Kerala High Court
Kamalaksha vs The Sub Inspector Of Police on 19 December, 2006
Author: V. Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 7487 of 2006()
1. KAMALAKSHA, S/O.NARAYANA,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE REP.BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/12/2006
O R D E R
V. RAMKUMAR, J.
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Bail Application No.7487/2006
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DATED: DECEMBER 19, 2006
O R D E R
Petitioner who is the sole accused in C.R. No.294/2006 of Kumbla Police Station for an offence punishable under Secs.8(1) and 8(2) of the Abkari Act for allegedly having been found in possession of 240 litres of Karnataka arrack in 2400 packets on 19.10.2006 and who was also arrested on the same day, seeks his enlargement on bail.
2. The learned Public Prosecutor on instructions submitted that no final report has been filed even after 60 days of judicial custody of the petitioner. If so, by virtue of the proviso to sec.167(2) Cr.P.C. the petitioner is entitled to be released on bail as of right.
3. Accordingly, the petitioner is directed to be released on bail on his executing a bond for Rs. 20,000/-
(Rupees twenty thousand only) with two solvent sureties each for the like amount to the satisfaction of the J.F.C.M.-I, Kasaragod and subject to the following conditions:-
1. Petitioner shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays.Bail A.No.7487/2006 -:2:-
2. Petitioner shall not influence or intimidate the prosecution witnesses nor shall he attempt to tamper with the evidence for the prosecution.
3. The petitioner shall make himself available for interrogation as and when required by the investigating officer.
4. Petitioner shall not commit any offence while on bail.
If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above.
4. It has come to the notice of this court that in cases where large quantities of potable rectified spirit or other contraband liquor are seized by the police or excise officials, final reports are not seen filed within the statutory period specified by the proviso to sec.167(2) Cr.P.C. The inevitable result is that the accused in judicial custody will have to be necessarily enlarged on bail since he has a right to bail on account of the investigating agency not filing the final report after concluding the investigation within time. Noticing this increasing incidence of final reports not being filed Bail A.No.7487/2006 -:3:- within time in cases of the above nature, the learned Public Prosecutor was requested to find out whether such lapses were purely accidental or deliberate. After instructions the Public Prosecutor submitted that the failure to file final reports was not deliberate and that the reason for the inability of the investigating officer to file the final report was the inordinate delay in getting the certificate of chemical analysis from the Government chemical examiner's laboratories. The Public Prosecutor also conveyed the grievance of the investigating officers that many of the magistrates do not accept final reports which are not accompanied by the certificate of chemical analysis for the reason that such final reports are incomplete.
5. The above attitude of the Excise and Police Officials conducting the investigation as also of the magistracy in refusing to accept the final report, if true, deserves to be deprecated. Those in charge of administration of justice cannot be insensitive to the realities of life. Considering the alarmingly escalating offences relating to narcotic drugs and other intoxicating substances and the limited number of Government Chemical Examiners' laboratories in the State, it may be difficult for such laboratories to promptly cater to the needs of the Bail A.No.7487/2006 -:4:- investigating agencies. But the consequential delay in getting the certificates of analysis need not deter the investigating officers from submitting the final reports before the courts concerned. Taking a strictly legalistic view, the olfactory and gustatory senses of even experienced officers to identify liquor through smell and taste may not be enough for a court of law to conclude that the seized liquid is liquor. In the absence of a report from the Public Analyst, it would not be safe to rely on the smell alone to find out that the liquid contained in a bottle or jerry can is liquor within the meaning of the Abkari Act or other allied legislations. (see State of Kerala v. Sreedharan - 1965 KLT 1002). It is always in the interests of the prosecution as well as the accused that the contraband article is sent to the chemical analyst for ascertaining whether it contains alcohol or not (see Muthan Ankamuthu v. State of of Kerala - 1970 KLT 427). But driven to illogical extremes of the above view, it could even be said that until chemical confirmation of the suspected liquid, even the accused cannot be arrested and even a search and seizure of the suspected liquid cannot be effected. But this is certainly not the policy of law. A prima facie satisfaction of the detecting and investigating officer arrived at bona fide that the liquid seized from Bail A.No.7487/2006 -:5:- the accused is contraband liquor will be sufficient to reach a conclusion that the accused should be placed on trial. The report under sec.173(2) Cr.P.C. is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to collect evidence during his investigation about the commission of the offence by the accused who is being placed on trial. If the police report or charge sheet contains necessary details so as to enable the magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of section 173(5) Cr.P.C. just because the scientific reports have not been produced along with the charge sheet filed by the police officer. In such a case it cannot be said that the charge sheet so produced is incomplete (vide Swami Premananda @ Premkumar @ Ravi v.
