Thilakan and Manikantan v. State of Kerala and Deputy Commissioner of Excise, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** ## **Crl.MC.No.9254 OF 2019(F)** **CRIME AND OCCURRENCE REPORT NO.64/2019 OF KOLLAM EXCISE RANGE PENDING ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM** ## **PETITIONERS/ACCUSED 1 TO 2:** **1 THILAKAN, AGED 52 YEARS S/O CHELLAPPAN, VISAKHAM VEEDU, PERAYAM, KOLLAM TALUK, KOLLAM.** **2 MANIKANTAN, AGED 53 YEARS S/O DOIVAKARAN, THEKKEDATH PADINJATTATHIL VEEDU, THRIKKADAVOOR VILLAGE, KOLLAM TALUK, KOLLAM.** ## **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/COMPLAINANT:** > **1 STATE OF KERALA, REPRESENTED BY THE EXCIUSE RANGE INSPECTOR, KOLLAM EXCISE RANGE, EXCISE COMPLEX, CHIUNNALKKADA,KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE COMPLEX CHINAKKADA, KOLLAM – 691 001.** ## **SRI AJITH MURALI-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON 21.01.2020 PASSED THE FOLLOWING:** Crl.M.C.No.9254/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.9254 of 2019 ---------------------------------------------Dated this the 21[st] day of January, 2020 ## **O R D E R** The petitioners are the first and the second accused in the case registered as C.R.No.64/2019 of the Kollam Excise Range for the offences punishable under Sections 57A and 56(b) of the Abkari Act, 1077. 2. On 28.12.2018, samples of toddy were collected by the Preventive Officer of Kollam Excise Range from toddy shop No.40/2018-19. The first sample was sent for chemical analysis. The result of the chemical analysis was that the first sample contained cannabinoids (narcotic substances). On the basis of that report, the case was registered against the first petitioner, who was the salesman of the toddy shop and the second petitioner, who was the licensee of the toddy shop. 3. The first petitioner filed application in the Magistrate's Crl.M.C.No.9254/2019 3 Court concerned for sending the second sample for analysis. The aforesaid application was allowed and the second sample was sent for chemical examination through the court. The report of chemical examination done in respect of the second sample (Annexure-A6) shows that it was free from any noxious ingredients injurious to health. 4. This petition is filed under Section 482 Cr.P.C for quashing the case registered against the petitioners. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. Learned counsel for the petitioners contended that, in view of Annexure-A6 chemical analysis report, the case registered against the petitioners cannot survive and it is liable to be quashed. 7. Learned Public Prosecutor contended that Annexure-A6 certificate cannot be taken into consideration by the court at this stage of the case and that the prosecution would be able to show that result shown in that certificate is not correct. Crl.M.C.No.9254/2019 4 8. At this juncture, it is to be noted that final report has not been yet filed in the case. 9. Learned counsel for the petitioners, relying upon the decisions of this Court in **Joshy Gerge v. State of Kerala : 2011 (4) KHC 818** and **Rajappan v. State of Kerala : 2012 (2) KLT 898** , contended that if the result of chemical analysis of the second sample is negative, the prosecution against the petitioners would not be maintainable. 10. The procedure for taking samples from toddy shops is provided in Chapter VII of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). Rule 8(1) of the Rules states that all Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any toddy kept for sale in any toddy shop for chemical analysis. Rule 8(2) of the Rules prescribes the procedure to be followed by the Abkari Officer while taking the samples. Under clause (c) of sub-rule (2), the Abkari Officer has to divide the sample into two parts and put each part into separate bottles or containers which are properly cleaned and dried. Clause (e) requires him to affix labels Crl.M.C.No.9254/2019 5 marked 'A' and 'B' on each bottle or container. As per clause (f), the sealed bottle or container marked 'A' shall be forwarded, without unreasonable delay, to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorised by the Government in that behalf. As per clause (h) of sub-rule (2), the B sample shall be kept in the custody of the Deputy Commissioner of Excise. Rule 8 (3) of the Rules provides that on receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, Rules or conditions of Licence or any adulteration is noticed, a case shall be registered within 24 hours and the sample marked 'B' shall be produced before the concerned court and if no case is registered, the sample 'B' shall be destroyed. 