IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 CRL.MC.NO. 463 OF 2011() -------------------------------------- CR NO.42 OF 2010, EXCISE RANGE OFFICE, KOTTAYAM .................... PETITIONER(S): ACCUSED NO.1 AND 2 ------------------------------------------------------- 1. MADHULAL, S/O.T.K. RAGHAVAN, CHEKKECHIRA HOUSE, KILIROOR KARA, THIRUVARPU VILLAGE, KOTTAYAM TALUK. 2. P.K. RAJAPPAN, S/O. AYYAPPAN KUTTAN, PICHAKAPALLI HOUSE, PALLAM KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT ---------------------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOTTAYAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 463 of 2011 ==================================== Dated this the 14th day of February, 2011 O R D E R Petitioner is accused in CR No.42 of 2010 of Excise Range Office, Kottayam for offence punishable under Section 57(a) of the Abkari Act and for alleged violation of Rule 9(2) of the Kerala Abkari Shops Disposal Rules (for short, “the Rules”). Case is that the Abkari Officer collected samples of toddy from T.S. No.35 of on 19.08.2010 of which petitioners are said to be the Manager and licensee, respectively. Report of chemical examination on the first sample revealed that the sample contained 8.95% v/v Ethyl Alcohol. Thereon prosecution was launched and the second sample was produced in court. On the request of petitioners the second sample was sent to another chemical examiner’s laboratory which reported that the content of Ethyl Alcohol in the second sample of toddy is 7.75% v/v which is less than the permissible limit. It is contended that in the light of Annexure-C, report on the second sample prosecution is unsustainable. 2. A similar question arose in Crl. M.C. Nos.108, 116 and CRL.M.C. No.463 of 2011 -: 2 :- 121 of 2011 and this Court as per order dated January 31, 2011 held that in the absence of a provision like Section 13(3) and (5) of the Prevention of Food Adulteration Act there could be no claim that the report on the second sample would supersede report on first sample so that the trial is to be forestalled. This Court held that in such a situation it is a matter for evidence as to which of the reports is to be accepted. In the light of the said decision contention of petitioner cannot stand and is liable to be rejected. Criminal Miscellaneous Case fails. It is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv