IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 Crl.MC.No. 495 of 2011() ----------------------------- CP.16/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA SC.189/2008 OF SPECIAL COURT, ABKARI ACT CASES NEYYATTINKARA, THIRUVANANTHAPRUAM. ................... PETITIONER(S): ACCUSED NO.3 ------------------------------------- V.SASIKUMAR, AGED 63 YEARS, S/O.VELAYUDHA PANICKER (LATE), PLAMKANDATHIL MELEPUTHENVEEDU, PRAVACHAMBALAM, THIRUVANANTHAPURAM. BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA REPRESENTED BY THE S.I. OF POLICE, KOVALAM POLICE STATION, THIRUVANANTHAPURAM DIST., BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MUHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.495 of 2011 -------------------------------------- Dated this the 3rd day of March, 2011. ORDER Petitioner is accused No.3 in Crime No.43 of 2000 of Kovalam Police Station and C.P.No.16 of 2001 of the court of learned Judicial First Class Magistrate-III, Neyyattinkara pending trial before the Special Court for Abkari Cases, Neyyattinkara in S.C.No.189 of 2008 for offences punishable under Sections 56(b) and 57(a) of the Abkari Act (for short, “the Act”). Case is that on 23.03.2000 the Sub Inspector searched toddy shop of petitioner, collected samples and on chemical examination the samples were found to contain ethyl alcohol more than the prescribed strength. Petitioner seeks to quash proceeding against him on the ground that (the then) Rule 7(2) of the Abkari Shops Disposal Rules (for short, “the Rules”) was brought into force only with effect from 01.04.2000 fixing maximum strength of ethyl alcohol as 8.1% v/v. According to the petitioner, as on the date of detection (23.03.2000) there was no maximum strength of ethyl alcohol prescribed and hence prosecution against him giving retrospectivity to Rule 7(2) of the Rules is illegal and liable to be quashed. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Learned Public Prosecutor has pointed out that petitioner and other accused had filed O.P.No.14595 of 2000 in this Court challenging registration of the Crime and this Court as per judgment dated October 19, 2007 found that Crl.MC No.495/2011 2 since detection of the offence was on 23.03.2000 (ie. before Rule 7(2) of the Rules came into force on 01.04.2000) registration of the case against petitioner is illegal and accordingly, registration of the case was quashed. It is contended that hence this petition is redundant. 3. I have gone through a copy of judgment dated October 19, 2007 in O.P.No.14595 of 2000 and find that for the reasons stated above, the crime and occurrence report against petitioner and accused Nos.1 and 2 was quashed the same being illegal. 4. It would appear that notwithstanding the said judgment, the Investigating Officer has proceeded with the matter further, may be because a copy of that judgment was not made available to him and submitted final report based on which learned Judicial First Class Magistrate-II, Neyyattinkara has initiated committal proceeding and ordered committal of the case to the Sessions Court for trial. Now the case is pending trial before learned Special Judge for Abkari Cases, Neyyattinkara. 5. Since the then Rule 7(2) of the Rules came into force only on 01.04.2000, detection of the offence in the present case was on 23.03.2000 and for the said reason crime and occurrence report was quashed by this Court by judgment dated October 19, 2007 in O.P.No.14595 of 2000, all subsequent proceedings initiated against petitioner including submission of final report and order of committal are liable to be quashed. Crl.MC No.495/2011 3 6. In the circumstances stated above, there is no reason why benefit of this order shall not be given to accused Nos.1 and 2 also involved in the same case. Resultantly this petition is allowed. Final report in Crime No.43 of 2000 of Kovalam Police Station, committal proceeding in C.P.No.16 of 2001 of the court of learned Judicial First Class Magistrate-III, Neyyattinkara and proceedings against petitioner and accused Nos.1 and 2 in S.C.No.189 of 2008 of the court of learned Special Judge for Abkari Cases, Neyyattinkara are quashed. THOMAS P.JOSEPH, Judge. cks