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2024 DIGILAW 1216 (KER)

SUBRAMANIAN S/O GOVINDAN v. STATE OF KERALA

2024-09-24

BECHU KURIAN THOMAS

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ORDER : 1. A seminal question relating to the scope and purport of Rule 8(2)(g) of the Kerala Abkari Shops Disposal Rules, 2002 arises for consideration in this batch of cases. 2. Petitioners in all these cases are facing prosecution for the offence allegedly committed under the Abkari Act, 1077 (for short ‘the Act’). Though facts are not wholly relevant for disposing of these cases, for the purpose of reference, facts in Crl. M.C. No. 5180/2021 are mentioned below. The second petitioner is the licensee of toddy shop No. 12 of Thodupuzha Excise Range. On 25.11.2020, samples of toddy were taken from the toddy shop and on chemical analysis it was found to contain cannabinoids as per the chemical analysis report dated 28.07.2021 issued by the Assistant Chemical Examiner to the Government of Kerala. Cannabinoids which is ganja, is not a permitted substance in toddy. Hence a crime was registered as Crime No. 69/2021 of Thodupuzha Excise Range alleging offence under section 57(a) of the Act, which is sought to be quashed under Section 482 Cr.P.C. 3. Petitioners are aggrieved by the procedure adopted while sending the sample of toddy for chemical analysis, which according to them, was done in violation of the mandatory procedure prescribed under Rule 8(2)(g) of the Kerala Abkari Shops Disposal Rules, 2002 (for brevity ‘the Rules’). Petitioners allege that instead of sending the sample of preservative used separately, along with each sample of toddy for analysis, the Abkari Officers had sent only one sample of preservative used for a batch of toddy seized from different toddy shops. 4. Sri. C.C. Thomas, learned Senior Counsel instructed by Sri. Vivek Venugopal, the learned counsel appearing for the petitioners and Sri. Renjith Marar, the learned counsel appearing for some of the petitioners contended that rule 8(2) of the Rules has been held to be a mandatory procedure in the decision in Gireesh Kumar and Another v. State of Kerala, 2010 (3) KHC 171 and since the mandatory procedure has been violated, the very registration of the crime itself is without legal authority. The learned Senior Counsel submitted that instead of sending a sample of a small portion of the preservative used along with every sample of toddy seized for chemical analysis, the Investigating Officer had sent only a small portion of the preservative used along with a batch of the sample of toddy seized from various toddy shops and sent for analysis. The attention of the court was invited to the certification of chemical analysis produced in Crl. M.C. No. 5180 of 2021, which indicates that in the 15 samples of toddy sent for analysis as a batch, only one sample of five grams of benzoic acid allegedly used as the preservative was sent. It was asserted that, without every sample of toddy sent for chemical analysis attached with a small quantity of preservative used, the mandate of rule 8(2)(g) of the Rules is not satisfied and the sampling procedure was faulty destroying the very edifice of the prosecution case. 5. Sri. Grashious Kuriakose, the learned Additional Director General of Prosecution assisted by Sri. Suresh Kumar, learned Public Prosecutor, on the other hand, contended that rule 8(2)(g) of the Rules is not a mandatory procedure and its non-compliance cannot be detrimental to the prosecution case. Referring to the statutory provision, it was argued that the scheme of the Rules, will reveal that the sub-clause (g) is only directory in nature. It was also argued that there is substantial compliance to the provisions and therefore invocation of the remedy under section 482 of Cr.P.C. is unwarranted. 6. At this juncture, it needs to be mentioned that though another learned Single Judge had heard all these cases and reserved them for judgment, by the order dated 21-06-2024 of the Hon’ble Chief Justice on the Administrative side, these matters were placed before this Court for fresh hearing and disposal. 7. Be that as it may, on an appreciation of the rival contentions, the following issues arise for consideration: (i) whether rule 8(2)(g) of the Rules is a mandatory requirement. (ii) whether the prosecutions are liable to be quashed. They are dealt with below: Issue No. (i) Whether rule 8(2)(g) of the Rules is a mandatory requirement? 8. In all these cases, the sample of preservative used has not been sent to the forensic laboratory separately with each sample of contraband. (ii) whether the prosecutions are liable to be quashed. They are dealt with below: Issue No. (i) Whether rule 8(2)(g) of the Rules is a mandatory requirement? 8. In all these cases, the sample of preservative used has not been sent to the forensic laboratory separately with each sample of contraband. Several samples of contraband were apparently sent as a batch to the chemical laboratory along with one sample of preservative used. For example in Crl. M.C. No. 4987/2021, Crl. M.C. No. 5180/2021 and Crl. M.C. No. 5232/2021, 16 samples of contraband were sent for analysis along with one sample of preservative, while in Crl. M.C. No. 5229/2021, Crl. M.C. No. 5223/2021 and Crl. M.C. No. 5205/2021, 21 samples of contraband were sent for analysis along with one sample of preservative. Similar situation arises in other cases as well. This method adopted by the Abkari Officers is alleged to be in violation of rule 8(2)(g) of the Rules. 9. To understand the significance of the Rules, it is necessary to extract rule 8(2) of the Rules in its entirety with the relevant rule highlighted in bold letters as below: “8. (1) All Abkari officers not below the rank of the preventive officer shall have the authority to take samples of any toddy kept for sale in any toddy shop for chemical analysis. (2) While taking sample of any liquor by the Abkari Officer for chemical analysis, the following procedure shall be followed namely: (a) The quantity of sample taken for analysis shall not be less than 500 ml. Benzoic Acid should be added as preservative in toddy at the rate of one gram for 100 ml. of toddy. (b) The contents in the vessel in which the liquor is stored shall be thoroughly mixed so as to get a representative sample. (c) Divide the sample into two parts and put each part into separate bottles or containers which are properly cleaned and dried. (d) The bottles or containers shall be securely fastened with suitable caps or corks so as to make it leak-proof to prevent any spillage. The neck portion of bottles or containers and the caps or corks shall be covered with a piece of cloth and tied together with a string securing the covered cloth. The officer taking the samples shall inform the licensee or his representative to put his seal if he so desires. The neck portion of bottles or containers and the caps or corks shall be covered with a piece of cloth and tied together with a string securing the covered cloth. The officer taking the samples shall inform the licensee or his representative to put his seal if he so desires. If he desires to put his seal, the string shall be tied such a way that it shall have two knots in opposite sides. The officer taking the sample shall put his seal on one knot and the licensee or his representative shall put his seal on the other knot. If the licensee or his representatives is not willing to put his seal, in such cases the string shall be tied with one knot and the officer shall put his seal on that knot. The seal shall be affixed on the knot of the string using sealing wax in such a manner that the caps or corks cannot be removed unless the string is cut or the seal is broken. Only the official or personal seal of the officer taking the sample shall be used for sealing. The seal shall be legible and decipherable. If the licensee or his representative has no seal or if they are not willing to put their seal, it shall be recorded in the mahazar/report drawn at the time of taking sample. The specimen of the seals used for sealing the sample shall also be put on the mahazar/report. (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: Provided that in case the person from whom the sample is taken, refuses to affix the signature/thumb impression, the signature or thumb impression of two independent witnesses shall be obtained on the label. (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. (g). The memorandum shall be forwarded in a sealed cover. (g). A small quantity of the preservative used shall also be forwarded separately along with the sample to the Chemical Examiner/Authorised Officer. (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. (i) The Deputy Commissioner of Excise of the Division shall maintain an exclusive register for registering the details of samples received by him. The samples shall be registered serially and that serial number shall be assigned as the register number. The details of further action taken by him shall be noted in the register. (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.” 10. The above extracted provisions reveal that sub-rules (a) to (f) and (h) of Rule 8(2) deal with the procedure relating to the sample of contraband seized and required to be analysed, while sub-rules (g) and (i) deals not with the contraband to be analyzed but with different facets of the procedure. Rule 8(2) however, mandates that the Abkari officer shall follow the procedure given below. The expression used in rule 8(2) of the Rules is ‘shall’. 11. In Gireesh Kumar and Another v. State of Kerala, 2010 (3) KHC 171 a learned Single Judge of this Court had held that rule 8(2) of the Rules is a mandatory provision and its violation will cause serious prejudice to the accused. It was further observed that if there is a violation of rule 8(2) or 8(3), there is no likelihood of the prosecution proving its accusation and it would be liable to be quashed. The said decision was rendered in relation to the question whether the second sample taken as per sub-rule (c) ought to be sent for analysis. 12. It was further observed that if there is a violation of rule 8(2) or 8(3), there is no likelihood of the prosecution proving its accusation and it would be liable to be quashed. The said decision was rendered in relation to the question whether the second sample taken as per sub-rule (c) ought to be sent for analysis. 12. However on a reference, a Division Bench of this Court in Krishnan M.C. and Another v. State of Kerala and Another, 2021 (2) KHC 395 held that the finding in Girish Kumar’s case (supra) that the second sample ought to be sent for analysis is not good law and also that the accused have no statutory right to make a request for sending B sample for chemical analysis. The judgment in Krishnan’s case (supra) has been challenged before the Supreme Court in SLP No. 5217/2021 and a stay of operation of the judgment has been issued by the Supreme Court. Nevertheless, on a reading of Krishnan’s case it is noticed that the question whether rule 8(2) is mandatory or was not considered. Therefore, this Court proceeds to consider the contentions advanced by the learned counsel for the petitioners that the observation in Girish Kumar’s case that rule 8(2) is mandatory still holds the field. 13. Though the learned Single Judge in Gireesh Kumar’s case (supra) observed that rule 8(2) of the Rules is mandatory, on a perusal of the said judgment, it is evident that what was considered therein was only the impact of sub-rules (a), (b), (c), (e), (f) and (h) of rule 8(2) of the Rules. The learned Single Judge had not even extracted rule 8(2)(g) of the Rules, while arriving at the conclusion that rule 8(2) is a mandatory procedure. Thus the observation that rule 8(2) is mandatory in Gireesh Kumar’s case does not mean that even rule 8(2)(g) of the Rules is mandatory and the said question had not arisen for consideration in any of the earlier decided cases. 14. An independent analysis of the different sub-rules of rule 8(2) of the Rules will reveal that rule 8(2)(a) deals with the sample of toddy that is required to be analysed by the chemical examiner, while sub-clause (b) deals with the method in which the representative sample for analysis is to be taken. 14. An independent analysis of the different sub-rules of rule 8(2) of the Rules will reveal that rule 8(2)(a) deals with the sample of toddy that is required to be analysed by the chemical examiner, while sub-clause (b) deals with the method in which the representative sample for analysis is to be taken. Sub-clause (c) and (d) deals with the manner in which the representative sample is to be sealed while sub-clause (e) and (f) deals with labelling and forwarding the sample to the chemical analytical laboratory. All these are procedures that are essential to the function of sampling of the alleged contraband seized and, as mentioned earlier, deal with the procedure relating to the sample of contraband seized and required to be analysed. 15. The situation in the instant case is different. Rule 8(2)(g) of the Rules only requires a small quantity of the preservative used, to be forwarded separately along with the sample to the chemical examiner. The Rules do not stipulate that the said sample of preservative used and sent separately must be subjected to any analysis. The rule that the particular quantity of preservative used should also be sent along with the sample, does not stipulate any particular purpose for such a sample. There is no prescription on the quantity of sample to be sent. Only ‘a small quantity’ is stipulated by the Rules. Thus, the absence of any specific purpose indicated by the rules and without any prescription regarding the quantity of the preservative used to be sent along with the sample indicates that it is not a mandatory requirement. 16. However, the expression ‘shall’ appears twice in rule 8(2)(g), one in the initial part of rule 8(2) and again in rule 8(2)(g) of the rules. Nonetheless, there is no inflexible rule that the expressions "shall" should always mean "mandatory" or that unless ‘may’ is used, the provisions using the term ‘shall’ must be interpreted as mandatory. The terms ‘shall’ and ‘may’ in statutory provisions are to be interpreted in accordance with the scheme of the statute and the provision under consideration. 17. Normally, the use of the word ‘shall’ raises a presumption that the particular provision is imperative as observed in State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 . The terms ‘shall’ and ‘may’ in statutory provisions are to be interpreted in accordance with the scheme of the statute and the provision under consideration. 17. Normally, the use of the word ‘shall’ raises a presumption that the particular provision is imperative as observed in State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 . However, the said presumption is not conclusive as the mere expression ‘shall’ need not necessarily be determinative of the nature of the provision. While determining the question whether a provision is mandatory or directory, the language alone is not always decisive and regard ought to be given to the context, the subject matter and the object of the provision. The observations of the Supreme Court in Kailash v. Nanhku and Others, (2005) 4 SCC 480 , Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 and Central Bureau of Investigation v. R.S. Pai and Another, (2002) 5 SCC 82 are relevant in this context. Absence of any consequences provided by the statute is an indication that a provision is not intended to be mandatory in its application but can be regarded as directory. The decisions in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. and Others, (2019) 12 SCC 210 and Administrator, Municipal Committee Charkhi Dadri and Another v. Ramji Lal Bagla and Others, (1995) 5 SCC 272 are apposite. Thus, the interpretation to be accorded to a provision depends upon the context and the scheme of the statute and not merely due to the use of the word ‘shall’. 18. The significance of rule 8(2)(g) of the Rules has to be appreciated with the above principles in mind. As noted earlier, there are various aspects of rule 8(2)(g) like absence of specific quantity and lack of purpose, indicating that the requirement of a preservative sample to accompany the sample of toddy to be analysed is only a directory provision. The above view is fortified by the fact that such a sample is not even required to be analysed and no consequence is also specified for non-compliance with the said rule. The statutory design is thus evident that the sample of preservative used and to be sent separately with the sample of contraband do not have the trappings of a mandatory requirement and its substantial compliance will suffice. 19. The statutory design is thus evident that the sample of preservative used and to be sent separately with the sample of contraband do not have the trappings of a mandatory requirement and its substantial compliance will suffice. 19. The general observation in Girish Kumar’s case (supra) that Rule 8(2) is mandatory, does not mean that rule 8(2)(g) of the Rules is mandatory. The scheme, design, and purport of the Rules do not indicate that Rule 8(2)(g) of the Rules is mandatory in character. Considering the entire circumstances, this Court is of the view that rule 8(2)(g) of the Rules is not a mandatory prescription. Issue No. (ii) Whether the prosecutions are liable to be quashed? 20. Instead of a separate small quantity of the preservative used forwarded with each sample of toddy to be analysed, the Abkari Officer sent a small quantity of the preservative used along with a batch of the toddy to be analysed. There is nothing in the Rules that indicates such a procedure to be illegal. Rules also do not stipulate that the sample of toddy to be analysed cannot be sent in batches. Merely because sending separate samples of preservative used with each sample of toddy to be analysed would have been the ideal procedure or the method followed generally, a failure to follow the normal cannot vitiate the prosecution, unless such a requirement was mandatory. Moreover, it is evident that Rule 8(2)(g) of the Rules has been substantially complied with in the instant cases, as a small quantity of the sample of preservative used was sent along with the batch of toddy seized. Since samples of toddy seized were sent for analysis in separate bottles/containers and a batch of contraband was accompanied by a small quantity of the sample of preservative used separately, there is substantial compliance with Rule 8(2)(g) of the Rules. 21. The chemical analysis reports in all these cases indicate that the samples of contraband when analysed found the presence of benzoic acid, which is stated to be the preservative used. The sample of contraband analysed also indicated the presence of cannabinoids, which is not a permitted substance in toddy. The prosecution cannot thus be said to be without any legal basis. The sample of contraband analysed also indicated the presence of cannabinoids, which is not a permitted substance in toddy. The prosecution cannot thus be said to be without any legal basis. Nevertheless, if any prejudice has been caused on account of any procedure adopted by the Abkari Officer, that is a matter which can be decided only during the trial and not in this proceeding under section 482 Cr.P.C. 22. Hence, I find no reason to interfere with the prosecutions in all these cases. Accordingly, these petitions are dismissed.