JUDGMENT : 1. The petitioner, the 1staccused in C.C. No. 589 of 2013 on the files of Judicial First Class Magistrate, Vaikom has approached this Court through this petition seeking to quash Annexure A5 final report laid by the Excise Range, Vaikom after concluding the investigation in Crime No.19/2013. 2. The averments of the petitioner in brief are as follows: The Preventive Officer of the Excise Circle Office, Vaikom and party conducted inspection in Toddy shop No.45/10-11 of Kaduthuruthy Excise Range of which the petitioner was the licensee at 5 p.m. on 17.10.2010 as per the direction of the Circle Inspector of Excise, Vaikom and took toddy therefrom, divide the same so taken into two parts and put each part into separate bottles marked as Annexures A and B. one among the samples bearing marking ‘A’ was sent for chemical examination to the Chemical Examiner’s Laboratory, Thiruvananthapuram and the certificate of analysis as Annexure A1 was obtained therefrom. In the report, the Chemical Examiner has reported the quantity of Ethyl Alcohol in the sample of toddy as 8.39%. since the quantity of Ethyl Alcohol preset in the toddy exceeds the permissible quantity of Ethyl Alcohol, a crime and occurrence report was registered by the Excise Range Officer, Kaduthuruthy on 21.03.2013 arraying the petitioner as the 1staccused and his salesman as the 2ndaccused. Following the registration of the crime, a notice was issued to the petitioner from the office of the Commissioner of Excise directing him to show cause why the Toddy shop licence issued to him shall not be cancelled as he was involved in an Abkari case registered under Sections 57(a) and 56(b) of the Kerala Abkari Act, 1 of 1077 (for short ‘the Act). On receipt of the notice calling upon the petitioner to show cause, he approached this court and obtained a temporary stay of the proceedings by order dated 21.05.2013. On the basis of the order of stay the petitioner continued functioning of his Toddy shop. Doubting correctness of Annexure A1, the certificate of 1stchemical analysis, the petitioner approached the Judicial First Class Magistrate Court, Vaikom with a request to send sample ‘B’ then in the court’s custody in the Chemical Examiner’s Laboratory at Thiruvananthapuram. Accordingly, sample ‘B’ was sent through court to the Chemical Examiner’s Laboratory at Thiruvananthapuram. Doubting correctness of Annexure A1, the certificate of 1stchemical analysis, the petitioner approached the Judicial First Class Magistrate Court, Vaikom with a request to send sample ‘B’ then in the court’s custody in the Chemical Examiner’s Laboratory at Thiruvananthapuram. Accordingly, sample ‘B’ was sent through court to the Chemical Examiner’s Laboratory at Thiruvananthapuram. After analysis of the second sample, a report was received by the Magistrate, wherein Ethyl Alcohol contents was reported as 0.85%. The percentage of Ethyl Alcohol being lower than the permissible strength as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, the petitioner approached this Court to quash the final report on the allegation that it was laid without considering Annexure A3, the certificate of analysis of sample ‘B’ forward for examination at his instance. 3. According to the learned counsel, had Annexure A3 certificate of analysis of sample ‘B’, been considered by the Excise Inspector, he would have convinced that ingredients to attract the offences allegedly involved are lacking and would not have laid the Final Report as Annexure A5. It is urged by the counsel that in the said circumstances Annexure A5 final report is liable to be quashed. 4. The learned Public Prosecutor took notice for the respondents State in the matter. Sri N. Raghuraj, the learned counsel appearing for the petitioner and the learned Public Prosecutor representing the State were heard. The Annexures appended with this petitioner were perused. 5. Sri N. Raghuraj has drawn this Court’s attention to the fact that in the light of Annexure A3, the case registered against the petitioner, cannot be successfully prosecuted and therefore, the Excise Officials ought not to have submitted Annexure A5 before the court below. Placing reliance upon Joshy George v. State of Kerala, 2011 (4) KHC 818 and Rajappan and Another v. State of Kerala, 2012 (2) KHC 657 the learned counsel contended that viewed in the backdrop of those decisions Annexure A5 Final Report is only to be quashed. 6. The question posted by Sri N. Raghuaj, the learned counsel for the petitioner before me was, “then two conflicting reports of analysis of two samples taken from the same contraband are available, laying down of final report on the basis of the report unfavourable to the accused in total disregard of the latter one favourable to him, alleging commission of the offences under Section 56(b) and 57(a) would sustain? According to the learned counsel, the action of the Excise Inspector, Excise Range Office, Kaduthuruthy laying down Annexure A5 chargesheet against the accused on the basis of Annexure A1, the certificate obtained after analysis of sample ‘A’ would not sustain in the eye of law especially when sample ‘B’ was also for chemical analysis before the same Chemical Examiner and Annexure A3, reporting the strength of ethyl alcohol contents by volume in it as less than the permissible strength of 801% as prescribed by Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 and a certificate of analysis was obtained by the court. 7. According to the learned counsel, when two conflicting reports are available before the investigating agency prior to its concluding the investigation and laying down of Final Report as Annexure A5, it out to have looked into both and acted only upon the one which stands in favour of the accused, lest, it would have furnished reason for not basing credence upon it. The learned counsel has urged for quashing Annexure A5 Final Report in view of the dictum supra cited by him. 8. The dictum laid down by a single judge of this court Joshy George’s case (supra) is to the following effect: “In the last page of the Final Report, it was stated that they could not ascertain the reason for increase in the strength of ethyl alcohol. No witness has been cited nor was any statement of such witness recorded by the investigating agency to show that the second report (Annexure C) is unacceptable and inadmissible. As such Annexure C has to be accepted. If so, the charge under Section 57(a) cannot be sustained.” 9. The dictum in Rajappan’s case (supra) was that: “On carefully going through the above provision, I find that sample A was sent for analysis and obtained Annexure A report not in the course of any proceedings under the Code of Criminal Procedure. At the same time, Annexure B report was obtained by forwarding sample B in the course of the proceedings. So Annexure B report has the support of S.293 of the Code of Criminal Procedure. Annexure A report wouldn’t get such a support as sample A was not sent for examination in the course of proceedings under the Criminal Procedure Code. At the same time, Annexure B report was obtained by forwarding sample B in the course of the proceedings. So Annexure B report has the support of S.293 of the Code of Criminal Procedure. Annexure A report wouldn’t get such a support as sample A was not sent for examination in the course of proceedings under the Criminal Procedure Code. In this view of the matter, I find that the principle followed in Joshy George’s case (supra) is in tune with the statutory provisions. In Sudhakaran’s case that legal aspect was not considered. When there are two conflicting reports in one case, the one which stands in favour of the accused is to be relied upon so long as the prosecution has no good explanation for impeaching the report in favour of the accused. 10. Before going into the backdrop of the cases supra, it is appropriate to have a look at the Kerala Abkari Shops Disposal Rules, 2002 (for short ‘the Rules’) which in Rule 8 provides for the procedure to be followed while taking samples from toddy shops. 11. Clause (c) of Sub-rule (2) of Rule 8 provides that the representative sample taken after thorough mixing of the disputed toddy shall be divided into two parts and each part shall be put into separate bottles or containers which are properly cleaned and dried. After complying with the formalities as prescribed under Clause (d) with respect to packing and sealing it is provided in Clause (e) that labels as ‘A’ and ‘B’, after obtaining signatures or thumb impression, name and designation of the officer and the person concerned, shall be affixed on each bottle or containers containing the sample. Proviso to Clause (e) of Sub-rule provides that if the person from whom the sample is taken refrain from affixing his signature or thumb impression, the signature or thumb impression of two independent witnesses shall be obtained on the labels. 12. Clause (f) provides that the sample with ‘A’ label shall be forwarded to the Chemical Examiner or the Joint Chemical Examiner to the Government of Kerala or to any officer authorized by Government in this behalf accompanied by a memorandum in Form No.V with immediate effect. The memorandum shall be forwarded in a sealed cover. 12. Clause (f) provides that the sample with ‘A’ label shall be forwarded to the Chemical Examiner or the Joint Chemical Examiner to the Government of Kerala or to any officer authorized by Government in this behalf accompanied by a memorandum in Form No.V with immediate effect. The memorandum shall be forwarded in a sealed cover. Clause (h) provides that the sample ‘B’ shall be forwarded to the Deputy Commissioner of Excise of the division, who shall be the authorized officer with a copy of the memorandum, immediately, under proper acknowledgement. He shall affix his seal over the string on the neck portion of the bottles or containers and shall assign a register number on the label affixed. Clause (i) provides that the Deputy Commissioner of Excise of the division shall maintain an exclusive register for registering the details of samples received by him. The samples shall be registered serially and that serial number shall be assigned as the register number. The details of further action taken by him shall be noted in the register. Sub-rule (3) of Rule 8 provides that on receipt of the chemical analysis report, if any violation of the provisions of the Abkar Act, rules or conditions of licence or any adulteration is noticed a case shall be registered within 24 hours. The samples marked as ‘B’ shall be produced before the concerned court. If no case is registered, the sample marked as ‘B’ shall be destroyed. 13. Therefore, as per sub-Section (3) sample ‘B’ shall be forwarded by the Deputy Commissioner of Excise before the court having jurisdiction to which the crime and occurrence report has been forwarded. 14. Even though it is specifically provided under Clause (c) of Sub-rule (2) of Rule 8 that sample of toddy taken from a Toddy shop shall be affixed with labels as ‘A’ & ‘B’, under Clause (h) it is provided that second sample with label ‘B’ shall be handed over to the Deputy Commissioner, Excise of the Division concerned who shall be the authorized officer and under sub-rule (3) of Rule 8 that on registration of a case, sample ‘B’ shall be produced before the court and if no crime is registered, sample ‘B’ shall be destroyed. Nowhere in the ‘in Rules’ the purpose behind the preparation and forwarding of the second sample as sample ‘B’ is dealt with. Nowhere in the ‘in Rules’ the purpose behind the preparation and forwarding of the second sample as sample ‘B’ is dealt with. Unlike in Prevention of Food Adulteration Act, nowhere in the Act or Rules, what is to be done with the second sample after forwarding the same to the court, is mentioned. Even in the absence of such a provision in the ‘Rules’, it cannot practically be concluded that the second sample is not meant by the legislature to be sent for a further examination. Otherwise, there is no meaning in preparing a second sample and keeping it with the court. However, sending of the second sample also to the same chemical examiner would not make any difference. In the case on hand, as per the averments of the petitioner, the second sample was sent for chemical analysis at his instance through the court. 15. It seems from Annexure A1 that the 1stsample was sent to Chemical Examiner’s Laboratory, Kakkanad by the Circle Inspector of Vaikom on 17.10.2010 and it was received by the Laboratory on 18.10.2010. The certificate of analysis was made ready on 09.11.2010 and was seen obtained by the Judicial First Class Magistrate Court, Vaikom only on 21.03.2013 along with Annexure A2 Crime and Occurrence report. Therefore the report of the chemical examiner reached the court almost 1 year and 4 months after the analysis of the sample and preparation of the report by the chemical examiner’s laboratory. If the certificate of analysis was made ready on 09.11.2010 and a copy of the same was forwarded to the investigating agency as revealed from the endorsement therein, there is no explanation for not preparing the Crime and Occurrence Report within 24 hours as contemplated by sub-Rule (3) of Rule 8. It is pertinent to notice from Annexure A2 Crime and Occurrence Report that it was prepared belatedly on 21.03.2013 and no explanation is there for the belated registration of the same. Therefore, in that respect the prosecution is vitiated on account of the violation of a statutory requirement. 16. Annexure A1 is the certificate of chemical analysis of 7 items of toddy taken from 7 different toddy shops of which item Ni.5 is the sample ‘A’ toddy involved in the case in question and sent by the Circle Inspector of Excise, Vaikom. In Annexure A1, the percentage by volume of ethyl alcohol is reported as 8.39%. 16. Annexure A1 is the certificate of chemical analysis of 7 items of toddy taken from 7 different toddy shops of which item Ni.5 is the sample ‘A’ toddy involved in the case in question and sent by the Circle Inspector of Excise, Vaikom. In Annexure A1, the percentage by volume of ethyl alcohol is reported as 8.39%. Since the ethyl alcohol content in the sample toddy exceeds 8.1%, Annexure A2 Crime ad Occurrence report was prepared in accordance with the Rules. On the basis of Annexure A2 Crime and Occurrence Report, investigation was proceeded with and ultimately the Final Report was laid by the Excise Inspector, Excise Range Office, Kaduthuruthy as Annexure A5. 