IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 8962 of 2010(Q) ------------------------- CRIME NO.129/2009 OF KENICHIRA POLICE STATION PETITIONER(S): P.N.SOMAN, AGED 52 YEARS, S/O.NARAYANAN, PIRAVIKOTTU HOUSE, KOLERI, POOTHADI VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN RESPONDENT(S): 1. STATE OF KERALA REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, WAYANAD. 4. THE CIRCLE INSPECTOR OF EXCISE, SULTHAN BATHERI, WAYANAD DISTRICT. 5. THE DISTRICT COLLECTOR, WAYANAD. 6. THE S.I. OF POLICE, KENICHIRA POLICE STATION, SULTHAN BATHERI, WAYANAD DISTRICT. GOVERNMENT PLEADER SRI.S.U.NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.8962 of 2010 = = = = = = = = = = = = = = Dated this the 4 th day of June, 2010 JUDGMENT In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the licensee of all the toddy shops in Group No.III in Sulthan Batheri Excise Range for the Abkari year 2009-2010, seek to quash Ext.P13 final report filed before the J.F.C.M-II, Sulthan Batheri and to declare that he is entitled to preferential right alloted to the toddy shops in Group No.III in Sulthan Batheri Excise Range for the Abkari year 2010-2011 as per Rule 5(1)(a) of the Abkari Shops Disposal Rules 2002, ignoring Ext.P12 final charge arising out of Crime No.129/2009 of Kenichira Police Station. 2. The case of the prosecution is that at about 3 a.m. on 15.10.2009, the 6th respondent(S.I.of Police, Kenichira) seized from one P.V.Raju about one litre of spirit which remained in the jerry can from Toddy Shop No.16 in W.P.(c)No.8962 of 2010 2 Sulthan Batheri Excise Range of which the petitioner is the licensee. According to the prosecution, the above spirit was stored for the purpose of mixing with toddy for increasing the intoxicating strength of toddy. After seizure, samples were taken from the jerry can which was seized and forwarded to the Chemical Examiner for analysis. Crime No.129/2009 of Kenichira Police Station was accordingly registered for an offence punishable under Section 55(a) of the Abkari Act read with Rules 3 and 8 of the Kerala Rectified Spirit Rules, 1972. 3. Apart from the fact that the petitioner has been exonerated in Ext.P11 departmental adjudication, a perusal of Ext.P12 Certificate of Chemical Analysis shows that the samples allegedly drawn from the jerry-can in question contained only 5.90 and 5.64% v/v of Ethyl alcohol which is well within the permissible limit of 8.1% v/v as per Rule 9(2) of the Abkari Shops Disposal Rules 2002. The chemical analysis report cuts at the root of the prosecution case to W.P.(c)No.8962 of 2010 3 the effect that spirit was stored in the toddy shop in question. Going by the definition of rectified spirit in Rule 2 (i) of the Kerala Rectified Spirit Rules, 1972, the liquid which has been seized in this case does not conform to the said definition so as to constitute the offence punishable under Rules 3 and 8 of the Kerala Rectified Spirit Rules, 1972. 4. The petitioner s a licensee who is now facing prosecution for an offence other than one punishable under Section 56 of the Kerala Abkari Act. By mere registration of the crime against him, he will entail disqualification by virtue of Rule 5(1)(a) of the Abkari Shops Disposal Rules 2002. This is adequate justification for this Court to entertain this petition to quash the prosecution in the light of the observations in the paragraphs 12 and 63 of decision in State of Kerala and Others v. Unni [2007(1) KLT 151 (S.C) ] 5. As mentioned earlier the very substratum of the W.P.(c)No.8962 of 2010 4 prosecution case is exploded by the result of chemical analysis. Hence it will be an abuse of the process of the court to allow the prosecution to continue. 6. Accordingly this writ petition is allowed. Ext.P13 final report and all further proceedings filed before the J.F.C.M-II, Sulthan Batheri is quashed. If any consequential proceedings have been taken, by taking cognizance of the offence and initiating committal proceedings, the same shall also stand quashed. In the light of the above relief granted, it goes without saying that the petitioner will be entitled to get preferential right for the allotment of the toddy shops in Group No.III in Sulthan Batheri excise range for the current abkari year, if he is otherwise not disqualified. Dated this the 4th day of June, 2010. V. RAMKUMAR, JUDGE sj