IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 WP(C).No. 36507 of 2010(K) -------------------------- PETITIONER(S): --------------- P.K.CHANDRAN, AGED 50 YEARS, S/O.KRISHNAN, PULAVAGHITHODI HOUSE, MANNANNOOR.P.O., OTTAPPALAM, PALAKKAD DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, OTTAPALAM, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SMT.K.R.DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.36507 of 2010 ------------------------------- Dated this the 22nd day of December, 2010 J U D G M E N T The petitioner was the licensee of Toddy shops in Group No.VII in Ottapalam Excise Range for the Abkari year 2010-11. Pursuant to an inspection conducted in toddy shop No.21, the Excise Preventive Officer, Ottapalam seized 64 litres of adulterated toddy and 4 litres of toddy suspected to be mixed with spirit. C.R.No.41/2010 of Ottappalam Excise Range was thereupon registered against the petitioner under sections 57(a) & 56(b) of the Abkari Act. The samples of toddy taken from the petitioner's shop were sent for analysis. On analysis, it was found that one batch of toddy was mixed with spirit and the other batch contained Ethyl Alcohol in excess of the prescribed limit. The Excise Commissioner thereupon passed Ext.P4 order dated 8.9.2010 cancelling the licence issued to the petitioner, on the ground that the petitioner has violated section 26(b) of the Abkari Act read with rule 5(19) of the Kerala Shops (Disposal) Rules, 2002. Ext.P4 is under challenge in this writ petition. 2. The petitioner challenged the registration of C.R.No.41/2010 of Ottappalam Excise Range by filing Crl.M.C.No.4650 of 2010 in this Court. He contended that as only one sample each was taken from the different containers, there is gross violation of sub-rule W.P.(C) No.36507 of 2010 2 (3) of rule 8 of Kerala Abkari Shops (Disposal) Rules, as a result of which he is disabled from having the second sample sent for analysis, and therefore, the crime registered against him is liable to be quashed. He also placed reliance on the decision of this Court in Girish Kumar v. State of Kerala (2010 (2) KLJ 444). By Ext.P5 order delivered on 15.12.2010, after notice to and hearing the respondents, a learned single Judge of this Court allowed Crl.M.C.No.4650/2010 and quashed C.R.No.41/2010 of Ottapalam Excise Range. The learned single Jude held that when on chemical analysis, the toddy seized was found to be adulterated, the second sample should have been produced and as second sample is not available for analysis, the petitioner cannot be prosecuted as his right to have the second sample sent for analysis is defeated. 3. The third respondent has filed a counter affidavit justifying the action taken by the Excise Commissioner. It is contended that the procedure prescribed in rule 8 of the Kerala Abkari Shops (Disposal) Rules does not apply when abkari cases are registered on surprise inspection and rule 8 applies only when routine inspection of toddy shops is conducted. I am afraid, the said contention cannot be accepted. It is not clear from Ext.P5 judgment W.P.(C) No.36507 of 2010 3 as to whether such a contention was raised before the learned single Judge in Crl.M.C.No.4650 of 2010. Even assuming that such a contention was raised, in view of the findings in Ext.P5 judgment, the State cannot be heard to contend that it was not necessary to take a second sample or that rule 8 of the Kerala Abkari Shops (Disposal) Rules has no application. I, therefore, find no merit in the said contention. 4. Smt.K.R.Deepa, the learned Government Pleader however contended that even without reference to report of the chemical analysis, the licence issued to the petitioner was liable to be cancelled under section 26(b) of the Abkari Act read with rule 7(5) of the Kerala Abkari Shops (Disposal) Rules. The learned Government Pleader submitted that as the petitioner was found to have kept for sale toddy mixed with spirit, which amounts to breach of condition of the licence, the licence issued to him was liable to the cancelled. The said contention is also based on the assumption that what was seized from the petitioner's shop was toddy mixed with spirit,without reference to the report of analysis, the respondents cannot be heard to contend that the petitioner was selling or was in possession of toddy laced with spirit or adulterated toddy. In the light of the W.P.(C) No.36507 of 2010 4 findings of this Court in Ext.P5 judgment, the report of analysis cannot be relied on any purpose what so ever. In such circumstances, Ext.P4 cannot be sustained for reasons other than those stated therein. 5. Lastly, the learned Government Pleader submitted that the State is taking steps to canvass the correctness of Ext.P5 judgment before the Apex Court and the right of the State to re-open the issue may be reserved, in the event of Ext.P5 judgment being reversed by the Apex Court. In my opinion, the said request can be granted. For the reasons stated above, I allow the writ petition, quash Ext.P4 and direct the respondents to restore the licence to the petitioner, if there is no other legal impediment for such restoration. It is clarified that such restoration will be subject to the out come of the appeal, if any, filed by the State of Kerala from Ext.P5 order. P.N. RAVINDRAN, JUDGE. nj.