CHAMI Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) This Bail Application was referred by learned single Judge (Justice K. Padmanabhan Nair) expressing doubts in certain observations made by another learned Single Judge in Roshy v. State of Kerala . Petitioner in this bail application is the first accused in CR.No. 39 of 2005 of Excise Range Office, Ottappalam, registered under Sections 57(a), 57A(1)(iii) and 57A(3) of the Abkari Act 1 of 1077 (in short 'the Act') and Section 22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). At about 3.30 p.m. on 2.9.2005, the Preventive Officer, Excise Enforcement and Anti-narcotic Special Squad along with party went to the Toddy Shop No. 33/05-06 of Ottappalam Excise Range, to which the petitioner was the licensee, and took sample in accordance with Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002 from the toddy stored in the toddy shop for sale and it was sent for analysis. On examination, it was found that Diazepam, a psychotropic substance was added to the toddy stored for sale. On getting the result from the Chemical Examiner, the case was registered against the petitioner. According to the petitioner, Section 57A of the Abkari Act will be attracted only if the substance added is notified as noxious. It is the contention of the petitioner that Diazepam is not a noxious substance. It is not declared by the Government by notification that Diazepam is noxious in terms of Section 29(2)(k) of the Abkari Act. If Section 57A is omitted from the charges, the offence alleged to have been committed is only bailable and, therefore, he is entitled to anticipatory bail (pre-arrest bail). In support of the above contention, learned Counsel for the petitioner relied on the Roshy's case (supra) and argued that Diazepam cannot be treated as noxious substance. It was further stated that sample was taken for chemical analysis without permission from the court and no independent responsible inhabitants of the locality were cited as witnesses and, therefore, sampling was also not done in accordance with law. In Roshy's case (supra) it was observed that Chloral Hydrate and Diazepam are not noxious substances. Considering various decisions and provisions of the Act, the learned Single Judge was of the opinion that Roshy's case (supra) requires reconsideration. Since these are matters which are arising for consideration in a large number of cases every day, learned Judge was of the opinion that correctness of the principles laid down in Roshy's case (supra) is to be considered by a Division Bench. During the pendency of this anticipatory bail application, the petitioner was arrested . Therefore, as far as this case is concerned, the matter has become infructuous. However, since the matter is referred to Division Bench for consideration of a question of law and reported decision in Roshy's case (supra) may affect many other pending cases, both sides argued on merits.

(2.) Section 3(8) of the Abkari Act (Act 1 of 1077) defines 'Toddy' as follows:

(3.) (8) Toddy:- "Toddy" means fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree;