The accused has the right to apply for testing 'B' sample as of right, without the need to narrate exceptional circumstances in the application.

1. The Revision Petitioner is the 1st accused in Crime No.55 of 2013 of the Chengannur Excise Range, in Alappuzha Division, registered for the offences punishable under Sections 57 (a) and 56 (b) of the Abkari Act. On 16/05/2008 at 11.30 A.M. the Excise Range Officers, in the course of their routine check, took samples from the toddy kept for vending, from the Toddy Shop No.4/2008-09 of the Chengannur Excise Range, marked as 'A' & 'B' and sample 'A' sent for chemical analysis. On chemical analysis, sample 'A' found containing 8.47% v/v of ethyl alcohol, which is allegedly in violation of Rule 9(2) of the Kerala Abkari Shops Disposal Rules 2002 (hereinafter called Rules 2002). The maximum strength fixed by the Rule is 8.1% v/v. The above crime is registered on the basis of the said chemical analysis report.

2. The Petitioner is aggrieved by the chemical examination report now received from the Chemical Examination Laboratory at Thiruvananthapuram, stating that the sample marked as 'A' contains 8.47% v/v of Ethyl Alcohol. The Petitioner believes that some inadvertent mistakes would have crept in the analysis at the Chemical Laboratory, Thiruvananthapuram. Thus, the Petitioner bona fide doubts the veracity of the chemical analysis report presently available and relied on by the prosecution. In short the petitioner doubts some mistakes in the report.

3. In the above context, the petitioner filed an application before the learned Magistrate for sending the second sample marked as 'B' for chemical examination. The learned Magistrate, after hearing the Revision Petitioner and the prosecution, dismissed the above petition mainly on the grounds that the request for re-testing shall not be entertained, as a matter of course, and the petition does not state any exceptional circumstances to do so.

4. This Revision Petition is filed challenging the above said order passed by the learned Magistrate on various grounds.

5. Sri. C.C. Thomas, the learned senior counsel for the Revision Petitioner submits that the order under challenge is passed in defiance of the well settled judicial precedents laid down by this Court. According to the learned senior counsel, the lower court went wrong by relying on 2013(1) KLD 349 (SC) (Thana Singh V. Central Bureau of Narcotics) and holding that the request as to re-testing and re-sampling shall not be entertained under the Abkari Act, as a matter of course. Further, it is contended that the court below further erred in finding that the petitioner has not mentioned any exceptional circumstances as to forward the second sample for analysis. So, the petitioner is not entitled to get the second sample analysed.

6. Per contra, Sri. Liju V. Stephen, the learned Public Prosecutor advanced arguments to justify the above said two reasons for which the impugned order has been passed. The learned Public Prosecutor submits that the accused has no right to get the second sample examined as of right and the second sample can be examined only on exceptional circumstances. Even if the result of the analysis of B sample is in favour of the accused, that would not prevail over the test result of 'A' sample. Therefore, the accused does not have a right to file the application for sending 'B' sample for analysis. Unless compelling circumstances indicating infraction in procedure of sampling are shown, 'B' sample cannot be tested.

In view of the above contentions, two questions emerge for consideration of this Court in this Revisional Jurisdiction.

(i) Whether the accused has a right to file an application for testing 'B' sample, as of right?

(ii) Whether the accused is liable to narrate exceptional circumstances indicating infraction in the procedure, in the application for sending 'B' sample for analysis?

7. Going by the impugned order, as rightly contended by the learned senior counsel for the revision Petitioner, the learned Magistrate dismissed the petition on two grounds. Firstly, the learned Magistrate fo