ANIL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in the former Crl.M.C. is the licencee of Toddy Shop No. 16/12-13 and other 5 toddy shops in Group No. III of Pathanamthitta Excise Range and the second petitioner in the latter Crl.M.C. is the licencee of Toddy Shop No. 15 Annikampoyil of Thalassery Excise Range for the year 2012-2013.The first petitioner in the latter Crl.M.C. is a salesman of the shop in question. Since these Criminal Miscellaneous Cases carry the same questions for consideration and the petitioners are having similar grievances for redressal they were heard jointly and are being disposed of by this common order. Against the petitioner in the former Crl.M.C. C.R. No. 39/2013 was registered at Pathanamthitta Excise Range alleging commission of offence under Sections 56(b) and 57(a) of the Abkari Act. the case against him is that on 14.3.2013 at about 8.40 p.m. the Excise Inspector of Pathanamthitta and party conducted a search in Toddy Shop No. 16/12-13 commonly known as Payyaram toddy shop and seized 76 litres of toddy kept in 117 bottles of 650 ml. each and 935 litres of adulterated/artificial toddy kept in black coloured water tank and also in 9 cans. Samples were taken from each containers and mahazar was prepared. Thereafter, case was registered against the salesman as first accused and petitioner herein who is the licencee as the second accused. Annexure-A is the crime and occurrence report and Annexure-B is the mahazar prepared in that case. In Crl.M.C. No. 1382 of 2013, C.R. No. 16/2013 was registered against the petitioners at Thalassery Excise Range for the offence punishable under S. 57(a) of the Abkari Act, The case of the prosecution is that on 18.12.2012 the excise party conducted a search in Toddy Shop No. 15 at Annikampoyil and collected samples of the toddy kept for sale. Annexure-A4 is the crime and occurrence report prepared in the said crime. Admittedly, after conducting search in the aforesaid toddy shops crime and occurrence reports were prepared, the samples taken respectively from the said toddy shops were forwarded for chemical examination in accordance with law. At the same time, before obtaining the reports of the chemical analysis of the samples taken from the respective shops C.R. No. 39/2013 of Pathanamthitta Excise Range was registered against the petitioner in Crl.M.C. No. 1355 of 2013 and C.R. No. 16/2013 of Thalassery Excise Range was registered against the petitioners in Crl.M.C. No. 1382 of 2013.

(2.) Various contentions have been raised by the learned Senior Counsel for the petitioner in Crl.M.C. No. 1355 of 2013 and the learned counsel appearing for the petitioners in Crl.M.C. No. 1382 of 2013. The core contention of the petitioners is that a crime could not be registered unless or until a positive report on chemical analysis of the samples taken and forwarded pursuant to the search, is received. The learned Senior Counsel appearing for the petitioner in Crl.M.C. No. 1355 of 2013 submitted that in such circumstances, if at all any offence would lie it would only be under S. 56(b) of the Abkari Act for violating the permit conditions. Admittedly, in these cases, crimes were registered against the petitioners before the receipt of the report of the samples forwarded for chemical analysis taken from the respective toddy shops.

(3.) The petitioners relied on the decisions of this Court in Rajan & Ors. v. State of Kerala & Anr., 2010 3 KerLJ 461 , Sobhanan & Ors. v. State of Kerala, 2011 2 KerLT 66 and Annexures F and G judgments of this Court to substantiate the aforesaid contention. Per contra the learned Public Prosecutor contended that the petitioner cannot be heard to contend that registration of a crime on the allegation that the toddy is artificial or adulterated is possible only if a positive report of the chemical examination of the sample taken and forwarded for analysis is received by the Investigating Officer and at any rate, before the receipt of such a report if at all any offence will lie it will only the offence under S. 56(b) of the Act for violation of permit condition. Relying on the decision of a Division Bench of this Court in Writ Appeal No. 530 of 2010 dated 22.3.2010 it is contended by the learned Public Prosecutor that issuing a direction to keep in abeyance of proceedings in C.R. Nos. 39/2013 and 16/2013 till the receipt of the report of chemical analysis would not enable the petitioners to claim preference under R.5(1)(a) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (for short the 'Rules'). According to the learned Public Prosecutor the same would be the situation even in case of granting stay of proceedings in C.R. Nos. 39/2013 and 16/2013. The learned Public Prosecutor also contended that by virtue of experience an Abkari Officer who conducted the search would be in a position to smell and taste a particular liquid and to give opinion as to whether it is an artificial or adulterated toddy. At the very outset, it is to be held that the said contention is absolutely untenable in the light of the decision of this Court in Joseph v. State of Kerala, 2010 1 KerLT 16 (C. No. 18)). In the said case, this Court held that proof by a technical person who has considered the matter in a scientific point of view is not only desirable but also necessary and it would be unsafe to convict a person solely on the smelling sense or tasting capacity of an abkari officer. It is the contention of the learned Public Prosecutor that there cannot be an inviolable position that a crime could be registered on the allegation of commission of an abkari offence under S. 57(a) only on the receipt of the report of chemical analysis of the samples taken from the shop in question and forwarded for chemical analysis in accordance with the provisions under the Act. It is contended that laying any such dictum would be harmful to the society inasmuch as, even in case of a hooch tragedy it would not be possible for registration of a crime against the concerned person. According to the learned Public Prosecutor in case such a view is taken even in such circumstances the investigating agency has to wait till the receipt of are port of chemical analysis of the liquid in question for registration of a crime and to commence the investigation against the culprit.