N.K. Balakrishnan, J.

The petitioners are accused Nos.1 to 4 in CR No. 78/2010 of Changanacherry Excise Range. The crime was registered alleging commission of offence punishable under Section 57(a) of Abkari Act. The first petitioner was stated to be the Manager and petitioners 2 to 4 were stated to be the licensees of toddy shop No. XIII in Changanacherry Excise Range in which toddy shop No. 47 is included. Two samples of toddy were taken from the aforesaid toddy shop on 28/09/2010. One sample was sent for chemical examination. The chemical examination report shows that the strength of the ethyl alcohol was 8.72% by volume which was in excess of the permissible strength - 8.1% by volume. Based on that report the licence was cancelled by the chemical examiner. The petitioner challenged the said order before this Court. The order passed by the Excise Commissioner was set aside by this Court pursuant to the application filed by the accused. The second sample was sent by the learned Magistrate for chemical examiner's report. As per Annexure - C report it was reported that the strength of the ethyl alcohol content was only 7.66% by volume. Since it is less than 8.1%, the offence punishable under Section 57(a) is not attracted, the learned counsel for the petitioner submits. The learned counsel further submits that it is open to the prosecution to challenge the second report by examining the Analyst/Chemical Examiner who issued the certificate. On going through the charge sheet and memorandum of evidence, there is nothing to show that the prosecution has intended to challenge the second report. The learned counsel for the petitioners submits that without citing the witnesses for that purpose and without stating that the second report obtained through Court is unacceptable, the prosecution has to rest content with the second report. In other words, the prosecution is bound by the second report, in which case the prosecution under Section 57(a) of the Abkari Act cannot be sustained. Nothing is mentioned in that final report filed on 17/05/2011 that the second report obtained through the Court is inadmissible or incorrect or as to how the prosecution intends to get over the second report. In this connection the learned counsel for the petitioner would also rely upon Annexure - E, the proceedings of the Commissioner of Excise who observed that there is force in the submission made on behalf of the petitioners herein as stated above. It was pursuant thereto, the order of cancellation of licence of toddy shop No.8/10-11 of Changanacherry Range was revoked. Of course, it was stated that it would be subject to the order of the trial Court. Annexure - Fis the final report filed by the Circle Inspector of Excise. Though so many witnesses are seen cited, CW 6, Sheela Das is the Assistant Chemical Examiner. It was CW 6 who issued Annexure-C report in which ethyl alcohol content was shown to be only 7.66% by volume. But it is pointed out by the learned counsel for the petitioners that no statement of CW 6 was obtained by the investigating agency and no such statement has been produced in Court. If only CW 6 says that report submitted by her is incorrect (for which there must be some statement with regard to the same in the final report), the prosecution can have a presentable case. The learned counsel further submits that since Annexure-C report was obtained after the second sample was duly submitted to the Chemical Examiner through Court that report has to be accepted by the Court since the first report was obtained by sending the sample by the excise officials themselves. There is no case for the prosecution that any statement was given by CW 6 - Sheela Das to hold that Annexure-C report is unacceptable nor was any other witness cited by the prosecution to challenge the acceptability and admissibility of Annexure-C report.

2. The learned counsel has also relied upon the decision of this Court in Girish Kumar v. State of Kerala 2010 (3) K