IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 Crl.MC.No. 64 of 2008() ----------------------- CC.468/2007 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... PETITIONER: ACCUSED ------------------- 1. CHERIAN T.JOHN, THEKEDATH PARAMBIL VEEDU, KUMMANAMKARA, CHENGALAM VILLAGE, KOTTAYAM TALUK. 2. MOHAN JACOB, MANAGING PARTNER, HOTEL AIDA, M.C.ROAD, KOTTAYAM. BY ADV. SRI.A.SUDHI VASUDEVAN RESPONDENTS: ------------- 1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOTTAYAM. 2. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 64 of 2008 * * * * * * * * * * * * * * * * * * Dated: 08-01-2008 ORDER In this petition filed under Sec. 482 Cr.P.C., the petitioners who are accused Nos. 1 and 2 in C.C. 468 of 2007 on the file of the J.F.C.M. - I, Kottayam for an offence punishable under Sec. 56 (b) of the Abkari Act for the alleged dilution of the Bagpiper Gold Premium Whisky and Triple Crown Brandy for sale in their bar attached hotel in violation of the conditions of the license as per which the minimum strength of IMFL other than Gin should be 25 degree under proof. 2. The learned counsel appearing for the petitioners made the following submissions before me in support of the prayer in this petition to quash Annexure VI charge-sheet and the proceedings before the court below:- According to the prosecution, the petitioners are respectively the Salesman and the Licensee in the bar attached hotel Aida, Kottayam. Among the liquor kept for sale in the bar, Bagpiper Gold Premium Whisky and Tripple Crown Brandy which Crl.M.C. No. 64 of 2008 -:2:- ought to have maintained the prescribed strength of 25 degrees under proof corresponding to 42.86 percent by volume were found deficient by 41.59 and 41.53 respectively. This according to the prosecution is without taking note of the allowance permitted by Rule 2 of the Foreign Liquor Rules, which takes into account the chemical nature of Ethyl Alcohol due to efflux of time on storage. It was without taking note of the above fact that the court below framed charge against the petitioners on the assumption that the petitioners were responsible for the dilution. In order to attract Sec. 56 (b) the prosecution has to allege that the accused willfully diluted the IMFL in violation of the conditions in the licence. The court below ought to have taken note of the above matter before taking cognizance. Annexure-II is the certificate of analysis of the samples taken by the abakari officials from the aforesaid hotel. As per Ext.P2 certificate the above said deficiency was noted in the case of Bagpiper Gold Premium Whisky and Tripple Crown Brandy. Annexure A3 is the certificate of chemical analysis pertaining to the liquor taken from the distillery namely Seven Seas Distillery Limited wherein the percentage by volume Crl.M.C. No. 64 of 2008 -:3:- of Ethyl Alcohol in Bagpiper Gold Premium Whisky was found at 42.95 by volume. A comparison of Annexures A2 and A3 will show that there was fall in the minimum strength even with regard to sealed bottles This was evidently due to efflux of time in storage. The reduction in the percentage by volume of Ethyl Alcohol is clearly attributable to the permissible allowance under R. 2 of the Foreign Liquor Rules. It need not necessary due to the intervention of human agency as wrongly assumed by the prosecution. The proviso to R. 2 of the Foreign Liquor Rules says that if because of the efflux of time in storage, the degree under proof is likely to get deteriorated due to the chemical nature of ethyl alcohol, any punitive action under this rule shall be taken only with the prior approval of the Excise Commissioner. The punitive action in this case namely, the prosecution of the petitioner has been taken without the prior approval of the Excise Commissioner and without considering the statutorily recognized natural cause for the variation in the minimum strength. The prosecution did not produce Annexure III chemical analysis certificate before the court below. Similarly, the prosecution did not produce the mahazar prepared from the Crl.M.C. No. 64 of 2008 -:4:- distillery while taking the sample. The prosecution of the petitioners, cannot therefore, stand and it will be an abuse of the process of court to allow the continuance of the proceedings before the court below. 3. In the first place, Annexure III chemical analysis certificate and the mahazar said to have been prepared from the distillery are not part of the prosecution records. After the decision of the Apex Court reported in AIR 2005 S.C. 359 the accused is not entitled to produce or rely on documents or materials which are not before the court along with the final report filed by the investigating agency. But that does not mean that the accused is de-barred for all times to come from adducing evidence or from causing production of documents which may substantiate his defence. But that can be done and permitted to be done only at the appropriate stage. The court below has not even framed the charge. At the stage of framing charge the only material which the court can look into are the materials produced by the prosecution along with the final report. No doubt, the petitioner can attempt to substantiate the above contention but only at a subsequent stage of the trial of the Crl.M.C. No. 64 of 2008 -:5:- case. The accused, no doubt, can rely on the materials produced by the prosecution to contend for the position that even going by the materials produced by the prosecution, the charge against the petitioner will not stand. Barring that they cannot produce any material or document at this stage and seek a discharge. With this observation, this Crl.M.C. is disposed of. In case, the petitioners file application under Section 317 Cr.P.C. for dispensing with their presence before Court before the commencement of trial, the Magistrate may consider the same and pass appropriate orders. V. RAMKUMAR, (JUDGE) ani.