IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 WP(C).No. 4816 of 2011(B) ------------------------------------ PETITIONER(S): ------------------------ K.C.FRANCIS, AGED 43 YEARS, S/O.CHEEKKU, KUNNATHOOR HOUSE, PUTHENVELIKKARA P.O PUTHENVELIKKARA VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT BY SRI.C.C.THOMAS, SENIOR ADVOCATE BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): ------------------------ 1. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING THIRUVANANTHAPURAM- 695 001. 2. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ALUVA, ERNAKULAM DISTRICT- 682 031. R1 & R2 BY GOVT. PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.4816 of 2011 ---------------------------------------- Dated 16th February, 2011 JUDGMENT The petitioner was licensed to run the toddy shops in Group No.II in Aluva Excise Range for the Abkari year 2010-11. Group No.II in Aluva Excise Range includes Toddy Shop Nos. 5 to 8, 13 and 31. Earlier, the said licence was suspended as per Ext.P1 order dated 6.12.2010 by the first respondent on the ground that the samples taken from Toddy Shop Nos. 5 and 7 on chemical analysis found to contain ethyl alcohol in excess of the permissible strength viz., 8.1% v/v. As per the same, the ethyl alcohol content in the samples taken from Toddy Shop Nos. 5 and 7 are respectively 8.47% v/v and 8.48% v/v. In the light of the same, Crime Nos.86 and 87 of 2010 were registered against the petitioner under section 57(a) of the Abkari Act alleging violation of Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 (for short `the Rules'). On receipt of Ext.P1 the petitioner submitted Ext.P2 reply. As per Ext.P2, the petitioner has virtually requested the first respondent to keep in abeyance all further proceedings in pursuance of Ext.P1 and permit him to continue to run the said shops on the strength of the licence till the results of the analysis of the second samples are received. Subsequently, he filed an WP(C).No.4816/2011 2 application before the Judicial First Class Magistrate's Court-I, Aluva in Crime Nos.86 and 87 of 2010 for sending the second samples produced before the learned Magistrate in terms of Rule 8(3) of the Rules. Exts.P3 and P4 are the chemical analysis reports of the Chemical Examiner in Crime Nos.86 and 87 of 2010 respectively. They would show the ethyl alcohol contents in the samples taken from the aforementioned toddy shops as 6.47% v/v and 5.60% v/v. respectively. Prior to the receipt of Exts.P3 and P4 reports the petitioner had filed W.P.(C)No.933 of 2011 seeking for a direction to the first respondent to finalise the proceedings in pursuance of Ext.P1. When the said writ petition has taken up for consideration on 31.11.2011, taking note of the statement made on behalf of the first respondent to the effect that the proceedings pursuant to Ext.P1 have already been concluded as per order dated 11.1.2011, the learned counsel appearing for the petitioner sought permission to withdraw the said writ petition. Accordingly, permission was granted to withdraw the said writ petition with liberty to assail the said order in appropriate proceedings. The order dated 11.1.2011 is produced in this writ petition as Ext.P8. This writ petition has been filed challenging Ext.P8 order dated 11.1.2011. In this writ petition the petitioner seeks quashing of Exts.P1 and P8 by issuance of a writ of certiorari and also seeking a writ of mandamus commanding the second respondent to file final report in Exts.P6 and P7 on or before 1.3.2011 under section 173(3) WP(C).No.4816/2011 3 of the Code of Criminal Procedure taking into account Exts.P3 and P4 chemical analysis reports of `B' sample sent by the Judicial First Class Magistrate's Court-I, Aluva. 2. I have heard the learned Senior Counsel appearing for the petitioner and also the learned Government Pleader. 