IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 14741 of 2009(Q) --------------------------------------- CP 255/08 AND CP.250/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR .................... PETITIONER(S): ---------------------- SMT.P.BABY,JAYALEKSHMI, PHARMA, MYNAGAPALLY,KUNNATHOOR,KOLLAM. BY ADV. MR.K.KARTHIKEYA PANICKER RESPONDENT(S): ------------------------- THE CIRCLE INSPECTOR OF POLICE,ADOOR. BY GOVERNMENT PLEADER MR.AMJAD ALI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.14741 of 2009 Q -------------------------- JUDGMENT Petitioner, manufacturer and licensee of Madhookasavam, an Ayurvedic preparation in the name of M/s.Jayalakshmi Pharma, filed this petition under Article 226 of Constitution of India to quash Exhibits P7 and P8 final reports, taken cognizance by learned Magistrate in C.P.No.255/2008 and C.P.No.250/2008 for the offence under Section 56A(1)(b) of Abkari Act. Case of the petitioner is that under Exhibit P1 validity certificate issued by the Drugs Controller, the licensing authority, dated 21.8.2008, Proprietor of the Ayurvedic medicines, M/s.Jayalakshmi Pharma, is permitted to sell Ayurvedic medicines and Madhookasavam is a bona fide medicinal preparation and petitioner has not violated any of the provisions of Abakri Act and therefore, prosecution of the petitioner for the offence under Section 56A(1)(b) is not sustainable. Exhibits P7 and P8 final reports, on which the Magistrate has taken cognizance, establish that based WPC 14741/09 2 on the allegations that petitioner, with intention to get illegal profit, in violation of the provisions of Abakri Act, manufactured for sale Madhookasavam, petitioner is being prosecuted. 2. Section 56 of Abkari Act provides for allowing consumption of certain preparations in business premises for the manufacture and stocking of such preparations. Under sub-section (1), whoever being a chemist, druggist, apothecary or keeper of a dispensary or vaidyasala allows any preparation containing liquor or intoxicating drug to be consumed in his business premises, otherwise than for the bona fide treatment, mitigation or prevention of any disease or manufactures or stocks or causes to be manufactured or stocked any such preparation, other than a bona fide medicinal preparation, within the premises under his control, shall, on conviction before a competent court, be punished with the sentence provided therein. Therefore, if the Madhookasavam contained liquor or intoxicating drug, for bona fide treatment or for bona fide medicinal preparation, an offence under Section 56A of Abkari Act will not lie. WPC 14741/09 3 3. Learned Government Pleader submitted that the report, after analysis of the samples collected from the Madhookasavam seized from the petitioner, is not obtained till today. In such circumstances, petitioner cannot be prosecuted for the offence under Section 56A (1)(b) of Abkari Act, without getting the report. Continuation of the proceedings as against the petitioner is, therefore, only an abuse of process of the court. Petition is allowed. Exhibits P7 and P8 final reports are quashed. But, it is made clear that on receipt of the chemical analysis report, if it is found that alcoholic content in Madhookasavam is in excess of the permissible limit, prosecution against the petitioner could be continued. 10th August, 2009 (M.Sasidharan Nambiar, Judge) tkv