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2013 DIGILAW 496 (KER)

C. B. Anilkumar v. State of Kerala

2013-06-18

C.T.RAVIKUMAR

body2013
Judgment : 1. The petitioner in the former Crl.M.C. is the liencee of Toddy Shop No.16/12-13 and other 5 toddy shops in Group No.III of Pathanamthitta Excise Range and the second petitioner in the latter Crl.M.C. is the licencee of Toddy Shop No.15 Annikampoyil of Thalassery Excise Range for the year 20012-2013. The first petitioner in the latter Crl.M.C. is a salesman of the shop in question. Since these Criminal Miscellaneous Cases carry the same questions for consideration and the petitioners are having similar grievances for redressal they were heard jointly and are being disposed of by this common order. Against the petitioner in the former Crl.M.C. C.R.No.39/2013 was registered at Pathanamthitta Excise Range alleging commission of offence under Sections 56 (b) and 57(a) of the Abkari Act. The case against him is that on 14.03.2013 at about 8.40 p.m. the Excise Inspector of Pathanamthitta and party conducted a search in Toddy Shop No. 16/12-13 commonly known as Payyaram toddy shop and seized 76 litres of toddy kept in 117 bottles of 650 ml. each and 935 litres of adulterated/artificial toddy kept in black coloured water tank and also in 9 cans. Samples were taken from each containers and mahazar was prepared. Thereafter, case was registered against the salesman as first accused and petitioner herein who is the licencee as the second accused. Annexure-A is the crime and occurrence report and Annexure-B is the mahazar prepared in that case. In Crl.M.C.No.1382 of 2013, C.R.No.16/2013 was registered against the petitioners at Thalassery Excise Range for the offence punishable under Section 57(a) of the Abkari Act. The case of the prosecution is that on 18.12.2012 the excise party conducted a search in Toddy Shop No. 15 at Annikampoyil and collected samples of the toddy kept for sale. Annexure-A4 is the crime and occurrence report prepared in the said crime. 2. Admittedly, after conducting search in the aforesaid toddy shops crime and occurrence reports were prepared, the samples taken respectively from the said toddy shops were forwarded for chemical examination in accordance with law. At the same time, before obtaining the reports of the chemical analysis of the samples taken from the respective shops C.R.No.39/2013 of Pathanamthitta Excise Range was registered against the petitioner in Crl.M.C.No.1355 of 2013 and C.R.No.16/2013 of Thalassery Excise Range was registered against the petitioners in Crl.M.C.No.1382 of 2013. 3. At the same time, before obtaining the reports of the chemical analysis of the samples taken from the respective shops C.R.No.39/2013 of Pathanamthitta Excise Range was registered against the petitioner in Crl.M.C.No.1355 of 2013 and C.R.No.16/2013 of Thalassery Excise Range was registered against the petitioners in Crl.M.C.No.1382 of 2013. 3. Various contentions have been raised by the learned Senior Counsel for the petitioner in Crl.M.C.No.1355 of 2013 and the learned counsel appearing for the petitioners in Crl.M.C.No.1382 of 2013. The core contention of the petitioners is that a crime could not be registered unless or until a positive report on chemical analysis of the samples taken and forwarded pursuant to the search, is received . The learned Senior Counsel appearing for the petitioner in Crl.M.C.No.1355 of 2013 submitted that in such circumstances, if at all any offence would lie it would only be under Section 56(b) of the Abkari Act for violating the permit conditions. Admittedly, in these cases, crimes were registered against the petitioners before the receipt of the report of the samples forwarded for chemical analysis taken from the respective toddy shops. 4. The petitioners relied on the decisions of this Court in Rajan and Others V. State of Kerala and Another reported in 2010(3)KLJ 461, Sobhanan and Others V. State of Kerala reported in 2011(2) KLD 66 and Annexures F and G judgments of this Court to substantiate the aforesaid contention. Per contra the learned Public Prosecutor contended that the petitioner cannot be heard to contend that registration of a crime on the allegation that the toddy is artificial or adulterated is possible only if a positive report of the chemical examination of the sample taken and forwarded for analysis is received by the Investigating Officer and at any rate, before the receipt of such a report if at all any offence will lie it will only the offence under Section 56(b) of the Act for violation of permit condition. Relying on