IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1202 of 2004(A)
1. VASANTHAKUMARI, D/O. KUNJU PILLA. K.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :01/12/2006
O R D E R
R.BASANT, J
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Crl.M.C.Nos.1202 of 2004 and 1203 of 2004
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Dated this the 1st day of December 2006
O R D E R
The petitioner is the second accused in two identical
prosecutions initiated by the respondent through its excise officials
under Section 57(a) of the Kerala Abkari Act. The petitioner is the
licensee in respect of toddy shops No.14 and 15 of Pathanapuram
Excise Range. On 03/01/2001, at different points of time, the excise
officials went to shops 14 and 15 of which the petitioner is the
licensee and drew samples of toddy, which was kept for sale. Samples
of toddy collected were sent to the chemical examiner and the
chemical examiner submitted reports, which showed that the toddy
samples contained 8.69% and 9.79% of ethyl alcohol.
2. Crime was registered and final report was filed on these
precise allegations. The learned counsel for the petitioner submits
that even if the entire allegations were accepted, no offence under
Section 57(a) of the Kerala Abkari Act will be revealed in as much as
presence of ethyl alcohol in toddy is perfectly justified and there is no
upper limit of the ethyl alcohol prescribed under any of the relevant
rules at the relevant point of time. Rule 9 of the Kerala Abkari Shops
Disposal Rules 2002 was not in force at the relevant time and there
was no specific embargo against the upper limit of ethyl alcohol which
Crl.M.C.No.1202/04 & 1203/04 2
could be found to be present in the toddy offered for sale. In as much
as ethyl alcohol cannot be said to be a foreign substance in toddy,
Section 57(a) cannot have any application, it is contended. The
learned counsel for the petitioner points out that paragraph 6(a)
Chapter 5 volume 2 of the Kerala Excise Manual suggests that in
fermented liquor like toddy, presence of ethyl alcohol upto 12% is
perfectly legal. In these circumstances, the learned counsel for the
petitioner submits that in any view of the matter, these prosecutions
are liable to be quashed in as much as the allegations raised even if
accepted in toto, do not reveal any culpable offence.
3. The learned counsel for the petitioner was requested to
take instructions. The learned Public Prosecutor, after taking
instructions, concedes that at the relevant point of time, there was no
stipulation of law which prescribed that presence of ethyl alcohol in
toddy to an extent of 8.69% and 9.79% is an offence. There is no
allegation that the alcohol found present was not self generated or
was added to toddy. The learned Public Prosecutor does not make
any attempt to support the charge.
4. It follows from the above discussions that the petitioner
does not deserve to stand in trauma of these prosecutions any further.
Crl.M.C.No.1202/04 & 1203/04 3
5. These Crl.M.Cs are in these circumstances allowed. All
further proceedings in pursuance of crime Nos.43/01 and 44/01 of
Pathanapuram excise range against the petitioner are hereby
quashed.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.1202/04 & 1203/04 4
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006