Allowed

Santhosh v. State of Kerala

Kerala HC15 Oct 2019Crl.Rev.Pet/565/2019

Case brief

AI extract

What is this about?

In two criminal revision petitions, the High Court of Kerala allowed the petitions against trial court orders denying a request for second analysis of sample 'B' seized from toddy shops. The Court held that under Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002, the second sample is produced to facilitate re-analysis if a crime is registered for violation of license or adulteration, entitlin

What did the court decide?

Impugned orders set aside; Trial court directed to forward sample B to a different Chemical Examiner’s Laboratory without delay for re-analysis.

Santhosh Vs State of Kerala — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941

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Crl.Rev.Pet.No.565 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CMP 1338/2019 DATED 12-04-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHENGANNUR

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CRIME NO.34/2019 OF Mavelikkara Excise Range Office, Alappuzha

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REVISION PETITIONER/PETITIONER/ACCUSED No.1:

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SANTHOSH, AGED 41 YEARS S/O. SADANANDAN, SANTHOSH BHAVANAM, MEKKUMURI, THAMARAKULAM VILLAGE, MAVELIKKARA TALUK.

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BY ADV. SRI.NIREESH MATHEW

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RESPONDENT/COMPLAINANT & STATE:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.

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OTHER PRESENT:

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P.P. SRI. C.K.PRASAD

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.10.2019, ALONG WITH Crl.Rev.Pet.567/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941

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Crl.Rev.Pet.No.567 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CMP 1730/2019 DATED 09-04-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA

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CRIME NO.28/2019 OF Mavelikkara Excise Range Office, Alappuzha

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REVISION PETITIONER/PETITIONER/ACCUSED No.1:

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AJI,AGED 42 YEARS S/O.RAGHAVAN,VAZHAPARAMBIL HOUSE,CHOORALLOOR MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK.

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BY ADV. SRI.NIREESH MATHEW

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RESPONDENT/COMPLAINANT & STATE:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682 031.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.10.2019, ALONG WITH Crl.Rev.Pet.565/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.R.

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Crl.R.P. Nos. 565 and 567 of 2019

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O R D E R

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[ Crl.Rev.Pet.565/2019, Crl.Rev.Pet.567/2019 ] Dated this the 15^th day of October, 2019

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These Revision Petitions are preferred against orders passed by judicial First Class Magistrate Court-I, Chengannur and Mavelikkara (for short 'the trial courts') on 12.04.2019 and 09.04.2019 respectively in CMP No.1338/2019 and CMP No.1730/2019.

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CMP Nos.1338/2019 and 1730/2019 were filed by accused No.1 in Crime Nos.34/2019 and 28/2019 of Mavelikkara Excise Range seeking to send sample 'B' prepared by the Excise Officials in the respective cases and produced before the above courts to the Chemical Examiner's Laboratory at Ernakulam or Kozhikode for analysis.

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The trial court relying on Santhosh.T.A and another v. State of Kerala [2017 (4) KLJ 689] declined the prayer of the petitioners and dismissed the applications. Aggrieved thereby the petitioners are now before this Court in revision.

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Sri.M.G.Karthikeyan advanced arguments on behalf of

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the petitioners in the petitions on hand. According to him, Rule 8

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Crl.R.P. Nos. 565 and 567 of 2019

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of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules, 2002') permits taking of two samples and forwarding of sample marked as 'B' before the Court. It also provides for registration of a crime within 24 hours if any violation of the provisions of the Act, rules or conditions of license or any adulteration is noticed from the report obtained after analysis of sample 'A' taken from the toddy shop. Then sample marked as 'B' shall be produced before the court and on non-registration of crime, sample 'B' shall be destroyed.

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It is contended by the learned counsel that some foul play is doubted in the report obtained after analysis of 'A' sample of toddy forwarded to the Chemical Examiner's laboratory and therefore analysis of sample 'B' available with the Court is necessary. According to him, when the report of analysis of sample 'A' turns against the accused, the excise officials have to forward sample 'B' available with the Deputy Excise Commissioner of the Division to the Court and that is purely meant for a further analysis alone. The learned counsel has relied on State of Kerala v. Deepak P.Shah [2001(2) KLT 433] and unreported decisions rendered by this Court in Crl.M.C

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No.4535/2010, Crl.R.P. No.342 and 345 of 2012 and Crl.R.P.

