Allowed

Lohidakshan v. State of Kerala

Kerala HC2 Mar 2018Crl.MC/3317/2013

Case brief

AI extract

What is this about?

This Court quashed the criminal proceedings against two accused in a toddy shop case. Relying on conflicting chemical analysis reports where the second sample conformed to legal limits, the Court exercised its inherent jurisdiction to discard the infancy of the case and allow the criminal miscellaneous petition.

What did the court decide?

Quashing of the entire proceedings in C.R.No.26/2013, C.C.No.673/2013, and the Crl.M.C., with the petition allowed.

Lohidakshan Vs State of Kerala — Cheque Dishonour | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939

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Crl.MC.No. 3317 of 2013(B)

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AGAINST THE ORDER/JUDGMENT IN CC 673/2013 of J.M.F.C.-I,KOZHIKODE CRIME NO. 26/2013 OF KOZHIKODE EXCISE RANGE OFFICE , KOZHIKODE

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PETITIONER(S)/ACCUSED NOS.1 & 2:

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1 LOHIDAKSHAN, AGED 44 YEARS,

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S/O.VELAYUDHAN, ILLATHU THAZHATHU HOUSE, CIVIL STATION

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P.O., VENGERI VILLAGE, KOZHIKODE TALUK.

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2 DAMODHARAN,

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S/O.ANANDAN, ANNACHAMKANDATHIL HOUSE, KAYANNA,

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MATTANODU, KOYILANDI TALUK.

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BY ADV.SRI.NIREESH MATHEW

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SR.PUBLIC PROSECUTOR SRI.P.P.THAJUDHEEN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3317 of 2013 (E)

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE-A: COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 9.10.2012 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA, KOZHIKODE.
ANNEXURE-B: COPY OF THE CRIME AND OCCURANCE REPORT IN C.R.NO.26/2013 OF KOZHIKODE EXCISE RANGE.
ANNEXURE-C: COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 26.4.2013 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT.OF KERALA, KAKKANAD, ERNAKULAM.
ANNEXURE-D: COPY OF THE ORDER DATED 21.5.2013 IN WP(C) NO.12569/2013 PASSED BY THIS COURT.
ANNEXURE-E: COPY OF THE FINAL REPORT IN CR.NO.26/2013 FILED BEFORE THE JUDL.FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE.
ANNEXURE-F: COPY OF THE ORDER DATED 14.3.2013 IN CRL.M.C.NO.1233/2013 PASSED BY THIS COURT.
ANNEXURE-G: COPY OF THE ORDER DATED 27.6.2103 IN CRL.M.A.NO.5024/2013 IN CRL.M.C.NO.2511/2013 PASSED BY THIS COURT.

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RESPONDENT(S)' ANNEXURES:

NIL

/TRUE COPY/

PA TO JUDGE

dkr

ASHOK MENON, J.

Crl.M.C. No. 3317 of 2013

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------------------------------------------Dated this the 2^nd day of March, 2018

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O R D E R

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The petitioners are accused Nos.1 and 2 in C.R.No.26/2013 of the Excise Range, Kozhikode, allegedly attracting offences under Sections 56(b) and 57(a) of the Abkari Act.

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Two samples of toddy were taken from T.S.No.15/201112 on 06/05/2012. The first sample was sent for chemical analysis as per Annexure A dated 09/10/2012 and it was found to contain 8.17% v/v of ethyl alcohol in violation of Rule 9(2) of the Abkari Shops Disposal Rules, 2002 (for brevity “the Rules”), which prescribes the maximum strength of only 8.1% v/v. On getting the said report, further proceedings were initiated in the Judicial First Class Magistrate Court-I, Kozhikode and the case was taken on file as C.C.No.673/2013. The accused took initiative to send the second sample through the Court for analysis and as per AnnexureC Certificate dated 26/04/2013 and it was found to contain only

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4.47% v/v. The Excise Commissioner, in consequence of the earlier

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Crl.MC 3317/2013

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report, had suspended the license. The 1^st petitioner filed W.P.(C) No.12569/2013 challenging the order of suspension and as per Annexure D this Court granted interim stay to the order of the Commissioner on 21/05/2013. By virtue of this order, the petitioner continues to conduct the shop as per the license. A final report was filed as per Annexure E on 30/05/2013. But nothing is mentioned about the report of the second sample therein. Hence the petitioners prays that Annexure E final report, on the basis of which C.C.No.673/2013 on the files of JFMC-I, Kozhikode was taken, may be quashed.

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Heard the learned Public Prosecutor and the Counsel appearing for the petitioners. Documents perused.

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There are two chemical examination reports before this Court indicating two different results. The first one indicates violation of Rule 9(2) of the Rules, inviting offences under Section 57(a) of the Act. But the subsequent sample is in conformity with the aforesaid Rule. The very purpose of taking the second sample is to afford an opportunity to the accused for yet another examination. It is also pertinent to note that there is only a

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Crl.MC 3317/2013

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marginal difference in the earlier sample. Under the circumstances, relying on the precedents of this Court in Joshi George v. State of Kerala, 2011 (4) KHC 818 and Rajappan v. State of Kerala, 2012 (2) KHC 657 , I am inclined to invoke the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. to quash the entire proceedings in C.R.No.26/2013 of the Excise Range, Kozhikode, C.C.No.673/2013 on the files of JFMC-I, Kozhikode and the Crl.M.C. stands allowed.

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ASHOK MENON Judge

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dkr

Lohidakshan v. State of Kerala

Case brief

What is this about?

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Lohidakshan v. State of Kerala

Case brief

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