SASIDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are accused Nos. 1 and 2 in C.R. No. 13/2013 of Mavelikkara Excise Range in Alappuzha District registered alleging commission of offence punishable under S. 57(a) of the Abkari Act based on the amendment of R. 9(2) of the Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). The gist of the prosecution case is that as a part of routine checkup the Excise Officials attached to Mavelikkara. Excise Range inspected toddy shop No. 19/2007-08 to which the second respondent is the licensee from 21.11.2007. In terms of the mandatory provisions under R. 8(2) of the Rules two samples were collected and thereafter samples were marked and 'A' sample was sent for chemical analysis. On such chemical analysis it was found to contain starch. Annexure-B is the chemical analysis report dated 23.8.2010. It is on its basis that alleging commission of offence under S. 57(a) of the Abkari Act C.R. No. 13/2013 was registered against the petitioners. On obtaining summons from the court the petitioners appeared before that court and filed Annexure-C application for sending the second sample viz., the 'B' sample for Chemical Analysis. Annexure-D is the order passed by the Court of the Judicial First Class Magistrate-1, Mavelikkara declining the said prayer. This petition has been filed challenging Annexure-D order and also seeking quashment of the entire proceedings pursuant to Annexure-A against the petitioners. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor.

(2.) Manifold contentions have been raised by the petitioners. Firstly, it is contended that the provisions under R. 8(3) of the Rules mandate registration of a case within 24 hours on receipt of report of chemical analysis of 'A' sample and it further mandates that in case no case is registered within the said time limit the second sample, viz., Sample 'B' shall be destroyed. Admittedly, in this case, Annexure-B report would reveal that after analysis of Sample 'A' the said report was prepared on 23.08.2010. However, Annexure-A crime and occurrence report was registered only on 29.01.2013. It is the further contention of the petitioners that it is obvious from Annexure-D order passed by the learned Magistrate itself that the second sample is not available to send for chemical analysis. In such circumstances relying on a decision of this Court in Gireesh Kumar v. State of Kerala, 2010 2 KerLJ 444 it is contended that the entire prosecution against the petitioners are liable to be quashed. It is also contended by the learned counsel appearing for the petitioners that provisions under R. 8(2) and 8(3) are mandatory in nature and violation of the mandatory provisions thereunder would cause serious prejudice to the accused. In terms of R. 8(3) of the Rules it is incumbent on the officials to produce sample 'B' before the court. It is contended that Annexure-A itself would reveal that sample 'B' was not produced before the court. The learned counsel further submitted that there cannot be any dispute with respect to the position of law that as a matter of right an accused in an Abkari case against whom allegation of commission of an offence under S. 57(a) is made can seek for sending of the second sample for chemical analysis. It is in the aforesaid circumstances that the petitioners contend that the entire prosecution proceedings are liable to be quashed when once it is found that second sample is not available for sending for chemical analysis.

(3.) With respect to the period within which a case has to be registered provisions under R. 8(3) leave no room for any doubt. It is evident from R. 8(3) that on receipt of the chemical analysis report which reveals violation of the provisions of the Abkari Act, Rules or conditions of licence or any adulteration case shall be registered within 24 hours. Indisputably, in this case, Annexure-B analysis report is dated 23.8.2010. The case was registered only on 29.1.2013. This factual position is not at all disputed by the learned Public Prosecutor and it is in fact, indisputable as the same is very much obvious from Annexure-A and Annexure-B. In view of the facts thus obtained from Annexures A and B there cannot be any doubt with respect to the fact that the case on hand was registered against the petitioners very much beyond the period stipulated under R. 8(3) of the Rules. Evidently, on receipt of summons from the court the petitioners appeared and filed Annexure-C application for sending sample 'B' for chemical analysis. Annexure-D is the order passed thereon. A bare perusal of Annexure-D would reveal that the said request of the petitioners was declined on the ground that the second sample viz., sample 'B', is not available for sending for chemical analysis. It is stated in paragraph 4 of the said order as hereunder:-