17. Annexure A3 is the certificate obtained after analysis of sample ‘B’ forwarded through court at the instance of the petitioner. The Assistant Chemical Examiner to Government of Kerala has reported therein that: “Ethyl alcohol was detected in item No.1. The sample of liquid contained 0.85 percent by volume of ethyl alcohol.” 18. Going by Annexure A5 it is seen that the Investigating Officer has not made a mentioned therein about Annexure A3. As revealed from Annexure A3 sample ‘B’ was sent to the chemical examiner through a civil excise officer and the former acknowledge receipt of the same on 11.04.2013. Annexure A3 report was seen prepared after analysis of sample ‘B’ by the Assistant Chemical Examiner to Government of Kerala on 13.05.2013. Annexure A5 final report was seen prepared and forwarded to the Magistrate concerned after concluding the investigation and received by the latter on 13.08.2013. 19. Sample ‘B’ was sent from the court to the chemical examiners’ laboratory at the instance of the petitioner and Annexure A2 Certificate of Analysis was obtained by the court. It is seen from the endorsement in the certificate that copy of the same was forwarded to the Excise Inspector, Kaduthuruthy Excise Range Office and therefore, they cannot plead ignorance of it. 20. But, since the petitioner has approached this court seeking to quash Annexure 5 final report, this court is obliged to see whether sufficient grounds exist for the investigating officer to lay the final report. 21. The offences alleged as per Annexure A5 are those punishable under Section 56(a) and 57(b) of the Kerala Abkari Act. 20. But, since the petitioner has approached this court seeking to quash Annexure 5 final report, this court is obliged to see whether sufficient grounds exist for the investigating officer to lay the final report. 21. The offences alleged as per Annexure A5 are those punishable under Section 56(a) and 57(b) of the Kerala Abkari Act. Since Annexure A5 is sought to be quashed by the petitioner it is fundamental to have a probe into the materials available to see whether the ingredients of the offences, for which the petitioner was chargesheeted, are attracted or not. Before going into that aspect it is apposite to have a look at Section 56(b) of the Kerala Abkari Act which is extracted hereinbelow for easy reference. “56. For misconduct by licensee, etc. – Whoever, being the holder of a licence or permit granted under this Act [or being in the employment of such holder and acting on his behalf] (a) …….. (b) [Willfully does or omits to do anything] in breach of any of the conditions of his licence or permit not otherwise provided for in this Act; or (c) ……. (d) …….. (e) ……… Shall, on conviction before a Magistrate, be punished for each such offence, [with imprisonment for a term which may extend to six months, or with fine which may extend to [twenty-five thousand rupees], or with both].” 22. It is clear on a plain reading of the relevant provision itself that mere doing or omission from doing something in contravention of the conditions of licence or permit not otherwise provided for in this Act would not be enough to constitute the offence. A willful act or omission or in other words a mental element of the culprit is necessary for the offence to be attracted. 23. Chapter VIII of the Kerala Abkari Shops Disposal Rules 2002 deals with the conditions applicable to licensees having the privilege of vending toddy in independent toddy shops. Rule 9(2) is quoted hereunder: “(2) No toddy other than drawn from Coconut, Palmyra, or Choondapana palms and on which tree-tax due under the Act has been paid shall be sold by the licensee, All toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions and may be notified by Government under clause (n) or rule. Nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes.” 24. In exercise of the power conferred under Clause (m) of Rule 2 of the Kerala Abkari Shops Disposal Rules, 2002 the Government of Kerala has issued Notification, S.R.O No.145/2007/Tvm. Dated 14thFebruary, 2007 which reads as follows: “G.O.(P) No.25/2007/TD. Dated, Tvm., 14thFebruary 2007 S.R.O. No.145/2007. – Under clause (n) of rule 2 of the Kerala Abkari Shops Disposal Rules, 2002, issued under G.O.(P) No.24/2002/TD dated the 30thMarch, 2002 and published as SRO No.198/2002 in the Kerala Gazette Extraordinary No.376 dated the 30thMarch, 2002, the Government of Kerala based on scientific studies and Indian Standard Specifications in IS 8538:2004, hereby notify that fermented toddy tapped, stored, transported or offered for sale shall conform to the following specifications and comply to the following restrictions, namely:- 1. The ethyl alcohol content of coconut toddy shall not exceed 8.1 percent of Palmyrah toddy 5.2 per cent and Sago toddy 5.9 per cent by volume. 2. Toddy shall be un-pasteurized and natural and shall possess the characteristic flavour derived from the sap and fermentation, without addition of any extraneous alcohol. 3. It the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. For all purposes, such extraneous alcohol will be treated as a foreign ingredient. 4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch; chloral hydrate, paraldehyde, sedatives, tranquilizers and any other Narcotic Drugs or Psychotropic Substances; and any ingredients injuries to health. It shall be free from Escherichia coli also. 5. Total acid as tartaric acid (expressed in terms of 10 litres of absolute alcohol) shall be exceed 400 grams. 6. Volatile acid as acetic acid (expressed in terms of 100 litres of absolute alcohol) shall not exceed 100 grams. Explanatory Note (This does not form part of the notification, but is intended to achieve its general purport.) Honourable Supreme Court in their judgment dated 1stDecember, 2006 in Civil Appeal No.5300 of 2006, have observed that the definition of toddy does not limit the extent of fermentation and that Government should justify the reasonableness of fixing the maximum alcohol content by deeper studies and experiments. Government, in consultation which the Chief Chemical Examiner to Government and other scientific experts and also relying on the Indian Standard Specifications in IS 8538:2004 of the Bureau of Indian Standards, have decided has to redefine toddy and specify its standards. The maximum ethyl alcohol content has been specified to check adulteration of toddy with spirit or arrack, Freshly drawn coconut toddy contains about 12 to 17 per cent weight by volume of sucrose and accordingly the maximum self generation of alcohol achievable in coconut toddy will in no case exceed 8.1 per cent by volume. As ascetic fermentation gradually advances, the alcoholic strength gradually falls down and hence alcoholic strength will never increase over 8.1 per cent with the time of storage of coconut toddy. Alcoholic strength exceeding 8.1 per cent by volume can only be due to addition of extraneous alcohol which for all purposes shall be treated as a foreign ingredient. A pat from extraneous alcohol, adulteration with other foreign substances such as colouring, flavouring, sweetening and other foreign matters, starch chloral hydrate ad paraldehyde, and sedatives, tranquilizers and other Narcotic Drugs or Psychotropic Substances, and any other ingredients injurious to health should also be prevented, and only natural toddy made offered to the consumers. The notification is intended to achieve the above object.” 25. The newly substituted Rule is silent regarding the permissible strength of ethyl alcohol content of toddy drawn from coconut kept or offered for sale. On the contrary, what is provided in the newly incorporated Rule is that the toddy kept or offered for sale shall conform to such specifications and complying to such restrictions as notified by the Government under Clause (n) of Rule (2). It is also provided that nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purpose. In exercise of the power, the Government has issued the notification supra and therefore the ethyl alcohol content in toddy derived from coconut shall not exceed 8.1%. Or in other words the permissible strength of ethyl alcohol in toddy derived from coconut is 8.1%. 26. In exercise of the power, the Government has issued the notification supra and therefore the ethyl alcohol content in toddy derived from coconut shall not exceed 8.1%. Or in other words the permissible strength of ethyl alcohol in toddy derived from coconut is 8.1%. 26. Section 56 of the Act deals with the holder of a license or permit committing offence as stated therein and clause (b) specifically relates to willful action or omission in breach of any of the conditions of licence or permit not otherwise provided for in the Act. Chapter VI of the Rules 2002 in Rule 7 provides in it the general conditions applicable to the licensees of toddy or foreign liquor shops. Chapter VIII of the Rules, 2002 in its Rule 9 provides for the special conditions applicable to licensees of the privilege of vending toddy in independent toddy shops. Therefore, the licensees of toddy shops or employees working under them shall be bound to abide by the aforesaid conditions stipulated by the Rules, 2002 and in case of willful omission on their part to comply with any of those conditions or on violation of the conditions shall be meted out with the punishment provided under Section 56 of the Act. 27. Therefore, the act or omission contemplated by Section 56(b) in order to be punishable must be ‘wilful’. Therefore, the licensee of toddy or any person employed under him must do or omit to do something willfully in order to be punished. 