IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 5161 of 2008(M) ------------------------- SC.23/2005 of ADDL.S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.269/2003 of J.M.F.C.-III,NEYYATTINKARA .................... PETITIONER: ------------ 1. THANKAPPAN NAIR, AGED 56 YEARS S/O.SADASIVAN PILLAI, SALINI BHAVANAM KARIMKULAM DESOM, KARIMKULAM VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. K.SAMBASIVAN, AGED 50 YEARS S/O.KARUNAKARAN, ITTUPADICKAL HOUSE NADOORKOLLA DESOM, KOLLAYIL VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA REP. BY SECRETARY TAXES (A) DEPARTMENT, GOVT. SECRETARIAT THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASST. EXCISE COMMISSIONER THIRUVANANTHAPURAM. 4. THE EXCISE INSPECTOR EXCISE RANGE OFFICE, THIRUPURAM THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ W.P(C).No.5161 of 2008 ------------------------------------- Dated this the 20th day of February, 2008 JUDGMENT Petitioners face indictment in a prosecution under Section 57(a) of the Kerala Abkari Act. Cognizance has been taken on the basis of a final report submitted by the investigating excise officials. The crux of the allegations is that the sample of toddy which was drawn from the toddy offered for sale in the petitioner's licenced premises contained ethyl alcohol content of 10.76% by volume which offends stipulation of Rule 8(2) of the Abkari Shops Disposal Rules 2001. 2. The learned counsel for the petitioners submits that the said Rule has since been struck down by the decision of the Supreme Court in State of Kerala v. Unni and another [2007 (1) KLT 153] and in these circumstances there can be no valid prosecution against the petitioners. The petitioners are the licencee and salesman in a licenced toddy shop. The learned counsel for the petitioners submits that the new rule which has been promulgated has no retrospective operation and in these circumstances the petitioners are entitled to get the proceedings against them quashed. W.P(C).No.5161 of 2008 2 3. Notice was given to the learned Government Pleader . The learned Government Pleader after taking instructions submits that the State has no objection in the prosecution against the petitioners being quashed. I find the request of the petitioners to be absolutely justified. Similar proceedings have been quashed already. It is unnecessary to advert to facts in any greater detail. 4. This Writ Petition is accordingly allowed. S.C.23 of 2005 pending before the Special Court Abkari Cases, Neyyattinkara is hereby quashed. (R.BASANT, JUDGE) rtr/-