VELAYUDHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This criminal miscellaneous case was filed by accused Nos. 1, 3 to 5 in S.C. No. 350/2012 pending before the Additional District & Sessions Judge, Adhoc-III, Manjeri, 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, petitioners 2 to 4 along with the deceased 2nd accused were the joint licensees of toddy shop No. 18/2008-2009 in Manjeri Excise Range and the first accused is the manager of that shop. On 16.05.2008, Manjeri Excise officials conducted inspection of the toddy shop No. 18 of that Excise Range and took two samples from the toddy kept there for sale and sent one of the samples for chemical analysis and obtained Annexure-A report, which will go to show that, it contained 11.75% by volume of ethyl alcohol, which is far excessive of maximum permissible limit of 8.1% by volume of ethyl alcohol, as provided under Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, which came into effect from 14.02.2007. On that basis, they have registered Annexure-B occurrence report as C.R. No. 13/2008 of Manjeri Excise Range. Petitioners filed an application before the Judicial First Class Magistrate Court-I, Manjeri, to sent the 2nd sample for analysis and it was sent from court and obtained Annexure-C report, which will go to show that, the 2nd sample contained only 7% by volume of ethyl alcohol as against the permissible limit of 8.1% as provided under Rule 9(2) of the above said Rules. In spite of that fact, they have filed final report before the Judicial First Class Magistrate Court-I, Manjeri, who had taken the case on file as C.P. No. 1/2011 under Section 57(a) of the Abkari Act and committed the case to the Sessions Court and the Sessions Court has taken cognisance of the case as S.C. No. 350/2012 and made over to the Additional District & Sessions Judge (Adhoc-III), Manjeri, for disposal, where it is now pending. In the meantime, 2nd accused died and charge against the 2nd accused abated. According to the petitioners, since there are two contradictory reports, of which one is in favour of the accused, without considering the same, filing of final report by the Excise Officials is against law and if the 2nd report is accepted, there is no offence committed by the accused and proceeding with the case as against them is only abuse of process of court.

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