Vijayan and Shelbin John Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942** ## **Crl.MC.No.1010 OF 2018** **CRIME NO.15/2014 OF Moovattupuzha Excise Range** ## **PETITIONERS/ACCUSED NOS.1 & 2:** **1 VIJAYAN AGED 56 YEARS, S/O.KRISHNANKUTTY,MANALIL HOUSE, RANDAR DESOM,MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK. 2 SHELBIN JOHN MATHEW AGED 37 YEARS, S/O.K.J.MATHEW,KODIYATTIL HOUSE, KEEZHILLAM P.O.,RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON 10.06.2020 PASSED THE FOLLOWING:** Crl.M.C.No.1010/2018 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1010 of 2018 ------------------------------------------Dated this the 10[th] day of June, 2020 ## **O R D E R** The petitioners are the first and the second accused in the case registered as C.R.No.15/2014 of the Muvattupuzha Excise Range for the offences punishable under Sections 56(b) and 57(a) of the Abkari Act, 1077. 2. On 15.01.2014, samples of toddy were collected by the Assistant Excise Inspector of Muvattupuzha Excise Range from toddy shop No.61/2013-14. The first sample (sample A) was sent for chemical analysis. Annexure-A report of chemical analysis showed that the first sample contained 8.60% by volume of ethyl alcohol. 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 Crl.M.C.No.1010/2018 3 toddy shop, on the ground that the ethyl alcohol content of the toddy, which was kept for sale, was in excess of the prescribed limit. 3. On the basis of the application filed by the petitioners, the second sample (sample B) was sent for chemical examination from the Magistrate's Court concerned. Annexure-C report of chemical examination in respect of the second sample shows that the sample contained 7.72% by volume of ethyl alcohol. 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-C chemical analysis report, which is inconsistent with Annexure-A report, the case registered against the petitioners cannot survive and it is liable to be quashed. Crl.M.C.No.1010/2018 4 7. Learned Public Prosecutor contended that Annexure-C report 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. 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 George 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 Crl.M.C.No.1010/2018 5 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 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. Crl.M.C.No.1010/2018 6 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 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. Crl.M.C.No.1010/2018 7 13. At this juncture, the decision of this Court in **Sudhakaran v. State of Kerala : 2011 (1) KLT 799** may be noticed **.** In that case, 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 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 Cod_ e _, 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_ Crl.M.C.No.1010/2018 8 _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 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"._ (emphasis supplied) 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 proceedings against him Crl.M.C.No.1010/2018 9 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 chemical analysis obtained in respect of the second sample, then the petitioners could definitely seek quashing of the final report 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. 17. Consequently, the petition is dismissed. If final report is filed against the petitioners, they are at liberty to challenge the same in appropriate proceedings. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** Crl.M.C.No.1010/2018 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE A. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 14.03.2014 ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA, ERNAKULAM.** - **ANNEXURE B. PHOTOCOPY OF THE CRIME AND OCCURANCE REPORT IN CR.NO.15/2014 REGISTERED BY THE EXCISE INSPECTOR, MUVATTUPUZHA RANGE.** - **ANNEXURE C. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 23.05.2014 ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA, KOZHIKODE.** - **ANNEXURE D. PHOTOCOPY OF THE ORDER DATED 03.02.2017 IN CRL.MC NO.261/2017 PASSED BY THIS HON'BLE COURT.** - **ANNEXURE E. PHOTOCOPY OF THE ORDER DATED 06.04.2017 IN CRL.MC.NO.7568/2016 PASSED BY THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** True Copy PS to Judge