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. 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 th