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2013 DIGILAW 375 (KER)

Sasidharan v. State of Kerala

2013-04-11

C.T.RAVIKUMAR

body2013
ORDER : C.T. Ravi Kumar, J. 1. The petitioners are accused Nos. 1 and 2 in C.R. No. 13/2013 of Mavelikkara Excise Range in Alappuzha District registered alleging commission of offence punishable under S. 57(a) of the Abkari Act based on the amendment of R. 9(2) of the Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). The gist of the prosecution case is that as a part of routine checkup the Excise Officials attached to Mavelikkara. Excise Range inspected toddy shop No. 19/2007-08 to which the second respondent is the licensee from 21.11.2007. In terms of the mandatory provisions under R. 8(2) of the Rules two samples were collected and thereafter samples were marked and 'A' sample was sent for chemical analysis. On such chemical analysis it was found to contain starch. Annexure-B is the chemical analysis report dated 23.8.2010. It is on its basis that alleging commission of offence under S. 57(a) of the Abkari Act C.R. No. 13/2013 was registered against the petitioners. On obtaining summons from the court the petitioners appeared before that court and filed Annexure-C application for sending the second sample viz., the 'B' sample for Chemical Analysis. Annexure-D is the order passed by the Court of the Judicial First Class Magistrate-1, Mavelikkara declining the said prayer. This petition has been filed challenging Annexure-D order and also seeking quashment of the entire proceedings pursuant to Annexure-A against the petitioners. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor. 2. Manifold contentions have been raised by the petitioners. Firstly, it is contended that the provisions under R. 8(3) of the Rules mandate registration of a case within 24 hours on receipt of report of chemical analysis of 'A' sample and it further mandates that in case no case is registered within the said time limit the second sample, viz., Sample 'B' shall be destroyed. Admittedly, in this case, Annexure-B report would reveal that after analysis of Sample 'A' the said report was prepared on 23.08.2010. However, Annexure-A crime and occurrence report was registered only on 29.01.2013. It is the further contention of the petitioners that it is obvious from Annexure-D order passed by the learned Magistrate itself that the second sample is not available to send for chemical analysis. In such circumstances relying on a decision of this Court in Girish Kumar Vs. However, Annexure-A crime and occurrence report was registered only on 29.01.2013. It is the further contention of the petitioners that it is obvious from Annexure-D order passed by the learned Magistrate itself that the second sample is not available to send for chemical analysis. In such circumstances relying on a decision of this Court in Girish Kumar Vs. State of Kerala, it is contended that the entire prosecution against the petitioners are liable to be quashed. It is also contended by the learned counsel appearing for the petitioners that provisions under R. 8(2) and 8(3) are mandatory in nature and violation of the mandatory provisions thereunder would cause serious prejudice to the accused. In terms of R. 8(3) of the Rules it is incumbent on the officials to produce sample 'B' before the court. It is contended that Annexure-A itself would reveal that sample 'B' was not produced before the court. The learned counsel further submitted that there cannot be any dispute with respect to the position of law that as a matter of right an accused in an Abkari case against whom allegation of commission of an offence under S. 57(a) is made can seek for sending of the second sample for chemical analysis. It is in the aforesaid circumstances that the petitioners contend that the entire prosecution proceedings are liable to be quashed when once it is found that second sample is not available for sending for chemical analysis. 3. With respect to the period within which a case has to be registered provisions under R. 8(3) leave no room for any doubt. It is evident from R. 8(3) that on receipt of the chemical analysis report which reveals violation of the provisions of the Abkari Act, Rules or conditions of licence or any adulteration case shall be registered within 24 hours. Indisputably, in this case, Annexure-B analysis report is dated 23.8.2010. The case was registered only on 29.1.2013. This factual position is not at all disputed by the learned Public Prosecutor and it is in fact, indisputable as the same is very much obvious from Annexure-A and Annexure-B. In view of the facts thus obtained from Annexures A and B there cannot be any doubt with respect to the fact that the case on hand was registered against the petitioners very much beyond the period stipulated under R. 8(3) of the Rules. Evidently, on receipt of summons from the court the petitioners appeared and filed Annexure-C application for sending sample 'B' for chemical analysis. Annexure-D is the order passed thereon. A bare perusal of Annexure-D would reveal that the said request of the petitioners was declined on the ground that the second sample viz., sample 'B', is not available for sending for chemical analysis. It is stated in paragraph 4 of the said order as hereunder:- 4. Copy of the application was served on the prosecution. Direction was also given to the Excise Inspector, Mavelikkara to produce 'B' sample before the court. But the sample has not been produced by the Excise Officer. He has filed a report stating that the 'B' sample has not been received back from the Dy. Excise Commissioner's Office Alappuzha. Thereupon memo was issued to the Dy. Excise Commissioner. Alappuzha to which a report is filed before court stating that it is missing from the office. It is also reported that the office was shifted from the old building to a new building and the sample might have been lost during the shifting. (emphasis supplied) It is clear from paragraph 4 of the said order that though sample 'B' is mandatorily to be produced before the concerned court in terms of the provisions under S. 8(3) of the Rules it was not produced. A memo has been filed in the case by the Deputy Excise Commissioner, Alappuzha to the effect that 'B' sample is missing from the office. It is further stated therein that the office of the Deputy Excise Commissioner, Alappuzha was shifted from the old building to a new building and the sample must have been lost during the shifting. I do not think that such a reason can be assigned for the missing of sample 'B' and accepted especially when it would prejudicially affect the indefeasible right of an accused. As far as an accused in a case like this is concerned, he would be put to prejudice on account of the failure to send second sample viz., sample 'B' for chemical analysis. As per the impugned order, evidently, the request of the petitioners for sending sample 'B' was declined by the learned Magistrate as it is not available with the court. In other words, it was not available for production. As per the impugned order, evidently, the request of the petitioners for sending sample 'B' was declined by the learned Magistrate as it is not available with the court. In other words, it was not available for production. It is in this context that the decision of this Court in Gireesh Kumar's case (supra) assumes relevance. In the light of the dictum laid down by this court in Gireesh Kumar's case (supra) if there is any violation of the mandatory provisions under R. 8(2) or 8(3) there cannot be a successful prosecution against the concerned accused. Referring to the relevant provisions under the Rule this Court held that the Deputy Excise Commissioner of the concerned division, the authorised officer in terms of the provisions has to comply with the procedures mandatorily to be followed and affix the seal over the string of the neck portion of the bottles or containers and to assign the register number on the label affixed. The relevance of such procedures is evident from clauses (c), (e), (f) and (h) of sub-rule (2) of R. 8. Sub-rule (3) is also relevant in this context. In fact, a combined reading of provisions under sub-rule (3) and clauses (c), (e), (f) and (h) of sub-rule (2) makes it very clear that the authorised Officer viz., the Deputy Excise Commissioner of the concerned division is bound to follow the prescribed procedures and steps and in a case where the chemical analysis report of the first sample reveals any violation of the provisions of the Abkari Act, Rules or conditions of licence or any adulteration he shall produce the second sample viz., sample 'B' before the concerned court and in case no case is to be registered based on the chemical analysis of sample 'A' then that sample could be destroyed. I am of the view that the situation obtained in this case is graver than the case involved in Gireesh Kumar's case (supra). In that case, the concerned officer had failed to take the second sample. In this case, evidently, sample 'B' was collected in terms of the provisions under the Rules and the reasons assigned for its non-production is the missing of the said sample during the shifting of the building in question where the office of the Deputy Excise Commissioner was housed. I am afraid, such a reason cannot be assigned in a case of this nature. I am afraid, such a reason cannot be assigned in a case of this nature. On account of the missing of the second sample the petitioners are put to prejudice and they would not be in a position to defend their case properly if the prosecution is allowed to be continued. In the said circumstances, I do not find any reason to disagree with the findings in Gireesh Kumar's case (supra). In that decision, this Court held that when a second sample is not available for sending it for chemical analysis no successful prosecution could be conducted and in such circumstances interest of justice demands abrupt termination of the criminal proceedings by invoking the inherent jurisdiction. In this case, indisputably the second sample was taken and the impugned Annexure-D order would reveal that it was not produced before the court in terms of the provisions in R. 8(3) of the Rules as it was missing and not available for production before the court. In the circumstances, the chance for a successful prosecution of the petitioners is remote and very bleak. I am of the view that in the circumstances, allowing continuation of prosecution against the petitioners would be a wasteful exercise. In the circumstances this petition is only to be allowed and accordingly, it is allowed. Annexure-A crime and occurrence report in C.R. No. 13/2013 of Excise Range, Mavelikkara in Alappuzha District and all further proceedings against the petitioners pursuant thereto are hereby quashed. Before parting with the case I am of the view that the failure on the part of the officers concerned in keeping the second sample intact and make it available for production before the court especially in view of the mandatory provisions under R. 8(3) of the Rules have to be deprecated. The report filed by the Deputy Excise Commissioner, Alappuzha before the Court of the Judicial First Class Magistrate-1, Mavelikkara to the effect that the second sample was lost during the shifting of the office cannot be appreciated at all. When in terms of the mandatory provisions under R. 8(3) of the Rules the authority concerned is bound to preserve the same for production before the court in case such a stage is reached and authorised to destroy the same only in case of a negative report on analysis of the first sample that authority cannot be heard to simply say that it is lost. If the office in which it was kept was shifted to some other place then all steps to preserve the same should have been taken in an appropriate manner. Loss of such sample would undoubtedly cause prejudice to the concerned accused. In such circumstances the Registry is directed to forward a copy of this order to the Excise Commissioner to issue appropriate orders to avert recurrence of any such instances in future and to ensure prompt preservation of such samples taken in accordance with the procedures to be produced before the concerned court in case of orders for production.