IMPORTANT POINTS
Reports on the second samples relied on by the accused are certainly admissible in evidence under Section 293(1) of the Code in the course of any inquiry, trial or other proceedings in the matter, but the prosecution has the right, under sub-section (2) of Section 293 of the Code to examine the expert who analysed the second samples and issued the report and prove that analysis on the second samples is not proper or valid (if it has got such a case) or is otherwise not acceptable and hence those reports cannot be relied on. In that situation it could not be said that the report obtained by the Abkari Officer on the first sample is superseded by the report on the second sample. Which of the two reports -whether the one of the first or on the second sample -is acceptable is a matter for decision by the court.

ORDER :

The petitioners are the first and the second accused in the case registered as C.R.No.15/2014 of the Muvattupuzha Excise Range for the offences punishable under Sections 56(b) and 57(a) of the Abkari Act, 1077.

2. On 15.01.2014, samples of toddy were collected by the Assistant Excise Inspector of Muvattupuzha Excise Range from toddy shop No.61/2013-14. The first sample (sample A) was sent for chemical analysis. Annexure-A report of chemical analysis showed that the first sample contained 8.60% by volume of ethyl alcohol. On the basis of that report, the case was registered against the first petitioner, who was the salesman of the toddy shop and the second petitioner, who was the licensee of the toddy shop, on the ground that the ethyl alcohol content of the toddy, which was kept for sale, was in excess of the prescribed limit.

3. On the basis of the application filed by the petitioners, the second sample (sample B) was sent for chemical examination from the Magistrate's Court concerned. Annexure-C report of chemical examination in respect of the second sample shows that the sample contained 7.72% by volume of ethyl alcohol.

4. This petition is filed under Section 482 Cr.P.C for quashing the case registered against the petitioners.

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

6. Learned counsel for the petitioners contended that, in view of Annexure-C chemical analysis report, which is inconsistent with Annexure-A report, the case registered against the petitioners cannot survive and it is liable to be quashed.

7. Learned Public Prosecutor contended that Annexure-C report cannot be taken into consideration by the court at this stage of the case and that the prosecution would be able to show that result shown in that certificate is not correct.

8. At this juncture, it is to be noted that final report has not been yet filed in the case.

9. Learned counsel for the petitioners, relying upon the decisions of this Court in Joshy George v. State of Kerala : 2011 (4) KHC 818 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.

10. 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.

11. In Joshy George (supra), the analysis of the second sample had shown negative result and the accused had prayed for quashing the final report filed against them. This Court noticed that since no witness was cited and no statement of any witness was recorded by