IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 Crl.MC.No. 208 of 2008() ------------------------ CC.685/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER: FIRST ACCUSED --------------------------------------------- DR.LEKHA, GAYATHRI NIVAS, KANNETTUMUKKU, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH RESPONDENTS: STATE AND COMPLAINANT ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.208 of 2008 = = = = = = = = = = = = = = Dated this the 22nd day of January, 2008 ORDER The petitioner, (Dr.Lekha) is the daughter in law of one late P.Sivanandan Vaidyan who was running an Ayurvedic medical centre by name “Kalpadrumam Vaidyasala” at Thiruvananthapuram. According to her , she is a qualified Ayurvedic physician and except treating patients from a room in the Vaidyasala, she has nothing to do with the running of the Vaidyasala or in the sale of Ayurvedic medicines there. She and her father-in-law(now deceased) have been charge-sheeted by the Excise Inspector, Thiruvananthapura. She challenges Annexure G final report proposing to prosecute her for an offence punishable under Rule 125 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. The aforesaid rule reads as follows: “Composition of offences: The Excise Commisioner, or any Excise Officer specially empowered by him in this behalf, may accept from any person whose property is liable to confiscation under this Act or these rules or Crl.M.C.No.208 of 2008 2 who is reasonably suspected of having committed an offence under the Act a sum of money not exceeding two thousand rupees in lieu of confiscation of goods or of punishment for breach of any provisions of the Act or of the Rules.” 3. Apart from the fact that there cannot be any prosecution under the said Rule which is not a penal provision but is a provision for composition of offences under the parent Act, namely the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the learned Public Prosecutor also had to confess that the provision of law mentioned in Annexure G final report is a mistake. But then the summons issued to the petitioner from J.F.C.M-II, Thiruvananthapuram which is produced as Annexure F is also for the very same Rule 125. The learned Public Prosecutor fairly conceded that the Rule mentioned in Annexure G charge sheet is a mistake for Section 56A(1)(b) of the Kerala Abkari Act. But since the final report shows only the aforementioned Rule for the infraction of which the petitioner is sought to be tried as per Annexure G charge sheet, the cognizance taken thereon as C.C.No.685/2006 by J.F.C.M-III, Crl.M.C.No.208 of 2008 3 Thiruvananthapuram, cannot be sustained and is accordingly quashed. Annexure G-charge sheet shows total non-application of mind by the Excise Inspector who appears to have taken a determined stand somehow or other to book the petitioner in some excise offence. V. RAMKUMAR, JUDGE sj