IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 10190 of 2010(W) -------------------------- PETITIONER(S): --------------- BABURAJAN, S/O. NARAYANAN, MUKULUVILA VEEDU, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): --------------- 1. THE SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE DEPUTY EXCISE COMMISSIONER, KOLLAM. 4. THE CIRCLE INSPECTOR OF EXCISE, EXCISE CIRCLE, CIRCLE OFFICE, KOLLAM. 5. BOSE SOLAMAN, S/O. SOLAMAN, VALIYAVILA VEEDU, KOLLAM TALUK, THRIKKARUVA VILLAGE, KOLLAM. MR.V.MANU, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.10190 of 2010 (W) --------------------------------- Dated, this the 25th day of March, 2010 J U D G M E N T Challenge in the writ petition is against Ext.P7. 2. The petitioner submits that he was the licensee of certain toddy shops in Kollam Excise Range for the period 2008-09 to 2009-10. In respect of one of the toddy shops, C.R.No.10/08 under Section 57(a) of the Abkari Act was registered, and the petitioner is one of the accused. During this month, when sale of the shops were conducted for the year 2010-11, the petitioner made an application for issuance of a certificate enabling him to claim preference under Rule 5(1)(a) of the Abkari Shops Disposal Rules, 2002. That request was rejected by Ext.P7 stating that since he is an accused in a criminal case involving offence under the Abkari Act other than under Section 56, he is ineligible for preference. It is this order, which is under challenge. 3. Admittedly, the petitioner is one of the accused in C.R.No.10/08. The offence alleged is under Section 57(a) of the WP(C) No.10190/2010 -2- Abkari Act. Rule 5(1)(a) of the Abkari Shops Disposal Rules, 2002 provides for preference. One of the conditions for such preference is that against the person concerned there shall not be any case registered under the Abkari Act for offences other than under Section 56 of the Act. In this case, facts show that the petitioner does not satisfy this condition. If that be so, the view taken in Ext.P7 that the petitioner is not eligible for preference cannot be faulted. 4. The petitioner referred to Ext.P1 judgment, rendered by this Court in WP(C) No.17481/2009 and contended that in view of the directions issued therein, he is entitled to preference. A reading of this judgment shows that the said judgment was rendered in the context of the Abkari Policy for the year 2009-2010. However, insofar as the abkari year 2010-11 is concerned, preference has to be determined in the light of Rule 5(1)(a) of the Abkari Shops Disposal Rules, 2002. Therefore, this judgment does not help the petitioner in any manner. The learned counsel for the petitioner contended that Rule 5 (1)(a) making preference conditional is unconstitutional. According WP(C) No.10190/2010 -3- to him, since the Rule provides that any person against whom a case is registered is ineligible for preference, that gives unfettered freedom to the Excise Officials to register case, and depriving the citizens like him of their fundamental rights to carry on trade. It is the settled position that right to trade in liquor is not a fundamental right. If so, this contention of the petitioner has no substance. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg