Purushothaman; Vijayan; Jaya Kumar v. State of Kerala

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** ## **Crl.MC.No. 6139 of 2013** **CRIME NO. 55/2013 OF Chengannur Excise Range Office, WAYANAD DISTRICT** ## **PETITIONERS/ ACCUSED NOS. 1 TO 3 :** **1 PURUSHOTHAMAN, AGED 51 YEARS, S/O. BHASKARAN, PUTHIYAVEETTIL HOUSE, CHOORALLOOR MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK.** **2 VIJAYAN, AGED 48 YEARS, S/O.DAMODHARAN, VIJI BHAVANAM, ULAVAKKADU, MAVELIKKARA, ALAPPUZHA DISTRICT.** - **3 JAYA KUMAR, AGED 26 YEARS, S/O. SIVARAMAN, KOMALATHU VEEDU, BHARANIKKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.NIREESH MATHEW SRI.C.C.THOMAS (SR.)** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA SRI.SWAMIDAS K.N.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6139 of 2013** 2 ## **ORDER** Petitioners are accused Nos. 1 to 3 in CR.No.55/2013 of Excise Range, Chengannur in Alappuzha division. The first petitioner is allegedly the salesman of T.S.No.4 and the petitioners 2 and 3 are the joint licensees of all the toddy shops in Group No.I and V respectively in Chengannur Excise Range. 2. The prosecution case is that the sample taken from T.S.No.4 on 16.05.2008 allegedly found to contain excess strength of ethyl alcohol as per Annexure-A chemical **Crl.MC.No. 6139 of 2013** 3 analysis report dated 30.08.2010. Since it is allegedly in violation of Rule 9(2) of the Abkari Shops Disposal Rules 2002 introduced w.e.f.14.02.2007, which prescribes the maximum strength of ethyl alcohol as 8.1% v/v, CR.No.55/2013 is registered against the petitioners for offence under Section 57(a) and 56(b) of the Abkari Act on 30.06.2013. The 2[nd] sample sent through the Judicial First Class Magistrate Court-I, Chengannur, on analysis, Annexure-C certificate, found that sample contains only 2.66% v/v. Annexure-B is the crime and occurrence report. The Excise Commissioner suspended and cancelled the licenses. The 2[nd] and 3[rd] **Crl.MC.No. 6139 of 2013** 4 petitioners filed WP(C).No.29684/2013 challenging the suspension and cancellation orders of the Excise Commissioner (Exts.P4 and P6 therein). The High Court was pleased to grant an interim order, Annexure 'D'. Now the final report is filed vide Annexure 'E'. There is absolutely no mention in Annexure 'E' final report regarding Annexure-C report of the 2[nd] sample. There is no material to discredit/ disprove Annexure-C report. Annexure-E final report is only to be quashed in the light of the principle laid down by this Court in _**Joshi George v State of Kerala [2011 (4) KHC 818] and Rajappan and Another v. State of Kerala [2012 (2) KHC**_ **Crl.MC.No. 6139 of 2013** 5 _**657]**_ . If the final charge is not quashed, the 2[nd] and 3[rd] petitioners will loose their right of preference for allotment of the shops for the year 2013-14. Therefore, the petitioners pray for quashing Annexure-E final report arising from CR.No.55/2013 of Chengannur Excise Range. 3. It was argued by the learned counsel for the petitioners that two samples were taken by the investigating officer and the first sample was sent for analysis and the report stated that it contains about 8.47% by volume. The minimum prescribed volume of ethyl alcohol contains in the contraband **Crl.MC.No. 6139 of 2013** 6 article is 8.1%, which is fixed as per rule 9(2) of the Abkari Shop Disposal Rules, 2002 w.e.f.14. 02.2007. Annexure-A is the photocopy of the Chemical Analysis Certificate dated 30.08.2010. Annexure-B is the photocopy of the crime and occurrence report in CR.No.55/2013 of Chengannur Excise Range registered for offence under Sections 57(a) and 56(b) of the Kerala Abkari Act. He has also pointed out that the JFCM Court, Chengannur has sent the 2[nd] sample produced before the court to another laboratory. As per the said report, the sample contains ethyl alcohol 2.66% by volume, which is below 8.1%. The photocopy of the said report of **Crl.MC.No. 6139 of 2013** 7 the 2[nd] sample sent through the Magistrate Court is produced herewith as Annexure-C. Even before getting the report of the 2[nd] sample, the Excise Commissioner passed an order suspending the licenses of all the toddy shops in Group Nos.I and V in Chengannur Excise Range and directed to show cause within a period of 7 days why the licenses shall not be cancelled under Section 26(b) of the Abkari Act read with Rules. Thereafter, the Excise Commissioner cancelled the licenses by order dated 25.07.2013. The 2[nd] and 3[rd] petitioners challenged the order of suspension and cancellation before this Court by filing WP(C).No.29684/2013. This Court **Crl.MC.No. 6139 of 2013** **==> picture [6 x 9] intentionally omitted <==** has granted an interim order staying the operation and implementation of the order passed by the Excise Commissioner and permitted the 2[nd] and 3[rd] petitioners to continue the conduct of the licenses of the toddy shops in question for a period of two weeks. Copy of the interim order is produced as Annexure-D. 4. According to the petitioners' counsel, the 2[nd] part of the sample was sent for chemical analysis and as per Annexure-C report, the 2[nd] sample contains less than 8.1% of ethyl alcohol by volume. Therefore, it is highly necessary to quash the entire **Crl.MC.No. 6139 of 2013** **==> picture [6 x 9] intentionally omitted <==** proceedings due to the different findings in the reports. The Excise Inspector has filed a final report based on the first report and the learned Magistrate has taken cognizance of the offences under Sections 57(a) and 56(b) of the Abkari Act. It was also pointed out in Annexure-E Charge Sheet that nothing was stated about Annexure-C, the result of the 2[nd] sample, in Annexure-E final report. As per the principles laid down in _**Joshi George and Rajappan's case**_ (supra), it was held that if the report of the 2[nd] sample sent through the court is favourable to the accused and if there is no challenge with regard to the admissibility of the said report under Section **Crl.MC.No. 6139 of 2013** **==> picture [12 x 9] intentionally omitted <==** 293(2) of the Cr.P.C. in the final charge, report of the 2[nd] sample is admissible and no offence under Section 57(a) of the Abkari Act is attracted. In this case also, there is no specific challenge regarding Annexure-C report of the 2[nd] sample in Annexure-E final report. 5. The learned counsel for the petitioners has cited a ruling held in _**Rajappan's**_ case (supra) wherein it has held that 'two sets of samples taken from toddy shop-Ethyl alcohol exceeded its permissible limits in first sample, a case was registered2[nd] sample sent for chemical examination at **Crl.MC.No. 6139 of 2013** 11 the instance of the accused and it contained ethyl alcohol within the permissible limits. It was also held that since 2[nd] sample was sent during the course of proceedings, under Section 293 of the Cr.P.C., much reliance can be placed on 2[nd] report than the first reportWhen there are two conflicting reports in one case, the one which in favour of the accused is to be relied upon. So, the proceedings were quashed by this Court by invoking Section 482 of the Cr.P.C. 6. Annexure-F is the order of this Court dated 14.03.2013 in Crl.M.C.No.1233/2013 wherein also _**Joshi**_ **Crl.MC.No. 6139 of 2013** 12 _**George and Rajappan's**_ case (supra) was considered. It was held that if there is no material in the final report to disprove or discredit the report of the 2[nd] sample or if there is no challenge against the report of 'B' sample, then the final report is liable to be quashed. It has also held that in such circumstances, it will be an abuse of process of court to allow continuation of the proceedings against the concerned accused. As already noticed herein before, there is absolutely no dispute with respect to the fact that Annexure- A report revealed the presence of ethyl alcohol in excess of the permissible limit in terms of provisions under **Crl.MC.No. 6139 of 2013** 13 Rules 9(2) of the Rules 2002. However, Annexure-C report submitted on analysis of 'B' sample yielded totally conflicting report. First report contains excess ethyl alcohol. 