IMPORTANT POINTS
Rule 8(3) of the Rules mandates that if the report in respect of the first sample is positive of adulteration of the toddy, a case shall be registered within 24 hours and the sample marked 'B' shall be produced before the concerned court. What is the purpose of preserving the 'B' sample even after the Abkari Officer obtains a positive result of adulteration in respect of the 'A' sample? The purpose is only to give an option for the accused to get the second sample sent for analysis. Even though there is no specific provision contained in the Rules enabling the accused to send the second sample for chemical analysis, the mandate of Rule 8(3) regarding preservation of second sample implies that the accused has got the right to get that sample analysed.

ORDER :

The revision petitioners are the accused in two different cases registered by the Abkari Officer for an offence punishable under Section 57(a) of the Abkari Act, 1077.

2. The common question that arises for consideration in these revision petitions is, whether an accused in a case registered under Section 57(a) of the Abkari Act for adulteration of toddy, is entitled to get the second sample of toddy sent for chemical analysis and if so, at what stage of the case, he can exercise that right.

3. In both cases under consideration here, the excise officials took two samples of toddy from the toddy shops conducted by the petitioners. The first sample was sent by the excise officials for chemical analysis. The result of the chemical analysis was that the first sample contained adulterant in it. On the basis of such positive report, cases were registered against the petitioners under Section 57(a) of the Abkari Act.

4. Before filing final report in the court by the Abkari Officer, the petitioners filed applications before the court below for sending the second sample for chemical analysis. Learned Magistrate dismissed the applications filed by them. The aforesaid orders are challenged in these revision petitions.

5. Heard learned counsel for the petitioners and the learned Public Prosecutor.

6. Learned counsel for the petitioners, relying upon the decisions of this Court in Girish Kumar v. State of Kerala : 2010 (3) KLT 95 and Rajappan v. State of Kerala : 2012 (2) KLT 898, contended that if the result of chemical analysis of the second sample is negative, the prosecution against the petitioners would not be maintainable and therefore, the accused has got the right to get the second sample analysed even before the filing of the final report in the case.

7. Per contra, learned Public Prosecutor contended that, even if a report is obtained in the negative by analysis of the second sample, it will not supersede the first report in the absence of any statutory provision to that effect. Learned Public Prosecutor, relying upon the decision of this Court in Sudhakaran v. State of Kerala : 2011 (1) KLT 799, would contend that the accused has no right to get the second sample sent for analysis.

8. The procedure for taking samples from toddy shops is provided in Chapter VII of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). Rule 8(1) of the Rules states that 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. Rule 8(2) of the Rules prescribes the procedure to be followed by the Abkari Officer while taking the samples. Under clause (c) of sub-rule (2), the Abkari Officer has to divide the sample into two parts and put each part into separate bottles or containers which are properly cleaned and dried. Clause (e) requires him to affix labels marked 'A' and 'B' on each bottle or container. As per clause (f), the sealed bottle or container marked 'A' shall be forwarded, without unreasonable delay, 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. As per clause (h) of sub-rule (2), the B sample shall be kept in the custody of the Deputy Commissioner of Excise. Rule 8(3) of the Rules provides that on receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, Rules or conditions of Licence or any adulteration is noticed, a case shall be registered within 24 hours and the sample marked 'B' shall be produced before the concerned court and if no case is registered, the sample 'B' shall be destroyed.

9. In Girish Kumar (supra), the second sample was not available for chemical analysis because only one sample was prepared. A learned Single Judge of this Court held that, though Rule 8 does not specifically provide a right to the accused to send the second sample to the laboratory for a