IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP.No. 8806 of 2003(W) --------------------------- PETITIONERS: ---------------- 1. A.VINU S/O. APPUKUTTAN, LICENSEE T.S.NO.9/2002-2003, CHIRAYINKEEZHU RANGE, TRIVANDRUM. 2. SHINE, LICENSEE T.S.NO.13/2002-2003, CHIRAYINKEEZHU EXCISE RANGE, THIRUVANANTHAPURAM. 3. PRABULACHANDRAN, LICENSEE T.S.NO.10/2002-2003, KAZHAKUTAM EXCISE RANGE, TRIVANDRUM. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASST.EXCISE COMMISSIONER, O/O THE EXCISE COMMISSIONER, TRIVANDRUM. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHIRAYINKEEZHU. 5. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KAZHAKKUTTOM. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.8806/2003 ORDER ON C.M.P.No.15206/2003 IN O.P.No.8806/2003 Dismissed. 21.07.2011 Sd/- T.R. RAMACHANDRAN NAIR, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF NOTICE No.XA-3308/03 DTD. 25.2.03 ISSUED BY R2. EXT. P2 : COPY OF CRIME AND OCCURRENCE REPORT PREPARED BY R4 REGISTERING CR.No.37/02 DTD. 24.9.02. EXT. P3 : COPY OF ORDER IN CMP No.489/02 IN O.P.289/02 OF THIS COURT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- O.P. No.8806 OF 2003 --------------------------------------- Dated this the 21st day of July, 2011. J U D G M E N T This original petition is filed challenging Exts.P1 and P2 by which crime cases have been registered against the petitioners. 2. The petitioners are licensees of Toddy Shop Nos.9/2002- 2003, 13/2002-2003 of Chirayinkeezhu Excise Range and T.S.No.10/2002-2003 of the Kazhakuttom Range. The 4th respondent conducted an inspection in the shops and took samples of toddy from Toddy shop No.9/2002-2003. On the basis of the chemical analysis report that the toddy contains 10.86% V/V of ethyl alcohol, a crime was registered as crime No.41/2002. From the 2nd petitioner's shop No.13/2002-2003 also, the sample of toddy was collected and on the basis of the report, crime No.37/2002 was registered. The offence alleged is under Section 57(a) of the Abkari Act. 3. Ext.P1 is the copy of the show cause notice issued to show cause as to why the licence of toddy shop No.9/2002-2003 O.P. No.8806/2003 2 shall not be cancelled. Ext.P2 is the copy of the crime and occurrence report and Ext.P3 is the interim order passed in CMP No.489/ 2002 in O.P.No.289/2002. 4. The substantial contention raised in the writ petition is that there is no violation of the Rule. It is further pointed out that the strength of toddy has not been fixed by any statutory rule. The issue is covered in favour of the petitioners in the light of the judgment of the Apex Court in State of Kerala vs. Unni (2007 (1) KLT 151(SC)). Therein, in paragraph 46, it was held as follows: “A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must therefore be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable”. The rules were subsequently amended in the year 2007 as per SRO No.144/2007 dated 14.02.2007 wherein the strength has O.P. No.8806/2003 3 been prescribed. In the light of the above, this original petition is allowed and the impugned proceedings are quashed. T.R. RAMACHANDRAN NAIR JUDGE smp