2[nd] sample report shows which is less than the permissible contents of ethyl alcohol. So, when that be so, the indisputable and undisputed position, continuation of the proceedings against the accused person is permissible only if there is material to disprove or discredit the report of the 2[nd] sample or if there is a valid challenge against the admissibility of the report of the 2[nd] sample. **Crl.MC.No. 6139 of 2013** 14 7. In this case also, the final report has been laid down and copy of which is produced and marked as Annexure 'E'. The petitioner's counsel has vehemently argued that the Annexure 'E' Final Report did not show the availability of any material to disprove or discredit Annexure (C) Report of Chemical Analysis of the 2[nd] sample and no challenge was caused against the admissibility of the report of the 2[nd] sample. Moreover, the 2[nd] report is admissible in evidence under Section 293 of Cr.P.C. even without examining the Chemical Examiner or Assistant Chemical Examiner. **Crl.MC.No. 6139 of 2013** 15 8. I have gone through Annexure 'E' Final Report which does not show that Annexure (C) Report is not correct. In fact Annexure 'C' report was obtained through the intervention of the Judicial First Class Magistrate Court, Chengannur and there is no specific challenge in the Annexure 'E' Charge Sheet. So the absence of challenge against admissibility of Annexure 'C' report raised specifically have not been disputed. When that be the position, I do not find any reason to repel the contention raised by the learned counsel for the petitioners. So, in the light of the ruling cited supra, I find that the petition filed by the petitioners have got a **Crl.MC.No. 6139 of 2013** 16 good case and they cannot be proceeded. Therefore, the petition is only to be allowed. In the result, this Crl.M.C. is allowed. Annexure 'E' Final Report laid in CR.No.55/2013 of Chengannur Excise Range, Alappuzha District and all further proceedings against the petitioner is hereby quashed. Sd/- **ANNIE JOHN, JUDGE** RKM **Crl.MC.No. 6139 of 2013** 17 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONERS' **|**ANNEXURES :**| |**ANNEXURE-A**|**COPY OF THE CHEMICAL ANALYSIS**| ||**CERTIFICATE DATED.30.8.2010 ISSUED BY**| ||**THE ASST. CHEMICAL EXAMINER TO GOVT. OF**| ||**KERALA.**| |**ANNEXURE-B**|**COPY OF THE CRIME AND OCCURRENCE REPORT**| ||**IN C.R.NO.55/2013 OF CHENGANNUR EXCISE**| ||**RANGE.**| |**ANNEXURE-C**|**COPY OF THE CHEMICAL ANALYSIS**| ||**CERTIFICATE NIL DATED ISSUED BY THE**| ||**ASST. CHEMICAL EXAMINER TO GOVT. OF**| ||**KERALA, ERNAKULAM.**| |**ANNEXURE-D**|**COPY OF THE ORDER DTD.5.12.2013 IN WPC**| ||**NO.29684/2013 PASSED BY THIS COURT.**| |**ANNEXURE-E**|**COPY OF THE FINAL REPORT IN CR**| ||**NO.55/2013 FILED BEFORE THE JUDICIAL**| ||**FIRST**<br>**CLASS**<br>**MAGISTRATE**<br>**COURT,**| ||**CHENGANNUR.**| |**ANNEXURE-F**|**COPY OF THE ORDER DTD.14.3.2013 IN**| ||**CRL.MC NO.1233/2013 PASSED BY THIS**| ||**COURT.**| |**ANNEXURE-G**|**COPY OF THE ORDER DTD.27.6.2013 IN**| ||**CRL.MA**<br>**NO.5024/2013**<br>**IN**<br>**CRL.MC**| ||**NO.2511/2013 PASSED BY THIS COURT.**| |**ANNEXURE-H**|**COPY OF THE ORDER DTD.24.9.2013 IN**| ||**CRL.MA**<br>**NO.7446/2013**<br>**IN**<br>**CRL.MC**| ||**NO.4118/2013 PASSED BY THIS COURT.**|