IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.MC.No. 3736 of 2010() ------------------------------------ S.C.NO.6/2009 OF THE ASST. SESSIONS COURT, KATTAPPANA CRIME NO.427/2007 OF KATTAPPANA POLICE STATION, IDUKKI DISTRICT ---------------------------- PETITIONER(S): ----------------------- 1. JINESH,AGED 23 YEARS,S/O.SEBASTIAN URULIYANICKAL VEEDU, PARAPPANAGADY,VAZHAVARA, KALKOONATHAL VILLAGE, KATTAPPANA TALUK IDUKKI DISTRICT. 2. BEENY,AGED 38 YEARS, S/O.CHACKO, CHEMPAKASSERY VEEDU, VAZHAVARA, KALKOONATHAL VILLAGE, KATTAPPANA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.V.SETHUNATH SRI.PRAKASH KESAVAN RESPONDENT(S): -------------------------- 1. THE SUB INSPECTOR OF POLICE, KATTAPPANA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.3736 of 2010 --------------------------------------- Dated this 31st day of January, 2011 ORDER Petitioners are accused Nos.1 and 2 in S.C.No.6 of 2009 of the court of learned Assistant Sessions Judge, Kattappana facing trial for offences punishable under Secs. 56(a) and 58B(1)(c) of the Abkari Act. Case arose from the final report in Crime No.427 of 2007 of the Kattappana Police Station. Case is that petitioners transported Ayurvedic preparations containing alcohol without valid permit. Petitioner seeks to quash the proceedings against them in this proceeding contending that at the time final report was submitted and learned Assistant Sessions Judge took cognizance of the offences, report of chemical examination was not available. It is contended that the decision in Kamalaksha Vs. S.I of Police (2007(1) KLT 299) is not correctly stated. 2. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned Public Prosecutor has submitted that report of chemical examination was later produced in court which revealed that in two items percentage of Ethyl Alcohol was above the permitted limit. Crl.M.C.No.3736 of 2010 -: 2 :- 3. In the decision referred to above (Kamalaksha Vs. S.I of Police) it has been held that Magistrates are not required at the stage of taking the case on file on a report filed under Sec.50 to insist on a certificate of chemical examination or treat such report as incomplete merely because it is not accompanied by a certificate of chemical analysis. 4. It is not disputed that at the time cognizance was taken for offences as above stated, the report of chemical examination was not before the court concerned. Learned Assistant Sessions Judge in the report dated 05.10.2010 has stated that the report of chemical examination had not reached that court but, though at the time of taking cognizance that report was not available on record, it is now available with the case records as submitted by the learned Public Prosecutor and two items of the samples allegedly collected by the Investigating Officer is said to be containing alcohol beyond the permitted limit. Even as per the submission of learned counsel trial of the case has started. In such a situation it is not necessary to interfere with the cognizance taken for the mere reason of absence of report of chemical examination at that time and direct the court concerned to take fresh cognizance based on the Crl.M.C.No.3736 of 2010 -: 3 :- chemical examination. Hence I am not inclined to allow the relief prayed for. Resultantly this criminal miscellaneous case is closed in the light of the observation made above and without prejudice to the right of petitioners to take up appropriate defence before the trial court. (THOMAS P JOSEPH, JUDGE) Sbna/-