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2010 DIGILAW 317 (KER)

Girish Kumar v. State Of Kerala

2010-04-06

M.SASIDHARAN NAMBIAR

body2010
Judgment : 1. On 21/4/2007, Excise Inspector at Mallappally Excise Range took samples of toddy from Shop No. 9 of Group No.4 of Mallappally Excise Range. Even before getting the report of chemical analysis, Crime No.11/2007 was registered. Petitioners, the accused, approached this court to quash the registration of the case by filing Crl. M.C.1694/2007 contending that registration of the case is pre-mature, as though the sample was sent for examination, report was not received. By Annexure-C order, this court recording the submission of the learned Public Prosecutor that no action will be taken against the petitioners before receipt of the report of Chemical Examination from the Forensic Science laboratory and no adverse consequence whatsoever will take place or be initiated against them till a report is received, allowed Crl.M.C in part, making it clear that notwithstanding the registration of crime No.11/2007, no further proceedings shall be taken against the petitioners and petitioners shall not be visited with any adverse consequence on the basis of registration of crime. Annexure-D report was received subsequently from the Chemical Examiner's Laboratory, Thiruvananthapuram which shows that ethyl alcohol was detected in the sample and percentage of ethyl alcohol is 21.19 percent by volume of ethyl alcohol. As the report is against the petitioners and finding that second sample was not available to be examined at the laboratory, this petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings. Petitioners had filed a petition before the learned Magistrate to send the second sample to the laboratory. In that petition Annexure-G report was submitted by the Excise Inspector to the effect that only one sample was prepared and hence second sample cannot be produced before the court. According to the petitioners though Kerala Abkari Shops Disposal Rules, 2002 does not specifically provide that an accused has a right to send the second sample to laboratory, as is the case under the Prevention of Food Adulteration Act, this court in several decisions had held that accused has a right to get the second sample examined and when no second sample was prepared, and report submitted by the Excise Inspector establishes that there is utter violation of the mandatory provisions of Rule 8 of Kerala Abkari Shops Disposal Rules, prosecution will not stand and in such circumstances, the case is to be quashed. 2. 2. Learned Public Prosecutor submitted that though the report of the Excise Inspector submitted before the Magistrate shows that only one sample was prepared and under Rule 8(2), two samples are to be taken, on that ground alone the case cannot be quashed. Learned Public Prosecutor also pointed out that when petitioners have already approached this court invoking the powers under Section 482 of Code of Criminal Procedure, to quash the registration of the case and it was disposed, a second petition under Section 482 of Code of Criminal Procedure for the same relief will not lie and on that ground also petition is to be dismissed. 3. Rule 8(2) of Abkari Shops Disposal Rules provides that Abkari Officer has the authority to take sample of liquor, for chemical analysis, following the procedure provided under Sub Rule 2. Under clause(c) of Sub Rule 2 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. Under clause (e), each bottle is to be marked labels A and B and the Abkari Officer shall put his signature, name, designation as the officer taking the samples, with the details of the shop and the item of the sample taken with quantity along with the signature or thump impression of the person from whom the sample is taken. Under clause (f) the sealed bottle marked 'A', shall be forwarded to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorized by the Government along with memorandum in Form No.V. Under clause (h) bottle or container marked as 'B' shall be handed over to the concerned Deputy Excise Commissioner of the division, who shall be the Authorized officer, with a copy of the memorandum, immediately, under proper acknowledgment and he shall affix his seal over the string on the neck portion of the bottles or containers and shall assign a register number on the label affixed. Sub Rule (3) provides that on receipt of chemical analysis report, if any violation of the provisions of the Abkari Act, Rules or conditions of license or any adulteration is noticed, a case shall be registered within 24 hours and the sample 'B' shall be produced before the concerned court and if, no case is registered sample marked as 'B' shall be destroyed. 4. 4. Clause c, e, f and h of Sub Rule 2 and Sub Rule 3 read. "(c) Divide the sample into two parts and put each part into separate bottles or containers which are properly cleaned and dried; (e) Labels marked 'A' and 'B' shall be affixed on each bottle or container, bearing the signature, name, designation of the officer taking the samples with the details of the shop and the item of the sample taken with quantity along with the signature or thump impression of the person from whom the sample is taken; (f) The sealed bottle or container marked 'A' shall be forwarded to the Chief chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorized by the Government in this behalf along with a memorandum in Form No.V appended to these rules, without unreasonable delay. The memorandum shall be forwarded in a sealed cover; (h) The bottle or container marked as 'B' shall be handed over to the concerned Deputy Commissioner of Excise of the division who shall be the Authorized Officer with a copy of the memorandum, immediately, under proper acknowledgment. He shall affix his seal over the string on the neck portion of the bottles or containers and shall assign a register number on the label affixed. Sub Rule (3):On receipt of the chemical Analysis Report, if any violation of the provisions of the Abkari Act, Rules or conditions of License or any adulteration is noticed, a case shall be registered within 24 hours. The sample marked as 'B' shall be produced before the concerned court. If no case is registered, the sample marked 'B' shall be destroyed." 5. A reading of Rule 8 makes it absolutely clear that Abkari Officer has to prepare two samples and one sample is to be labelled as 'A' and other 'B' and sample 'A' shall be sent to the Chief Chemical Examiner or Joint Chemical Examiner or to any officer authorized by the Government for analysis. On receipt of the report of the chemical analysis, if the report is positive, a case shall be registered within 24 hours. In that case the sample B, which shall be entrusted with the Deputy Commissioner of Excise of the Division by the Abkari Officer, shall be produced before the court. It is only if the report is negative, sample 'B' could be destroyed. 6. In that case the sample B, which shall be entrusted with the Deputy Commissioner of Excise of the Division by the Abkari Officer, shall be produced before the court. It is only if the report is negative, sample 'B' could be destroyed. 6. Though Rule 8 does not specifically provide a right to the accused, to send the second sample to the laboratory for analysis. The provisions to prepare two samples and to produce the second sample before the court once, case is registered establishes that the provision for preparation of two samples and their liability and production of the second sample before the case on registration of the case are mandatory. If so, when second sample must be available with the court, the accused has a right to get that sample examined. But when the second sample was not prepared that right is not available. 7. The question is whether for violation of Rule 8(2) or (3), the case is to be quashed as canvassed by the learned Senior counsel appearing for the petitioners. There is force in the submission of the learned Senior counsel that when it is admitted by the Abkari officer himself, who affected seizure, that mandatory provisions under Rule 8(2) and (3) are violated, it would definitely prejudice the accused. If the second sample is available with the court, it could definitely be examined by another expert to find out whether sample was prepared properly. It would also enable the accused to get a report from the laboratory on such examination, if he is aggrieved by the first report. When only one sample is prepared in violation of the provisions of Sub rule (2) of Rule 8, petitioners are seriously prejudiced. Consequent to the violation of the mandatory provisions, there is no likelihood of a successful prosecution. If so, it is not in the interest of justice to continue the prosecution. Therefore, though Annexure-D report of Chemical Analysis shows that percentage of ethyl alcohol is 21.19 percent, as sample was not prepared as provided under Sub Rule (2) of Rule 8 and consequent to the said violation petitioners have been seriously prejudiced, in the interest of justice case against petitioners can only be quashed. In such circumstances, petition is allowed. Crime No. 11/2007 of Excise Range Office, Mallappally is quashed.