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Crl.R.P. Nos. 565 and 567 of 2019

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No.1571/2013 on 16.11.2010, 13.02.2012 and 19.08.2013, respectively, copies of which are produced alongwith the petitions on hand as Annexures A, B and C to contend that a second analysis of sample is an entitlement of the accused. According to the learned counsel in all the decisions relied on by him it is held that even in the absence of a specific provision in the Abkari Act, the request for forwarding the second sample for analysis is liable to be allowed. It is contended by the learned counsel on the basis of an order passed by this Court on 01.12.2014 in Crl.R.P. No.2052/2014, copy of which is produced with the petition on hand as Annexure D that law is well settled that unless the second sample is sent for analysis accused will not get an opportunity to challenge the report of Chemical Analysis of the first sample and that will affect his right, but directed that the second analysis must be by a different laboratory from the one where the first analysis was held. Accordingly, the petitioner seeks to set aside the orders under challenge and to pass orders afresh in the respective applications directing to forward sample 'B' for analysis to the Chemical Examiner's Laboratory, Ernakulam to see whether it contained cannabis as was found during analysis of sample 'A'.

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The learned Public Prosecutor has submitted that the

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court below has relied on the dictum in Santhosh 's case (supra) to dismiss the applications and therefore is perfectly justified. According to him, the learned Single Judge has held in the case that during investigation the accused has no right to ask the court to help him to collect evidence to disprove the prosecution case. It is further held that evenif a second sample is available it cannot be sent for examination at the request of the accused merely because the report of examination of the first sample is unfavourable to him. It is urged by the learned Public Prosecutor that the orders under challenge are not liable to be interfered with.

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This Court had gone into the factual matrix in Santhosh's case (supra). The context in which such an observation was made by the learned Single Judge is relevant. The learned Single Judge was considering an appeal that arose from a judgment by which the accused was found guilty for an offence under Section 55(a) of the Act and convicted and sentenced. It was a case wherein 500 liters of spirit was found transported by the accused in two concealed tanks in a car. 375

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ml was taken as sample from the spirit. One of the contentions

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raised in the appeal was that the accused was entitled for an order of acquittal, since as per the instructions contained in Rule 34 of Chapter XXV of the Excise Manual as well as various decisions rendered by this Court on it's basis, two samples were not taken.

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The contention raised by the appellant was elaborately

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dealt with by the learned Single Judge with specific reference to the provisions of the Act and found that the only provision in the Act which speaks about drawing of a second sample is Section 53A of the Act and the invocation of that provision is necessary only at the time of consideration of disposal of seized drug, intoxicating drugs, articles etc, specified by notification published in a Gazette. Even the said provision in the Act does not stipulate taking of more sample than one.

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In the backdrop, legality of the instruction in the Excise Manual was considered by the Single Bench and held:

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“21. That the instructions contained in Volume II of the Kerala Excise Manual have no statutory force does not mean that the Excise Officers are not bound to comply with the instructions in it. Every Government servant is bound to comply with the instructions issued by the department. In that sense the instructions are mandatory. But non-compliance with the instructions which are issued only for the guidance of detecting or Investigating Officers cannot have any effect in a criminal

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case, especially, when it has not caused any prejudice to the accused. If any officer fails to comply with the instructions, appropriate action may be taken against him by the department. Ordinarily, non-compliance with executive instructions is not a valid ground to acquit the accused in a criminal case. The decisions in Gopalan v. State of Kerala (Crl.A No.47 of 2006), Ashokan v. State of Kerala, 2016 KHC 3285 : 2016(2) KLT 762 and Biju v. State of Kerala, 2017(2) KHC 511 : 2017(2) KLT 321 : 2017(1) KLD 637 are per incuriam.”

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In the context of the appeal seized by it, the Single

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Bench had held relying on Thana Singh's case that the accused has no right to ask the court to help him to collect evidence to disprove the prosecution case.

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What is held by the Apex Court in Thana Singh 's

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case (supra) is as follows:

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“24. The NDPS Act itself does not permit re-sampling or re-testing of samples. Yet, there has been a trend to the contrary; NDPS courts have been consistently obliging to applications for re-testing and re- sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala Vs. Deepak. P. Shah[5]; Nihal Khan Vs. The State (Govt. of NCT Delhi)[6]] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, retesting and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reference must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act,

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enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re- testing.”

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The above dictum will only be applicable to offences coming under the NDPS Act and not to offences specifically referred to in sub-rule (3) of Rule 8 of the Rules, 2002, i.e. offences involving violation of the provisions of the Act, Rules or conditions of license or any adulteration with reference to toddy kept in toddy shops for sale. The Rules, 2002 provide for the procedure for taking samples solely from toddy shops. Rule 8 provides for the category of officers empowered to take samples and the procedure for taking samples, which are dealt with in detail in the provisions succeeding to that.

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Clause (b) of Sub-Section (2) provides that prior to taking representative sample, the contents in the vessel kept in the toddy shall be mixed thoroughly. Clause (d) provides that sample shall be divided into two parts and each of it shall be put into separate bottles or containers which are properly cleaned and dried.

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The manner of sealing the bottles or containers are

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dealt with in detail in Clauses (d), (e) and (f) that the bottles or

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containers shall be securely fastened with suitable caps or corks so as to make it leak-proof to prevent any spillage and it shall be covered with pieces of cloth and tied together with a string using sealing wax to ensure that the caps or corks cannot be removed unless the string is cut or the seal is broken. It is also stated that official or personal seal should be used and it should be legible and decipherable. Another string shall be tied around the bottles breadthwise and seal shall be affixed on the knot so that seal could not be removed without cutting the string. As per Clause (e), each bottle or container shall contain labels marked A and B with signature, name and designation of the officer taking samples showing the details of the shop and item of sample taken with quantity alongwith the signature or thump impression of the person from whom the sample is taken. The clause also makes provision for an officer to obtain signatures or thump impressions of two independent witnesses on the label, if the person refuses to affix signature/thump impression. As per Clause (f), the sealed bottle or container marked as 'A' shall be forwarded to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorised by the Government in that behalf alongwith a

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memorandum in Form No.V appended to these rules, in a sealed cover and alongwith a small quantity of the preservative used. 'B' bottle shall be handed over to the concerned Deputy Commissioner of Excise of the division, who shall be the authorised officer, with a copy of the memorandum, immediately, under proper acknowledgement and the officer shall affix his seal over the string on the neck portion of the bottle or container and assign a register number. As per Clause (i), he shall maintain an exclusive register for registering the details of samples received by him. The samples shall be registered serially and it shall be the register number of the bottles. The officer shall also keep a note of the details of further action taken by him in the register.

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Sub-rule (3) of Rule 8 provides that on noticing violations of the provisions of the Abkari Act, Rules or conditions of Licence or any adulteration, in respect of the toddy seized a case shall be registered within 24 hours from the receipt of the report of analysis. Sample B, then shall be produced before the Court concerned. If no case is registered, sample B shall be destroyed.

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Therefore, sample B is mandatory to be prepared and

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kept at the office of the Deputy Commissioner of Excise of the

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Division and produced before the court concerned only on registering a crime for non-holding of licence or permit or violations of conditions of licence or permit or for adulteration. Except for the offences referred to in sub-rule (3) of Rule 8, the pre-condition to forward sample to the Chemical Examiner's Laboratory and obtaining a report of analysis containing incriminating materials is not there in the Act.

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Therefore, only under the Rules above, preparation of two samples is contemplated and that too of toddy alone to see whether toddy kept for sale in the toddy shops conform to the requirements in the license or permit on the strength of which it is sold.

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Chapter VII as it now available in Rules, 2002 is the amended form. Originally when Rule 8 was incorporated into Rules, 2002 it was also applicable to liquors kept for sale in Foreign Liquor 1 shops. The words, “or Foreign Liquor-1 shops” were also there when Rules, 2002 were framed originally and incorporated in Chapter VII. But, those have been omitted from

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the caption of the Rule in the year 2012 by GO(P) No.145/2012/TD dated 13.08.2012 published in Kerala Gazette

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Ex. No.1691 dated 13.08.2012 as SRO No.575/2012. Sub-rule

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(1) originally existed in the Rules as follows :

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“All Abkari Officers not below the rank of Excise Inspectors in the case of Foreign Liquor 1 shops and Preventive Officers in the case of Toddy shops shall have the authority to take samples of any toddy or foreign liquor kept for sale in any Toddy shop or Foreign Liquor 1 shop for chemical analysis kept for sale in any toddy shop for chemical analysis.”

