IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 Crl.MC.No. 544 of 2011() ------------------------------------- (CR.NO.15/2011 OF KAYAMKULAM EXCISE RANGE, ALAPPUZHA DISTRICT) .... PETITIONER(S): ACCUSED: ------------------------------------------ SUGATHAN, S/O.MADHAVAN, PUTHENTHARAYIL HOUSE, KATTANAM MURI, MAVELIKKARA, ALAPPUZHA DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.M.G.KARTHIKEYAN, SRI.NIREESH MATHEW. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE, KAYAMKULAM, ALAPPUZHA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.544 of 2011 ==================================== Dated this the 25th day of February, 2011 O R D E R Petitioner is a licensee of Toddy Shops in Group V of Kayamkulam Excise Range. In Toddy Shop No.33 the excise officials made a search on 11.02.2011 at about 9.50 a.m. and found, according to the excise officials excess quantity of toddy than mentioned in the stock register. A case was booked as CR No.14 of 2011 for offence punishable under Sec.56(b) of the Abkari Act (for short, “the Act”). Same day at about 6.10 p.m. it is alleged, the excise party again visited the same Toddy Shop and seized 101 litres of toddy which is alleged to be artificial and accordingly registered CR No.15 of 2011 for offences punishable under Secs.56(b) and 58 of the Act. Prayer in this petition is to direct the excise authorities to keep further proceedings in CR No.15 of 2011 in abeyance until receipt of report of chemical analysis of the first sample collected from the Toddy Shop. Learned Senior Advocate contended that registration of CR No.15 of 2011 is squarely in violation of Rule 8(3) of the the Kerala Abkari Shops Disposal Rules, 2002 (for short, “the Rules”) in that CRL.M.C. No.544 of 2011 -: 2 :- it is even before receipt of report of chemical analysis on the first sample collected by the excise officials from the Toddy Shop that the case is registered. According to the learned Senior Advocate registration of CR No.15 of 2011 alleging such an offence would prejudicially affect petitioner in that he will lose preference in the next allotment and he is also liable to be visited with penal consequences. My attention is drawn to Annexure-F to I, orders/judgments passed by this Court in various proceedings of similar character. I have heard the learned Pubic Prosecutor also. 2. It would appear that CR No.15 of 2011 has been registered even before receipt of report of chemical analysis on the first sample collected from the Toddy shop of petitioner. That is in violation of sub-rule (3) of Rule 8 of the Rules referred above. In such a situation this Court in Annexures-F to I, orders/judgments directed that further proceeding in the crime cases will stand in abeyance. In Annexure-G, order in paragraph 7 it is directed that pendency of crime cases shall not affect the preferential claim if any available to the petitioner and that no adverse consequence shall follow until receipt of report on chemical analysis on the first sample showing that the toddy CRL.M.C. No.544 of 2011 -: 3 :- sample is artificial but if ultimately the report on chemical analysis revealed that sample is artificial or otherwise adulterated, all benefits petitioner obtained on account of stay issued by this Court would stand cancelled. That procedure can be accepted in this case also. Resultantly, this Criminal Miscellaneous Case is disposed of making it clear that registration of Crime No.15 of 2011 will not disentitle petitioner from raising preferential claim if available to him as provided under the Act and Rules as it stands on the date of receipt of report on chemical analysis in the matter. It is also made clear that if on receipt of report of chemical analysis on the first sample it is revealed that there is any violation of the Act or Rules and petitioner has obtained any licence or benefit on account of this order, such licence or other benefit would stand cancelled. It is also directed that until receipt of report on the chemical analysis on the first sample other proceeding in CR No.15 of 2011 will stand in abeyance. THOMAS P. JOSEPH, JUDGE. vsv