IMPORTANT POINTS
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 sub-rule (2) of Rule 8 directs preparation of 2 samples of toddy, forwarding of the same to the court on registration of crime as directed by sub-rule (3) can not be for any other purpose than second analysis.

ORDER :

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.

2. 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.

3. 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.

4. Sri.M.G.Karthikeyan advanced arguments on behalf of the petitioners in the petitions on hand. According to him, Rule 8 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.

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

6. The learned Public Prosecutor has submitted that the 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 even if a second sample is available it cannot be sent for examination at the request of the accused m