IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.MC.No. 2698 of 2009() ----------------------------------- ST.638/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNY .................... PETITIONER/3RD ACCUSED: ----------------------------------------- S.PADMA KUMAR, LEKSHMI VILAS, PRAMADOM, MALLASSERY P.O., PATHANAMTHITTA, PROPRIETOR, M/S.THUSHARA PHARMACEUITICALS, PATHANAMTHITTA. BY ADV. MR.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASSISTANT EXCISE COMMISSIONER, PATHANAMTHITTA. 3. ASU DRUGS CONTROLLER (ISM), LICENSING AUTHORITY, PATHANAMTHITTA. 4. EXCISE INSPECTOR, CHITTAR RANGE, PATHANAMTHITTA. R1 TO R4 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2698 of 2009 -------------------------- ORDER Petitioner is the third accused in S.T.No. 638/2008 on the file of Judicial First Class Magistrate's Court, Ranni, taken cognizance for the offence under Section 58B of Kerala Abkari Act. Petitioner is the manufacturer of Dasamoolarishtam, which was seized by the police while accused 1 and 2 were transporting it. This petition is filed under Section 482 of Code of Criminal Procedure contending that offence under Section 58B of Abkari Act is not at all attracted as medicinal preparations are exempted and in such circumstances, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Before framing the charge, Magistrate has to hear the prosecution and the defence and decide whether an offence under Section 58B of Abkari Act CRMC 2698/09 2 is attracted or not. Petitioner is entitled to file a petition for discharge under Section 239 of Code of Criminal Procedure and raise all the contentions raised herein before the Magistrate. It is then for the Magistrate to decide whether Section 58B of Abkari Act is attracted or not. With liberty to file a petition before the Magistrate for discharge under Section 239 of Code of Criminal Procedure, petition is disposed. 26th August, 2009 (M.Sasidharan Nambiar, Judge) tkv