Josy George, Joseph Joseph, P.K. Bhaskaran & Cyriac Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933** **Crl.MC.No. 3502 of 2011()** **-----------------------------------** **AGAINST THE JUDGEMENT/ORDER IN WPC.10741/2011 Dated 08/04/2011 CP.34/2011 of JUDL. FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY CR.NO.78/2010 OF CHANGANACHERRY EXCISE RANGE** **...............................................** ## **PETITIONERS / ACCUSED NOS.1 TO 4:** **----------------------------------------------------** **1. JOSHY GEORGE, AGED 24 YEARS, S/O.GEORGE, PALAMATTATHIL HOUSE, BHEEMANADI DESOM, KARIMTHALAM VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **2. JOSEPH JOSEPH, PERUMANATHADATHIL HOUSE, KULACHIRA P.O., ETTUMANOOR VILLAGE, KOTTAYAM DISTRICT.** **3. P.K.BHASKARAN, PARIYARATH HOUSE, CHIRAKKADAVU P.O., PADINJATTINKARA CHIRAKKADAVU VILLAGE, KANJIRAPPALLY, KOTTAYAM DISTRICT.** **4. CYRIAC JOSEPH, THEKKUMPERIMALIL HOUSE, AMANAKARA P.O., RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **BY SR.ADV.SRI.C.C.THOMAS ADV.SRI.NIREESH MATHEW** ## **RESPONDENT / COMPLAINANT:** **---------------------------------------------** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF EXCISE, CHANGANACHERRY, KOTTAYAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AV** ## **CRMC.NO.3502/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE A : COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 23.11.2010 ISUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA.** **ANNEXURE B : COPY OF THE ORDER DATED 16.11.2010 IN CRL.MC.NO.4535/2010 PASSED BY THIS HON'BLE COURT.** **ANNEXURE C : COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 18.03.2011 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA.** - **ANNEXURE D : COPY OF THE JUDGMENT DATED 08.04.2011 IN WP(C)NO.10741/2011 PASSED BY THIS HON'BLE COURT.** - **ANNEXURE E : COPY OF THE ORDER NO.XA7-32658/10 DATED 20.05.2011 PASSED BY THE EXCISE COMMISSIONER.** - **ANNEXURE F : COPY OF THE FINAL REPORT IN CR.NO.78/2010 FILED BEFORE THE JUDL.FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY.** ## **RESPONDENT'S ANNEXURES : NIL** ## **/TRUE COPY/** ## **P.A TO JUDGE** **AV** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.M.C. No.3502 of 2011 ----------------------------------Dated this the 3[rd] day of November 2011** ## **O R D E R** The petitioners are accused Nos.1 to 4 in CR. No.78/2010 of Changanacherry Excise Range. The crime was registered alleging commission of offence punishable under Section 57(a) of Abkari Act. The first petitioner was stated to be the Manager and petitioners 2 to 4 were stated to be the licensees of toddy shop No.XIII in Changanacherry Excise Range in which toddy shop No.47 is included. Two samples of toddy were taken from the aforesaid toddy shop on 28.09.2010. One sample was sent for chemical examination. The chemical examination report shows that the strength of the ethyl alcohol was 8.72% by volume which was in excess of the permissible strength – 8.1% by volume. Based on that report the licence was cancelled by the chemical examiner. The petitioner challenged the said order before this court. The order passed by the Excise Commissioner was set aside Crl.M.C. No.3502 of 2011 -: 2 :- by this court pursuant to the application filed by the accused. The second sample was sent by the learned Magistrate for chemical examiner's report. As per Annexure – C report it was reported that the strength of the ethyl alcohol content was only 7.66% by volume. Since it is less than 8.1%, the offence punishable under Section 57(a) is not attracted, the learned counsel for the petitioner submits. The learned counsel further submits that it is open to the prosecution to challenge the second report by examining the Analyst/Chemical Examiner who issued the certificate. On going through the charge sheet and memorandum of evidence, there is nothing to show that the prosecution has intended to challenge the second report. The learned counsel for the petitioners submits that without citing the witnesses for that purpose and without stating that the second report obtained through court is unacceptable, the prosecution has to rest content with the second report. In other words, the prosecution is bound by the second report, in which case the prosecution under Section 57(a) of the Abkari Act cannot be Crl.M.C. No.3502 of 2011 -: 3 :- sustained. Nothing is mentioned in that final report filed on 17.05.2011 that the second report obtained through the court is inadmissible or incorrect or as to how the prosecution intends to get over the second report. In this connection the learned counsel for the petitioner would also rely upon Annexure – E, the proceedings of the Commissioner of Excise who observed that there is force in the submission made on behalf of the petitioners herein as stated above. It was pursuant thereto, the order of cancellation of licence of toddy shop No.8/10-11 of Changanacherry Range was revoked. Of course, it was stated that it would be subject to the order of the trial court. Annexure – F is the final report filed by the Circle Inspector of Excise. Though so many witnesses are seen cited, CW6, Sheela Das is the Assistant Chemical Examiner. It was CW6 who issued Annexure – C report in which ethyl alcohol content was shown to be only 7.66% by volume. But it is pointed out by the learned counsel for the petitioners that no statement of CW6 was obtained by the investigating agency and no such statement has been Crl.M.C. No.3502 of 2011 -: 4 :- produced in court. If only CW6 says that report submitted by her is incorrect (for which there must be some statement with regard to the same in the final report), the prosecution can have a presentable case. The learned counsel further submits that since Annexure-C report was obtained after the second sample was duly submitted to the Chemical Examiner through court that report has to be accepted by the court since the first report was obtained by sending the sample by the excise officials themselves. There is no case for the prosecution that any statement was given by CW6 – Sheela Das to hold that Annexure-C report is unacceptable nor was any other witness cited by the prosecution to challenge the acceptability and admissibility of Annexure-C report. 2. The learned counsel has also relied upon the decision of this Court in **Girish Kumar** v. **State of Kerala** [2010 (2) KLJ 444] in support of his submission that if the second sample is not available to be sent for chemical examiner's report, then that will affect the valuable right of the accused and on that score itself it can be held that Crl.M.C. No.3502 of 2011 -: 5 :- ## prosecution case is unsustainable. It was held in the aforesaid decision : “If the second sample is available with the court, it could definitely be examined by another expert to find out whether sample was prepared properly. It would also enable the accused to get a report from the laboratory on such examination, if he is aggrieved by the first report. When only one sample is prepared in violation of the provisions of Sub rule (2) of Rule 8, petitioners are seriously prejudiced. Consequent to the violation of the mandatory provisions, there is no likelihood of a successful prosecution.” The learned counsel has also relied upon the decision in **Alex** v. **State of Kerala** [2003 (1) KLT (SN) 9] where it was held that if the sample is not produced before the court and it is not sent for analysis through the court there is no guarantee about the authenticity about the sample. Whatever that be, when the second sample is sent through court the report obtained after analysis has to be preferred to. It was held in ## **Sudhakaran** v. **State of Kerala** [2011 (1) KLT 799] : “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 Crl.M.C. No.3502 of 2011 -: 6 :- 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 sample 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.” 3. The learned counsel for the petitioners submits that even according to the officer who laid the final report the strength of the toddy was only 7.66% by volume which is less than 8.1%. In the last page of the final report it was also stated that they could not ascertain the reason for increase in the strength of ethyl alcohol. No witness has been cited nor was any statement of such witness recorded by the Investigating Officer to show that the second report (Annexure-C) is unacceptable or inadmissible. As such Annexure-C has to be accepted. If so, the charge under Sec.57(a) cannot be sustained. It is also submitted by the learned counsel for the petitioners that the learned Magistrate has taken the case on file as C.P.No.34/2011 as if it is a sessions offence. The maximum punishment under Crl.M.C. No.3502 of 2011 -: 7 :- Sec.57(a) is imprisonment up to five years. As per the second part of Schedule 1 of the Code, if only the punishment prescribed under other statute is more than seven years, the offence would be triable by court of Session. In the light of what is stated above, this Crl.M.C. is allowed. The charge sheet filed against the petitioners for commission of offence under Sec.57(a) of the Act is quashed. If offence under Sec.56 of the Act is disclosed or made out from the final report, then it is open to the court to take cognizance of that offence. ## **N.K.BALAKRISHNAN,** **JUDGE.** Jvt