IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9831 of 2006(U)
1. MAOHANAKUMARANNAIR,
... Petitioner
Vs
1. THE COMMISSIONER OF EXCISE,
... Respondent
2. THE ASSISTANT EXCISE COMMISSIONER,
3. THE EXCISE INSPECTOR,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :26/02/2009
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C) No.9831 of 2006
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Dated, this the 26th day of February, 2009
JUDGMENT
The petitioner is a licensee of toddy shop for the
abkari year 2005-06 and for subsequent years. The Excise
Inspector, Vamanapuram collected samples from the
petitioner’s shop and C.R.No.22 of 2005 was registered against
the petitioner and two employees for the alleged violation of
Section 57(a) of the Abkari Act and Section 7(2) of the Abkari
Shops Disposal Rules, 2002. Ext.P2 is the complaint lodged
before the Judicial First Class Magistrate, Attingal. The
prosecution was initiated for the reason that the ethyl content is
in excess of 8.1% and therefore liable to be punished for
violation of Section 57(a) of the Abkari Act.
2. Learned counsel for the petitioner brought to my
notice a decision of this Court reported in Unni v. State of
Kerala (2003 (3) K.L.T.306) rendered in a similar context.
This Court took the view that the ethyl alcohol content of toddy
drawn from coconut palm fixed as 8.1% v/v in Rule 9(2) of the
Abkari Shops Disposal Rules, 2002 is unreasonable and
arbitrary. This Court also held that the rule makers have not
taken into account the various factors mentioned in the
W.P.(C) No.9831 of 2006
2
preceding paragraphs which had a direct bearing on the ethyl
alcohol content of toddy drawn from the coconut palm. This
Court declared that Rule 9(2) of the said Rules to the extent it
prescribes that the ethyl alcohol content of toddy drawn from
coconut palms kept or offered for sale should not exceed 8.1%
v/v is arbitrary and unreasonable. This Court also held that if
there is no adulteration or admixture as contemplated under
Section 57(a) of the Abkari Act, there is no justification in
prosecuting the petitioners for an offence punishable under the
Section. This Court had quashed the complaint in the said case.
The question was elaborately discussed by this Court and
concluded that Rule 9(2) of the Rules is arbitrary and
unreasonable and therefore cannot be acted upon.
3. The above decision of this Court was affirmed by
the apex Court in the decision reported in State of Kerala v.
Unni 2007 (1) K.L.T.151. In the light of the above decisions
this writ petition is allowed and Ext.P2 complaint is quashed.
HARUN-UL-RASHID,
JUDGE
vns