IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.MC.No. 3453 of 2008() ------------------------- CP.118/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER: ------------- MARGRATE FRANCO,W/O.LASARUS FRANCO, MARIYALAYAM,SAKTHIKULANGARA,KOLLAM. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD RESPONDENTS: ----------------- 1. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31. 2. THE ADDITIONAL SUB INSPECTOR OF POLICE, ANCHALUMOODU POLICE STATION,KOLLAM. BY PUBLIC PROSECUTOR, SRI.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 3453 OF 2008 ----------------------------------------------- Dated this the 13th day of October, 2008 O R D E R The petitioner is the 4th accused in a prosecution under the Kerala Abkari Act. She is allegedly a co-licensee along with accused 1 to 3 of a toddy shop. From the toddy shop samples of toddy were allegedly seized. Accused Nos.5 & 6 are the sales man employed by the licensees and a person who assists him in the conduct of the toddy shop. The crux of the allegations is that on 20.07.98 at 8.30 p.m. when samples of toddy were drawn by the police officer and sent to the expert, they were found to contain spirit. This is the factual allegation raised. The final report is seen filed under Section “55 B” of the Kerala Abkari Act and subsequently cognizance was also taken for such an offence. There is no offence punishable as under “55 B” of the Kerala Abkari Act. 2. Learned counsel for the petitioner submits that ignoring the inaccuracy in the Section of offence quoted (as 55 B of the Abkari Act), the said allegations cannot be held to constitute any offence whatsoever. Counsel contends that though there is a vague allegation that spirit may have been added to the toddy kept Crl.M.C. No. 3453 OF 2008 -:2:- for sale in the toddy shop, there is not a scintilla of valid allegation raised to justify the contention that spirit was added to toddy. From the input available it is revealed that Ethane Alcohol was found to be present in the toddy. The learned counsel for the petitioner submits that even going by the relevant rule which was in force at the relevant time and which subsequently been set aside in State of Kerala v. Unni [2007 (1) KLT 97(SC)] the percentage of Alcohol found in the sample is well below the maximum of 8.1% specified under the Rule. In these circumstances, accepting any yardstick even without applying the dictum in State of Kerala v. Unni (Supra) the prosecution is liable to be quashed, contends counsel. 3. The learned Prosecutor was requested to take specific instructions and submit whether any valid allegation can justifiably be raised against the petitioner herein. The learned Prosecutor after taking instructions fairly submits that percentage of Alcohol present in the sample being less than the minimum prescribed even under the rule and there being no specific material to support the allegation that spirit was added to the toddy kept for sale in the Crl.M.C. No. 3453 OF 2008 -:3:- toddy shop, the prosecution against the petitioner cannot be justified. There is no material on which any valid allegation under the Abkari Act can be raised against the petitioner, it is conceded. 4. I am satisfied in the facts and circumstances of this case that prosecution against the petitioner is not justified at all and the same deserves to be quashed by invoking the jurisdiction under Section 482 Cr.P.C. 5. In the result: a) This Crl.M.C is allowed. b) CP No.118/99 pending before the Judicial First Class Magistrate Court-I, Kollam which arises from Crime No.230/99 of Anchalumoodu Police Station in so far as it relates to the petitioner is hereby quashed. R. BASANT, JUDGE ttb Crl.M.C. No. 3453 OF 2008 -:4:- Crl.M.C. No. 3453 OF 2008 -:5:-