Koshy, J.

Power of Abkari Officers to file complaints when samples taken during inspection conducted under section 32 of the Kerala Abkari Act (Act No. 1 of 1077) are found to be adulterated with noxious substances before amendment of the Act by Act No. 16 of 1997 is the question to be considered in this case. A contention was raised by the petitioners that in view of the observation made by the Apex Court in Suraj v. Excise Inspector (2001 (1) KLT 169 SC), entire proceddings are illegal since power of the Abkari Officers under section 32 was not considered by the Supreme Court in the above decision and one of us (K. Padmanabhan Nair, J.) sitting in single referred the matter to the Division Bench. For understanding the question, we may now refer the facts of the case first.

2. Petitioners are the accused in Crime No. 2/96 of Alathur Excise Range on the file of the Judicial First Class Magistrate's Court, Alathur. They are Salesman, Power of Attorney Holder and licensee respectively of toddy shop No. 78/96-97 of Alathur range. Samples of toddy was taken from their shop and on analysis it was found that it contained Chloral Hydrate, a hypnotic drug, and it was unfit for hyman consumption. Excise officers came to the conclusion that offence under section 57 A of the Abkari Act (hereinafter referred to as `the Act') was attracted and hence Annexure I report was filed before the Magistrate's Court and the above is challenged in this case.

3. Section 57 A of the Abkari Act is as follows:

"57 A. For adulteration of liquor or intoxicating drug with noxious substances. etc: (1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable -

(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life and with fine which may extend to fifty thousand rupees;

(ii) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

(iii) in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.

Explanation: For the purpose of this section and section 57B, the expression 'grievous hurt' shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860).

(2) Whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable,

(i) if as a result of such omission, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

(ii) if as a result of such omission, death is caused to any person, with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

(iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees,

(3) Whoever possesses any liquor or intoxicating drug in which any substance referred to in sub-section (1) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug shall, on conviction, be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine