P.R. RAMACHANDRA MENON, J.

1. Appellants were the petitioners in WP (C) No. 38400 of 2010. It arises from the common judgment passed by the learned Single Judge in the said case, along with the connected cases, declining interference with regard to the challenge raised against the vires of Ext. P4 notification issued by the Government of Kerala. The main contention was that it was beyond the power, jurisdiction and competence of the State, having not been issued under Section 29(2)(k) of the Kerala Abkari Act and further that presence of starch detected in the samples of 'toddy' taken from the petitioners would not attract any offence under Section 57(a) of the Abkari Act. The second appellant is the licencee of toddy shops in Group No. II coming within the area of Excise Range, Mattancherry for the year 2010-11; whereas the first appellant was allegedly an employee in toddy shop No. 14. On 16/08/2010 by about 4.30 p.m. a surprise inspection was conducted by the competent authorities of the Excise Department in the aforesaid shops and samples of toddy were taken. A crime was registered (as Crime No. 30/2010) based on the report of chemical analysis of the samples revealing presence of starch in all the samples. Ext. P1 is a copy of the Crime and Occurrence report in respect of the alleged offences under Section 57(a) and 56(b) of the Abkari Act. Ext. P2 is a copy of the Mahazar dated 16/08/2010 prepared while taking samples and Ext. P3 is the 'Chemical Analysis Report' dated 18/08/2010. According to the appellants, presence of Ethyl Alcohol in the samples of toddy taken from the petitioners is well within the permissible limits, but insinuation is made with reference to mere presence of 'starch' and that no percentage or level of quantity of starch is mentioned anywhere in the said report.

2. As per the information collected by the appellants, by resorting to the remedy under the RTI Act, Ext. P6 answers have been given in response to Ext. P5 questions, to the effect that presence of 'starch' will be there in all plant specimen, as certified by the authorities/experts of the Kerala Agricultural University. It is also pointed out that, by virtue of the nature of operations performed by the toddy tappers in the course of extracting toddy, it is quite possible that pieces of stalk of matured coconut flower may fall into earthen pot, to which the stalk of coconut florescence, after cutting the tip, is inserted to extract toddy/sap; thus giving rise to the presence of 'starch'. As such, the notification issued by the Government showing 'starch' as an objectionable item under Rule 2(n) of the Kerala Abakari Shops (Disposal in Auction) Rules, 2002 (herein after referred to as 'Rules') is not correct or sustainable. It is also contended that, it is not on the basis of any proper and valid notification that the stipulation has been made and that Ext. P4 notification itself is bad in all respects, which cuts the root of registration of the 'Crime and Occurrence Report' and the prosecution proceedings. Earlier, the appellants had approached a Single Bench of this Court seeking to quash the 'Crime and Occurrence Report' by filing a petition under Section 482 of the Cr.P.C.. In the course of the proceedings, the learned Government Pleader sought to sustain their stand, by producing a copy of the Gazette Publication, notifying 'starch' as an objectionable substance, if presence is noted in the toddy, upon which the said case (Crl MC) was withdrawn without prejudice to file a writ petition seeking to challenge the notification. It was accordingly, that WP (C) 38400 of 2010 was filed, seeking to declare Ext. P4 notification, to the extent it includes 'starch' as an article prohibited under Section 29(2)(k) of the Abkari Act, as ultra vires and thus to quash Ext. P1 'Crime and Occurrence Report'.

3. A counter-affidavit has been filed on behalf of the first respondent/State, seeking to sustain the course and proceedings. It is contended