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2014 DIGILAW 423 (KER)

Janeesh v. State of Kerala

2014-06-09

K.RAMAKRISHNAN

body2014
ORDER : 1. This is an application filed by the accused Nos.1 to 6 in C.C. No.277 of 2013 on the file of the Judicial First Class Magistrate Court, Vaikom to quash the proceedings under S.482 of the Criminal Procedure Code. 2. It is alleged in the petition that petitioners were arrayed as accused Nos.1 to 6 in Crime No.26/2013 of Vaikom Excise Range of Kottayam District. Petitioners 2, 4 to 6 are joint licensees of all the toddy shops in Group No.V of Vaikom Excise Range. On 29.10.2007 the excise Inspector of Vaikom Excise Range conducted inspection of toddy shops PS.No.39/2007-2008 and collected sample from the toddy shop kept for sale and one of the sample labeled as A sample was sent for analysis and Annexure-A chemical analysis report was obtained in which it was mentioned that the sample contained 8.31% by volume of ethyl alcohol which is in excess of the allowed quantity of 8.1% by volume of ethyl alcohol as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002. On the basis of the request made by the petitioners the second sample was also sent for analysis and Annexure-C report was obtained which shows that it is having only 7.26% by volume of ethyl alcohol which is less than the permissible limit under the above rules. On the basis of the earlier report Annexure-B crime was registered against the petitioners alleging offences under Ss.57(a) & 56(b) of Abkari Act. On the basis of the registration of crime Excise Commissioner suspended the licenses and petitioners 2, 4 to 6 filed W.P.(C)No.l2384 of 2013 challenging the suspension order of the Excise Commissioner and interim stay was granted as per Annexure-D order and on the basis of the said interim order they are now conducting the business on the basis of the same license. Though second report was obtained which shows that there is no violation of the rule and ethyl alcohol contained is less than the permissible limit, without considering the same, the excess officials filed Annexure-E final report and it was taken on file as C.C.No.277 of 2013 and pending before the Judicial First Class Magistrate Court, Vaikom. Though second report was obtained which shows that there is no violation of the rule and ethyl alcohol contained is less than the permissible limit, without considering the same, the excess officials filed Annexure-E final report and it was taken on file as C.C.No.277 of 2013 and pending before the Judicial First Class Magistrate Court, Vaikom. There is no material collected to show that the second report obtained is not admissible in evidence and there is no reason also stated as to why the second report has been ignored also by the Investigating Officer while filing the final report. So under the circumstances in view of the decisions of this Court, no purpose will be served by continuing with the prosecution and the proceedings will have to be quashed. So, the petitioners have no other remedy except to approach this Court seeking the following relief:-to pass an order quashing Annexure-E final report (C.C. No.277/2013 on the file of the Judicial First Class Magistrate Court, Vaikom arising from CR.No.26/2013 of the Excise Range, Vaikom, Kottayam District) by allowing the above Crl.M.C. 3. The respondents filed statement stating that in fact the petition filed by some of the licensees on the basis of the stay order of further proceedings of crimes registered of similar allegations this Court held that it is not sufficient to provide preference. Though that was challenged in Writ Appeal that was also dismissed and confirmed by the Supreme Court. It is also alleged that when in similar case during the crime stage, when two reports were filed and when the accused wanted to quash the proceedings, this Court held that at that stage that cannot be considered and the investigating agency can collect further materials to ignore the second report and rely on the first report. So according to the respondent in the counter, merely because a second report containing a different result obtained is not sufficient to quash the proceedings. So they prayed for dismissal of the application. 4. Heard both sides. 5. The counsel for the petitioners submitted that when two reports were obtained one is contradict to the other, the one favourable in favour of the accused has to be preferred unless materials have been collected and produced by the prosecution to ignore the second report which is favourable to the accused. 4. Heard both sides. 5. The counsel for the petitioners submitted that when two reports were obtained one is contradict to the other, the one favourable in favour of the accused has to be preferred unless materials have been collected and produced by the prosecution to ignore the second report which is favourable to the accused. Further in several decisions of this Court, the question has been considered and held that if there are conflicting results obtained, then one in favour of the accused has to be accepted and that benefit must be given to the accused and quash the proceedings. The same principle can be applied according to the learned counsel for the petitioners in this case also. 6. On the other hand the learned Government Pleader submitted that it is a matter to be considered in evidence and at this stage, the power under S.482 need not be invoked to quash the proceedings. 7. It is an admitted fact that the petitioners 2, 4 to 6 are joint licensees of the shop No.PS.No.39/2007-2008 of Vaikom Excise Range and it is also an admitted fact that on 29.10.2007 the Excise Inspector of Vaikom Excise Range conducted inspection of the shop and collected two samples from the shop and one sample was sent and Annexure- A report was obtained in which it is noted that the alcohol content is 8.31% by volume of ethyl alcohol which is in excess of 8.1% permissible under Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 introduced with effect from 14.02.2007. It is also an admitted fact that on this basis crime No.26/2013 was registered against the petitioners as evidenced by Annexure-B alleging offences under Ss.57(a) and 56(b) of Abkari Act. It is also an admitted fact that the petitioners have moved the Judicial First Class Magistrate Court, Vaikom to send the second sample for analysis and as directed by the Court, the second sample was produced before the Court and the second sample was sent through Court and Annexure-C report was obtained which shows that the second sample contained only 7.26% by volume of ethyl alcohol which is less than the permissible limit under the above said rules. In spite of getting the second sample, the investigating officer after completing the investigation filed Annexure-E final report which was taken on file as C.C. No.277 of 2013 by the Judicial First Class Magistrate Court, Vaikom and this is being challenged by the petitioners. 8. It is an admitted fact that there are two reports in respect of the same sample, that has been collected from the toddy i.e., being intended for sale from the shop of the petitioners and it is also an admitted fact that one sample on examination showed 8.31% by volume of ethyl alcohol while the second report shows i.e., it contains only 7.26% by volume of ethyl alcohol which is less than the permissible limit. It is also seen from the final report filed that there is nothing to indicate that any further materials were collected by the Investigating Officer to prefer the first report and ignore the second report as well. So it is settled law that when there are two reports in respect of the same sample and one of which is favourable to the accused unless sufficient materials were collected and produced by the investigating agency to ignore the second report, then the report in favour of the accused has to be accepted. 9. Further the decision relied on the learned Public Prosecutor State of Kerala v. Komalan reported in 2010 (2) KLT 190 is not applicable to the facts of this case. That was a case where this Court was considering the question as to whether mere stay of further proceedings in a crime registered will take away the registration of the crime as such to give preference to the licensee to apply for getting preference/allotment of shops. There was no occasion for this Court to consider the conflicting reports obtained in respect of the same sample in that case. So that is not applicable to the facts of this case. But in a similar case, in the decision reported in Joshi George v. State of Kerala ( 2011 (4) KHC 818 ) this Court held that the second sample was sent during the course of proceedings, under S.293 of the Criminal Procedure Code, much reliance can be placed on the second report than the first report. But in a similar case, in the decision reported in Joshi George v. State of Kerala ( 2011 (4) KHC 818 ) this Court held that the second sample was sent during the course of proceedings, under S.293 of the Criminal Procedure Code, much reliance can be placed on the second report than the first report. When there are conflicting reports in one case, the one which is favourable to the accused is to be relied on and that benefit must be given to the accused and on that basis this Court has quashed the proceedings as against the accused in similar circumstances. The same view has been reiterated in the decision in Rajappan v. State of Kerala reported in 2012 (2) KHC 667 . 10. Further in the decision in Sudhakaran v. State of Kerala reported in 2011 (1) KLT 799 relied on by the learned Public Prosecutor it was only held that when two reports were obtained during investigation stage it is not proper at that stage to quash the proceedings as the investigating officer can collect materials to ignore the second report and rely on the first report and if no such materials is collected then party can approach this Court after the final report is filed. In this case, in spite of the fact that two conflicting reports were obtained without collecting any material the investigating officer has filed the final report. Further the same view has been reiterated by this Court in another decision reported in Crime M.C. No.1233 of 2013 Jayakumar v. State of Kerala dated 14.3.2013 which is produced as Annexure F by the petitioners. Further the same view has been reiterated by this Court in another decision reported in Crime M.C. No.1233 of 2013 Jayakumar v. State of Kerala dated 14.3.2013 which is produced as Annexure F by the petitioners. So in view of the dictum laid on in the above decisions and also considering the fact that the second report is also admissible under S.293 of the Criminal Procedure Code without examining the chemical examiner and in the absence of any materials produced before the Court below or before this Court to show that second report is not preferable and first report will have to be considered, this Court feels that the prosecution launched by the investigation agency against the petitioners is unsustainable in law and no offence alleged has been committed by the accused in view of the second report which shows that the sample contained only less than the maximum permissible limit provided under R.9(2) Kerala Abkari Shops Disposal Rules, 2002 and proceed with the case any longer will amount to abuse the process of Court and no purpose will be served as well and so the petitioners are entitled to get the relief of quashing the proceedings. So the petition is allowed and further proceedings in C.C.No.227 of 2013 (Crime No.26 of 2013 of Vaikom Excise Range, Kottayam District) pending before the Judicial First Class Magistrate Court, Vaikom as against the petitioners is quashed. The Office is directed to communicate this order to the concerned Court immediately for necessary further action in this regard.