28. The next question to be considered is whether the ingredients of the offence under Section 57(a) of the Kerala Abkari Act are attracted or not. Section 57(a) is extracted hereinbelow for easy reference. “57. For adulteration, etc., by licensed vendor or manufacturer. 28. The next question to be considered is whether the ingredients of the offence under Section 57(a) of the Kerala Abkari Act are attracted or not. Section 57(a) is extracted hereinbelow for easy reference. “57. For adulteration, etc., by licensed vendor or manufacturer. – Whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under this Act, (a) mixes or permits to be mixed with the liquor or intoxicating drug, sold or manufactured by him, [any drug, other than a noxious drug] or any [xxx] ingredient likely to add to its actual or apparent intoxicating quality or strength, or any article prohibited [other than an article which the Government shall deem to be noxious] by any rule made under Section 29, clause (k), when such admixture shall not amount to the offence of adulteration under [section 272 of the Indian Penal Code]; or (b) ……. (c) …….. (d) …….. shall, [on conviction before a competent court, be punished for each such offence with imprisonment for a term which may extend to five years, or with fine which may to extend to fifty thousand rupees, or with both]” 29. Going by the Section it is seen that if the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug, mixes or permits to be mixed any drug other than a noxious drug or any ingredient likely to add to its actual or apparent intoxicating quality or any article prohibited, then he will have to meet with the punishment provided therein. Therefore, the words mixes or permits to be mixed gave the colour of doing something willfully or knowingly. 30. There is no whisper of an allegation in Annexure A5 that an ingredient likely to add to the actual or apparent intoxicating quality or strength of toddy was mixed by the petitioner or permitted by him to be mixed by someone else in the toddy. In the absence of such an allegation, charge under Section 57(a) and 56(b) of the Act will not sustain. In this connection, it is pertinent to have a look at the relevant portion of Annexure A5, which reads: “MALAYALAM’ 31. It is true an allegation of the nature “MALAYALAM”, is there in Annexure A5. 32. In the absence of such an allegation, charge under Section 57(a) and 56(b) of the Act will not sustain. In this connection, it is pertinent to have a look at the relevant portion of Annexure A5, which reads: “MALAYALAM’ 31. It is true an allegation of the nature “MALAYALAM”, is there in Annexure A5. 32. On a reading of Annexure A5 it is seen that the allegations levelled against the petitioner and the other accused are to the effect that they have violated conditions of licence as per Rule 9(2). It is true the word “willful” is there in the allegations. But going by the witnesses in Annexure A5 chargesheet and the point to be proved by each of them as narrated therein, it is seen that none of those witnesses are cited to speak about the willful act or omission of the petitioner, who is chargesheeted herein. 33. It appears from Annexure A5 that for arriving at the conclusion as to the accusation against the petitioner that he had committed the offences alleged willfully, the investigating officer had questioned seven persons and cited them as witnesses. Witness No.1 is the Preventive Officer of Excise Circle Office, Vaikom who has collected the sample from the toddy shop in question. Witness No.2 is the Preventive Officer, who helped and witnessed the collection of sample toddy by witness No.1 and signed the Mahazar. Witness No.3 and 4 are witnesses to the Mahazar, witness No.5 is the Excise Circle Inspector, Vaikom who is to speak that the sample of toddy has been forwarded for chemical analysis, witness No.6 has carried the samples of toddy to the chemical lab at Thiruvananthapuram on 18.10.2010 and witness No.7 is the Excise Inspector, Kaduthuruthy Excise Range, who has arrested the accused, recorded the statement and laid the chargesheet after conducting investigation into the matter. 