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Sub-rule (1) was substituted in the year 2012 by SRO

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No.575/2012 by the new sub-rule (1) which is extracted

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hereunder :

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“All Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any toddy kept for sale in any toddy shop for chemical analysis.”

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Therefore the legislature in its wisdom excluded Foreign

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Liquor-1 shops from the purview of Rule 8. The legislature's intention is clear with the omission of the words “Foreign Liquor1 shops” from the caption of Rule 8 and the contents therein. Therefore, the procedure enunciated in Rule 8(2) (a) to (I) shall

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only be taken to have application to toddy taken from the toddy shops and from nowhere else.

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Rule 8 as it now stands in Rules, 2002 is already extracted supra. It empowers only Abkari Officers above the

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rank of Preventive Officer to take samples of any toddy kept for

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sale in any toddy shop for chemical analysis.

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Rule 8(2) reads :

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“(2) While taking sample of any liquor by the Abkari Officer

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for chemical analysis, the following procedure shall be followed,

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namely-…..........”. The procedure is enunciated under (a) to (I) thereunder.

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The words “any liquor” in Rule 8(2) is not replaced or substituted by the word 'toddy'.

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The intention of the legislature while omitting the words “Foreign Liquor-1 shops” from the caption and substituting Rule 8(1) with the present one was that the procedure provided under

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sub-rule (2) (a) to (I) are strictly applicable to 'toddy' alone and not to other kind of liquors.

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The word liquor is not defined under the Rules. Rule 2(o) provides :

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“(o) All other words and expressions used herein and not defined in these rules shall have the meaning respectively assigned to them in the Act and other rules framed thereunder.”

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If that be so, we have to go to the definition clause under

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the Abkari Act to see its definition.

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Section 3(10) defines liquor:

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“(10) Liquor.- “Liquor” includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.”

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Toddy is defined under Rule 2(n) of the Rules, 2002. It reads :

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“(n) “Toddy” in these rules means fermented juice drawn from any Coconut, Palmyrah, or Choondapana palms and conforming to such specifications and restrictions as may be notified by Government based on scientific studies and Indian Standard Specifications.”

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Therefore, the definition under the Rules has a wide connotation than it contained in Section 3(8) of the Act. Under

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Section 3(8) 'Toddy' means fermented or unfermented juice drawn from a coconut, palmyra, date, or any other kind of palm tree. With the omission of the words “Foreign Liquor Shop-1 from the purview of Rule 8, the legislature has made its intention clear that the procedure provided therewith is strictly confined to toddy taken from toddy shops. It is true that the Rules, 2002 was framed by the State Government in exercise of the powers

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conferred by Section 18A and 29 of Act 1 of 1077. From the

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nomenclature assigned to Rules, it is clear that the Rules are also meant for dealings in Abkari shops.

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Under Rule 2(a) “Abkari Shop” or “shop” means a Toddy shop or a Foreign Liquor-1 Shop. Therefore, there is no scope for a doubt to entertain that the Rules, 2002 are framed in relation to Abkari Shops which takes in not only toddy shops but also Foreign Liquor 1 Shops. But due to omission of the words “Foreign Liquor 1 Shops from Rule 8, it is clear that the Legislature in its wisdom excluded Foreign Liquor 1 Shops from the purview of Chapter VII of the Rules, 2002. Therefore, the procedure enunciated under Rule 8(2) (a) to (I) will have application only in respect of toddy seized from toddy shops.

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In that view of the matter the word 'any liquor' found in sub-rule (2) of Rule 8 can only be treated as a retention by omission. When the Legislature has omitted the word “Foreign Liquor 1 shop” from the purview of Rule 8, in the absence of any ambiguity existing in Rule 8, the words 'any liquor' found in subrule (2) can only be taken as omission of the legislature to remove or delete it from sub-rule (2) in tune with the amendments brought in caption of Rule 8 and sub-rule (1) thereof.

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Therefore, the observation made in paragraph 12 of Santhosh 's case (supra) by the learned Single Judge that Rule 8 is applicable to toddy shops and Foreign Liquor 1 Shops is a mistaken one. The procedure provided under Rule 8 is only meant to be followed while taking sample from toddy shops alone and it will have no application to samples of foreign liquor drawn from Foreign Liquor-1 Shops.

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Therefore, crimes directed to be registered within 24 hours of the receipt of report of Chemical Analysis is strictly based on violation of the provisions of the Abkari Act, Rules or Conditions of License or any adulteration under sub-rule (3) of Rule 8 in respect of toddy which is included in category liquor, but to no other liquor as defined under Section 3(10) of the Act.

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In the case on hand the sample of toddy sent for analysis to the chemical examiner was found from the report of analysis as adulterated and for the reason that the petitioner has contravened the provisions of the Act and conditions of License, crime was registered against him for offences punishable under Section 56(a) and 57(b) of the Act. Since subrule (2) of Rule 8 directs preparation of 2 samples of toddy, forwarding of the same to the court on registration of crime as

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directed by sub-rule (3) can not be for any other purpose than second analysis.

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Therefore, forwarding of sample 'B' can be taken to have the sole purpose of a second analysis on a demand being made in that regard by the accused. Sample 'A' as already said is forwarded by the officer empowered under sub-rule (1) of Rule 8 of the Rules, 2002, immediately after it's preparation in accordance with the procedure contemplated under sub-rule (2) thereof and prior to registration of crime itself. Or in otherwords, unlike in other offences coming within the purview of the Act, the requirement to forward a sample for analysis and receipt of the report of analysis is a pre-condition only for registration of crimes for violation of conditions of the provisions of the Act, Rules, licence or adulteration in respect of toddy alone. Sample 'A' will be forwarded by the officer empowered directly to the Chemical Examiner's Laboratory without it being forwarded to the court. Only when violations to charge the licensee or permit holder of toddy shops are noticed that crimes to that effect will be registered and sample B will be forwarded to the Court. The procedure for drawing samples of toddy from toddy shops is elaborate and is meant for strict compliance. Therefore, when

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sample 'B' is produced before the court, the court will get an opportunity to see and record whether it was one prepared in conformity to the procedures mandated under clauses (a) to (g) of sub-rule (2) of Rule 8. Therefore, as held by various courts in decisions relied on by the counsel for petitioners and referred to supra, since two samples are directed by the Rules to be prepared and the second sample is directed to be produced before the court after registration of a crime, it can serve no purpose than a second analysis, on a demand by the accused. The trial court has misconceived the dictum in Santhosh's case (supra) to hold otherwise and thereby declined the prayer of the petitioner. The order under challenge deserves to be set aside.

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In the result, these Criminal Revision Petitions are allowed. The impugned order is set aside. The trial court shall consider CMP Nos.1338/2019 and 1730/2019 in favour of the petitioner and take measures to forward sample B to a Chemical Examiner's Laboratory other than the one wherein, analysis of sample A was done, without any delay, so as to enable the petitioners to defend their case, during trial. Analysis being not by any superior laboratory like in Prevention of Food Adulteration Act, 1954 the report of analysis of sample B shall not be considered as having

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any effect of supersession over the report of analysis of sample

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A. The contraband being toddy, in view of the chance for fermentation in passage of time, it is preferable that the examination of sample B must be asked without much delay after it's production. However, reliability of the report must only be after getting clarification from the Chemical Examiner regarding the reason for changes in the reports of analysis and not on the sole parameter that it favours the accused.

Sd/-

MARY JOSEPH

JUDGE

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Crl.R.P. Nos. 565 and 567 of 2019

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APPENDIX OF Crl.Rev.Pet 565/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A

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TRUE PHOTOCOPY OF THE PETITION IN C.M.P. NO. 1338/2019 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, CHENGANNUR DATED 11.4.2019.

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ANNEXURE B TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HONBLE COURT IN CRL.R.P. NO. 345/2012 DATED 13.2.2012.

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ANNEXURE C TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HONBLE COURT IN CRL.R.P. NO. 1571/2013 DATED 19.8.2013.

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ANNEXURE D TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HONBLE COURT IN CRL.R.P. NO. 2052/2014 DATED 01.12.2014.

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/TRUE COPY/

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P.S. TO JUDGE

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APPENDIX OF Crl.Rev.Pet 567/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE PHOTOCOPY OF THE PETITION IN C.M.P.NO.1730/2019 FILED BY THE PETITIONER BEFORE THE JUDICIAL FRIST CLASS MAGISTRATE COURT-I,MAVELIKKARA DATED 22.03.2019.

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ANNEXURE B TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.345/2012 DATED 13.02.2012.

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ANNEXURE C

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TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.No.1571/2013 DATED 19.08.2013.

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ANNEXURE D

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TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.2052/2014 DATED 01.12.2014.

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/TRUE COPY/