HC Kerala allowed Criminal Misc. Petition against accused for toddy shop offence. Court quashed proceedings as second chemical analysis showed ethyl alcohol content below permissible limits, creating unreconcilable doubt benefiting the accused.
All further proceedings in C.C.No.91/2015 based on Annexure-D Final Report are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937
Crl.MC.No. 611 of 2016 ()
CC.NO. 91/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM CRIME NO. 37/2014 OF CHAVAKKAD EXCISE RANGE,THRISSUR DISTRICT
PETITIONERS/ACCUSED NOS.1 & 2:
1. SUNIL, AGED 48 YEARS, S/O.KUNJUKUTTAN, STHANAPARAMBIL HOUSE,
2. JAYAMON, AGED 42 YEARS,
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
Crl.MC.No. 611 of 2016 ()
APPENDIX
PETITIONER(S)' ANNEXURES:
| ANNEX A- | PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 2.5.2014 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT.OF KERALA, ERNAKULAM. |
|---|---|
| ANNEX-B | PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN C.R.NO.37/2014 OF CHAVAKKAD EXCISE RANGE. |
| ANNEX-C | PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 5.1.2015 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA,THIRUVANANTHAPURAM. |
| ANNEX-D | PHOTOCOPY OF THE FINAL REPORT IN CR.NO.37/2014 FILED BEFORE THE JUDL.FIRST CLASS MAGISTRATE COURT, KUNNAKULAM |
| ANNEX-E | PHOTOCOPY OF THE ORDER DATED 14.2.2013 IN CRL.M.C.NO.769/2013 PASSED BY THIS HONOURABLE COURT |
| ANNEX-F | PHOTOCOPY OF THE ORDER DATED 2.11.2015 IN CRL.M.C.NO.6901/2015 PASSED BY THIS HON'BLE COURT. |
RESPONDENT(S)' ANNEXURES:
NIL
/TRUE COPY/
P.S.TO JUDGE
sts
B. KEMAL PASHA, J.
................................................................ CRL.M.C. No.611 of 2016
............................................................... Dated this the 10th day of February, 2016
O R D E R
Petitioners are accused Nos.1 and 2 in
C.R.No.37/2014 of the Excise Range, Chavakkad which is
now pending as C.C.No.91/15 before the Judicial First Class Magistrate's Court, Kunnamkulam.
at the toddy shop of the petitioners. When 'A' sample was subjected to chemical analysis, it was found containing 8.36% of ethyl alcohol and consequently Annexure-D final report was filed alleging an offence under Sectiona 57(a) and 57(b) of the Abkari Act, as against the petitioners. Subsequently, when 'B' sample was subjected to chemical
CRL.M.C.No.611 of 2016
-: 2 :-
analysis, it was found that the said sample contained only 7.39% of ethyl alcohol, which is less than the permissible quantity.
CRL.M.C.No.611 of 2016
-: 3 :-
becomes much more worse. It is for the prosecution to prove and establish that the examination of the second sample was bad in law or there is some thing wrong with the examination of the second sample.
the second sample has no implication on the prosecution, there could not have been any provision for drawing the second sample and subjecting it for examination. Therefore, in this case, on the examination of the second sample it is proved that the examination of the first sample was wrong or there were material differences between the contents of
CRL.M.C.No.611 of 2016
-: 4 :-
these two samples. Either the examination of first sample was wrong or there were procedural irregularities in drawing the samples. In both the cases, the benefit of such doubt should go to the accused and not to the prosecution.
In the result, this Crl.M.C. is allowed and all further proceedings in C.C.No.91/2015 of the Judicial First Class Magistrate's Court, Kunnamkulam, based on Annexure-D Final Report, are hereby quashed.
CRL.M.C.No.611 of 2016
-: 5 :-
Sd/- B.KEMAL PASHA, JUDGE
ul/-
// true copy //
P.S. to Judge.
“ C.C.No.91/15 ” occurring in the 3rd line of paragraph 1, 8th line of paragraph 7 and 2nd line of last paragraph of the final order dated 10/02/2016 in Crl.M.C No.611/2016 is corrected and substituted as “ C.P.No.91/15 ” as per order dated 01/04/2016 in Crl.M.A. No.2835/2016 in Crl.M.C. No.611/2016.”
Sd/- Registrar(Judicial)
3 issues framed by the court
Whether the prosecution can sustain a conviction under the Abkari Act when the second sample analysis shows the ethyl alcohol content is below the permissible limit.
Whether the presence of material variation between the first and second sample analyses necessitates quashing the proceedings regardless of the lack of specific statutory provision.
What the implication of a second sample proving no offence is when the prosecution fails to explain the variation with the first sample.
1 provisions across 1 enactments
SUNIL
JAYAMON
STATE OF KERALA
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
