IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.MC.No. 4535 of 2010() ------------------------------------ CMP.6000/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOTTAYAM CR.NO.42/2010 OF KOTTAYAM EXCISE RANGE. .................... PETITIONER/ACCUSED NO.1: ------------------------------------------- MADHULAL, S/O.T.K. RAGHAVAN, THEKKECHIRA HOUSE, KILIROOR KARA, KANJIRAM P.O., THIRUVARPPU VILLAGE, KOTTAYAM DISTRICT BY ADV. SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP.BY EXCISE INSPECTOR EXCISE RANGE OFFICE, KOTTAYAM, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR, J. -------------------------------------------------------- Crl.M.C No.4535 OF 2010 --------------------------------------------------------- Dated this the 16th day of November, 2010. O R D E R Whether an accused is entitled to get the second sample, available in Court, send to the Laboratory for chemical analysis. 2. Petitioner, the first accused in Crime No.42 of 2010 of Kottayam Excise Range registered for the offences under Sections 57(a) of Kerala Abkari Act r/w Rule 9(2) of the Kerala Abkari Shops disposal Rules 2002, filed Annexure-A petition under Section 311 of Code of Criminal Procedure before the Magistrate to send the sample marked 'B' seized in that crime and produced before Judicial First Class Magistrate Court to a Chemical Examiners Laboratory, other than Thiruvananthapuram for examination. By Annexure-B order, learned Magistrate dismissed the petition. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-B order contending that this Court has consistently held that second sample, if available, can be send for chemical analysis either at the instance of the prosecution or at the instance of the accused. 3. Learned senior counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Annexure-B order shows that report of chemical analysis Crl.M.C No.4535 OF 2010 2 shows strength of ethyl alcohol @ 8.95% by volume. As it exceeded the permitted limit of 8.1%, petitioner filed C.M.P No.6000 of 2010 to get second sample analysed another laboratory. The learned Magistrate dismissed the petition, not relying on the decision of this Court in State of Kerala v. Deepak P.Shah, (2001 (2) KLT 433) on the ground that it relates to an offence under NDPS Act and the other decisions relied on were passed by this Court in exercise of the inherent power available under Section 482 of Code of Criminal Procedure which is not available in the trial court. 5. This Court in Crl.R.P. 644, 645, and 646 of 1994 and Crl.M.C 214 of 1996 permitted sending of second sample available in court to the laboratory holding that absence of a legal provision will not disentitle an accused to make an application or the court to send the second sample for chemical analysis. This Court taking note of the decision in Crl.M.C. 1748 of 1994 held that right of an accused to send the second sample for analysis was conceded by the Director General of Prosecution before the Court. This Court in Annexure-C order in Criminal M.C.No.8190 of 2001, following the earlier decisions held that the Crl.M.C No.4535 OF 2010 3 order in Crl.M.C No.5307 of 1999, which followed decisions in Cr.R.P 644 of 1994, enables an accused to get the second sample analysed in a laboratory. 6. The learned Senior counsel pointed out that Sub Rule 3 of Rule 8 of Kerala Abkari Shops Disposal Rules, 2002 provides that on receipt of the report of chemical Analysis, if any violation of the provisions of Abkari Act, Rules or conditions of licence or any adulteration is noticed, a case shall be registered within 24 hours. The sample marked as 'B' shall be produced before the concerned court. It also provides that if no case is registered the sample marked 'B' shall be destroyed. It is that sample which was sought to be examined by the laboratory by the petitioner herein. If the prosecution or the defence has no right to get the said sample marked 'B' examined, there is no purpose in the mandatory provision for the production of the second sample before the court or for a further direction to destroy the same, if no case is registered. It is thus clear that sample 'B' produced in court could be send for chemical analysis either at the instance of the prosecution or the defence. In such circumstances, learned Magistrate should have send the second sample for examination Crl.M.C No.4535 OF 2010 4 by another expert as sought for. Petition is allowed. Annexure-B order in C.M.P No. 6000 of 2010 is quashed. C.M.P.No. 6000 of 2010 stands allowed Judicial First Class Magistrate, Kottayam is directed to send the sample 'B' produced in Crime.No. 42 of 2010 of Kottayam Excise Range, to any of the laboratories as sought for. M.SASIDHARAN NAMBIAR, JUDGE. mns