1. Bacchus, if he were alive today, might have relished and enjoyed a goblet of toddy from the God's own country. But the short question that has come up for consideration in this Original Petition would have definitely rattled and bamboozled Bacchus.

2. The question : Is the licensee of a toddy shop liable to be prosecuted under S.57(a) of the Kerala Abkari Act (for short 'the Act') if the toddy kept for sale in the shop is found to have contained alcohol in excess of the permissible limit of 8.1 % v/v?

3. It is admitted that the sample of toddy taken from the toddy shop of the licensee (petitioner No.2) is found to have contained 9.5% by volume of ethyl alcohol in Ext.P1 Report of Chemical Examiner. On the basis of the above Report of Analysis Petitioner No.2, the licencee of the toddy shop and petitioner No.1, his employee were proceeded against and a crime was registered against them under S.56(b) and 57(b) of the Act. The gravamen of the charge levelled against the petitioners as revealed from Ext.P2 Crime and Occurrence Report is that the sample of toddy taken for analysis from the toddy shop belonging to petitioner No.2 is found to have contained 9.50% v/v of ethyl alcohol and thereby the licencee and his employee have committed offences punishable under S.56(b) and 57(a) of the Kerala Abkari Act.

4. S.3(8) of the Act defines toddy:

"3(8) Toddy : 'Toddy" means fermented or unfermented juice drawn from coconut, palmyra, date, or any other kind of palm tree".

R.2(b) of the Kerala Rectified Spirit Rules, 1972 defines alcohol:

"2(b) "alcohol" means ethyl alcohol of any strength and purity having the chemical composition C2 H2 OH".

5. R.9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (for short the Rules) which is relevant for the purpose of this case reads as follows:

"9(2) : No toddy other than that drawn from the coconut, palmyrah or choondappana palms shall be sold by the licencees. All toddy kept or offered for sale should be of good quality and unadulterated. 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 choondappana palms should not exceed 8.1% v/v, 5.2% v/v and 5.9% v/v respectively."

It can be seen from sub-r.(2) of R.9 of the Rules that the ethyl alcohol content of toddy drawn from coconut tree should not exceed 8.1% v/v. Ext.P1 report of Chemical Analysis shows that the sample taken from the premises of the toddy shop of the petitioners contained 9.5% v/v of ethyl alcohol. It is apparent that the ethyl alcohol content permissible for toddy drawn from coconut tree having exceeded the permissible limit of 8.1 % v/v, the petitioners have violated one of the "special conditions applicable to licencees for the privilege of vending toddy in independent shops" as provided under Chap.VIII of the Rules.

6. It is pertinent to note that the strength of ethyl alcohol was prescribed in the Rules for the first time with effect from 1.4.2000. Even before introduction of the maximum content of ethyl alcohol in toddy (8.1% v/ v), the Excise Manual had categorised toddy as a fermented liquor along with beer, wine, etc. Paragraph 6(a) of Chap.V of Volume II of the Excise Manual defines fermented liquors, which reads as follows:

"6(a) Fermented liquors:- Toddy, Beer, Wines, etc. come under the category of fermented liquors. The maximum self-generated alcohol content that will be present in a Fermented liquor, which is not fortified is only 12% by volume. Because when alcohol reaches this volume, the yeast responsible for the fermentation is destroyed by its own by-product and no further alcohol formation is possible."

Toddy is dealt with in Chap.10 of Volume II of the Manual. Paragraphs 4,5 and 6 of Chap.10 are extracted hereunder:

4. The toddy yield from each kind of tree and the alcoholic strength of toddy varies according to the season of the year, the time during which it is dra