IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 Crl.MC.No. 1585 of 2011() ------------------------- C.R.No.22 OF 2011 OF THE EXCISE RANGE, THIRUPURAM, TVM, PENDING BEFORE the JFMC-II, NEYYATTINKARA PETITIONERS/ACCUSED NOS.3 TO 7: ---------------------------------- 1. VIJAYAN, S/O.MARTHANDAN, MUKKOLAVILA HOUSE, AAYIRAM DESOM, KARADU VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. VIJESH, S/O.VASU, KIZHAKKEPANACHIL THURUTHU HOUSE, THOTTAKOM DESOM, THALAYAAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 3. SASIKUMAR, S/O.SUKUMARAN, TC-63/1161, AMBALATHARA DESOM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. 4. REGHU, S/O.GANGADHRAN, THOPPU HOUSE, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 5. SANILKUMAR, S/O.SREENIVASAN, CHARATHARA HOUSE, CHARAMANGALAM DESOM, THANNEERMUKKOM, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE THIRUPURAM, THIRUVANANTHAPURAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : ADV.SRI K J MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1585 of 2011 --------------------------------------- Dated this 06th day of June, 2011 ORDER Petitioners are accused 3 to 7 in C.R.No.22 of 2011 of Thirupuram Excise Range for offences punishable under Secs. 57(a), 56(b) and 67B of the Abkari Act. Case as per Annexure-A, crime and occurrence report is that on 25.05.2011 petitioners and others were seen in possession and handling artificial toddy near T.S.No.3 of Thirupuram Excise Range. The prayer in this petition is to direct that the proceeding be kept in abeyance till receipt of result of chemical examination on the sample of toddy seized by the officers concerned. Learned counsel submitted that unless the report of chemical examination comes, it cannot be said whether the sample seized contains artificial toddy or not. Learned counsel has placed reliance on the decisions marked Annexures-B to G. Learned Public Prosecutor submitted that those decisions could be distinguished from the facts of this case, in that those decisions related to cases were samples were drawn from the toddy shop and while in the present case the detection was at a place away from the toddy shop. Crl.M.C.No.1585 of 2011 -: 2 :- 2. Annexure-A, crime and occurrence report states that petitioners were found in possession and handling artificial toddy near T.S.No.3 of Thirupuram Excise Range. Sec.67B of the Abkari Act relates to confiscation of the vehicle while Sec.57(a) relates to adulteration of toddy by the holder of a license for sale or manufacture of liquor or of any intoxicate drug under the Act. Sec.56(b) of the Act, it is not disputed relates to violation of the permit conditions. Though learned Public Prosecutor has drawn distinction that in this case the seizure of toddy was beyond the toddy shop concerned and the relevant rules regarding sampling does not apply to such cases, fact remained that as the crime and occurrence report now stands offence alleged is only under Secs.57(a) and 56(b) of the Act, allegation against petitioners being for handling artificial toddy. This Court in the decisions referred above took the view that when the accused is charged for offence under Secs.57(a) and 56(b) of the Act proceeding could continue only on receipt of report of the chemical examination. It is also seen from paragraph 3 of Annexure-G, order that W.P(C).No.13922 of 2010 referred to therein related to seizure of (alleged) artificial spirit from a pick up van. In that case charge was under Sec.57(a) of the Act. It was directed that Crl.M.C.No.1585 of 2011 -: 3 :- as and when report of chemical examination are received the officer in charge of the investigation could complete investigation and submit final report. It was also directed that petitioner shall not be visited with any adverse consequence for the mere registration of the case. In the light of that order contention that because the seizure was beyond the premises of the toddy shop a different view should be taken, cannot be accepted. Having regard to the allegations made against petitioners, I do not find reason why a view different from Annexures-B to G should be taken. Resultantly this criminal miscellaneous case is disposed of directing that further proceeding in C.R.No.22 of 2011 of Thirupuram Excise Range will stand in abeyance until receipt of the report of chemical examination. It will be open to the investigating officer to proceed in the matter on receipt of the report of chemical examination. It is also directed that pendency of the crime case shall not affect the preferential claim if any available to the petitioners and that no adverse consequence shall follow until receipt of report of chemical examination. (THOMAS P JOSEPH, JUDGE) Sbna/-