Ramachandran vs State of Kerala

K. Ramakrishnan, J.—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'').

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:

"It is humbly prayed that this Hon''ble Court may be pleased to pass an order quashing Annexure-D final report (CR No. 19/2014 of the Excise Range, Chalakkudy, Thrissur District), by allowing the above Crl. M.C".

Heard, the learned counsel for the petitioner and the learned Public Prosecutor.

The learned counsel for the petitioner submitted that, as per the 2nd report, the ethyl alcohol content is only 2.9%, which is far below the permissible limit of 8.1%. Further, in view of the decisions of this court, produced as Annexure-E and F, the further proceedings is unsustainable in law and the same is liable to be quashed.

On the other hand, the learned Public Prosecutor submitted that, it is a matter for evidence and it cannot be quashed at this stage, invoking the power under Section 482 of the Code.

It is an admitted fact that, on 28.12.2013, Chalakkudy Excise officials conducted inspection in the toddy shop No. 11/2013-2014, of which, 2nd petitioner is the licensee and first petitioner is the salesman and took two samples from the toddy kept for sale and they sent one sample for analysis and obtained Annexure-A chemical analysis report, which will go to show that, the sample contained 8.64% by volume of ethyl alcohol in contravention to the maximum permissible limit of 8.1% as provided under Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002.

It is also an admitted fact that, it is on that basis, they have registered Annexure-B occurrence report as Crime No. 19/2014 of Chalakkudy Excise Range against the petitioners, alleging offences under Section 57(a) and 56(b) of the Abkari Act. It is also an admitted fact that, on the basis of the application filed by the petitioners, the 2nd sample was sent for analysis through court and Annexure-C report was obtained, in which it is seen that, the sample contained only 2.95% by volume of ethyl alcohol, which is far below the permissible limit of 8.1% provided under Rule 9(2) of the above said Rules. In spite of that, they have filed Annexure-D final report before the court below and it was taken on file as C.C. No. 3996/2014 under Section 57(a) and 56(b) of Abkari Act.

The question as to whether when there was two chemical analysis reports in respect of the same sample, one of which is favourable to the accused, whether the proceedings initiated on the basis of the first sample can be proceeded with or not has been considered by this court in Crl. M.C. No. 1233/2013 (Jayakumar and others v. State of Kerala) and also in Crl. M.C. No. 2693/2013 (Janeesh and others v. State of Kerala) and held, after relying on the decisions reported in Rajappan and another Vs. State of Kerala, and Joshi George v. State of Kerala (2011 (4) KHC 818) that, when there are two reports obtained in respect of the same sample and in the absence of any evidence collected by the investigating officer to ignore the 2nd report and relied on the first report and filed the final report, then the benefit of the 2nd report which is favourable to the accused has to be given to the accused and further proceedings taken by the excise officials, on the basis of the first report has to be quashed and accordingly quashed further proceedings in those cases. The same principle will apply to the present case as well. In this case also, there are two contradictory chemical analysis reports in respect of the sample taken from the toddy shop, of which, the 2nd petitioner is the licensee and the 2nd report shows that, the percentage of ethyl alcohol seen is far less than the permissible limit. In the final report filed, nothing has been mentioned, as to why the investigating officer is ignoring the 2nd report and relying on the first report, for the purpose of laying the final report against the petitioners.

So under the circumstances, this court feels that, it is a fit case where the power under Section 482 of the Code has to be invoked to quash the proceedings, as against the petitioners, in view of the dictum laid down in the above decisions cited (supra) and proceeding with the case will only amount to abuse of process of court and so the petition has to be allowed. Once it is proved that, the toddy contained ethyl alcohol only of the permissible limit, then no offence under Section 57(a) and 56(b) of Abkari Act will be attracted and it cannot be said that, the accused have committed those offence and the proceedings against them has to be quashed. So the petition is allowed and further proceedings in C.C. No. 3996/2014 (Crime No. 19/2014 of Chalakkudy Excise Range), pending before the Judicial First Class Magistrate Court, Chalakkudy, as against the petitioner is quashed.

In the result, the petition is allowed. Office is directed to communicate this order to the concerned court, immediately.