the decision of a Division Bench of this Court in Writ Appeal No. 530 of 2010 dated 22.03.2010 it is contended by the learned Public Prosecutor that issuing a direction to keep in abeyance of proceedings in C.R. Nos.39/2013 and 16/2013 till the receipt of the report of chemical analysis would not enable the petitioners to claim preference under Rule 5 (1)(a) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (for short the 'Rules'). According to the learned Public Prosecutor the same would be the situation even in case of granting stay of proceedings in C.R.Nos.39/2013 and 16/2013. The learned Public Prosecutor also contended that by virtue of experience an Abkari Officer who conducted the search would be in a position to smell and taste a particular liquid and to give opinion as to whether it is an artificial or adulterated toddy. At the very outset, it is to be held that the said contention is absolutely untenable in the light of the decision of this Court in Joseph V. State of Kerala (2010 (1) KLT SN.16 (Case No.18)). In the said case, this Court held that proof by a technical person who has considered the matter in a scientific point of view is not only desirable but also necessary and it would be unsafe to convict a person solely on the smelling sense or tasting capacity of an abkari officer. It is the contention of the learned Public Prosecutor that there cannot be an inviolable position that a crime could be registered on the allegation of commission of an abkari offence under Section 57(a) only on the receipt of the report of chemical analysis of the samples taken from the shop in question and forwarded for chemical analysis in accordance with the provisions under the Act. It is contended that laying any such dictum would be harmful to the society inasmuch as, even in case of a hooch tragedy it would not be possible for registration of a crime against the concerned person. According to the learned Public Prosecutor in case such a view is taken even in such circumstances the investigating agency has to wait till the receipt of a report of chemical analysis of the liquid in question for registration of a crime and to commence the investigation against the culprit. 5. According to the learned Public Prosecutor in case such a view is taken even in such circumstances the investigating agency has to wait till the receipt of a report of chemical analysis of the liquid in question for registration of a crime and to commence the investigation against the culprit. 5. In paragraph 2 of the decision in Sobhanan's case (supra) the impact of the decision in Rajan's case (supra) was discussed. It is also taken note of therein that against the decision in Rajan's case (supra) the matter was taken up before the Hon'ble Supreme Court in Special Leave Petition No.10082 of 2010 and that the Hon'ble Supreme Court declined to interfere with the said decision as per order dated 3.1.2011. In the light of the decisions in Rajan's case (supra) and Sobhanan's case (supra) I am of the view that the contention of the petitioners that the proceedings under Section 57(a) shall be kept in abeyance till the report of the chemical examiner is obtained is only to be sustained. In Annexures F and G which are respectively orders passed by this Court in Crl.M.C.Nos.2096 of 2008 and 2236 of 2012 in similar situation, this Court issued directions not to proceed with the respective crimes registered against the petitioners therein notwithstanding their registration against them till the report of the chemical examination of the toddy seized and forwarded for chemical analysis is obtained. 6. Now, I will consider the contentions made by the learned Public Prosecutor relying on the judgment in W.A.No.530 of 2010. As noticed hereinbefore, the contention of the learned Public Prosecutor is that even in case of stay of proceedings in C.R.Nos.39/2013 of Pathanamthitta Excise Range and 16/2013 of Thalassery Excise Range it would earn entitlement or eligibility to the petitioners to claim preference under Rule 5(1)(a) of the Rules as the mere registration of the case is sufficient to disentitle them from claiming such preference. The learned Senior Counsel appearing for the petitioner in Crl.M.C.No. 1355 of 2013 contended that in the light of the decisions in Rajan's case (supra) and Sobhanan's case (supra) `registration of an abkari case' means and can only mean a valid registration of an abkari case in accordance with law. The learned Senior Counsel appearing for the petitioner in Crl.M.C.No. 1355 of 2013 contended that in the light of the decisions in Rajan's case (supra) and