IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 OP.No. 26965 of 2000(I) --------------------------------- PETITIONER(S): ----------------------- SUNIL KUMAR, ABHIRAMI HOUSE, AITHY PARANDODU ARYANADU VILLAGE, NEDUMANGAD, TRIVANDRUM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. ASSISTANT EXCISE COMMISSIONER, THIRUANANTHAPURAM. 3. EXCISE INSPECTOR, NEDUMANGAD RANGE, NEDUMANGAD, THIRUANANTHAPURAM. BY SR. GOVT. PLEADER SRI.T.T.MUHAMOOD. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.26965/2000 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPORT DTD. 11.9.2000 NUMBERED AS 5937 RELATING TO TS NO.2/2000. P2:- COPY OF THE REPORT DATED 11.9.2000 NUMBERED AS 5958 RELATING TO TS.NO.12/2000. P3:- COPY OF THE F.I.R. IN CRIME NO.430/2000 OF THE NEDUMANGAD POLICE STATION. P4:- COPY OF THE F.I.R. IN CRIME NO.431/2000 OF THE NEDUMANGAD POLICE STATION. P5:- COPY OF THE ORDER DTD. 17.8.99 IN OP.21168/99. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.26965 of 2000-I - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011. JUDGMENT The petitioner was a licencee of toddy shop Nos.2/2000-01 and 12/2000-1. For offence under Section 55(b) of the Abkari Act, the petitioner was arrayed as an accused in Crime Nos.430/2000 and 431/2000. 2. The third respondent collected samples of toddy from toddy shop Nos.2/2000 and 12/2000. The samples were sent for analysis by the Chemical Examiner and a report was received, true copies of which are produced as Exts.P1 and P2. The report shows that the content of ethyl alcohol collected from the petitioner's shop NO.2 is 10.66% and shop No.12 is 10.59%, but does not contain any foreign matter. The crime was registered in the light of the fact that the percentage of Ethyl alcohol is more than 8.1% which is in excess of the average strength of ethyl alcohol as prescribed. Ext.P3 is the copy of the FIR in Crime No.430/2000 and Ext.P4 is the true copy of the FIR in Crime No.431/2000. It is also averred that the offences have been altered to those under Section 55(b)(h) & (i) read with clause 7(2) of the Kerala Abkari Shops Disposal in Auction Rules. OP 26965/2000 2 3. The main contention raised by the petitioner is that the prescribed strength having not been mentioned in the Rules, Regulations or conditions of licence, no criminal action can be taken for selling the toddy. Accordingly, it is contended that the petitioner has not violated any of the provisions of the Abkari Act or Rules. 4. The issue is covered in favour of the petitioner, in the light of the decision of the Apex Court in State of Kerala v. Unni (2007 (1) KLT 151 (SC)). Therein, in para 46 the Apex Court held thus: “A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must therefore be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable.” The rules were subsequently amended in the year 2007 as per SRO No.144/2007 dated 14.2.2007, wherein the strength has been prescribed. Therefore, evidently the prosecution proceedings instituted against the petitioner as per Exts.P3 and P4, cannot survive. 5. Therefore, the writ petition is allowed. Exts.P3 and P4 relating to OP 26965/2000 3 Crime Nos.430/2000 and 431/2000 are quashed. It is made clear that the judgment is confined to the legal issue covered by Unni's case (2007 (1) KLT 151 (SC). No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 26965/2000 4 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P.No.26965 of 2000-I -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th day of June, 2011.