3. Obviously, the case of the petitioner is founded on Exts.P3 and P4 reports on the second samples sent for analysis by the Judicial First Class Magistrate's Court-I, Aluva in Crime Nos.86 and 87 of 2010. Evidently, as per Exts.P3 and P4, the ethyl alcohol content in the said second samples was found respectively as 6.47% v/v and 5.60% v/v. It is pertinent to note that as per Ext.P1 the ethyl alcohol content in the samples taken from toddy shop Nos.5 and 7 are respectively 8.47% v/v and 8.48% v/v. The maximum permissible limit of ethyl alcohol under Rule 9(2) of the Rules is 8.1% v/v. It is based on the said aspects that the petitioner seeks to quash Exts.P1 and P8. I am of the view that in the light of the decision of this Court in Crl.M.C.Nos.108, 116 & 121 of 2011 the prayer to quash Ext.P1 and also the second prayer to the extent it seeks filing of final report taking into account Exts.P3 and P4 chemical reports of second sample sent by the JFCM-I, Aluva cannot be allowed in this writ petition. The question posed for consideration in Crl.M.C.Nos.108, 116 and 121 of 2011 was whether based on the report of chemical examination of the second sample produced by the WP(C).No.4816/2011 4 Investigating Officer in court under Rule 8(3) of the Rules prosecution launched against an accused based on the report of chemical examination on the first sample could be quashed. In fact, in ground `D' of this writ petition it has been stated by the petitioner that Crl.M.C.Nos.121 and 116 of 2011 were filed by the petitioner himself for quashing Exts.P6 and P7 and its further proceedings in the light of Exts.P3 and P4 certificates. Admittedly, as per the common order dated 31.1.2011 all the three Crl.MCs including Crl.M.C.Nos.121 and 116 of 2011 filed by the petitioner herein, were dismissed. In view of the said common order the accused has a right to have the second sample analysed but, the test result obtained even if favourable to him would not ipso facto supersede the test result on the first sample. Further, it was held that reports on the second samples if relied on by an accused it would certainly be admissible in evidence under section 293(i) of the Code of Criminal Procedure but, rebuttable under section 293(2) of the Code. The learned Senior Counsel appearing for the petitioner submitted that the petitioner did not wish to press the relief for quashing Ext.P1 and seeks only to quash Ext.P8 and for a direction to finalise the proceedings initiated as per Ext.P1 after affording him an opportunity of being heard. It is also submitted that the second respondent may also be directed to file final report in Exts.P6 and P7 within a time limit. WP(C).No.4816/2011 5 4. In view of the aforesaid submissions made on behalf of the petitioner, the questions to be considered are, whether Ext.P8 calls for interference and whether a writ of mandamus could be issued commanding the second respondent to file final report in Exts.P6 and P7 within a time limit. With respect to the first question, obviously, on receipt of Ext.P1 the petitioner has submitted Ext.P2 and that carried a prayer to the second respondent virtually, to keep in abeyance all further proceedings based on Ext.P1 and permit the petitioner to continue to run the shops in question till the results of the analysis of the second samples are received. As already noticed, after taking samples from toddy shop Nos.5 and 7 Crime Nos. 86 and 87 of 2010 were registered against the petitioner alleging violation of Rule 9(2) of the Rules. In terms of the provisions under Rule 8(3) of the Rules the learned Magistrate sent the two samples produced before the Court in the said crimes and Exts.P3 and P4 are the reports of the Chemical Examiner on the second samples. Evidently, even prior to the finalisation of the proceedings based on Ext.P1 the petitioner has approached this Court by filing W.P.(C)No.933 of 2011. It is after its institution that Ext.P8 order was passed and the petitioner got the same withdrawn with liberty to challenge Ext.P8 in appropriate proceedings. As per Ext.P8 the licence/privilege of the toddy shop Nos.05, 06, 07, 08, 13 and 31/10-11 Group No.II/10-11 of Excise Range, Aluva was cancelled under section 26(b) of the Abkari Act and WP(C).No.4816/2011 6 under rules 5(19) and 9(2) of the Rules. Further, the Deputy Commissioner of Excise, Ernakulam was directed to resale the toddy shops as per rules and also to put the shops under D.M.Rules until the shops are resold so as to protect the livelihood of the workers. In this case, the challenge is against Ext.P8 and the petitioner is assailing the same on various grounds. Firstly, it is contended that Ext.P8 was passed without affording an opportunity of being heard to the petitioner and without an effective show cause notice. In short, according to the petitioner, had he been given an opportunity of being heard he could have brought Exts.P3 and P4 reports to the notice of the first respondent and could have dissuaded him from passing an order in the nature of Ext.P8. If Exts.P3 and P4 reports were considered by the first respondent, it is contended that, he