11. In **Joshy George** (supra), the analysis of the second sample had shown negative result and the accused had prayed for quashing the final report filed against them. This Court noticed that since no witness was cited and no statement of any witness was recorded by the investigating officer to show that the second report was unacceptable or inadmissible, the charge Crl.M.C.No.9254/2019 6 under Section 57(a) of the Abkari Act cannot be sustained. It was a case in which the accused had prayed for quashing the case against them after the filing of the final report. 12. In **Rajappan** (supra), the analysis of the second sample had shown negative result and the accused had prayed for quashing the final report filed against them. This Court noticed the decision in **Joshy George** (supra) and allowed the prayer for quashing the final report on the ground that the prosecution had no good explanation for impeaching the report obtained in respect of the second sample which was in favour of the accused and there was nothing in the final report to assail that report. 13. In **Sudhakaran v. State of Kerala : 2011 (1) KLT 799** , the analysis of the second sample showed negative result. Therefore, the accused prayed for quashing the case registered against them. This Court refused to quash the case against the accused by holding as follows: _"That, the accused has a right, even in the absence of specific provision in the Act or the Rules to have_ Crl.M.C.No.9254/2019 7 _the second sample analysed and test result obtained does not mean that such test result if favourable to him would ipso facto supersede the test result on the first sample. ..... Under Section 293(1) of the Code a document purporting to be a report under the hand of a Government scientific expert to whom the section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceedings under the Code. Sub-section (2) says that the Court may if it thinks fit summon and examine any such expert as to the subject matter of his report. Thus reports on the second samples relied on by the accused are certainly admissible in evidence under Section 293(1) of the Code in the course of any inquiry, trial or other proceedings in the matter, but the prosecution has the right, under sub-section (2) of Section 293 of the Code to examine the expert who analysed the second samples and issued the report and prove that analysis on the second samples 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. In that situation it could not be said that the report obtained by the Abkari Officer on the first sample is superseded by_ Crl.M.C.No.9254/2019 8 _the report on the second sample. Which of the two reports - whether the one of the first or on the second sample - is acceptable is a matter for decision by the court. The question raised is answered as above. The accused cannot request to quash proceeding against them based on the report on the second sample"._ 14. In the instant case, the final report has not been filed. The decision in **Sudhakaran** (supra) holds that when two contradictory reports are available, the question as to which report is acceptable is a matter of evidence and that the accused cannot make a request for quashing the proceeding against him based on the report in his favour received on the second sample. The decision in **Sudhakaran** (supra) squarely applies to the facts of the case. 15. However, if chargesheet is filed against the petitioners in the case after investigation and if there is nothing in the chargesheet to impeach the creditworthiness of the report of the chemical analysis obtained in respect of the second sample, then the petitioners could definitely seek quashing of the final report Crl.M.C.No.9254/2019 9 on the basis of the decisions in **Joshy George** (supra) and **Rajappan** (supra). 16. The discussion above leads to the conclusion that the prayer for quashing the case registered against the petitioners cannot be allowed at this stage. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.9254/2019 10 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF THE CERTIFICATE OF CHEMICAL ANALYSIS NO. 875/19 DATED 1405-2019 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A2 THE TRUE COPY OF THE CRIME AND OCCURENCE REPORT NO. 64/2019 OF KOLLAM EXCISE RANGE. ANNEXURE A3 THE TRUE COPY OF THE ORDER NO. E.X.C./2344/2019/X.A.7 DATED 24/05/2019 ISSUED BY THE EXCISE COMMISSIONER. ANNEXURE A4 THE TRUE COPY OF THE ORDER NO. E.X.C./2344/2019/X.A.7 DATED 28/06/2019 ISSUED BY THE EXCISE COMMISSIONER. ANNEXURE A5 THE TRUE COPY OF THE ORDER DATED 11-062009 IN C.M.P. NO. 1398/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT1, KOLLAM. ANNEXURE A6 THE TRUE COPY OF THE CERTIFICATE NO. 3336/2019 DATED 12-11-2019 ISSUED BY THE REGIONAL CHEMICAL EXAMINERS LABORATORY, KOZHIKODE.** ## **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE