RAJAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners in this petition under Section 482 of the Code of Criminal Procedure are accused 1 and 2 in C. P. 6 of 2012 on the file of the Judicial Magistrate of the First Class, Devikulam. The Excise Inspector, Excise Range Office, Devikulam, filed Annexure F Final Report before the Judicial Magistrate of the First Class, Devikulam, alleging offences under Sections 56(b) and 57(a) of the Abkari Act with an allegation that on 14-7-2010, the Excise Inspector took two sets of samples (samples A & B) of coconut toddy under Rule 8 of the Kerala Abkari shops Disposal Rules, 2002 (hereinafter referred to as "Rules 2002") from the toddy shop run by the petitioners and sample 'A' was forwarded to the Chemical Examiner. By Annexure A, the Chemical Examiner to Government of Kerala, reported that the sample A contained 8.35% by volume of ethyl alcohol. Rule 9 (2) of the Rules prescribes that the maximum percentage of ethyl alcohol at 8.1%. Since the percentage of alcohol exceeded the limit prescribed as per Rule 9(2) of the Rules, a case was registered for which Annexure E crime and occurrence report was filed. As mandated by Rule 8(3), the crime and occurrence report was submitted before the trial court along with sample B. The petitioners thereafter applied, though not under any of the rules but on the decision of the Apex Court, for sending sample B for chemical examination. After chemical examination, Annexure B report was obtained. In Annexure B it is certified by the Assistant Chemical Examiner that the sample contained only 7.39 % by volume of ethyl alcohol. Admittedly it is within the prescribed limit. However, the Excise Inspector proceeded with the investigation and filed the final report accusing the above offence. According to the petitioners, in the light of Annexure B report of the Assistant Chemical Examiner on sample B, the prosecution would not lie as the percentage of ethyl alcohol in the sample toddy is within the prescribed limit. Therefore, they would seek an order to quash Annexure F final report. Learned Government Pleader would oppose this petition mainly by stating that Annexure B report cannot be looked into at this stage and that is a matter to be brought in evidence and that by examining the Chemical Examiner the prosecution could establish that there is every likelihood of chemical change during the course of time so that the percentage of alcohol would come down and therefore, according to the learned Government Pleader, final report is not liable to be quashed, but the petitioners are liable to be prosecuted and they have to undergo the ordeal of the trial and that this Court shall not interfere under Section 482 of the Code of Criminal Procedure.

(2.) Per contra, the learned senior counsel appearing for the petitioners would submit that had the consequence of the prosecution be only of penal nature, they would have readily waited for the disposal of the case on merits. But according to the learned counsel, unless the prosecution is not interfered under Section 482 Cr. P. C. , they would be disqualified to apply for renewal of their licence and it would deprive their livelihood by denying them to do the business that now they are doing and therefore, this is a case where right to life is even in dispute.

(3.) In the decision reported in Sudhakaran v. State of Kerala(1) this Court declined to interfere with the investigation in an identical issue during the crime stage. The learned senior counsel for the petitioners relied upon the decision in Joshy George v. State of Kerala(2) and would submit that in that case, on the identical set of facts, this Court interfered under Section 482 of the Code of Criminal Procedure and all further proceedings were quashed. It is submitted that as against the decision in Sudhakaran's case, a Special Leave Petition is pending before the Apex Court and the operation of the judgment is stayed. As against the decision in Joshy George's case, so far no Special Leave Petition is preferred; but it is submitted that the file is sent for preferring a Special Leave Petition. The learned Government Pleader, canvassing my attention to sub-clause (2) of Section 293 Cr. P. C. would submit that the court may, if it thinks fit, summon and examine the expert who issued Annexures A and B reports and therefore, according to him, Annexure A report could be substantiated and B report could be impeached. The argument of the learned senior counsel for the petitioner is that in Annexure F final report, there is no mention about Annxure B report and none of the witnesses scheduled therein are cited to prove or disprove Annexure A or B report. According to the learned counsel, therefore, there is no merit in the submission of the learned Government Pleader.