High Court of KeralaSingle Judge2023-09-21Criminal Revision Petitions allowed; impugned o...

Criminal Revision Petitions Nos.871, 873 & 874 of 2023

Case / Petition Number:CRL.R.P. Nos.871, 873 & 874/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-09-21
Court Decision / Holding: Criminal Revision Petitions are allowed; the impugned orders are set aside and the Judicial First Class Magistrate’s Court-I, Palakkad is directed to forward the second sample in CMP Nos.3372/3373/3374 of 2023 for analysis.
Final Disposition: Criminal Revision Petitions allowed; impugned orders set aside; direction to forward second sample for analysis.

Parties to the Case

Appellants / Petitioners

BHAGEERATHAN K.K., aged 64 years, S/O.K.V.KUMARAN, KARATTE HOUSE, KURKANCHERI, S.O.THRISSUR., PIN - 680007
SAJIL, aged 33 years, S/O.GOPALAN, KONNAMPURA HOUSE, PARUTHIPALLI DESOM, PERINGOTTUKURISSI 1 VILLAGE, ALATHUR TALUK, PALAKAD DISTRICT., PIN - 695574
VIJAYAN, aged 51 years, S/O.VELUNNI, ENTHANPALAM HOUSE, NANNIODE, PERUMATTY VILLAGE, CHITTUR TALUK, PALAKAD., PIN - 678354

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam, Kochi, PIN – 682031

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Nireesh Mathew
• Adv. Nireesh Mathew
• Adv. Nireesh Mathew

Counsels for Respondents

• Adv. SMT. Seena C., Public Prosecutor

Case Synopsis & Summary

This is a consolidated order of the Kerala High Court dealing with three criminal revision petitions filed under sections 397 and 407 of the Code of Criminal Procedure against orders of the Judicial First Class Magistrate, Palakkad, rejecting the request to send a second sample of toddy for chemical analysis in cases under the Abkari Act (sections 57(a) and 56(b)). The court notes that prior to Krishnan M.C. v. State of Kerala (2021), some Single Judges held that the accused had a right to demand a second sample analysis. The State contends Krishnan M.C. (Division Bench) holds no such right, and Apex Court stayed its operation, leaving the matter in limbo. The petitioners argue that the law laid down in Girish Kumar v. State of Kerala (2010) and Sasidharan v. State of Kerala (2013) should govern, and that withholding the second sample would prejudice the defense. After considering the stay on Krishnan M.C. and the cited precedents, the court holds that the right to the second sample must be decided on the basis of Girish Kumar and Sasidharan rather than Krishnan M.C. and directs the Magistrate to forward the second sample for analysis. Consequently, the revision petitions are allowed and the impugned orders are set aside, with directions to proceed in accordance with the said analysis.

Provisions of Law Cited

Sections 397 and 407 of the Code of Criminal ProcedureSections 57(a) and 56(b) of the Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the impugned orders dismissing the applications to forward the second sample for chemical analysis violate the law laid down in Girish Kumar v. State of Kerala (2010) and Sasidharan and another v. State of Kerala (2013). They note that Apex Court stayed the Krishnan M.C. judgment, and prior decisions by this Court recognized a right to obtain the second sample. Hence, the petitioner seeks a direction to forward the second sample for analysis to avoid prejudice in defense.

Contentions of Respondents

The Public Prosecutor submits that Krishnan M.C. v. State of Kerala (2021) held that the accused do not have a right to seek sending the second sample; with Apex Court staying the Krishnan M.C. judgment, the orders of the Magistrate are legally justified and the revision petitions should be dismissed on this basis.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Girish Kumar v. State of Kerala	2010 (2) KLJ 444	Positive	Cited as supportive authority regarding the right to have the second sample forwarded for analysis and the defense’s access to chemical examination.
Sasidharan and another v. State of Kerala	2013 (3) KHC 402	Positive	Cited alongside Girish Kumar to justify the necessity of providing the second sample for analysis in proceedings.
Krishnan M.C. v. State of Kerala	2021 (1) KLD 439	Partly Overruled / Limited	Division Bench judgment held no right to send the second sample; however Apex Court stayed operation of that judgment, limiting its applicability in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023/30TH BHADRA, 1945** **CRL.REV.PET NO. 871 OF 2023** **AGAINST THE ORDER/JUDGMENT CMP 3373/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** **REVISION PETITIONER/PETITIONER/ACCUSED NO.2:** **BHAGEERATHAN K.K., AGED 64 YEARS, S/O.K.V.KUMARAN, KARATTE HOUSE, KURKANCHERI, S.O.THRISSUR., PIN - 680007** **BY ADV NIREESH MATHEW** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN – 682031** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.873/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. Nos.871, 873 & 874/2023 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023/30TH BHADRA, 1945 CRL.REV.PET NO. 873 OF 2023 AGAINST THE ORDER/JUDGMENT CMP 3372/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** ## **REVISION PETITIONER/PETITIONER/ACCUSED:** **SAJIL, AGED 33 YEARS, S/O.GOPALAN, KONNAMPURA HOUSE, PARUTHIPALLI DESOM, PERINGOTTUKURISSI 1 VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT., PIN - 695574** **BY ADV NIREESH MATHEW** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN – 682031** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.871/2023, 874/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. Nos.871, 873 & 874/2023 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023/30TH BHADRA, 1945** **CRL.REV.PET NO. 874 OF 2023** **AGAINST THE ORDER/JUDGMENT CMP 3374/2023 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS -I,PALAKKAD** ## **REVISION PETITIONER/PETITIONER/ACCUSED NO.2:** **VIJAYAN, AGED 51 YEARS, S/O.VELUNNI, ENTHANPALAM HOUSE, NANNIODE, PERUMATTY VILLAGE, CHITTUR TALUK, PALAKKAD., PIN - 678354** **BY ADV NIREESH MATHEW** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN – 682031** **BY SRI.M.P.PRASANTH, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.873/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. Nos.871, 873 & 874/2023 : 4 : ## **N. NAGARESH, J.** **--------------------------------------------------Crl.R.P. Nos.871, 873 and 874 of 2023 ---------------------------------------------------** _**Dated this the 21[st ] day of September, 2023**_ ## **ORDER** These criminal revision petitions have been filed invoking Sections 397 and 407 of the Code of Criminal Procedure challenging the orders dated 16.08.2023 passed by the Judicial First Class Magistrate's Court-I, Palakkad in CMP Nos.3372, 3373 and 3374 of 2023. 2. The petitioners are accused of committing offences under Sections 57(a) and 56(b) of the Abkari Act. By the impugned orders, the Judicial First Class Magistrate's Court-I, Palakkad has rejected the request of the petitioners to send the second sample of toddy which is marked as 'B' taken from the Toddy Shops concerned. Crl.R.P. Nos.871, 873 & 874/2023 : 5 : 3. The petitioners state that the impugned orders dismissing the applications of the petitioners for sending the second sample for analysis go against the law laid down by this Court in _**Girish Kumar v. State of Kerala**_ [ _2010 (2) KLJ 444]_ and _**Sasidharan and another v. State of Kerala** [2013 (3) KHC 402]_ . 4. As the orders impugned have been passed ignoring the law laid down by this Court, the petitioners are entitled for an order directing the Magistrate's Court to forward the second sample for analysis. 5. Public Prosecutor entered appearance and resisted the Criminal Revision Petitions. The Public Prosecutor pointed out that in _**Krishnan M.C. v. State of Kerala** [2021 (1) KLD 439]_ , a Division Bench of this Court has considered the entire aspects of the case and has held that accused in abkari offences do not have any right to seek sending the second sample for chemical examination. As the Division Bench of this Court has taken a decision to that effect, the orders passed by Crl.R.P. Nos.871, 873 & 874/2023 : 6 : the Judicial First Class Magistrate's Court-I, Palakkad are legally justified. The petitioners have no right to seek for sending second sample for analysis, contended the Public Prosecutor. 6. I have heard the learned counsel for the petitioners and the learned Public Prosecutor representing the respondents. 7. It is not in dispute that prior to the judgment of the Division Bench in **Krishnan M.C.** (supra), Single Judges of this Court had taken a view that the accused have a right to get the second sample sent for analysis. The counsel on either side would submit that the Division Bench judgment in **Krishnan M.C.** (supra) was challenged before the Hon'ble Apex Court by the petitioners therein and the Apex Court has stayed the operation of the said judgment and all further proceedings in the cases. This is evident from Annexure-C and Annexure-D. 8. In view of Annexure-C and Annexure-D orders of the Apex Court, now the right of the petitioners to get the second Crl.R.P. Nos.871, 873 & 874/2023 : 7 : sample forwarded will have to be decided on the basis of the judgments in **Girish Kumar** (supra) and **Sasidharan** (supra). Any refusal to forward the second sample for analysis at this stage may cause prejudice to the accused in defending the cases. Therefore, it would be only just and proper that the court below is directed to forward the second sample for analysis. 10. In view of the facts as stated above, the orders impugned in the afore Criminal Revision Petitions are set aside. There will be a direction to the Judicial First Class Magistrate's Court-I, Palakkad to forward the second sample in the above cases for analysis. Criminal Revision Petitions are allowed as above. **Sd/-** **N. NAGARESH JUDGE** sss Crl.R.P. Nos.871, 873 & 874/2023 : 8 : ## **APPENDIX OF CRL.REV.PET 871/2023** ## **PETITIONER'S ANNEXURES** **ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3373/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3373/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT. ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444 ANNEXURE-G TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 345/2012 DATED 13.02.2012 ANNEXURE-H TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 1571/2013 DATED 19.08.2013 ANNEXURE-I TRUE PHOTOCOPY OF THE SAID COMMON ORDER DATED 07.01.2020 IN CRL.RP.NOS.884 & 897 OF 2019** Crl.R.P. Nos.871, 873 & 874/2023 : 9 : ## **APPENDIX OF CRL.REV.PET 873/2023** ## **PETITIONER'S ANNEXURES** **ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3372/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD DATED 01.08.2023 ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3372/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT. ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444. ANNEXURE-G TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 345/2012 DATED 13.02.2012 ANNEXURE-H TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 1571/2013 DATED 19.08.2013 ANNEXURE-I TRUE PHOTOCOPY OF THE COMMON ORDER DATED 07.01.2020 IN CRL.RP.NOS.884 & 897 OF 2019** Crl.R.P. Nos.871, 873 & 874/2023 : 10 : ## **APPENDIX OF CRL.REV.PET 874/2023** **PETITIONER'S ANNEXURES ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3374/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD DATED 01.08.2023. ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3374/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT. ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444. ANNEXURE-G TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 345/2012 DATED 13.02.2012 ANNEXURE-H TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 1571/2013 DATED 19.08.2013 ANNEXURE-I TRUE PHOTOCOPY OF THE COMMON ORDER DATED 07.01.2020 IN CRL.RP.NOS.884 & 897 OF 2019**