Rule 8(2)(g) of the Kerala Abkari Shops Disposal Rules is directory, not mandatory, allowing for substantial compliance in the chemical analysis procedure.

ORDER

A seminal question relating to the scope and purport of Rule 8(2)(g)

of the Kerala Abkari Shops Disposal Rules, 2002 arises for consideration in this batch of cases.

2. Petitioners in all these cases are facing prosecution for the offence allegedly committed under the Abkari Act, 1077 (for short ‘the Act’). Though facts are not wholly relevant for disposing of these cases, for the purpose of reference, facts in Crl.M.C No.5180/2021 are mentioned below. The second petitioner is the licensee of toddy shop No.12 of Thodupuzha Excise Range. On 25.11.2020, samples of toddy were taken from the toddy shop and on chemical analysis it was found to contain cannabinoids as per the chemical analysis report dated 28.07.2021 issued by the Assistant Chemical Examiner to the Government of Kerala. Cannabinoids which is ganja, is not a permitted substance in toddy. Hence a crime was registered as Crime No.69/2021 of Thodupuzha Excise Range alleging offence under section 57(a) of the Act, which is sought to be quashed under Section 482 Cr.P.C.

3. Petitioners are aggrieved by the procedure adopted while sending the sample of toddy for chemical analysis, which according to them, was done in violation of the mandatory procedure prescribed under Rule 8(2)(g) of the Kerala Abkari Shops Disposal Rules, 2002 (for brevity ‘the Rules’). Petitioners allege that instead of sending the sample of preservative used separately, along with each sample of toddy for analysis, the Abkari Officers had sent only one sample of preservative used for a batch of toddy seized from different toddy shops.

4. Sri. C.C. Thomas, learned Senior Counsel instructed by Sri. Vivek Venugopal, the learned counsel appearing for the petitioners and Sri. Renjith Marar, the learned counsel appearing for some of the petitioners contended that rule 8(2) of the Rules has been held to be a mandatory procedure in the decision in Gireesh Kumar and Another v. State of Kerala [2010 (3) KHC 171] and since the mandatory procedure has been violated, the very registration of the crime itself is without legal authority. The learned Senior Counsel submitted that instead of sending a sample of a small portion of the preservative used along with every sample of toddy seized for chemical analysis, the Investigating Officer had sent only a small portion of the preservative used along with a batch of the sample of toddy seized from various toddy shops and sent for analysis. The attention of the court was invited to the certification of chemical analysis produced in Crl.M.C No.5180 of 2021, which indicates that in the 15 samples of toddy sent for analysis as a batch, only one sample of five grams of benzoic acid allegedly used as the preservative was sent. It was asserted that, without every sample of toddy sent for chemical analysis attached with a small quantity of preservative used, the mandate of rule 8(2)(g) of the Rules is not satisfied and the sampling procedure was faulty destroying the very edifice of the prosecution case.

5. Sri. Grashious Kuriakose, the learned Additional Director General of Prosecution assisted by Sri. Suresh Kumar, learned Public Prosecutor, on the other hand, contended that rule 8(2)(g) of the Rules is not a mandatory procedure and its non-compliance cannot be detrimental to the prosecution case. Referring to the statutory provision, it was argued that the scheme of the Rules, will reveal that the sub-clause (g) is only directory in nature. It was also argued that there is substantial compliance to the provisions and therefore invocation of the remedy under section 482 of Cr.PC is unwarranted.

6. At this juncture, it needs to be mentioned that though another learned Single Judge had heard all these cases and reserved them for judgment, by the order dated 21-06-2024 of the Hon’ble Chief Justice on the Administrative side, these matters were placed before this Court for fresh hearing and disposal.

7. Be that as it may, on an appreciation of the rival contentions, the following i