Denesan, J.

Respondents in O.P.No.25873/2002 are the appellants. The learned single Judge before whom the case came up for hearing quashed Ext.P2 challenged in the Original Petition holding that the writ petitioners were not liable to be prosecuted for any offence punishable either under Section 56(b) or under Section 57(a) of the Kerala Abkari Act (for short, the Act). It was also declared that Rule 9(2) of the Kerala Abkari Shops (Disposal of Auction) Rules, 2002 introduced on 1.4.2002 fixing the strength of ethyl alcohol in toddy drawn from coconut palms as 8.1% V/V was arbitrary and unreasonable and hence illegal and unenforceable. Aggrieved, the State of Kerala and the Excise Authorities have filed this Writ Appeal. It is brought to our notice that the judgment of the learned Single Judge in a connected case, Unni v. State of Kerala, involving identical issues, has been reported in 2003 (3) KLT 306.

2. It is pointed out before us that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (here-in-after referred to as the Rules) finds a place in the Rules introduced on 1.4.2002, and prior to that, the said Rule was numbered as Rule 8(2) and still prior to that date, it was numbered as Rule 7(2) of the Abkari Shops (Disposal of Auction) Rules, 1974. The excise authorities registered cases against the petitioners, who are licensees under the Act, for offences punishable under Section 56(b), Section 57(a) and Rule 9(2) of the aforesaid Rules. The allegation was that, toddy kept for sale in Toddy Shop No.5 belonging to the writ petitioners, on chemical analysis, was found to contain more than 8.1% of alcohol. The first petitioner is the employee and the second petitioner is the licensee of Toddy Shop No.5 in Thiruvanathapuram Excise Range.

3. Rule 9(2) of the Rules reads as follows;

“No toddy other than that drawn from the Coconut Palmyrah or Choondapana palms shall be sold by the licensees. All toddy kept or offered for sale should be of good quality and un-adulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose. The ethyl alcohol content of toddy kept or offered for sale drawn from Coconut, Palmyrah and Choondapana palms should not exceed 8.1% V/V; 5.2% V/V and 5.9% V/V respectively.”

The writ petitioners contended that the prescription in the Rules, that the ethyl alcohol content of toddy kept or offered for sale drawn from coconut shall not exceed 8.1% is unscientific and unworkable and therefore, liable to be declared as illegal. It was further contended that the allegation, that there was violation of Rules 9(2) of the Rules, was unsustainable. That being so, the prosecution under Section 56(b) also cannot be sustained. Regarding Section 57(a), the contention was that though the percentage may vary, ethyl alcohol is an essential component or ingredient of toddy and therefore, it cannot be construed as a foreign ingredient and in that view of the matter the alleged presence of ethyl alcohol, notwithstanding its percentage, cannot constitute an offence under Section 57(a), which says that a licensee or any other person who mixes or permits to be mixed any foreign ingredient will be punishable under that provision. (emphasis supplied)

4. The learned single Judge, relying on the provisions contained in the Excise Manual, particularly paragraphs 6(a) of Chapter V of Volume-II and paragraphs 4, 5 and 6 of chapter X of the Manual, found that the percentage of ethyl alcohol in toddy may go above 8.1% by natural causes and therefore, the prescription that, no toddy which contains ethyl alcohol over 8.1% shall not be offered for sale is an unworkable provision and therefore, cannot be sustained in law. Paragraph 6(a) of the Excise Manual, which speaks about fermented liquors says that toddy, bear, wines etc., come under the category of fermented liquors and that the maximum self-generated alcohol content that will be present in a fermented liquor, which is not f