SUDHAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Question raised for a decision in these petitions is whether, based on the report of chemical examination on the second sample produced by the Investigating Officer in court under Rule 8(3) of the Kerala Abkari Shops Disposal Rules (for short, "the Rules") prosecution launched against the accused based on the report of chemical examination on the first sample could be quashed

(2.) Short facts necessary for a decision of the question are: Petitioners are the accused in cases registered by the Abkari Officer for various offences under the Abkari Act (for short, "the Act"). They are licensees of toddy shops in Kodungallur and Aluva Excise Ranges. The Abkari Officer collected samples of toddy from the shops of the accused. The first samples were subjected to chemical examination on the request of the Abkari Officers and the report (Annexure-C) revealed that it contained Ethyl Alcohol exceeding 8.1% v/v which is the permissible limit under Rule 9(2) of the Rules as amended with effect from 01.04.2007 (The validity of the said amendment has been upheld by the Division Bench of this Court in Komalam v. State of Kerala and Ors., 2009 2 KerLT 744. The second samples drawn by the Abkari Officers from the said toddy shops (marked 'B') were produced in the courts concerned along with the crime and occurrence reports as required under Rule 8(3) of the Rules. On the request of the accused, the second samples were sent to another laboratory for examination. That laboratory gave the test results - marked Annexure-D in these petitions, which said percentage of Ethyl Alcohol in the samples was less than the permissible limit. According to the accused Annexure-D, reports show that no offence is committed. Hence the prosecution against them are to be quashed. It is argued, placing reliance on the decisions in Girish Kumar v. State of Kerala, 2010 3 KerLT 95 and Annexure-E, order of this Court dated November 16, 2010 in Crl.M.C. No. 4535 of 2010 that the right to get the second sample examined by another expert is a valuable right of the accused notwithstanding that there is no specific provision in the Act or the Rules to send the second sample for such examination. According to the learned Senior Advocate that right having been exercised by the accused and the result being Annexure-D, report which is favorable to the accused, they could not be prosecuted for the offences mentioned in the crime and occurrence reports. It is further contended that any interpretation in the matter should be in favour of the accused who are facing criminal prosecution. Hence it is requested that the crime and occurrence reports and all proceedings pursuant thereto against the accused be quashed. It is also contended that if the accused are asked to face the trial and ultimately they are acquitted in the light of Annexure-D, report, by that time the valuable rights of accused will be affected. It is pointed out that under Rule 5(1)(a) of the Rules the accused being experienced licensees and in the absence of any other case registered against them other than for offence punishable under Section 56 of the Act, they are entitled to get preference in the subsequent auctions. Now that the Abkari Officers have registered cases against the accused for offences other than one punishable under Section 56(b) of the Act as well, unless the cases against the accused are quashed their right to get the licence in the subsequent years will be affected. Learned Senior Advocate has placed reliance on the decision of the Supreme Court in State of Kerala v. Unni,2007 1 KLT 151.

(3.) Learned Public Prosecutor has argued that even if it is assumed that in the light of Annexure-E, order and the decision in Girish Kumar's case (supra) accused have a right to get the second sample analysed by another Expert, that does not mean that the report of chemical examination on the second sample would supersede the earlier report obtained by the Abkari Officers based on which prosecution was launched. Learned Public Prosecutor pointed out that like the provisions in Section 13(2) of the Prevention of Food Adulteration Act (for short, "the PFA Act") there is no provision in the Act or Rules whereby the report of chemical examination on the second sample supersedes report of chemical examination on the first sample. In that situation the general provision, i.e., Section 293 of the Code of Criminal Procedure (for short, "the Code") should apply. It is open to the investigating agency to prove that analysis of the second sample was not proper or valid or that for any other reason the second report is not acceptable. In such a situation this Court is not justified at this stage in interfering under Section 482 of the Code and quashing the proceedings against the accused, it is contended.