IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 Crl.MC.No. 601 of 2009() ---------------------------------- OCCURANCE REPORT NO.30/2005 OF EXCISE INSPECTOR , CHANGANACHERRY. ........ PETITIONER(S): ------------------------ 1. P.N.MOHANDAS, S/O.NARAYANAN, KAYALODIYIL VEEDU, NILAMPEROOR KARA AND VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. 2. K.VIJAYAN, S/O.KUMARAN, KOYIPPALLIL VEEDU, ERAKARA, NILAMPEROOR VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. BY ADV. MR.G.SUKUMARA MENON SMT.DEEPTHI S.MENON RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE CHANGANACHERRY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 601 OF 2009 --------------------------------- Dated this the 13th day of February, 2009 O R D E R This Crl.M.C is filed to quash Annexure A1 Final Report before the Judicial Magistrate of First Class, Changanassery. Annexure A1 is the report whereby the petitioner herein had been alleged of having committed the offence under Section 56 (b) of the Abkari Act. The offence made out against him is that the sample of coconut toddy contains 9.19 % of ethyl alcohol which is above the permissible limit and therefore he has committed an offence under Section 56(b). The detention and analysis were done in between 30.8.2005 and 12.9.2005. The law that has to be made applicable is on the date of the commission of the offence. The apex court affirmed the decision of this court reported in Unni v. State of Kerala [2003 (3) KLT 306]. This court held that: “The present strength 8.1% v/v is fixed without taking into account the variables that may come into play or factors which are germane to the natural process of self generation of alcohol and also other Crl.M.C. 601/2009 -2- ecological factors and therefore held the fixation at 8.1% v/v is arbitrary, unreasonable and unworkable.” This has been affirmed by the apex court in the decision reported in State of Kerala v. Unni [2007(1) KLT 151]. The apex court also held that the Act or the Rules do not say either. It is in that sense vague or unreasonable. Since the offence relates to the period of 2005, during which period the said provision was found to be incorrect there cannot be any prosecution on the basis of that provision during that period. So the initiation of proceedings has to be interfered with. Therefore I invoke Section 482 and quash Annexure A1 proceedings pending before the Judicial Magistrate of First Class, Changanassery i.e. Occurrence Report No. 30/05 of Excise Inspector, Chenganacherry Range on the file of the Judicial Magistrate of First Class, Changanassery. The Crl.M.C is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm