Ramachandran and Saneesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 21ST DAY OF AUGUST 2014/30TH SRAVANA, 1936** ## **Crl.MC.No. 3751 of 2014** **----------------------------------** **CRIME NO. 19/2014 OF CHALAKKUDY EXCISE RANGE OFFICE , TRISSUR** **-------------** **PETITIONER/ACCUSED NOS.1 & 2:** **------------------------------------------------** **1. RAMACHANDRAN, AGED 55 YEARS, S/O.CHATHUNNI, THAYAVALLIL HOUSE, OOMANATHARA DESOM, KOOLIMUTTOM VILLAGE, KODUNGALLUR TALUK.** **2. SANEESH, AGED 24 YEARS,** - **S/O.KOCHUNNI, KADAVATHUPARAMBIL HOUSE, KATTILAPPOVAM DESOM, MADAKKATHARA VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.P. MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3751 of 2014** **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **------------------------------------------** - **ANNEX A:CERTIFIED COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DTD 17/2/2014 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT.OF KERALA** - **ANNEX B:CERTIFIED COPY OF THE CRIME AND OCCURRENCE REPORT IN C R NO.19, 2014 OF CHALAKKUDY EXCISE RANGE** - **ANNEX C:CERTIFIED COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DTD 11/4/2014 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT.OF KERALA, THIRUVANANTHAPURAM** - **ANNEX D: CERTIFIED COPY OF THE FINAL REPORT IN CR NO 19/2014 FILED BEFORE THE JFCM COUIRT, CHALAKKUDY** - **ANNEX E:PHOTOCOPY OF THE ORDER DTD 14/3/2013 IN CRMC NO 1233/2013 PASSED BY THIS HON'BLE COURT,** - **ANNEX F:PHOTOCOPY OF THE ORDER DTD 9/6/2014 IN CRMC NO 2693/2013 PASSED BY THIS HON'BLE COURT** **RESPONDENT(S)' ANNEXURES** **--------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## K. RAMAKRISHNAN, J. -------------------------------------------------------------------------------Crl.M.C.No.3751 of 2014 -----------------------------------------------------------------------Dated this the 21[st] day of August, 2014 ## O R D E R This criminal miscellaneous case was filed by accused Nos.1 and 2 in C.R.No.19/2014 of Chalakkudy Excise Range, which is now pending as C.C.No.3996/2014, before the Judicial First Class Magistrate Court, Chalakkudy, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called ‘the Code’). 2. It is alleged in the petition that, the petitioners have been arrayed as accused Nos. 1 and 2 in C.R.No.19/2014 of Chalakkudy Excise Range. First petitioner has been arrayed as the salesman of T.S.No.11 and 2[nd] petitioner as the licensee of the toddy shop in Group No.2 of Chalakkudy Excise Range, of which, the present disputed shop is also one included. On 28.12.2013, the Excise Officials of Chalakkudy Excise Range, conducted inspection of the toddy shop No.11 of that Excise Range, of Crl.M.C.3751/2014 2 which the 2[nd] petitioner is the licensee and took samples and sent one of the sample for analysis and obtained Annexure-A report, in which it was noted that, that the sample contained 8.64% by volume of ethyl alcohol, which is higher than the maximum permissible limit of 8.1% by volume of ethyl alcohol fixed as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, which came into effect from 14.02.2007. On that basis, they registered Annexire-B crime against the petitioners as Crime No.19/2014 of Chalakkudy Excise Range, alleging commission of the offences under Section 57(a) and 56(b) of Abkari Act. Thereafter, on the basis of the petition filed by the accused, the second sample was sent for analysis through court to another laboratory and Annexure-C report was obtained, in which, it was mentioned that, it contained only 2.95% by volume of ethyl alcohol, which is far below the permissible limit of 8.1% provided as per Rule 9(2) of the said rules. Though the 2[nd] report was obtained, ignoring the 2[nd] report, Crl.M.C.3751/2014 3 relying on the first report, without conducting any further investigation, the Excise officials filed Annexure-D final report, which was taken on file by the learned magistrate as C.C.No.3996/2014, against the petitioners under Section 57(a) and 56(b) of Abkari Act. No further investigation was conducted to show that, 2[nd] report need not be accepted. So, when there are two reports contradictory to each other, then before filing the final report, the investigating officer should have considered the 2[nd] report, which was favourable to the petitioners and should not have filed the final report. But in this case, they have filed the final report, ignoring the 2[nd] report obtained through court. So, the action of the excise officials in registering the crime and filing the final report is unsustainable in law and proceeding with the case will only amount to abuse of process of court. So they have no other remedy, except to approach this court, seeking the following reliefs: “It is humbly prayed that this Hon'ble Court may be pleased to pass an order quashing Annexure-D final report Crl.M.C.3751/2014 4 (CR No.19/2014 of the Excise Range, Chalakkudy, Thrissur District), by allowing the above Crl.M.C”. 3. Heard, the learned counsel for the petitioner and the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that, as per the 2[nd] report, the ethyl alcohol content is only 2.9%, which is far below the permissible limit of 8.1%. Further, in view of the decisions of this court, produced as Annexure-E and F, the further proceedings is unsustainable in law and the same is liable to be quashed. 5. On the other hand, the learned Public Prosecutor submitted that, it is a matter for evidence and it cannot be quashed at this stage, invoking the power under Section 482 of the Code. 6. It is an admitted fact that, on 28.12.2013, Chalakkudy Excise officials conducted inspection in the toddy shop No.11/2013-2014, of which, 2[nd] petitioner is the licensee and first petitioner is the salesman and took two samples from the toddy kept for sale and they sent one Crl.M.C.3751/2014 5 sample for analysis and obtained Annexure-A chemical analysis report, which will go to show that, the sample contained 8.64% by volume of ethyl alcohol in contravention to the maximum permissible limit of 8.1% as provided under Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002. It is also an admitted fact that, it is on that basis, they have registered Annexire-B occurrence report as Crime No.19/2014 of Chalakkudy Excise Range against the petitioners, alleging offences under Section 57(a) and 56(b) of the Abkari Act. It is also an admitted fact that, on the basis of the application filed by the petitioners, the 2[nd] sample was sent for analysis through court and Annexure-C report was obtained, in which it is seen that, the sample contained only 2.95% by volume of ethyl alcohol, which is far below the permissible limit of 8.1% provided under Rule 9(2) of the above said Rules. In spite of that, they have filed Annexure-D final report before the court below and it was taken on file as C.C.No.3996/2014 under Section 57(a) and Crl.M.C.3751/2014 6 ## 56(b) of Abkari Act. 7. The question as to whether when there was two chemical analysis reports in respect of the same sample, one of which is favourable to the accused, whether the proceedings initiated on the basis of the first sample can be proceeded with or not has been considered by this court in Crl.M.C.No.1233/2013 (Jayakumar and others v. State of Kerala) and also in Crl.M.C.No.2693/2013 (Janeesh and others v. State of Kerala) and held, after relying on the decisions reported in **Rajappan v. State of Kerala (2012 (2) KHC 667)** and **Joshi George v. State of Kerala (2011 (4) KHC 818)** that, when there are two reports obtained in respect of the same sample and in the absence of any evidence collected by the investigating officer to ignore the 2[nd] report and relied on the first report and filed the final report, then the benefit of the 2[nd] report which is favourable to the accused has to be given to the accused and further proceedings taken by the excise officials, on the Crl.M.C.3751/2014 7 basis of the first report has to be quashed and accordingly quashed further proceedings in those cases. The same principle will apply to the present case as well. In this case also, there are two contradictory chemical analysis reports in respect of the sample taken from the toddy shop, of which, the 2[nd] petitioner is the licensee and the 2[nd] report shows that, the percentage of ethyl alcohol seen is far less than the permissible limit. In the final report filed, nothing has been mentioned, as to why the investigating officer is ignoring the 2[nd] report and relying on the first report, for the purpose of laying the final report against the petitioners. So under the circumstances, this court feels that, it is a fit case where the power under Section 482 of the Code has to be invoked to quash the proceedings, as against the petitioners, in view of the dictum laid down in the above decisions cited (supra) and proceeding with the case will only amount to abuse of process of court and so the petition Crl.M.C.3751/2014 8 has to be allowed. Once it is proved that, the toddy contained ethyl alcohol only of the permissible limit, then no offence under Section 57(a) and 56(b) of Abkari Act will be attracted and it cannot be said that, the accused have committed those offence and the proceedings against them has to be quashed. So the petition is allowed and further proceedings in C.C.No.3996/2014 (Crime No.19/2014 of Chalakkudy Excise Range), pending before the Judicial First Class Magistrate Court, Chalakkudy, as against the petitioner is quashed. In the result, the petition is allowed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss