Kerala High Court
Kumaran vs State Of Kerala on 5 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939
CRL.A.No. 203 of 2011 (A)
--------------------------
AGAINST THE JUDGMENT IN S.C NO. 45/2007 of II ADDL.
SESSIONS COURT II, PALAKKAD DATED 5.2.2011
APPELLANT/ACCUSED:
-------------------
KUMARAN, AGED 47 YEARS,
S/O.CHEEMBAN, KULAVANKADU,
BEMMANIYOOR, PERINGOTTUKURUSSI,
ALATHUR, PALAKKAD DISTRICT.
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
------------------------
STATE OF KERALA
REPRESENTED BY EXCISE INSPECTOR,
EXCISE RANGE OFFICE, KUZHALMANNAM,
PALAKKAD DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 01-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ab
P.UBAID, J.
---------------------------------------
Crl.A No.203 of 2011
---------------------------------------
Dated this the 1st day of June, 2017
J U D G M E N T
The appellant herein was the licensee of the toddy shop No.5/2003-04 at Maniyambara within the Kuzhalmannam Excise Range in September, 2003. He faced prosecution before the Court of Session, Palakkad, in S.C No.45/2007 under Section 22(a) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') and also under Section 57A(1) r/w 57A(1)(iii) of the Kerala Abkari Act (for short 'the Act') on the allegation that when the excise team lead by the Circle Inspector of Excise, Alathur, made inspection at the toddy shop on 7.9.2003, a quantity of 30 liters of toddy mixed with diazepam, which is a psychotropic substance, was seen kept there for sale. Prior to that, a Preventive Officer of the Excise Range had collected sample from the said toddy shop on 26.8.2003, and the sample was sent for chemical analysis. On analysis diazepam was detected in the said sample. It was on the basis of the said Crl.A No.203 of 2011 2 report, the Circle Inspector of Excise, Alathur made another inspection, on 7.9.2003. The Circle Inspector collected two samples from the total quantity of 30 liters of toddy found there for sale. One of the two samples was sent for analysis to the laboratory directly by the Excise Circle Inspector. On getting report from the laboratory that diazepam was detected in the said sample on analysis the Circle Inspector of Excise, Alathur registered a crime against the appellant herein as C.R No.16/2003 under Section 57A(iii) of the Act, on 13.11.2003. On the same day the said crime and occurrence report was transferred to the Kuzhalmannam Excise Range where the Excise Inspector of the said Range re-registered the crime as C.R No.37/2003. On 15.11.2003, the Assistant Commissioner of Excise, Palakkad authorised the Circle Inspector of Excise, Chittoor to conduct investigation in the case. After investigation the Circle Inspector of Excise, Chittoor submitted final report in court, against the toddy shop licensee under Section 57A(1) r/w 57A(iii) of the Act, and also under Section 22(a) of the NDPS Act, before the Judicial First Class Magistrate Court I, Palakkad. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge Crl.A No.203 of 2011 3 II, Palakkad, for trial and disposal.
2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses in the trial court and proved Exts.P1 to P5 documents. As the toddy had already been destroyed at the spot of detection itself, there was no property to be identified during trial. The detecting officer had collected two samples from the total quantity, but it is not known what happened to the second sample. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances. He did not adduce any evidence in defence. On an appreciation of the evidence the trial court found the accused not guilty under Section 22(a) of the NDPS Act for the reason that the detecting officer had not complied with the statutory requirements and procedures under the NDPS Act. However, the trial court found the accused guilty under Section 57A(1)(iii) of the Act. On conviction he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of 20,000/- by judgment dated 5.2.2011. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
3. When this appeal came up for hearing the learned Crl.A No.203 of 2011 4 counsel for the appellant submitted that there are so many serious legal infirmities in this case, the benefit of which must go to the accused by way of acquittal, and so the factual aspects as regards the detection, or the seizure of toddy need not be probed into. One serious infirmity argued by the learned counsel is that the investigation in this case was done by an incompetent officer and the final report was also submitted by the said incompetent officer. Another infirmity argued by the learned counsel is that the Ext.P4 report of chemical analysis was wrongly admitted in evidence without examining the Chemical Examiner. The learned counsel also pointed out the violation of the procedure prescribed in Rule 8 of the Kerala Abkari Shops Disposal Rules (fort short 'the Rules').
4. On hearing both sides and on a perusal of the entire materials I find that the factual aspects in this case need not be probed into because the whole case can be disposed of in appeal on the basis of the legal issues raised by the appellant.
5. This Court has consistently held in so many decisions that the various functions under the Kerala Abkari Act can be discharged only by the officers specifically authorised and appointed by the Government under Section 4 of the Act. The Crl.A No.203 of 2011 5 detection in this case was on 7.9.2003. At that time the order issued by the Government of Kerala as SRO 234/1967 was in force. In 2009, the Government issued another notification as SRO 361/2009 dated 8.5.2009, in suppression of the 1967 notification. The different categories of Abkari officials from Excise Guard to the Commissioner of Excise were given different powers and functions by the Government as per the said notification of 1967. Of course, some modifications and changes were introduced in the notification issued in 2009. As per the 1967 notification powers were given to the different categories of officers, function wise and area wise. Thus different categories were authorised to discharge different functions only within their territorial limits. On many occasions this Court has clarified that such categories of officers can discharge their functions under the Act only within their territorial jurisdiction.
6. The detection in this case was made by the Circle Inspector of Excise, Alathur, at a place within the Kuzhalmannam Excise Range. The said Range is within the Alathur Excise Circle. So there is nothing wrong in the detection made by the Circle Inspector of Excise, Alathur. But later investigation was handed over to the Circle Inspector of Excise, Crl.A No.203 of 2011 6 Chittoor by the Assistant Excise Commissioner, Palakkad, by a specific order. This is not a case where the Excise Circle Inspector, Chittur, was put in charge of the Excise Circle Inspector, Alathur, in his absence. As regards authorisation also this Court has settled the position that such authorisation cannot be made by the superior officers against the provisions of the order issued by the Government under Section 4 of the Act. So, the Assistant Commissioner of Excise, Palakkad could not have authorised the Circle Inspector of another Circle to conduct investigation in this case. Anyway, the Circle Inspector of Chittor Circle conducted investigation and he submitted final report also in court. Investigation in a crime registered under the Act can be made only by the person having jurisdiction over the area, and the final report also can be filed in by the competent person having jurisdiction over the concerned area. In this case investigation was made by a Circle Inspector of another Excise Circle and he submitted final report also in court. In short, the person who made investigation and submitted final report had no authority or competence to discharge such function. A prosecution initiated on the basis of such a final report submitted by an incompetent officer will have to collapse. Crl.A No.203 of 2011 7
7. PW2 is the Circle Inspector of Excise who detected the offence in this case, and PW5 is the Excise Inspector who registered the crime and occurrence report. The crime was initially registered at the Excise Circle Office, Alathur, and it was later re-registered at the Excise Office, Kuzhalmannam, by the Excise Inspector. PW4 is the Preventive Officer who assisted PW2 in the process of detection. PW3 and PW6, examined as independent witnesses, turned hostile. PW1 is the Assistant Excise Commissioner who directed the Excise Circle Inspector to inspect the toddy shop. He also authorised investigation by the Circle Insepctor of Excise, Chittoor. He has no explanation why he authorised an incompetent person to conduct investigation and to submit final report.
8. The detection mahazar shows that PW2 had collected two samples of 500 ml each. These two were two separate samples. Rule 8 of "the Rules" in Clause (a) of Sub Rule 2 provides that the quantity of sample taken for analysis shall not be less than 500 ml. in the case of toddy, and Benzoic Acid should be added as preservative. Clause (b) provides that the contents in the vessel wherein the sample is taken shall be thoroughly mixed so as to get a representative sample. Clause Crl.A No.203 of 2011 8
(c) provides that the sample shall be divided in two parts in two separate bottles or containers which are properly cleaned and dried. What Clause (c) in fact provides is that the sample which shall be not less than 500 ml in the case of toddy collected as provided in Clause (a) and thoroughly mixed as provided in Clause (b) shall be divided in two parts. The object of this Rule is to ensure that both the parts are really representative in nature. Instead of taking one sample and dividing it into two parts to get two representative parts, PW2 collected two different samples in this case. This is not what is authorised under Clause (a).
9. Ext.P4 report of analysis was accepted in evidence by the trial court without examining the Chemical Examiner. This report will not get sanctity under Section 293 Cr.P.C. Section 293 Cr.P.C provides that any document purporting to be a report under the hand of a Government scientific expert covered by the section, upon any matter or thing "duly" submitted to him for examination, or for analysis and report, "in the course of any proceeding under the Code", may be used as evidence in any inquiry, trial or other proceeding under the Code. So, to make the report of the Chemical Examiner admissible and acceptable Crl.A No.203 of 2011 9 in evidence without examining the Chemical Examiner, or to give sanctity to such a report under Section 293 Cr.P.C, it must be a report prepared by the scientific expert upon any matter duly submitted to him under the Code. In this case the sample was sent for analysis directly by the Excise Inspector. It was not produced in court and it was not forwarded from court. The position is covered by a decision of this Court in Rajappan v. State of Kerala (2012(2) KLT 898). Had the sample been produced in court and forwarded through court, the chemical report in this case would have been acceptable with the sanctity it will have under Section 293 Cr.P.C. The report in this case can be accepted or admitted in evidence only by examining the Scientist, who made the report. When there is no acceptable scientific report, there cannot be a conviction also under Section 55A of the Act.
10. Sub Rule 3 of Rule 8 of the Rules provides that on receipt of the chemical analysis report a crime shall be registered within 24 hours, if any violation of the provisions of the Act is reported in the analysis report. The Ext.P4 report of analysis is dated 5.11.2003. The crime in this case was registered on 13.11.2003. It is not known when exactly, or on Crl.A No.203 of 2011 10 what date Ext.P4 report of analysis was received at the Excise Office. The concerned officer should have stated the date in view of the gap of eight days between the date of the report and the date of registration of crime.
11. Sub Rule 3 also provides that the second sample marked as B shall be produced in court when crime is registered on the basis of chemical analysis report. In this case the second sample was not in fact produced in court.
In the result, this appeal is allowed. The appellant is not found guilty of the offence under Section 57A(1)(iii) of "the Act", and accordingly he is acquitted of the said offence in appeal under Section 386(b)(i) of the Cr.P.C. The conviction and sentence against him in S.C No.45/2007 of the court below will stand set aside. The appellant is released from prosecution, and the bail bond, if any, executed by him will stand discharged.
Sd/-
P.UBAID, JUDGE //True Copy// P.A to Judge ab