JANEESH Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the accused Nos. 1 to 6 in C.C. No. 277 of 2013 on the file of the Judicial First Class Magistrate Court, Vaikom to quash the proceedings under S. 482 of the Criminal Procedure Code. It is alleged in the petition that petitioners were arrayed as accused Nos. 1 to 6 in Crime No. 26/2013 of Vaikom Excise Range of Kottayam District. Petitioners 2, 4 to 6 are joint licensees of all the toddy shops in Group No. V of Vaikom Excise Range. On 29.10.2007 the excise Inspector of Vaikom Excise Range conducted inspection of toddy shops PS. No. 39/2007-2008 and collected sample from the toddy shop kept for sale and one of the sample labeled as A sample was sent for analysis and Annexure-A chemical analysis report was obtained in which it was mentioned that the sample contained 8.31% by volume of ethyl alcohol which is in excess of the allowed quantity of 8.1% by volume of ethyl alcohol as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002. On the basis of the request made by the petitioners the second sample was also sent for analysis and Annexure-C report was obtained which shows that it is having only 7.26% by volume of ethyl alcohol which is less than the permissible limit under the above rules. On the basis of the earlier report Annexure-B crime was registered against the petitioners alleging offences under Ss. 57(a) & 56(b) of Abkari Act. On the basis of the registration of crime Excise Commissioner suspended the licenses and petitioners 2, 4 to 6 filed W.P. (C) No. 12384 of 2013 challenging the suspension order of the Excise Commissioner and interim stay was granted as per Annexure-D order and on the basis of the said interim order they are now conducting the business on the basis of the same license. Though second report was obtained which shows that there is no violation of the rule and ethyl alcohol contained is less than the permissible limit, without considering the same, the excess officials filed Annexure-E final report and it was taken on file as C.C. No. 277 of 2013 and pending before the Judicial First Class Magistrate Court, Vaikom. There is no material collected to show that the second report obtained is not admissible in evidence and there is no reason also stated as to why the second report has been ignored also by the Investigating Officer while filing the final report. So under the circumstances in view of the decisions of this Court, no purpose will be served by continuing with the prosecution and the proceedings will have to be quashed. So, the petitioners have no other remedy except to approach this Court seeking the following relief:-

(2.) The respondents filed statement stating that in fact the petition filed by some of the licensees on the basis of the stay order of further proceedings of crimes registered of similar allegations this Court held that it is not sufficient to provide preference. Though that was challenged in Writ Appeal that was also dismissed and confirmed by the Supreme Court. It is also alleged that when in similar case during the crime stage, when two reports were filed and when the accused wanted to quash the proceedings, this Court held that at that stage that cannot be considered and the investigating agency can collect further materials to ignore the second report and rely on the first report. So according to the respondent in the counter, merely because a second report containing a different result obtained is not sufficient to quash the proceedings. So they prayed for dismissal of the application.

(3.) Heard both sides.