M. Narayanan; Varghese P.V.; Uthup PuthusseriYil; Pramod Kumar P.K.; Manoj Kumar P.P. v. State of Kerala and Deputy Excise Commissioner, Excise Division Office, Kannur (SC 670/2015, Crime No. 240/2013, Kudianmala Police Station)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939 Crl.MC.No. 3619 of 2016 () --------------------------SC 670/2015 of SUB COURT, PAYYANNUR CRIME NO. 240/2013 OF KUDIYANMALA POLICE STATION , KANNUR PETITIONER(S)/ACCUSED: ---------------------------------- 1. M.NARAYANAN, S/O.APPA, AGED 66, MALENKANDI HOUSE, KOYYAM PO, CHENGALAYI VILLAGE, TALIPARAMBA TALUK, KANNUR DT. 2. VARGHESE P.V., S/O.VARGHESE, AGED 56, PARIYATH VEEDU, NADUVIL AMSOM, TALIPARAMBA TALUK, KANNUR DT. 3. UTHUP PUTHUSSERIYIL, S/O.CHACKO, AGED 51, SREEKANDAPURAM AMSOM, CHERIKODE PO, TALIPARAMBA TALUK, KANNUR DT. 4. PRAMOD KUMAR P.K. S/O.KUNHIRAMAN, AGED 47, KANNARATH PUTHIYAPURAYIL, MANIYOU AMSOM, CHEKKUKUAM DESOM, KANNUR DT. 5. MANOJ KUMAR P.P., S/O.NARAYANAN, AGED 37, PUTHOYAPURAYIL HOUSE, ERUVESSY AMSOM DESOM, KANNUR DT. BY ADVS.SRI.P.NARAYANAN SRI.NICHOLAS JOSEPH RESPONDENT(S): - -------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DEPUTY EXCISE COMMISSIONER EXCISE DIVISION OFFICE, KANNUR-670 001. BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-032017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3619 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------------ANNEXU RE 1 : COPY OF THE FINAL REPORT IN CR.NO.240/2013 OF KUDIYANMALA POLICE STATION (IN SC NO.670/2015 OF ASST. SESSIONS COURT, PAYYANNUR) ANNEXURE 2 : COPY OF THE FIR IN CR.NO.240/2013 OF KUDIYANMALA POLICE STATION. ANNEXURE 3 : COPY OF THE COMMUNICATION NO.C1.556/2015 DATED 26.11.2015 ISSUED BY THE PUBLIC INFORMATION OFFICER, KANNUR EXCISE DIVISION. ANNEXURE 4 : COPY OF THE REPORT DATED 16-9-2014 SUBMITTED BY THE POLICE BEFORE THE COURT TO INCORPORATE THE OFFENCE AGAINST THE ACCUSED. ANNEXURE 5 : COPY OF THE PROPERTY LIST DATED 3-12-2014 PRODUCING THE 'B' SAMPLE BEFORE THE COURT BY THE POLICE. RESPONDENT(S)' EXHIBITS : NIL ----------------------- // True Copy // PA to Judge ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C No.3619 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of March 2017 ## O R D E R The petitioners are the accused in S.C. No.670 of 2015 on the files of the Assistant Sessions court, Payyannur. ## 2. Heard. 3. The petitioner Nos.1 to 3 are joint licensees and petitioner Nos.4 and 5 are the employees of toddy shop No.40 of the Excise Range, Sreekandapuram. On 13.9.2012, the police party of Kudianmala police station inspected the said toddy shop and collected two samples of Crl.M.C. 3619/2016 -: 2 :- toddy from there. The said sample were marked as 'A' and 'B' samples. Thereafter, the police registered crime No.240 of 2013 of Kudianmala police station under Section 102 Cr.P.C. 'A' sample and contemporary records were produced before the Sub Divisional Magistrate, Thalassery, along with the F.I.R. The learned Sub Divisional Magistrate sent 'A' sample for analysis. On analysis of 'A' sample, it was found that starch was present in the said sample. On receipt of the certificate of analysis of the 'A' sample, the section was altered to Sections 56(b) and 57(a) of the Abkari Act. The police also filed a report before the Sub Divisional Magistrate requesting to transmit the records to the jurisdictional Magistrate court. 4. The learned counsel for the petitioners has Crl.M.C. 3619/2016 -: 3 :- submitted that since there is violation of mandatory provision of Rule 8(2) of the Abkari Shops Disposal Rules (for short 'the Rules'), no successful prosecution can be sustained. 5. The learned Public Prosecutor has submitted that even though two samples were taken from the toddy shop, 'B' sample was kept in the police station itself without sending the same to the Deputy Commissioner of Excise as mandated under the Rules. The Rule 8(2)(h) of the Rules provides that the bottle or container marked as 'B' shall be handed over to the concerned Deputy Commissioner of Excise of the division who shall be the Authorised Officer with a copy of the memorandum, immediately, under proper acknowledgment, and he shall affix his seal over the ## Crl.M.C. 3619/2016 -: 4 :- string on the neck portion of the bottles or containers and shall assign a register number on the label affixed. Thus, it is clear that Rule 8(2)(h) of the Rules mandates that 'B' sample must be immediately produced before the Deputy Commissioner of Excise of the division concerned who is the authorised officer for the said purpose. 6. In this case, instead of producing 'B' sample before the Deputy Commissioner of Excise as mandated under Rule 8(2)(h) of the Rules, the same was kept in the police station itself. 7. The Rules 8(2) and (3) of the Rules are mandatory and non-compliance of mandatory provisions would affect the sustainability of the criminal case. The above view is supported by the decisions of this court in Girish Kumar v. Crl.M.C. 3619/2016 -: 5 :- State of Kerala [2010 (2) KLJ 444] and Sasidharan and another v. State of Kerala [2013(3) KHC 402]. In this case, since there was violation of the mandatory provisions of Rule 8(2) of the Rules, no successful prosecution can be maintained. 8. The learned Public Prosecutor has submitted that the analysis of the 2[nd] sample would show that starch was not detected in the 'B' sample. Therefore, there are two certificates of analysis before the court having conflicting opinion. So, the one which is in favour of the petitioners has to be accepted. In view of the certificate of analysis of the 2[nd] sample, no successful prosecution can be sustained. 9. For the said reasons, even though the prosecution is permitted to be continued, no purpose will be served. Crl.M.C. 3619/2016 -: 6 :- Therefore, I am inclined to quash Annexure-1 final report and further proceedings against the petitioners in SC 670/2015 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice and accordingly, I order so. In the result, this Crl.M.C. stands allowed. **S** d/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/27..3..2017_ _// True Copy //_ _PA to Judge_