IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 WP(C).No. 9023 of 2008(Y) -------------------------------- PETITIONER: ------------ SISUPALAN, AGED 42 YEARS, S/O. NARAYANAN, SARASWATHI VILASOM HOUSE, NETHAJIPURAM DESOM, THIRUVANANTHAPRUAM. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE EXCISE INSPECTOR, NEDUMANGADU RANGE, THIRUVANANTHAPURAM. BY ADV. SRI. M.S. BREEZE, PUBLIC PROSECUTOR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C). No. 9023 of 2008 ========================== Dated this the 17th day of March, 2008. ORDER In this writ petition filed under article 226 of the Constitution of India, the petitioner seeks to quash Ext.P1 occurrence report and also seeks a declaration that he and his employees are not liable to be proceeded against on the basis of Ext.P1 occurrence report for the alleged commission of an offence punishable under Section 57(a) of the Abkari Act. 2. The petitioner was the licensee of toddy shop No. 9 in Nedumangadu Excise Range for the period ending on 31.03.2007. On 25.11.2005, the 4th respondent Excise Inspector, Nedumangadu Excise Range and his party took samples of toddy from the above shop and sent the samples for analysis. Ext.P2 Certificate of Chemical Analysis dated 01.12.2005 will show that 8.28% by volume of ethyl alcohol was detected in the samples taken from the toddy shop of the petitioner. This, according to the prosecution, was in excess of the maximum strength of 8.1% by volume fixed as per Rule 9(2) of Kerala Abkari Shops Disposal W.P.(C) NO. 9023/2008 : 2: Rules, 2002. In the light of the decision of the Apex Court in State of Kerala v. Unni and another (2007 (1) KLT 153) wherein the said rule was struck down as unscientific and unworkable, the prosecution of the petitioner on the basis of Rule 9(2) of the said Rules cannot be sustained. This writ petition is accordingly allowed and Ext.P1 crime and occurrence report dated 07.04.2006 registered by the Excise Inspector, Nedumangadu in CR No. 21 of 2006 of Nedumangadu Excise Range shall stand quashed. Consequently, no prosecution shall be taken against the petitioner in pursuance of the said crime. V. RAMKUMAR, JUDGE. rv W.P.(C) NO. 9023/2008 : 3: