Document Fragment View

Matching Fragments

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 "[ x x x]

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, namely.

12. In that case also acceptability of the report of the second sample was taken into consideration to find that no offence under S.57(a) is attracted.

13. In Sudhakaran and Others v. State of Kerala Crl.M.C.2719 of 2020 (2011 (1) KHC 610), the accused approached this court under S.482 Cr.P.C on receiving the report of the chemical examination of the second sample favourale to him. But in that decision this court after discussing the scope and ambit of Sec.293 Cr.P.C held that the report on the second sample relied on by the accused is admissible in evidence under S.293(1) Cr.P.C. The prosecution has a right under sub-section (2) of Sec.293 Cr.P.C to examine the expert who analyzed the second sample and issued the report and prove that second sample is not proper or valid or otherwise is not acceptable and hence those reports cannot be relied on. But it is also held that it could not be said that a report obtained by the abkari officer on the first sample is superseded by the report on the second sample. And whether one of the first or on the second sample is acceptable was left for decision of the court. It is also held that accused cannot request to quash the proceedings against them based on the report of the second sample. While disposing that case this Court also took into account Sec. 13(3) of the PFA Act which provides that the certificate issued by Crl.M.C.2719 of 2020 the Director of Central Food Laboratory (under sub-section (2B)) shall supersede the report given by the Public Analyst under sub-section (1). Proviso to sub section 5 of Sec.13 of the PFA Act made the certificate signed by the Director of Central Laboratory (subject to the exception provided therein) final and conclusive evidence of the facts stated therein. So the fact is that a report of the Central Food Laboratory supersedes the report of the public analyst and makes the facts therein final and conclusive but such a provision is not contained in the Abkari Act or the Rules.

38. But Chapter X of Vol.II of Kerala Excise Manuel which deals with toddy does not provide any such provision with regard to the sample collection or test to be conducted. The Kerala Excise Manuel, Vol.II revised - 2018 page 101 Chapter XI which deals with sweet toddy (neera). Crl.M.C.2719 of 2020 Page 104 which states about the procedure for taking sample specifying the two samples labelled as A and B contained 300 ml each to be collected and bottle A to be sent to the chemical Examiner for chemical analysis and B sample to be handed over to the licensee for safe custody and the necessity to affix seals of officers and the licensees or the representatives, if the licensee desires so, was also brought to our attention to support the contention that even as per the revised Manuel there is a direction to take two samples and to hand over one sample to the licensee or the representatives.

39. Chapter XVI of the Revised Manuel -2018 deals with the collection of samples for chemical analysis of toddy. But on looking at the procedure prescribed while taking sample of toddy following procedure can be seen.

"Toddy :- (I) The quantity of sample taken for chemical analysis shall not be less than 500 ml.
(ii) Bensoic Acid should be added as preservative in toddy at the rate of one gram for 100 ml of toddy.