IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 Crl.MC.No. 2723 of 2011 ---------------------------------- [LP.NO.60/2006 (TRANSFERRED FROM C.P.NO.77/2005) ON THE FILE OF THE JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOTTARAKKARA, CRIME NO.19/2001 OF EXCISE RANGE OFFICE, CHADAYAMANGALAM, KOLLAM DISTRICT] .................... PETITIONER/ACCUSED NO.2: ------------------------------------------ DOUGLAS ZACHARIAH,KUNNATHUVAYALIL HOUSE, VADAKKEVILACHERRY,ERAVIPURAM VILLAGE, KOLLAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. SRI.NIREESH MATHEW. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR,CHADAYAMANGALAM EXCISE RANGE, KOLLAM DISTRICT BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. B. VINOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.2723/2011: APPENDIX PETITIONERS' ANNEXURES: ANNEXURE-A: COPY OF THE FINAL REPORT IN CR.NO.19/2001 FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT-III, KOTTARAKKARA. ANNEXURE-A(1): ENGLISH TRANSLATION OF ANNEXURE-A. ANNEXURE-B: COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DTD. 28/04/2001 ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA. ANNEXURE-C: COPY OF THE ORDER DTD. 23/10/2009 IN CRL.M.C. NO. 3239/2009 PASSED BY THIS HON'BLE COURT. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. B.P. RAY, J. - - - - - - - - - - - - - - - - - Crl.M.C. No.2723 of 2011 - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2011. O R D E R Heard the learned counsel for the petitioner and the learned Public Prosecutor. 2. In this petition filed under Section 482 Cr.P.C., the petitioner, who is the second accused in CR No. 19 of 2001 of Chadayamangalam Excise Range, Kollam and now pending as LP. No. 60 of 2006 before the Judicial First Class Magistrate-II, Kottarakkara, seeks to quash Annexure- A final charge. The prosecution case is that the petitioner is the licensee of T.S. No. 56 of Chadayamangalam Excise Range for the year 2000-2001 and on 28.11.2000, at about 6 p.m. Excise Enforcement and Anti Narcotic Special Squad Circle Inspector and party had collected the sample of toddy from the said shop and sent for chemical analysis and under Annexure B report of chemical analysis, 9.74% of ethyl alcohol was found, based on which Annexure-A final report was prepared and the case was registered for an offence punishable under Section 57(a) of the Abkari Act. The learned counsel for the petitioner placing reliance upon the decision reported in Unni v. State of Kerala - 2003(3) KLT Crl.M.C. No. 2723/2011 -:2:- 306), which was confirmed by the Apex Court, where under, Rule 7(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (hereinafter referred to as 'the Rules') was struck down, contended that the petitioner cannot be prosecuted and hence the proceedings is to be quashed. Reliance was placed on the decision of this Court in Annexure C order in Crl.M.C. No. 3239 of 2009, wherein, similar proceedings have been quashed following the decision of the Apex Court. 3. Following the decision of the Apex Court in Unni's Case (supra), this Court by Annexure C judgment, had already quashed similar criminal proceedings on the ground that Rule 7 (2) of the Rules was struck down and the amended Rule came into effect only from 14.02.2007. Sample in this case was taken on 28.11.2000 when Rule 7(2) of the Rules, which was struck down, was in force. It was prior to the coming into effect of the new Rule. Hence, the prosecution can only be quashed. C.R. No. 19 of 2001 of Chadayamangalam Excise Range is quashed. Accordingly this Crl.M.C is allowed. sd/- B.P. RAY, JUDGE. rv