IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 Crl.MC.No. 4650 of 2010() ------------------------------------- CR.NO.41/2010 OF OTTAPALAM EXCISE RANGE, PALAKKAD DISTRICT. ............... PETITIONER/ACCUSED NO.1 ------------------------------------------ P.K. CHANDRAN, AGED 50 YEARS, S/O. KRISHNAN, PULAVAGHITHODI HOUSE, MANNANNOOR.P.O., OTTAPPALAM, PALAKKAD DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. SRI.M.G.KARTHIKEYAN, SRI.NIREESH MATHEW. RESPONDENT/COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, OTTAPALAM, PALAKKAD DISTRICT. 2. THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD. 3. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. (ALL REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). R1 TO R3 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4650 of 2010 -------------------------- ORDER Petitioner, the licensee of Toddy Shops in Group No.VII of Ottapalam Excise Range, Palakkad Division, the first accused in C.R.No.41/2010 of Ottapalam Excise Range, registered under Annexure-A crime and occurrence report for the offences under Sections 57(1) and 56(b) of Abkari Act, filed this petition under Section 482 of Code of Criminal Procedure to quash the proceedings contending that though, as per Annexure-B certificate of chemical analysis, one of the samples examined at the Laboratory contained 12.54% by volume of ethyl alcohol, the other two samples contained ethyl alcohol only to the extent of 3.23% and 3.37%. Petitioner had earlier approached Judicial First Class Magistrate, Ottapalam to send the second sample for chemical analysis, it was disclosed that no second sample was retained. In such circumstances, as held by this Court in Girish Kumar v. State of Kerala (2010 (2) KLJ 444), prosecution is to be quashed, as it is in violation of the mandatory provisions of the Abkari Act and the CRMC 4650/10 2 Rules. 2. Learned senior counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though Annexure-B certificate of chemical analysis shows that one of the samples contained 12.54% by volume of ethyl alcohol, sample 'B', which should be produced as provided under sub-rule(3) of Rule 8 of Abkari Shops Disposal Rules, is admittedly not available in this case. Consequence of unavailability of second sample was considered by this Court in Girish Kumar's case (supra). It was held that as per Rule 8 of Abkari Shops Disposal Rules, Abkari Officer has to prepare two samples and one sample is to be labelled as 'A' and the other as 'B'. Sample 'A' shall be sent to the Chief Chemical Examiner or Joint Chemical Examiner or to any officer authorised by the Government for analysis. On receipt of the report of the chemical analysis, if the report is positive, a case shall be registered within 24 hours. In that case, sample B shall be entrusted with the Deputy Commissioner of Excise of the Division by the Abkari Officer, who shall produce it before the court. It is only if the report CRMC 4650/10 3 is negative, sample 'B' could be destroyed. When Annexure-B certificate of chemical analysis establishes that the report is positive, as provided under Rule 8 of Abkari Shops Disposal Rules, the sample should have been produced before the court. If sample 'B' is not produced and so it is not available for analysis, the right of the accused to get the sample examined is defeated. Consequently, prosecution can only be quashed as held in Girish Kumar's case (supra). Petition is allowed. C.R.No.41/2010 of Ottapalam Excise Range, registered under Annexure-A crime and occurrence report, is quashed. 15th December, 2010 (M.Sasidharan Nambiar, Judge) tkv