P.V. VIJESH Vs. STATE OF KERALA

JUDGEMENT

(1.) The subject matter of the above writ petitions are intrinsically connected and therefore I propose to dispose of them together.

(2.) Material facts for the disposal of writ petitions in common are as follows; petitioners in W.P.(C) 1080/2016 are licensees of toddy shops in Group No.7 of the Erattupetta Excise Range whereas petitioner in the other writ petition is a licensee of toddy shops of Range 7 in Thodupuzha Excise Range. Petitioners are arrayed as accused Nos.1 and 2 in Crime No.74/2015 of Erattupetta Excise Range and 1st accused in Crime No.20/2014 of Thodupuzha Excise Range respectively. The crimes were registered on the allegation that, sample of toddy taken from the shops revealed traces of starch and sacrine respectively. It is also alleged that the chemical analysis conducted, reveal sample seized from the toddy shops contained Ethyl Alcohol. The chemical analysis report produced along with the writ petition shows that the same is free from noxious ingredients injurious to health. The petitioners are arrayed in the respective crimes alleging offence under Sections 56(b) and 57(a) of the Abkari Act respectively.

(3.) Petitioners were issued with notice by the competent statutory authority to show cause why their licences shall not be cancelled, which are evident from the respective documents produced in the writ petitions. It is the contention of the petitioners that, in accordance with law, 'B' sample has not been sent for chemical analysis and the final report has not so far been secured, hence petitioners are highly aggrieved by the initiation of proceedings relating to suspension of their licences. It is urged that the said notices threatening cancellation is illegal since cancellation can be done only if offence under Section 57(a) is made out and the ingredients of Section 57(a) is not available in the case. That apart it is contended that in the toddy seized only presence of starch is detected, a substance which will not add actual or apparent intoxicating quality or strength of toddy. It is also contended that unless there is an allegation that starch is a foreign ingredient likely to add its actual or apparent intoxicating quality or strength of toddy the offence under Section 57(a) will not get attracted. That apart it is the case of the petitioners that Section 57(a) specifically excludes adulteration. Yet another contention raised is that toddy as a liquor is also a food as defined under the provisions of the Food Safety and Standards Act, 2006 (hereinafter called "Act 2006") and therefore, the provisions of the Act 2006 a Central Act supersedes the provisions of the Abkari Act and notifications issued thereunder, accordingly the action of the respondents is illegal and cannot be sustained under law. It is in this background petitioners seek to declare that Section 57(a) of the Abkari Act is not attracted even if starch is found in toddy and to quash Exts.P2 and P3, and also to quash SRO NO.145/2007 since the same is ultravires Act 2006.