Important points:
mixing of starch with toddy need not be included with the serious offences of mixing other foreign ingredients with toddy and has given the offence separate status which does not entail a serious punishment. So the request made by the petitioners who were charged under Section 57(a) before the Amendment Act of 2018 made a request for compounding of offence was directed to be considered though the offences were committed at a time when they were not compoundable in terms of Section 67A

ORDER :

1. Whether the accused persons facing trial under Sections 56(b) and 57(a) of the Abkari Act (Act 1 of 1077) are entitled to get ‘B’ sample of toddy collected by an Abkari Officer under Rule 8 Sub-Rule (2) of Kerala Abkari Shops of Disposal Rules, 2002 forwarded for examination to Chemical Examiner’s Laboratory and get a report for trial and disposal of the case is the question under reference.

2. In Girish Kumar and Another vs. State of Kerala, 2010 (3) KHC 171, Joshy George vs. State of Kerala, 2011 (4) KHC 818, Rajappan and Another vs. State of Kerala, 2012 (2) KHC 657, Harikrishnan R. vs. State of Kerala, 2016 (4) KHC 57, Santhosh and Another vs. State of Kerala, 2020 (1) KHC 480 and Saneesh vs. State of Kerala, 2020 (1) KLT 289, this court more or less took the view that the accused has got a right to get the second sample analyzed though there is no specific provision in the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter be called as “the Rules”).

3. Whereas in Santhosh T.A. and Another vs. State of Kerala, 2017 (5) KHC 107, another learned single Judge, took a divergent view based upon Thana Singh vs. Central Bureau of Narcotics, 2013 (2) SCC 590, that the declaration made by the Apex Court in relation to cases registered under the NDPS Act is applicable to cases under the Abkari Act also. Hence, even if a second sample is available it cannot be sent for examination at the request of the accused merely for the reason that the 1st report is not favourable to him.

4. In view of the conflicting opinions, this reference has been made to resolve the uncertainty in the field of sending the second sample for analysis to the Chemical examiners laboratory.

5. Before probing into the legal issues, factual matrix of the case also to be summarized in view of the fact that the entire case has been referred as per the settled position in Kallara Sukumaran vs. Union of India, 1987 (1) KLT 226, that a single Judge is not competent to refer a question of law only.

6. Petitioners are the accused numbers 1 and 2 in C.C. No. 66/16 on the file of the Judicial First Class Magistrate-I, Sulthan Bathery in Crime No. 100/15 of Excise Range Sulthan Bathery, Wayanad. Petitioners 1 and 2 are the salesman and licensee respectively of toddy Shop No. 30/14-15 in Group No. 1 of Sulthan Bathery Excise Range. It is alleged that Petitioners committed the offence punishable under Sections 57(a) and 56(b) of the Abkari Act (Act 1 of 1077). Prosecution case is that samples of toddy were taken as per Rule 8 from the toddy shop of the petitioners on 12.1.2015 at 11.20 a.m. The Chemical analysis report dated 24.6.2015 stated that starch was detected in the sample of toddy and crime and occurrence report was registered against the petitioners. Thereafter Excise Inspector, Sulthan Bathery conducted the investigation and filed final report before the Judicial First Class Magistrate-I, Sulthan Bathery along with a charge-sheet and the case is pending as C.C. No. 66/16. ‘B’ sample prepared as per Rule 8 was sent to the 2nd respondent for analysis and the report of the Chemical analysis in pursuance of the same stated that presence of starch was not detected in the sample of toddy. Hence the petitioners approached this court to quash the entire proceedings in C.C. No. 66/16 pending before the Judicial First Class Magistrate-I, Sulthan Bathery.

7. On hearing the matter since the learned single Judge came across the conflict in views expressed by learned Single Judges in various decisions, the case was referred to Division Bench and thereby case came before us.

8. At the outset it is apposite to extract Rule 8 since the entire issue is revolving on it:

“PROCEDURE IN TAKING SAMPLES FROM TODDY SHOPS

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8. (1) All Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any chemical analysis.

(2) While taking sample of any liquor by the Abkari Officer for chemical analysis, the following procedure shall be followed, nam