34. After having a look at the facts to be proved through the witnesses cited by the prosecution as extracted hereinabove from Annexure A5, none among the seven witnesses cited by the prosecution were competent to speak about the willful act of mixing of any drug other than noxious drug or any ingredient likely to add to its actual or apparent intoxicating quality or strength or any prohibited article. Therefore there is absolutely nothing in the allegation of the prosecution in Annexure A5 to indicate that the petitioner has mixed any drug or ingredient or prohibited article as contemplated by Section 57(b), with the toddy or caused any of those things to be mixed with the toddy by someone else so as to make him liable under Section 57(b) of the Act. 35. There is not even a whisper in the extracted portion of the chargesheet that the petitioner does or omits to do anything in contravention of the terms and conditions of licene willfully. The gist of the charge against the petitioner was that he has kept or offered for sale toddy which contains ethyl alcohol in excess of the permitted strength. The prosecution has no allegation against the petitioner that he has willfully omitted to comply with the terms and conditions of licence or committed breach of the same. In the absence of materials to substantiate willful omission or commission in contravention of the conditions of licence, the offence under Section 56(b) will not sustain and there is absolutely no basis for the Excise Inspector to chargesheet the petitioner for the same. Therefore, there is every authority for this court to interfere with the sustainability of the prosecution in exercise of the inherent power vested under Section 482 Cr.P.C. 36. As observed earlier Annexure A1 and A3 reports are available before the court below. Annexure A1 reports presence of 8.39% in the toddy sent as Sample ‘A’ and Annexure A3 reports the presence of ethyl alcohol therein as 0.85%, which is much below 8.1%, the limit prescribed to be present in toddy derived from coconut. In this connection it is pertinent to note that admittedly of the prosecution two samples each of 500 ml of toddy were prepared and sealed as per the requirements of the relevant provisions of the Abkari Act. It is discernible from Annexure A3 report that sample ‘B’ packet was obtained by the Assistant Chemical Examiner associated with the Chemical Examiner’s Laboratory, Thiruvananthapuram as perfectly sealed and noted as involved in Crime No.19/13 of Kaduthuruthy excise range. The specific reference of the Assistant Chemical Examiner in Annexure A3 report is quoted hereunder. “The seal on the bottle(s) and packet(s) was/were intact and found with the sample seal provided by the Court.” 37. The specific reference of the Assistant Chemical Examiner in Annexure A3 report is quoted hereunder. “The seal on the bottle(s) and packet(s) was/were intact and found with the sample seal provided by the Court.” 37. When two certificates of analysis of two samples prepared from the very same toddy are available and in the absence of any materials to show that any of the samples were tampered, it is not proper on the part of the court to rely on the one which is liable to fix culpability on the accused. In the case on hand Annexure A1 was obtained after analysis of sample ‘A’ of the toddy and it reports the presence of 8.39% v/v of ethyl alcohol in it. Annexure A1 is likely to fix culpability on the petitioner as it discloses the quantity of ethyl alcohol in excess of the permissible strength of 8.1% v/v. Annexure A3 is also available before the court and it is undoubtedly the outcome of the analysis of sample ‘B’ prepared from the same toddy and is reported by the Assistant Chemical Examiner as received for examination at the laboratory untampered in any manner. Therefore either of the certificates are unacceptable in evidence and cannot be relied upon by the court during trial. Since two conflicting certificates are available before the court, even if the petitioner is directed to face trial with the available materials collected by the prosecution there is no likelyhood for the trial to be ended in conviction. Such a recourse would only be wastage of court’s precious time and a futile exercise. 38. It is also pertinent at this juncture to extract here the observations made by the Apex Court in State of Kerala v. Unni reported in (2007 (1) KLT 151 (SC). “It also stands admitted that contents of ethyl alcohol in toddy would depend upon various factors including weather, season or pot in which it is kept etc. We have noticed the definition of ‘toddy’. It does not limit the extent of fermentation. Fermented toddy would, therefore, come within the purview of definition of toddy. “It also stands admitted that contents of ethyl alcohol in toddy would depend upon various factors including weather, season or pot in which it is kept etc. We have noticed the definition of ‘toddy’. It does not limit the extent of fermentation. Fermented toddy would, therefore, come within the purview of definition of toddy. Manufacture and sale of toddy, which is fermented, not prohibited.” In view of the discussion as hereinabove made, it is expedient in the interest of justice to interfere with Annexure A5 in exercise of the inherent power vested under Section 482 of the Code of Criminal Procedure and to quash Annexure A5. In the result, Crl.M.C. is allowed. Annexure A5 final report and all further proceedings pursuant to the same shall stand quashed.