the 30th March, 2002, the Government of Kerala, based on scientific studies and Indian Standard specifications in IS 8538:2004, hereby notify that fermented toddy tapped, stored, transported or offered for sale shall conform to the following specifications and comply to the following restrictions, namely:- 1. The ethyl alcohol content of coconut toddy shall not exceed 8.1 per cent, of Palmyrah toddy 5.2 per cent and Sago toddy 5.9 per cent by volume. 2. Toddy shall be un-pasteurized and natural and possess the characteristic flavour derived from the sap and fermentation, without addition of any extraneous alcohol. 3. If the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase the intoxicating quality or strength. For all W.P(C).No.36994 of 2010 -:4:- purposes, such extraneous alcohol will be treated as a foreign ingredient. 4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch; chloral hydrate; paraldsedatives; tranquilizers and any other Narcotic Drugs or Psychotropic substances; and any ingredients injurious to health. It shall be free from Escherichia coli also. 5. Total acid as tartaric acid (expresses in terms of 100 litres of absolute alcohol) shall not exceed 400 grams. 6. Volatile acid as acetic acid (expressed in terms of 100 litres of absolute alcohol) shall not exceed 100 grams.” (emphasis supplied) On the terms of the aforesaid Government order which prohibits addition of starch to toddy I find no merit or force in the submission of the learned counsel for the petitioner that Government have not conducted a scientific study before taking the view that addition of starch to toddy alters its natural composition. I therefore, find no grounds to entertain the writ petition. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.36994 of 2010 ---------------------------- JUDGMENT 13th December, 2010