should not have passed Ext.P8 order. Of course, what would have been the order after perusal of Exts.P3 and P4 cannot be inferred by this Court. But, it is a fact that the said documents were not before the first respondent while passing Ext.P8 order as they were passed only subsequent to the passing of Ext.P8. At the same time, the impact of Ext.P8 is to be taken note of. As per Ext.P8, the licence for running the aforesaid toddy shops have been cancelled under section 26(b) of the Abkari Act read with Rules 5(19) and 9(2) of the Rules. It further contained a direction to the Deputy Commissioner of Excise, Ernakulam to resale the toddy shops and a WP(C).No.4816/2011 7 direction to put the shops under Departmental Management Rules until the shops are resold so as to protect the livelihood of the workers. In the common order in Crl.M.C.Nos.108, 116 & 121 of 2011 this Court found that certainly the said reports are admissible in evidence under section 293(1) of the Code of Criminal Procedure. It is thus stated thereunder: “Thus reports on the second samples relied on by the accused are certainly admissible in evidence under Sec. 293(1) of the Code in the course of any inquiry, trial or other proceedings in the matter, but the prosecution has the right, under sub-sec. (2) of Sec.293 of the Code to examine the Expert who analysed the second samples and issued the report and prove that analysis on the second samples is not proper or valid (if it has got such a case) or is otherwise not acceptable and hence those reports cannot be relied on. (emphasis supplied) It is thus obvious from the said common order that firstly the competent authority has to take a decision whether even after perusal of the reports on the second sample they still wanted to invoke the right under sub-sec. (2) of Section 293 of the Code. Such a right need not be invoked only if it has got a case that the reports from the second sample is not proper or valid. In short, I am of the view that in the light of the said common order dated 31.1.2011 it is only appropriate for the first respondent to consider the issue afresh in the light of Exts.P3 and P4 certificates. To enable the first respondent to consider the said issue in the light of Exts.P3 and P4, Ext.P8 is quashed. Consequently, there will be a direction to the first respondent to consider and finalise the proceedings initiated WP(C).No.4816/2011 8 as per Ext.P1 after affording an opportunity of being heard to the petitioner and taking into account of Exts.P3 and P4 certificates. A decision in terms of this direction shall be taken by the first respondent within a period of two weeks from the date of receipt of a copy of this judgment. 5. The second question to be considered is whether the petitioner is justified in seeking issuance of a writ of mandamus commanding the second respondent to file final report in Exts.P6 and P7 on or before 1.3.2011 taking note of Exts.P3 and P4 chemical analysis reports of the second samples sent by the Judicial First Class Magistrate- I, Aluva. The learned senior counsel appearing for the petitioner submitted that the latter part of the said prayer viz., the one requiring the second respondent to prepare the final report taking into account Exts.P3 and P4 chemical analysis reports need not be considered by this Court as in terms of the above common order it is for the first respondent to consider and take a decision on that aspect. Further it is contended that in case a final report is not filed on or before 1.3.2011 there is a likelihood of the petitioner being deprived of the preferential right under Rule 5(1)(a) of the Rules. At any rate, there cannot be any doubt with respect to the question that having registered Crime Nos.86 and 87 of 2010 in terms of the provisions under section 173(3) of the Code of Criminal Procedure the second respondent is bound to file a final report. WP(C).No.4816/2011 9 In view of the submission made by the learned senior counsel regarding the likelihood of deprival of the preferential right in terms of Rule 5(1)(a) of the Rules in case of undue delay in the matter of filing of a final report, it will only be appropriate for the 2nd respondent to consider and take earnest efforts to file final report in Exts.P6 and P7 on or before 15.3.2011. It is made clear that this Court has not made any observation with respect to the merits of the contentions raised by the petitioner. This writ petition is disposed of accordingly. C.T.RAVIKUMAR Judge TKS