Velayudhan vs State of Kerala

K. Ramakrishnan, J.—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'').

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.

So the petitioners 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 (SC. No. 350/2012 pending on the file of Addl. District & Sessions Judge, Adhoc-III, Manjeri arising from C.R. No. 13/2008 of the Excise Range, Manjeri, Malappuram District), by allowing the above Cr. M.C.)".

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

The learned counsel for the petitioners submitted that, when there are two contradictory reports in respect of the same sample, of which one in favour of the petitioners have to be accepted and without giving any reason for ignoring the 2nd report, filing final report, based on first report and proceeding with the case is illegal and he had relied on the decisions reported in Joshi George v. State of Kerala 2011(4) KHC 818 and Rajappan and another Vs. State of Kerala, and also relied on Annexure-E and F decisions of this court on the same point.

On the other hand, the learned Public Prosecutor appearing for the respondent submitted that, even though there are two reports, the investigating officer is entitled to rely on the first report and which report has to be relied on is a matter for evidence. So according to the learned Public Prosecutor, it is not a case where the power under Section 482 of the Code has to be invoked to quash the proceedings.

It is an admitted fact that, accused Nos. 2 to 5 were the joint licensees of the toddy shop No. 18/2008-09 of Manjeri Excise Range and first accused is the manager of that shop. It is also an admitted fact that, 2nd accused died during the pendency of the proceedings and the charge against him was abated. It is also an admitted fact that, on 16.05.2008, the Manjeri Excise Officials inspected the above said toddy shop and took two samples from the toddy kept for sale in that shop as sample (A) and (B) and sent sample (A) for analysis and obtained Annexure-A report, in which it was mentioned that, the sample contained 11.76% by volume of ethyl alcohol, as against the maximum permissible limit of 8.1% as provided under Rule 9(2) of the Kerela Abakari Shops disposal Rules, 2002, which came into force from 14.02.2007 and it is on that basis, they registered Annexure-B occurrence report as C.R. No. 13/2008, of Manjeri Excise Range, against the petitioners and the deceased 2nd accused, alleging offences under Section 56(b) of the Abkari Act alone. It is also an admitted fact that, on the basis of the petitions filed by the petitioners, Judicial First Class Magistrate-I, Manjeri, has sent the sample (B) for analysis and obtained Annexure-C report, in which it was mentioned that, the sample contained only 7% by volume of ethyl alcohol, which is less than the permissible limit of 8.1% provided under Rule 9(2) of the above said Rules. In spite of this, the Excise Inspector filed Annexure-D final report before the Judicial First Class Magistrate Court-I, Manjeri, which was taken on file as C.P. 1/11 under Section 57(a) of Abkari Act and later it was committed to the Sessions Court and the Sessions Court has taken cognisance of the case as S.C. No. 350/12 and made over to Additional District & Sessions Judge, (Adhoc-III), Manjeri, for disposal.

The question as to whether court can rely on the 2nd report, when there are two contradictory reports in respect of the same sample and whether that benefit can be given to the accused to quash the proceedings has been considered by this court in the decision reported in Joshi George v. State of Kerala 2011 (4) KHC 818 and Rajappan and another Vs. State of Kerala, and also again by this court in the decision reported in Jayakumar and others v. State of Kerala Crl. M.C. 1233/2013 dated 14.03.2013 and Janeesh and others v. State of Kerala, Crl. M.C. No. 2693/2013 dated 09.06.2014 and observed that, when there are two reports contradictory to each other in respect of the same sample, then the report favourable to the accused can be taken even without evidence, unless materials were collected by the investigating officer to prefer the first report and filed the final report and in the absence of such evidence, this court has held that, no offence under Section 57(a) or 56(b) of the Abkari Act has been committed and the accused cannot be proceeded with for those offences and quashed the proceedings in those case and the same principle will apply to the present case as well. There are two contradictory reports in respect of the same sample, of which, one is favourable to the accused. Though final report is filed, nothing has been mentioned in the final report, as to why the investigating officer is preferring the first report than the 2nd report, which is in favour of the accused to file the final report against the accused. So in the absence of such evidence, this court feels that, the benefit of the 2nd report which is favourable to them has to be accepted and if that is accepted, then the offence alleged against the petitioner cannot be said to have been committed by the accused and proceeding with the case as against them on the basis of the first report will amount to abuse of process of court and the benefit of the 2nd report has to be given to the accused and the further proceedings as against them has to be quashed, invoking the power under Section 482 of the Code.

So the petition is allowed and further proceeding in S.C. No. 350/2012 (C.R. No. 13/2008 of Manjeri Excise Range), pending before the Additional District & Sessions Judge-III, Manjeri, as against the petitioner is quashed.

Office is directed to communicate this order to the concerned court, immediately.