MURALEEDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Ext.P7 order passed by the Commissioner of Excise cancelling the licences issued to the petitioner to run toddy shop Nos.1 to 5 , 12 and 13 in Group No.1 of Kalpetta Excise Range is under challenge in this writ petition. Ext.P7 order was passed pursuant to a report of analysis which disclosed that toddy which was seized from shop No.2 of Group No.1 of Kalpetta Excise Range contained starch thereby violating R.9(2) of the Kerala Abkari Shops Disposal Rules, 2002. The petitioner contends relying on the decision of a learned single Judge of this Court in Balu v. State of Kerala, 2007 (1) KLT 401 that addition of starch to toddy does not attract S.56 and S.57(a) of the Kerala Abkari Act for the reason that addition of starch does not add to the actual or apparent intoxicating quality or strength of toddy. Referring to the decision of the Apex Court in State of Kerala v. Unni, 2007 (1) KLT 151 (SC) it is contended that though R.9(2) of the Kerala Abkari Shops Disposal Rules, 2002 was declared ultravires by the Apex Court and R.9(2) was later amended, no material change has been brought about to the rule and therefore the petitioner is not liable to be proceeded against.

(2.) As regards the second contention the point raised by the petitioner is no longer res integra in view of the decision of a Division Bench of this Court in Komalan v. State of Kerala, 2009 (2) KLT 744 . As regards the first contention, it has to be noticed that R.9(2) of the Kerala Abkari Shops Disposal Rules, 2002, as amended, stipulates that nothing shall be added to toddy to increase its intoxicating quality or strength or to alter its natural composition or for any other purpose. On the terms of the aforesaid rule it is not necessary that the substance added to toddy should increase its intoxicating quality or strength. It is enough if the substance added to toddy alters its natural composition or is meant for any other purpose. The petitioner has no case that if starch is added to toddy it would not amount to altering its natural composition. In such circumstances in the light of R.9(2) of the Kerala Abkari Shops Disposal Rules, 2002 as amended the petitioner cannot rely on the decision in Balu v. State of Kerala, 2007 (1) KLT 401, which was rendered prior to the amendment to contend that addition of starch does not add to the actual or apparent intoxicating quality or strength of toddy and therefore, addition of starch to toddy is of no consequence.

(3.) The Government have, in GO (P) No. 25/2007 / TD dated 14.2.2007 stipulated that toddy tapped, stored, transported or offered for sale shall conform to the specifications and comply to the restrictions prescribed therein. The said Government order reads as follows: