Bhageerathan K.K vs State Of Kerala

N. Nagaresh, J

These criminal revision petitions have been filed invoking Sections 397 and 407 of the Code of Criminal Procedure challenging the orders dated 16.08.2023 passed by the Judicial First Class Magistrate's Court-I, Palakkad in CMP Nos.3372, 3373 and 3374 of 2023.

The petitioners are accused of committing offences under Sections 57(a) and 56(b) of the Abkari Act. By the impugned orders, the Judicial First Class Magistrate's Court-I, Palakkad has rejected the request of the petitioners to send the second sample of toddy which is marked as 'B' taken from the Toddy Shops concerned.

The petitioners state that the impugned orders dismissing the applications of the petitioners for sending the second sample for analysis go against the law laid down by this Court in Girish Kumar v. State of Kerala [2010 (2) KLJ 444] and Sasidharan and another v. State of Kerala [2013 (3) KHC 402].

As the orders impugned have been passed ignoring the law laid down by this Court, the petitioners are entitled for an order directing the Magistrate's Court to forward the second sample for analysis.

Public Prosecutor entered appearance and resisted the Criminal Revision Petitions. The Public Prosecutor pointed out that in Krishnan M.C. v. State of Kerala [2021 (1) KLD 439], a Division Bench of this Court has considered the entire aspects of the case and has held that accused in abkari offences do not have any right to seek sending the second sample for chemical examination. As the Division Bench of this Court has taken a decision to that effect, the orders passed by the Judicial First Class Magistrate's Court-I, Palakkad are legally justified. The petitioners have no right to seek for sending second sample for analysis, contended the Public Prosecutor.

I have heard the learned counsel for the petitioners and the learned Public Prosecutor representing the respondents.

It is not in dispute that prior to the judgment of the Division Bench in Krishnan M.C. (supra), Single Judges of this Court had taken a view that the accused have a right to get the second sample sent for analysis. The counsel on either side would submit that the Division Bench judgment in Krishnan M.C. (supra) was challenged before the Hon'ble Apex Court by the petitioners therein and the Apex Court has stayed the operation of the said judgment and all further proceedings in the cases. This is evident from Annexure-C and Annexure-D.

In view of Annexure-C and Annexure-D orders of the Apex Court, now the right of the petitioners to get the second sample forwarded will have to be decided on the basis of the judgments in Girish Kumar (supra) and Sasidharan (supra). Any refusal to forward the second sample for analysis at this stage may cause prejudice to the accused in defending the cases. Therefore, it would be only just and proper that the court below is directed to forward the second sample for analysis.

In view of the facts as stated above, the orders impugned in the afore Criminal Revision Petitions are set aside. There will be a direction to the Judicial First Class Magistrate's Court-I, Palakkad to forward the second sample in the above cases for analysis.

Criminal Revision Petitions are allowed as above.