IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.Rev.Pet.No. 4438 of 2007() ------------------------------ AGAINST THE ORDER DATED 11/10/2007 IN CMP 4979/2007 IN CC.344/2007 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): ACCUSED NO.1 & 2 ------------------------------------- 1. SURESH, S/O. GOPALAN, GOKULAM VEEDU, NEENDOOR MURI, PALLIPPADU VILLAGE, KARTHIKAPPALLY TALUK. 2. SURESH KUMAR, S/O. THANKACHAN, THAVALATHIL VEEDU, POOZHIKADU MURI, KURUMBALA VILLAGE, ADOOR TALUK. BY ADV. SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): RESPONDENT/STATE AND COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, MAVELIKKARA EXCISE RANGE. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.4438 of 2007 -------------------------------------- Dated this the 26th day of June, 2009. ORDER Petitioners are charge sheeted by the Excise Inspector, Mavelikkara for offence punishable under Section 56(b) of the Abkari Act (for short, “the Act”). Charge is that in violation of the provisions of the Act and the conditions of licence petitioners sold toddy mixed with starch. On that final report, petitioners were brought before the learned Judicial First Class Magistrate, Mavelikkara. Petitioners filed petition seeking their discharge under Section 239 of the Code of Criminal Procedure (for short, “the Code”). They contended that even if it is found that starch was mixed with toddy that did not violate the provisions of the Act, nor is it punishable under Section 56(b) of the Act. Learned magistrate, taking note of the notification (G.O.(P) No.25/2007/TD dated 14.2.2007) refused to discharge the petitioners. Hence this revision. 2. Learned counsel submitted that the notification is issued much after the alleged date of incident (20.12.2004) and that the notification cannot have any retrospective effect and hence based on that notification court below was not correct in refusing to discharge the petitioners. Learned counsel has placed reliance on the decisions of this Court in Balu v. State of Kerala [2007 (1) KLT 401] and Sarada v. State of Kerala [2008(1) KLT 405]. 3. I heard learned Public Prosecutor as well and perused the records Crl.R.P.No.4438/2007 2 produced by him. Alleged date of incident is 20.12.2004. The only allegation in the final report and connected records is that starch was added in the toddy. There is no case that starch added was in any way injurious to human health. In Balu's case referred supra learned Single Judge of this Court held that so far as there is no allegation that starch is an ingredient likely to add to the actual or apparent intoxicating quality or strength of toddy, offence under Sections 56(b) or 57(a) cannot be said to have been committed. I went through the report of chemical examination in this case. There it is stated that the samples were found to be free from noxious ingredients injurious to health though two of the samples were found to contain starch. Decision referred above applies to the facts of this case. So far as the notification dated 14.2.2007 is concerned, that cannot govern the situation as on the date of incident since as held in Sarada’s case referred supra the amendment brought out on 14.2.2007 cannot have retrospective effect. If that be so, petitioners are entitled to a discharge as prayed for. Resultantly, this revision is allowed. Order under challenge is set aside. Crl.M.P.No.4979 of 2007 will stand allowed and the petitioners are discharged under Section 239 of the Code. THOMAS P.JOSEPH, Judge. cks