V.R.PRASAD Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petitioner is in appeal against the judgment dated 6.2.2017 of the learned Single Judge in W.P.(C).35730 of 2016 dismissing the same. The matter arises under the Abkari Act.

(2.) The appellant is the licensee in respect of a number of toddy shops including toddy shop No.23/2014-2017 in group No.VII of Thodupuzha Excise Range. A case has been registered against him as C.R.No.99/2016 of Thodupuzha Excise Range by the 3rd respondent on the allegation that the sample of toddy taken from his shop on 12.9.2016 was found to contain Poly Vinyl Acetate. A copy of the chemical analysis report is produced as Ext.P1. The seizure mahazar is Ext.P2. It was on the basis of Exts.P1 and P2 that a crime was registered alleging offences under Sections 56(b) and 57(a) of the Abkari Act. A copy of the crime and occurrence report is Ext.P3. On the basis of the above proceedings, on 2.11.2016 the 3rd respondent directed the appellant to stop functioning of all the toddy shops of which he was the licensee, shop Nos.23, 24, 25, 26, 27, 59 and 60 of the Thodupuzha Excise Range. Consequently, the appellant is alleged to be suffering huge loss. The B sample has not been send for chemical analysis yet. Therefore, according to the appellant, the direction to stop the conduct of the toddy shops is illegal.

(3.) According to the appellant, the offence under Section 57(a) is not attracted in the instant case. What has been detected in the sample that was taken from his toddy shop, is a substance by name Poly Vinyl Acetate. The same is a foreign ingredient. That cannot add to the intoxicating quality or strength of toddy and therefore it is contended that Section 57(a) will not get attracted. It was pointed out that, Section 57(a) has specifically excluded adulteration. Such exclusion has been made, in view of the fact that toddy is also "food", as defined by the provisions of the Food Safety and Standards Act, 2006 ("FSS Act" for short). It was also contended that, the provisions of the FSS Act would override the provisions of the Abkari Act and that for the said reason the prosecution case was liable to be set aside. The contentions of the appellant were opposed by the respondents.