Kerala High Court

Sajil vs State Of Kerala on 21 September, 2023

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 21ST DAY OF SEPTEMBER 2023/30TH BHADRA, 1945
               CRL.REV.PET NO. 871 OF 2023
  AGAINST THE ORDER/JUDGMENT CMP 3373/2023 OF JUDICIAL
         MAGISTRATE OF FIRST CLASS -I,PALAKKAD
REVISION PETITIONER/PETITIONER/ACCUSED NO.2:


         BHAGEERATHAN K.K.,
         AGED 64 YEARS,
         S/O.K.V.KUMARAN,
         KARATTE HOUSE,
         KURKANCHERI,
         S.O.THRISSUR., PIN - 680007

         BY ADV NIREESH MATHEW


RESPONDENT/RESPONDENT/COMPLAINANT:


         STATE OF KERALA,
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA,
         ERNAKULAM, KOCHI., PIN - 682031

         BY SMT.SEENA C., PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.873/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 Crl.R.P. Nos.871, 873 & 874/2023
                                    :2:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023/30TH BHADRA, 1945
                    CRL.REV.PET NO. 873 OF 2023
    AGAINST THE ORDER/JUDGMENT CMP 3372/2023 OF JUDICIAL
             MAGISTRATE OF FIRST CLASS -I,PALAKKAD
REVISION PETITIONER/PETITIONER/ACCUSED:


            SAJIL,
            AGED 33 YEARS,
            S/O.GOPALAN,
            KONNAMPURA HOUSE,
            PARUTHIPALLI DESOM,
            PERINGOTTUKURISSI 1 VILLAGE,
            ALATHUR TALUK,
            PALAKKAD DISTRICT., PIN - 695574

            BY ADV NIREESH MATHEW


RESPONDENT/RESPONDENT/COMPLAINANT:


            STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM, KOCHI., PIN - 682031

            BY SMT.SEENA C., PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.871/2023,
874/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P. Nos.871, 873 & 874/2023
                                    :3:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023/30TH BHADRA, 1945
                    CRL.REV.PET NO. 874 OF 2023
    AGAINST THE ORDER/JUDGMENT CMP 3374/2023 OF JUDICIAL
             MAGISTRATE OF FIRST CLASS -I,PALAKKAD
REVISION PETITIONER/PETITIONER/ACCUSED NO.2:


            VIJAYAN,
            AGED 51 YEARS,
            S/O.VELUNNI,
            ENTHANPALAM HOUSE,
            NANNIODE, PERUMATTY VILLAGE,
            CHITTUR TALUK, PALAKKAD., PIN - 678354

            BY ADV NIREESH MATHEW


RESPONDENT/RESPONDENT/COMPLAINANT:


            STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM, KOCHI., PIN - 682031

            BY SRI.M.P.PRASANTH, PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.09.2023, ALONG WITH CRL.REV.PET.873/2023
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 Crl.R.P. Nos.871, 873 & 874/2023
                                    :4:




                           N. NAGARESH, J.
              ---------------------------------------------------
               Crl.R.P. Nos.871, 873 and 874 of 2023
              ---------------------------------------------------
              Dated this the 21st day of September, 2023


                                   ORDER

These criminal revision petitions have been filed invoking

Sections 397 and 407 of the Code of Criminal Procedure

challenging the orders dated 16.08.2023 passed by the Judicial

First Class Magistrate's Court-I, Palakkad in CMP Nos.3372,

3373 and 3374 of 2023.

2. The petitioners are accused of committing offences

under Sections 57(a) and 56(b) of the Abkari Act. By the

impugned orders, the Judicial First Class Magistrate's Court-I,

Palakkad has rejected the request of the petitioners to send the

second sample of toddy which is marked as 'B' taken from the

Toddy Shops concerned.

Crl.R.P. Nos.871, 873 & 874/2023

3. The petitioners state that the impugned orders

dismissing the applications of the petitioners for sending the

second sample for analysis go against the law laid down by this

Court in Girish Kumar v. State of Kerala [2010 (2) KLJ 444]

and Sasidharan and another v. State of Kerala [2013 (3)

KHC 402].

4. As the orders impugned have been passed ignoring

the law laid down by this Court, the petitioners are entitled for

an order directing the Magistrate's Court to forward the second

sample for analysis.

5. Public Prosecutor entered appearance and resisted

the Criminal Revision Petitions. The Public Prosecutor pointed

out that in Krishnan M.C. v. State of Kerala [2021 (1) KLD

439], a Division Bench of this Court has considered the entire

aspects of the case and has held that accused in abkari

offences do not have any right to seek sending the second

sample for chemical examination. As the Division Bench of this

Court has taken a decision to that effect, the orders passed by Crl.R.P. Nos.871, 873 & 874/2023

the Judicial First Class Magistrate's Court-I, Palakkad are

legally justified. The petitioners have no right to seek for

sending second sample for analysis, contended the Public

Prosecutor.

6. I have heard the learned counsel for the petitioners

and the learned Public Prosecutor representing the

respondents.

7. It is not in dispute that prior to the judgment of the

Division Bench in Krishnan M.C. (supra), Single Judges of this

Court had taken a view that the accused have a right to get the

second sample sent for analysis. The counsel on either side

would submit that the Division Bench judgment in Krishnan

M.C. (supra) was challenged before the Hon'ble Apex Court by

the petitioners therein and the Apex Court has stayed the

operation of the said judgment and all further proceedings in

the cases. This is evident from Annexure-C and Annexure-D.

8. In view of Annexure-C and Annexure-D orders of the

Apex Court, now the right of the petitioners to get the second Crl.R.P. Nos.871, 873 & 874/2023

sample forwarded will have to be decided on the basis of the

judgments in Girish Kumar (supra) and Sasidharan (supra).

Any refusal to forward the second sample for analysis at this

stage may cause prejudice to the accused in defending the

cases. Therefore, it would be only just and proper that the

court below is directed to forward the second sample for

analysis.

10. In view of the facts as stated above, the orders

impugned in the afore Criminal Revision Petitions are set aside.

There will be a direction to the Judicial First Class Magistrate's

Court-I, Palakkad to forward the second sample in the above

cases for analysis.

Criminal Revision Petitions are allowed as above.

Sd/-

N. NAGARESH JUDGE sss Crl.R.P. Nos.871, 873 & 874/2023

APPENDIX OF CRL.REV.PET 871/2023

PETITIONER'S ANNEXURES

ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3373/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3373/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT.

ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444 ANNEXURE-G TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 345/2012 DATED 13.02.2012 ANNEXURE-H TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 1571/2013 DATED 19.08.2013 ANNEXURE-I TRUE PHOTOCOPY OF THE SAID COMMON ORDER DATED 07.01.2020 IN CRL.RP.NOS.884 & 897 OF 2019 Crl.R.P. Nos.871, 873 & 874/2023

APPENDIX OF CRL.REV.PET 873/2023

PETITIONER'S ANNEXURES

ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3372/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD DATED 01.08.2023 ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3372/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT.

ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444.

ANNEXURE-G TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 345/2012 DATED 13.02.2012 ANNEXURE-H TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO. 1571/2013 DATED 19.08.2013 ANNEXURE-I TRUE PHOTOCOPY OF THE COMMON ORDER DATED 07.01.2020 IN CRL.RP.NOS.884 & 897 OF 2019 Crl.R.P. Nos.871, 873 & 874/2023

APPENDIX OF CRL.REV.PET 874/2023

PETITIONER'S ANNEXURES

ANNEXURE-A TRUE PHOTOCOPY OF THE PETITION IN C.M.P NO.3374/2023 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD DATED 01.08.2023.

ANNEXURE-B TRUE PHOTOCOPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF EXCISE, ALATHUR DATED 08.08.2023 IN CMP.NO.3374/2023 ANNEXURE-C TRUE PHOTOCOPY OF THE ORDER DATED 30.07.2021 PASSED BY THE HON'BLE APEX COURT IN SLP(CRL)NO.5217/2021 ANNEXURE-D TRUE PHOTOCOPY OF THE ORDER DATED 17.09.2021 IN SLP (CRL) DIARY NO.19449/2021 PASSED BY THE HON'BLE SUPREME COURT.

ANNEXURE-E TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE COURT BELOW ANNEXURE-F TRUE PHOTOCOPY OF THE DECISION, GIRISH KUMAR VS. STATE OF KERALA REPORTED IN 2010(2) KLJ 444.