Sobhanan's case (supra) `registration of an abkari case' means and can only mean a valid registration of an abkari case in accordance with law. It is submitted that in the light of the decisions in Rajan's case and Sobhanan's case registration of a crime prior to the receipt of report of chemical analysis of the sample taken from the shop in question and forwarded for analysis, cannot be construed as a valid registration of an abkari offence under Section 57(a) of the Abkari Act. If the registration cannot be taken as valid in the light of the said decisions it cannot be contended that the right to claim for preference under Rule 5(1)(a) of the Rules would not be available to a licencee of a toddy shop in view of an invalid registration of an abkari offence. In short, according to the learned Senior Counsel, registration of an abkari offence under Section 57(a) of the Abkari Act should be one made after following the procedures prescribed especially in the light of the aforesaid decisions in Rajan's case and Sobhanan's case. The learned Senior Counsel made the said submission based on the very decision in W.A.No.530 of 2010 that was relied on by the learned Public Prosecutor. The learned Senior Counsel drew my attention to paragraph 4 of the said judgment, more particularly, the following observation:-"Rule 5(1)(a) speaks of registration of an abkari case against the licencee. It implies registration of a valid case and not a false case." (emphasis added) 7. There can be no doubt that in the light of the decisions of this Court in Rajan's case and Sobhanan's case continuation of proceedings based on crimes registered prior to the receipt of the chemical analysis report of the concerned sample is not permissible. One can say a valid case is registered only if it is registered on the strength of a report of chemical analysis of the sample taken from the shop concerned and forwarded for such analysis. One can say a valid case is registered only if it is registered on the strength of a report of chemical analysis of the sample taken from the shop concerned and forwarded for such analysis. In that view of the matter I am of the considered view that the petitioners are justified in contending that registration of an abkari case against them under Section 57(a) of the Abkari Act is not capable of depriving them, the licencees, the right to preference under Rule 5(1)(a) of the Rules. In the said circumstances, the aforesaid argument advanced by the learned Public Prosecutor has to fail. The learned Public Prosecutor has also taken up the contention that holding the view that registration of an abkari case is legally permissible only on receipt of report of the sample taken from the shop in question upon search and forwarded for chemical analysis would be against the interest of the society inasmuch as it would deprive the abkari officers or police officers from registering a case even in case of hooch tragedy. At the first blush it would appear that there is substance in the said contention but, a closer scrutiny of the same would reveal that it is only a claptrap as in such cases necessarily there would be an allegation of commission of an offence under the Indian Penal Code as well. If a cognizable offence is committed necessarily in terms of the provisions under the Code of Criminal Procedure a crime could be registered and investigation could be commenced and if at a later point of time any other offence under the Indian Penal Code or under any other Act is to be added on investigation there cannot be any legal impediment in incorporating such offences in accordance with law. In such circumstances, the case of the petitioners cannot be thrown out on the aforesaid contention, as well. In such circumstances, the case of the petitioners cannot be thrown out on the aforesaid contention, as well. In the result, both the Crl.M.Cs are disposed of making it clear that notwithstanding the registration of C.R.Nos.39/2013 of Pathanamthitta Excise Range and 16/2013 of Thalassery Excise Range no further proceedings shall be taken in the said cases against the respective accused-petitioners and the petitioner in Crl.M.C.No.1355 of 2013 and the second petitioner in Crl.M.C.No.1382 of 2013 shall not be visited with adverse civil consequences based on the registration of the said crimes for the time being and the requirement to take further proceedings including arrest and any step affecting their preferential claim as licencees would depend upon the report on chemical analysis of the samples taken from their respective shops and forwarded for such analysis.