Inspector of Police - XXXIX MLJ (Crl) 702. Even in a case where the investigating officer has chosen to term the police report as "incomplete", the power of the Magistrate to take cognizance of the offence is not lost. If the police report and the materials produced along with it are sufficient to satisfy the Magistrate that he should take cognizance of the offence, then his power is not fettered by the label which the investigating agency chooses to give to the report submitted under sec.173(2) Cr.P.C. (see State Bail A.No.7487/2006 -:6:- of Maharashtra v. S.V.Dongre - AIR 1995 SC 231).
6. It may be useful to notice a circular issued by this court as Circular No.13/1966 dt. 8.7.1966 with regard to prosecutions under the Prohibition Act. For the sake of all concerned, the said circular is extracted hereinbelow:-
"13/66 No.D1-8361/66 dated 8th July 1966.
Sub:- Prohibition cases - Reports of Police and Prohibition Officers - Necessity of Chemical Examiner's Report - Regarding - Clarification issued.
The Board of Revenue (Excise) reports that since the decision of this court in State of Kerala (Appellant) Vs. Sreedharan (Respondent) -
I.L.R. 1965 (II) Kerala 547 - 1965 KLT 1002 -
most courts decline to accept reports under section 56 of the Prohibition Act unless the report is accompanied by a certificate from the Chemical Examiner. Section 56 does not require that a report thereunder should be accompanied by such a certificate and it is clearly the duty of the court to take cognizance of an offence on a report made in conformity with the section.
The decision referred to says nothing to the contrary, and, in fact, has no bearing whatsoever on the question of cognizance. What it lays down is that in any case where it is necessary for the prosecution to prove that any particular substance is liquor within the meaning of the Act, evidence such as that the Bail A.No.7487/2006 -:7:- substance smelt of liquor is not sufficient proof, that the best evidence would be the result of a chemical analysis and that such evidence must, wherever possible, be adduced.
And since ascertainment, as reliably as possible, whether or not the substance is liquor is a necessary part of the investigation, it suggest that this be done (in the shape of a certificate from the Chemical Examiner) before a prosecution is launched. But, while it insists that the best evidence in the shape of a certificate from the Chemical Examiner should be adduced at the trial, it in not way suggests that such evidence must be available before cognizance is taken.
All Magistrates are informed that when a report is made in conformity with section 56 of the Prohibition Act they should take the case on file and should not at that stage insist on a certificate from the Chemical Examiner. Whether the prosecution has adduced sufficient evidence to establish its case is a matter to be decided at the close of the inquiry or trial and not when cognizance is taken of the offence alleged."
7. The same principle should equally apply in the case of prosecutions under the Abkari Act as well. No magistrate should hereafter, at the stage of taking the case on file on a report filed under sec.50 of the Abkari Bail A.No.7487/2006 -:8:- Act, insist on a certificate from the chemical examiner or treat such report as incomplete merely because it is not accompanied by a certificate of chemical analysis. The question as to whether the prosecution has adduced sufficient evidence to establish its case will be a matter to be decided at the close of the trial and not when cognizance is taken of the offence alleged.
The Registry shall communicate a copy of this order to all the Magistrates for information and compliance and to all Sessions Judges for information. A copy of this order shall be communicated to the Director General of Prosecutions who can ensure that hereafter no investigating officer omits to file the charge sheet/final report on the ground that it will be incomplete if not accompanied by a copy of the chemical analysis report.
V.RAMKUMAR, JUDGE.
mt/-
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