IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WP(C).No. 14948 of 2010(P) ---------------------------------- PETITIONER(S): ------------------- SIVAPRASAD, AGED 53 YEARS, S/O. NEELAKANDA SASTRI, KOTHAZHATHU THEKKETHIL HOUSE, VADAKKUMBHAGOM DESOM, THEKKUMBHAGAM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.SUNIL JACOB JOSE RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY SECRETARY TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, PATHANAMTHITTA. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KONNI, PATHANAMTHITTA DISTRICT. 5. THE CIRCLE INSPECTOR OF EXCISE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, PATHANAMTHITTA. BY GOVERNMENT PLEADER SRI.JAYASURYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.14948/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE MAHAZAR DATED 13/05/2010 PREPARED BY THE 5TH RESPONDENT. P2: COPY OF THE CRIME AND OCCURRENCE REPORT IN C.R.NO.35/2010 REGISTERED BY THE 4TH RESPONDENT. P3: COPY OF THE ORDER DATED 13/06/2008 IN CRL.MC.NO.2096/2008 PASSED BY THIS HONOURABLE COURT. P4: COPY OF THE ORDER DATED 01/06/2009 IN CRL.MC.NO.1009/2009 PASSED BY THIS HONOURABLE COURT. P5: COPY OF THE TODDY TRANSPORT NO.511/10-11/ID 1HY DATED 01/04/2010 ISSUED TO THE PETITIONER BY THE DEPUTY EXCISE COMMISSIONER, PALAKKAD. P6: COPY OF THE ORDER DATED 06/04/2010 IN CRL.MC.NO.3426/2007 PASSED BY THIS HONOURABLE COURT. P7: COPY OF THE ORDER DATED 06/04/2010 IN CRL.MC.NO.3426/2007 PASSED BY THIS HONOURABLE COURT. P8: COPY OF THE COMMON ORDER DATED 04/05/2010 IN WPC.NO.13813/2010 PASSED BY THIS HONOURABLE COURT. P9: ORDER DATED 11/05/2010 IN WPC.NO.14656/2010 PASSED BY THIS HONOURABLE COURT. P10: COPY OF THE CERTIFICATE OF CHEMICAL ANALYSIS DATED 26/04/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs N.K.BALAKRISHNAN, J ----------------------------------------- W.P.C. No. 14948 of 2010 ------------------------------------------ Dated this the 23rd day of September, 2011. JUDGMENT Petitioner is the licensee of toddy shop No.2/2002 in Group No. 1 in Konni Excise range in Pathanamthitta excise division. Ext P10 report dated 26/04/2010 shows that two samples were sent for chemical examination showed the percentage by volume of ethyl alcohol was 7.33 and 7.25, as it is less than 8.1% and since no foreign materials could be detected, the offence under Section 55(a) and 57(a) will not be attracted. As such the chemical examination report cannot be had against the petitioners alleging offence under Sec. 55(a) and 57(a) of the Abkari Act. If there was any violation of the Rules, the respondent can proceed against the petitioners for the offence under Section 56(b) of the Act. In the result this petition is allowed to the extent of the prosecution against the petitioner for the offence under Section 55(a) and 57(a) in Crime No.35/2010 is quashed. W.P.C. No. 14948 of 2010 2 As stated earlier if there is any violation of Rules was detected the prosecution can be had under Section 56(b) of the Act. It is pointed out, as per the Amendment Act of 3/2010 of Kerala Abkari Shops Disposal Rules – 2002 Section 56(b) can be compounded also in view of Rule 5(1)(a) of Kerala Abkari Shops Disposal Rules – 2002 . Since no offence is found to have been committed by the petitioner other than under Section 56(b) of the Abkari Act, petitioner is entitled preferential claim for allotment of license for the toddy shop in Konni excise range in Pathanamthitta Division if they are otherwise not disqualified. The petition is allowed to the extent as indicated above. N.K. BALAKRISHNAN, JUDGE smvd