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2020 DIGILAW 7 (KER)

Saneesh, S/o. Maniyan v. State Of Kerala

2020-01-07

R.NARAYANA PISHARADI

body2020
ORDER : The revision petitioners are the accused in two different cases registered by the Abkari Officer for an offence punishable under Section 57(a) of the Abkari Act, 1077. 2. The common question that arises for consideration in these revision petitions is, whether an accused in a case registered under Section 57(a) of the Abkari Act for adulteration of toddy, is entitled to get the second sample of toddy sent for chemical analysis and if so, at what stage of the case, he can exercise that right. 3. In both cases under consideration here, the excise officials took two samples of toddy from the toddy shops conducted by the petitioners. The first sample was sent by the excise officials for chemical analysis. The result of the chemical analysis was that the first sample contained adulterant in it. On the basis of such positive report, cases were registered against the petitioners under Section 57(a) of the Abkari Act. 4. Before filing final report in the court by the Abkari Officer, the petitioners filed applications before the court below for sending the second sample for chemical analysis. Learned Magistrate dismissed the applications filed by them. The aforesaid orders are challenged in these revision petitions. 5. Heard learned counsel for the petitioners and the learned Public Prosecutor. 6. Learned counsel for the petitioners, relying upon the decisions of this Court in Girish Kumar v. State of Kerala : 2010 (3) KLT 95 and Rajappan v. State of Kerala : 2012 (2) KLT 898 , contended that if the result of chemical analysis of the second sample is negative, the prosecution against the petitioners would not be maintainable and therefore, the accused has got the right to get the second sample analysed even before the filing of the final report in the case. 7. Per contra, learned Public Prosecutor contended that, even if a report is obtained in the negative by analysis of the second sample, it will not supersede the first report in the absence of any statutory provision to that effect. Learned Public Prosecutor, relying upon the decision of this Court in Sudhakaran v. State of Kerala : 2011 (1) KLT 799 , would contend that the accused has no right to get the second sample sent for analysis. 8. Learned Public Prosecutor, relying upon the decision of this Court in Sudhakaran v. State of Kerala : 2011 (1) KLT 799 , would contend that the accused has no right to get the second sample sent for analysis. 8. The procedure for taking samples from toddy shops is provided in Chapter VII of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). Rule 8(1) of the Rules states that all Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any toddy kept for sale in any toddy shop for chemical analysis. Rule 8(2) of the Rules prescribes the procedure to be followed by the Abkari Officer while taking the samples. Under clause (c) of sub-rule (2), the 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. Clause (e) requires him to affix labels marked 'A' and 'B' on each bottle or container. As per clause (f), the sealed bottle or container marked 'A' shall be forwarded, without unreasonable delay, to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorised by the Government in that behalf. As per clause (h) of sub-rule (2), the B sample shall be kept in the custody of the Deputy Commissioner of Excise. Rule 8(3) of the Rules provides that on receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, Rules or conditions of Licence or any adulteration is noticed, a case shall be registered within 24 hours and the sample marked 'B' shall be produced before the concerned court and if no case is registered, the sample 'B' shall be destroyed. 9. In Girish Kumar (supra), the second sample was not available for chemical analysis because only one sample was prepared. A learned Single Judge of this Court held that, though Rule 8 does not specifically provide a right to the accused to send the second sample to the laboratory for analysis, the provision for preparation of two samples and production of the second sample before the court on registration of the case are mandatory and if so, second sample must be available with the court and the accused has a right to get that sample examined. This Court quashed the case registered against the accused in view of the non-preparation of the second sample. 10. In Sudhakaran (supra), the analysis of the second sample showed negative result. Therefore, the accused prayed for quashing the case registered against them. This Court noticed the decision in Girish Kumar (supra) but refused to quash the case against the accused. The learned Single Judge did not disagree with the dictum laid down in Girish Kumar (supra) but distinguished it by holding as follows: “That, the accused has a right, even in the absence of specific provision in the Act or the Rules to have the second sample analysed and test result obtained does not mean that such test result if favourable to him would ipso facto supersede the test result on the first sample. ..... Under Section 293(1) of the Code a document purporting to be a report under the hand of a Government scientific expert to whom the section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceedings under the Code. Sub-section (2) says that the Court may if it thinks fit summon and examine any such expert as to the subject matter of his report. Thus reports on the second samples relied on by the accused are certainly admissible in evidence under Section 293(1) of the Code in the course of any inquiry, trial or other proceedings in the matter, but the prosecution has the right, under sub-section (2) of Section 293 of the Code to examine the expert who analysed the second samples and issued the report and prove that analysis on the second samples is not proper or valid (if it has got such a case) or is otherwise not acceptable and hence those reports cannot be relied on. In that situation it could not be said that the report obtained by the Abkari Officer on the first sample is superseded by the report on the second sample. Which of the two reports -whether the one of the first or on the second sample -is acceptable is a matter for decision by the court. The question raised is answered as above. The accused cannot request to quash proceeding against them based on the report on the second sample”. Which of the two reports -whether the one of the first or on the second sample -is acceptable is a matter for decision by the court. The question raised is answered as above. The accused cannot request to quash proceeding against them based on the report on the second sample”. It is significant that Sudhakaran (supra) does not hold that the accused has no right to get the second sample sent for analysis. This decision only holds that, when two contradictory reports are available, the question as to which report is acceptable is a matter of evidence and that the accused cannot make a request for quashing the proceeding against him based on the report in his favour received on the second sample. 11. In Joshy George v. State of Kerala : 2011 (4) KHC 818 , the analysis of the second sample had shown negative result and the accused had prayed for quashing the final report filed against them. The learned Single Judge noticed the decisions in Girish Kumar (supra) and Sudhakaran (supra) and held that since no witness was cited and no statement of any witness was recorded by the investigating officer to show that the second report was unacceptable or inadmissible, the charge under Section 57(a) of the Abkari Act cannot be sustained. This decision does not specifically deal with the right of the accused to get the second sample sent for chemical analysis. 12. In Rajappan v. State of Kerala : 2012 (2) KLT 898 also, the analysis of the second sample had shown negative result and the accused had prayed for quashing the final report filed against them. The learned Single Judge noticed the decisions in Sudhakaran (supra) and Joshy George (supra) but distinguished Sudhakaran (supra) on the ground that it had not considered the fact that the report of chemical analysis in respect of 'A' sample is not one obtained in the course of any proceedings under the Code of Criminal Procedure. Even then, the decision to quash the charge against the accused was made based on the fact that the prosecution had no good explanation for impeaching the report in favour of the accused and there was nothing in the final report to assail that report. 13. Even then, the decision to quash the charge against the accused was made based on the fact that the prosecution had no good explanation for impeaching the report in favour of the accused and there was nothing in the final report to assail that report. 13. In Excise Commissioner v. Devidasan : 2016 (1) KLT 925 , a Division Bench of this Court held that a report of chemical analysis in respect of the first sample under Rule 8(3) is not a pre-requisite for the registration of a crime under the Abkari Act. In this decision, the Division Bench had noticed Girish Kumar (supra) but found that it had no application to the facts of the case before the Division Bench. Girish Kumar (supra) was not disagreed with or overruled in this decision by the Division Bench. 14. Learned Public Prosecutor has invited the attention of this Court to the decision in Santhosh v. State of Kerala : 2017 (5) KHC 107 , in which a learned Single Judge of this Court has held as follows: “During investigation an accused has no right to ask the court to help him collect evidence to disprove the prosecution case, and after the court takes cognizance of the offence he cannot adduce evidence before the case is posted for defence evidence unless such a right is conferred on him by a statute. Even if a second sample is available, it cannot be sent for examination at his request merely because the report of the examination of the first sample is unfavourable to him”. The decision in Santhosh (supra) has no application to the facts of the present cases. It was a case registered under Section 55(a) of the Abkari Act for illegal transportation of spirit. Rule 8 of the Rules had no application and the decision in Girish Kumar (supra) was not considered in that case. 15. Very recently, in Santhosh v. State of Kerala, MANU/KE/4438/2019, a learned Single Judge of this Court has held that, since two samples are directed by the Rules to be prepared and the second sample is directed to be produced before the court after registration of a crime, it can serve no purpose than a second analysis, on a demand by the accused. 16. 16. In none of the decisions referred to above, including Sudhakaran (supra), the dictum laid down in Girish Kumar (supra) that, the accused has got right to get the second sample examined, has been doubted or disagreed with. 17. Rule 8(3) of the Rules mandates that if the report in respect of the first sample is positive of adulteration of the toddy, a case shall be registered within 24 hours and the sample marked 'B' shall be produced before the concerned court. What is the purpose of preserving the 'B' sample even after the Abkari Officer obtains a positive result of adulteration in respect of the 'A' sample? The purpose is only to give an option for the accused to get the second sample sent for analysis. Even though there is no specific provision contained in the Rules enabling the accused to send the second sample for chemical analysis, the mandate of Rule 8(3) regarding preservation of second sample implies that the accused has got the right to get that sample analysed. 18. Now, the question arises whether the accused can seek sending of the second sample for chemical analysis during the stage of investigation of the case. In order to minimise the chances of loss, destruction and tampering with the second sample, it is always advisable that it is sent for chemical analysis at the earliest opportunity, without any delay, after the registration of the case against the accused. 19. The question whether the accused could use the report of analysis, if any, obtained in his favour, at any stage before he is asked to enter on his defence, does not arise for consideration in the present cases. 20. In view of the findings above, the orders passed by the learned Magistrate, dismissing the applications filed by the petitioners for sending the second sample for chemical analysis, cannot be sustained. 21. Consequently, the revision petitions are allowed. The orders passed by the learned Magistrate, which are impugned in the revision petitions, are set aside. The applications filed by the revision petitioners for sending the second sample for chemical analysis stand allowed. Learned Magistrate shall take further steps in that regard without any delay.