PURUSHOTHAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused Nos. 1 to 3 in CR. No. 55/2013 of Excise Range, Chengannur in Alappuzha division. The first petitioner is allegedly the salesman of T.S. No. 4 and the petitioners 2 and 3 are the joint licensees of all the toddy shops in Group No. I and V respectively in Chengannur Excise Range.

(2.) The prosecution case is that the sample taken from T.S. No. 4 on 16/05/2008 allegedly found to contain excess strength of ethyl alcohol as per Annexure-A chemical analysis report dated 30/08/2010. Since it is allegedly in violation of Rule 9(2) of the Abkari Shops Disposal Rules 2002 introduced w.e.f. 14/02/2007, which prescribes the maximum strength of ethyl alcohol as 8.1% v/v, CR. No. 55/2013 is registered against the petitioners for offence under Section 57(a) and 56(b) of the Abkari Act on 30/06/2013. The 2nd sample sent through the Judicial First Class Magistrate Court-I, Chengannur, on analysis, Annexure-C certificate, found that sample contains only 2.66% v/v. Annexure-B is the crime and occurrence report. The Excise Commissioner suspended and cancelled the licenses. The 2nd and 3rd petitioners filed WP(C). No. 29684/2013 challenging the suspension and cancellation orders of the Excise Commissioner (Exts. P4 and P6 therein). The High Court was pleased to grant an interim order, Annexure 'D'. Now the final report is filed vide Annexure 'E'. There is absolutely no mention in Annexure 'E' final report regarding Annexure-C report of the 2nd sample. There is no material to discredit/disprove Annexure-C report. Annexure-E final report is only to be quashed in the light of the principle laid down by this Court in Joshi George v. State of Kerala 2011 (4) KHC 818 : 2012 (1) KLT SN 34 and Rajappan and Another v. State of Kerala 2012 (2) KHC 657 : 2012 (1) KLD 835 : 2012 (2) KLT 898 : ILR 2012 (3) Ker. 196 : 2012 (3) KLJ 19. If the final charge is not quashed, the 2nd and 3rd petitioners will loose their right of preference for allotment of the shops for the year 2013-14. Therefore, the petitioners pray for quashing Annexure-E final report arising from CR. No. 55/2013 of Chengannur Excise Range.

(3.) It was argued by the learned counsel for the petitioners that two samples were taken by the investigating officer and the first sample was sent for analysis and the report stated that it contains about 8.47% by volume. The minimum prescribed volume of ethyl alcohol contains in the contraband article is 8.1 %, which is fixed as per rule 9(2) of the Abkari Shop Disposal Rules, 2002 w.e.f. 14/02/2007. Annexure-A is the photocopy of the Chemical Analysis Certificate dated 30/08/2010. Annexure-B is the photocopy of the crime and occurrence report in CR. No. 55/2013 of Chengannur Excise Range registered for offence under Sections 57(a) and 56(b) of the Kerala Abkari Act. He has also pointed out that the JFCM Court, Chengannur has sent the 2nd sample produced before the court to another laboratory. As per the said report, the sample contains ethyl alcohol 2.66% by volume, which is below 8.1 %. The photocopy of the said report of the 2nd sample sent through the Magistrate Court is produced herewith as Annexure-C. Even before getting the report of the 2nd sample, the Excise Commissioner passed an order suspending the licenses of all the toddy shops in Group Nos. I and V in Chengannur Excise Range and directed to show cause within a period of 7 days why the licenses shall not be cancelled under Section 26(b) of the Abkari Act read with Rules. Thereafter, the Excise Commissioner cancelled the licenses by order dated 25/07/2013. The 2nd and 3rd petitioners challenged the order of suspension and cancellation before this Court by filing WP(C). No. 29684/2013. This Court has granted an interim order staying the operation and implementation of the order passed by the Excise Commissioner and permitted the 2nd and 3rd petitioners to continue the conduct of the licenses of the toddy shops in question for a period of two weeks. Copy of the interim order is produced as Annexure-D.