IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.MC.No. 2184 of 2011(C) ------------------------------------- CRIME NO.18/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II PERAMBRA ......................................................................................................................................... PETITIONERS / ACCUSED 1 AND 2: ------------------------------------------------- 1. JOSHI, S/O. NADELAKANDI KUTTAPPAN NAIR, PANDALAYANI DESOM, KOYILANDI TALUK. 2. DAMODHARAN, S/O.OCHUMMAL RAMAN, AVIDANELLUR DESOM KOYILANDY TALUK. BY ADVS. SRI. A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI RESPONDENTS / COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, EXCISE RANGE OFFICE, BALUSSERY. 3. JOINT CHEMICAL EXAMINER TO GOVERNMENT OF KERALA, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/12/2011 ALONG WITH CRMC NO. 3549 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- Crl.MC.No. 2184 of 2011(C) APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A1 : COPY OF THE MAHAZAR DATED 19.09.2010 ALLEGEDLY PREPARED BY EXCISE INSPECTOR, EXCISE CIRCLE OFFICE, KOZHIKODE ON TAKING SAMPLE FROM TODDY SHOP NUMBER 34 KOOTALIDA. ANNEXURE A2 : COPY OF THE CERTIFICATE OF CHEMICAL ANALYSIS DATED 02.12.2010 IN RESPECT OF SAMPLE OF TODDY SAID TO BE TAKEN FROM TODDY SHOP NUMBER 34 KOOTALIDA. ANNEXURE A3 : COPY OF THE CRIME AND OCCURRENCE REPORT DATED 15.03.2011 SUBMITTED BY THE 2ND RESPONDENT IN RELATION TO TODDY SHOP NO.34 KOOTALIDA OF BALUSSERY EXCISE RANGE, BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT II PERAMBARA. ANNEXURE A4 : COPY OF THE REPLY DATED 23.06.2011 ISSUED BY STATE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE. ANNEXURE A5 : COPY OF THE LABORATORY RECORD DATED 13.09.2010 RELATING TO THE SAMPLES OF TODDY SAID TO HAVE BEEN TAKEN FROM TS NO.3/10-11, TS NO.32/10-11 AND TS NO.29/10-11, TS NO. 36/10-11, TS NO.34/10-11 AND TS NO.33/10-11, OF BALUSSERY EXCISE RANGE. ANNEXURE A6 : COPY OF THE CERTIFICATE OF ANALYSIS BEARING NUMBER 1936 DATED 01.06.2011 IN RESPECT OF SAMPLE B ANNEXURE A7 : COPY OF THE STAY ORDER DATED 15.05.2009 PASSED BY THE HON'BLE SUPREME COURT IN SLP (CIVIL) 11420-11434/2009 ANNEXURE A8 : COPY OF THE ORDER DATED 05.07.2011 IN CRL.M.C. 1810/2011 OF THIS HON'BLE COURT RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 2184/2011 & Crl.M.C.No. 3549/2011 ------------------------------------------ Dated this the 2nd day of December, 2011 ORDER Criminal M.C.2184/11 was filed by the petitioners when crime No.18/11 was pending investigation. Subsequently charge sheet was laid by the Excise Inspector where upon the case was taken on file by the learned Magistrate as C.P. 53/2011. It is now stated to be pending before the learned Magistrate for committal of the case to the Court of Sessions. Criminal M.C. 3549/11 has been hence filed by the petitioners to quash the proceedings in C.P.53/11 raising the very same ground which were raised in Criminal M.C.2184/2011. 2. The charge sheet was laid against the accused alleging commission of offence under Section 57(a) and 56 (b) of Abkari Act. The allegation is that the Excise Inspector has taken sample of toddy from the toddy kept for sale. The petitioners are admittedly the licensees. The samples were taken by the Excise Inspector on 09.09.10 at Crl.M.C.No. 2184/2011 & -: 2 :- Crl.M.C.No. 3549/2011 07:10 P.M. When sample - A was sent for chemical analysis the strength of ethyl Alcohol content in it was certified to be 8.16%. 3. It is also pointed out that, as per the first report, the percentage of ethyl alcohol was only 8.16% as against the permissible 8.1%. It is true that if the second report was not there, the prosecution can well be sustained. But the fact that there was only very negligible difference may be a factor when the acceptability of the second report is to be considered. 4. The learned counsel for the petitioners would submit that the second sample was sent through court but the second report of the chemical examiner was conveniently suppressed by the prosecution. Annexure – A1 in Criminal M.C. 3549/11 is the second report of the chemical examiner which shows that the sample of liquid contained 6.12% by volume of ethyl alcohol and the sample was found to be free from noxious ingredients injurious to health. If this report is Crl.M.C.No. 2184/2011 & -: 3 :- Crl.M.C.No. 3549/2011 accepted, then certainly the offence under Section 57(a) will not lie. The learned Public Prosecutor would submit that in the light of the decision in Sudhakaran and others Vs. State of Kerala - Criminal M.C.108/11 rendered by another single Judge of this court, it is open to the prosecution to challenge the second report. It is contended that he prosecution has the right under Section 293(2) of the Code to examine the expert who analysed the second sample and issued the report and prove that the analysis of the second sample was not proper or valid. But if the prosecution wanted to contend that the second report is invalid or unacceptable, then the prosecution has to cite witnesses or furnish materials in the charge sheet and must plead that the second report is unacceptable. The second report is not a document produced by the accused but it is as good a document of the prosecution, since the report was obtained by sending the second sample through court. Since the sampling, labelling and sending of the second report was Crl.M.C.No. 2184/2011 & -: 4 :- Crl.M.C.No. 3549/2011 done through court, the correctness of the procedure followed for that purposes must get precedence over the first report where the labelling and sending of the same was done by the investigating officer himself, the learned counsel for the petitioner submits. Whatever that be, in the final report filed by the second respondent, nothing has been mentioned with regard to the second report, questioning the correctness, validity or acceptability of the same. If that be so, the position of the prosecution is more pejorative, the learned counsel for the petitioner submits. Since the prosecution has not cited witnesses or produced materials to challenge the acceptability of the second report, it has to be held that the prosecution under Section 57(a) cannot be sustained. The other offence shown in the charge sheet is under Section 56(b) of the Act. 5. There is no case for the prosecution that the petitioners were in possession of excess quantity of toddy or that they have transported toddy in violation of the permit. Crl.M.C.No. 2184/2011 & -: 5 :- Crl.M.C.No. 3549/2011 In other words, there is no allegation of violation of permit conditions so as to attract Section 56(b) of the Act also. In the result, this petition is allowed. The proceedings against the petitioners in C.P. No.53 of 2011 of JFCM Court - II, Perambra is quashed. N.K. BALAKRISHNAN, JUDGE. smvd