RAMACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This criminal miscellaneous case was filed by accused Nos. 1 and 2 in C.R. No. 19/2014 of Chalakkudy Excise Range, which is now pending as C.C. No. 3996/2014, before the Judicial First Class Magistrate Court, Chalakkudy, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code').

(2.) It is alleged in the petition that, the petitioners have been arrayed as accused Nos. 1 and 2 in C.R. No. 19/2014 of Chalakkudy Excise Range First petitioner has been arrayed as the salesman of T.S. No. 11 and 2nd petitioner as the licensee of the toddy shop in Group No. 2 of Chalakkudy Excise Range, of which, the present disputed shop is also one included. On 28.12.2013, the Excise Officials of Chalakkudy Excise Range, conducted inspection of the toddy shop No. 11 of that Excise Range, of which the 2nd petitioner is the licensee and took samples and sent one of the sample for analysis and obtained Annexure-A report, in which it was noted that, that the sample contained 8.64% by volume of ethyl alcohol, which is higher than the maximum permissible limit of 8.1% by volume of ethyl alcohol fixed as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, which came into effect from 14.02.2007. On that basis, they registered Annexure-B crime against the petitioners as Crime No. 19/2014 of Chalakkudy Excise Range, alleging commission of the offences under Section 57(a) and 56(b) of Abkari Act. Thereafter, on the basis of the petition filed by the accused, the second sample was sent for analysis through court to another laboratory and Annexure-C report was obtained, in which, it was mentioned that, it contained only 2.95% by volume of ethyl alcohol, which is far below the permissible limit of 8.1% provided as per Rule 9(2) of the said rules. Though the 2nd report was obtained, ignoring the 2nd report, relying on the first report, without conducting any further investigation, the Excise officials filed Annexure-D final report, which was taken on file by the learned magistrate as C.C. No. 3996/2014, against the petitioners under Section 57(a) and 56(b) of Abkari Act. No further investigation was conducted to show that, 2nd report need not be accepted. So, when there are two reports contradictory to each other, then before filing the final report, the investigating officer should have considered the 2nd report, which was favourable to the petitioners and should not have filed the final report. But in this case, they have filed the final report, ignoring the 2nd report obtained through court. So, the action of the excise officials in registering the crime and filing the final report is unsustainable in law and proceeding with the case will only amount to abuse of process of court. So they have no other remedy, except to approach this court, seeking the following reliefs:

(3.) Heard, the learned counsel for the petitioner and the learned Public Prosecutor.