KOMALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE point that arises for decision in this batch of cases is the validity of the amendment to R. 2 (n) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules"), introduced as per S. R. O. No. 144/2007dated 14. 2. 2007, published in the gazette Extraordinary dated 14. 2. 2007 and also the notification issued by the Government as S. R. O. No. 145/2007 dated 14. 2. 2007, fixing the strength of ethyl alcohol in different types of toddy and specifying other incidental matters. W. A. No. 2867/2007:

(2.) THIS Writ Appeal is treated as the main case for the purpose of referring to the exhibits. This appeal is filed against the judgment in W. P. (C) No. 24408/2007.

(3.) THE brief facts of the case are the following: The appellant was the licensee of toddy Shop No. 1 in Thiruvananthapuram Excise Range for the Abkari year 2007-08. He is the accused in Crime No. 34/2007, registered by the Excise Inspector, Excise Range office, Thiruvananthapuram, the 4th respondent herein. A sample of the toddy, sold from toddy Shop No. 1, was taken by the Excise officials on 3. 5. 2007. On chemical analysis, it was found that the sample contained 8. 83% volume by volume of ethyl alcohol. A photo copy of the chemical analysis report dated 21. 6. 2007 is Ext. P2. Based on the said report, ext. P 1 crime has been registered against the appellant for the offence under S. 57 (a) of the Abkari Act (hereinafter referred to as "the Act" ). Prosecution is launched against him, mainly, relying on a recent amendment brought to R. 2 (n) of the Rules. Aphoto copy of the notification containing the said amendment is Ext. P3. On the strength of Ext. P3 amendment, the Government have issued a further notification, prescribing the maximum strength of ethyl alcohol as 8. 1 %, permissible in coconut toddy. A photo copy of that notification is Ext. P4. The appellant challenged Ext. Pl as also Exts. P3 and P4 in the writ Petition. The appellant contended that the excess alcohol content found in the toddy is not a foreign ingredient, but a natural ingredient of toddy and therefore, the offence under S. 57 (a) of the Act is not made out. Further, the percentage of maximum alcohol permissible in coconut toddy has been fixed without any scientific study or basis, in an arbitrary manner. Therefore, in view of the decisions of this Court in Unni v. State of kerala (2003 (3) KLT 306), State of Kerala v. Unni (2005 (1) KLT 714) and also the decision of the Apex Court in State of Kerala v. Unni (2007 (1) KLT 151 (SC), Exts. P3 and P4 are invalid and the prosecution launched against him was liable to be quashed.