Kerala High Court
Manojkumar vs State Of Kerala on 21 May, 2019
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941
Crl.Rev.Pet.No. 558 of 2019
AGAINST THE ORDER IN CMP NO.1942/2019 of JUDICIAL MAGISTRATE OF
FIRST CLASS -I, MAVELIKKARA DATED 09-04-2019
CRIME NO. 33/2019 OF Mavelikkara Excise Range Office , Alappuzha
REVISION PETITIONER/ACCUSED:
MANOJKUMAR,
AGED 45 YEARS
S/O.KOCHURAMAN, KAVINTEKIZHAKKETHIL HOUSE, PONAKAM
(P.O.), MAVELIKKARA, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.NIREESH MATHEW
SRI.N.P.PRAJEESH
RESPONDENT/COMPLAINANT&STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI - 682 031.
OTHER PRESENT:
SR.PP. SRI. C.N. PRABHAKARAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 558 of 2019
2
ORDER
In the proceedings on hand, an order passed by the Judicial First Class Magistrate Court-I, Mavelikkara in CMP No.1942/2019 on 09.04.2019 is sought to be set aside and a direction is also sought for sending the second sample for analysis.
2. CMP No.1942/19 was filed by the accused in Crime No.33/19 of Mavelikkara Excise Range, who has been arrested following the seizure of toddy from TS No.2 of Mavelikkara Excise Range of which he was the Manager. The Application as above was moved by him seeking forwarding of second sample seized from the toddy shop referred above to the chemical examiner's laboratory for analysis. Sample drawn from the toddy seized was forwarded to the Chemical Examiner's Laboratory, Thiruvananthapuram for analysis and report was obtained therefrom, in the affirmative, following which a crime and occurrence report was prepared and laid before the Court. At Crl.Rev.Pet.No. 558 of 2019 3 that juncture, CMP No.1942/19 was filed by the petitioner before the court below seeking to forward the second sample for analysis to the laboratory. The said application was dismissed by the court concerned and the reasoning of the court below is extracted hereunder :
"Heard the petitioner. As per the decision reported in Santhosh and another v. State of Kerala represented by Public Prosecutor 2017 (4) KLJ 689 second sample ('B' sample) cannot be sent for examination at the request of the accused. The relevant paragraph of the decision reads 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 taken cognizance of the offence, he cannot adduce evidence before the case is posted for defence unless such a request is conferred as 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". Hence, petition is dismissed."
3. The court has relied upon Santhosh T.A. v. State of Kerala [2017(4) KLJ 689] while dismissing the application. Sri.Nireesh Mathew, the learned counsel for the petitioner has drawn the attention of this Court to Santhosh's case supra to contend that the court below is erred in relying on the dictum to Crl.Rev.Pet.No. 558 of 2019 4 arrive at a finding of the nature. According to him, as per the dictum in the case cited supra forwarding of the second sample to the very same laboratory is barred. It is observed that the second sample prepared by the officials from the contraband seized was meant for a second analysis, not by the very same laboratory, but by a different one. The court below has misread the dictum and dismissed the application stating that the forwarding of second sample is barred.
4. The learned counsel has also cited 2017(5) KHC 107 where, in paragraph 13, this Court has observed as follows :
"13. There is a provision in the Kerala Abkari Shops Disposal Rules, 2002 (Kerala) for taking more than one samples. R.8 is the relevant provision. This Rule empowers certain abkari officers to take samples of toddy or foreign liquor kept for sale in toddy shops and foreign liquor - 1 shops for chemical analysis. The officer shall divide the sample into two parts and put each part into separate bottles. Obviously, this was not applicable to the facts of Gopalan's case, or for that matter, the cases of Ashokan and Biju (supra)"
5. As per Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002, more than one sample are required to be prepared from Crl.Rev.Pet.No. 558 of 2019 5 the contraband after seizure. One sample shall be forwarded to the Chemical Examiner's Laboratory and the other one will be kept in the custody of the Commissioner of Excise. On obtaining the report after analysis of the first sample, indicating violation of the license conditions, then a crime and occurrence report will be prepared and the same will be forwarded to the court. If the finding of the chemical examiner is against the accused, a crime and occurrence report is prepared, and then the second sample kept in the custody of the Commissioner of Excise will be forwarded to the court within 24 hours alongwith the report prepared. Otherwise, second sample will be destroyed. The preparation of the second sample is totally meant for a second analysis. The petitioner has moved the application for getting the second sample analysed by the court concerned, it was dismissed by the court without properly understanding the dictum in the case cited by it. For the foregoing reasons, the order under challenge is liable to be reversed.
In the result, the revision petition stands allowed. The order dated 09.04.2019 in CMP No.1942/19 of the Judicial First Crl.Rev.Pet.No. 558 of 2019 6 Class Magistrate Court, Mavelikkara stands set aside. The court concerned shall consider CMP No.1942/2019 in the light of the discussion made hereinabove and pass appropriate orders in accordance with law.
Sd/ MARY JOSEPH JUDGE ttb Crl.Rev.Pet.No. 558 of 2019 7 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE PHOTOCOPY OF THE PETITION IN C.M.P.N.1942/2019 FILED BY THE REVISION PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA DATED 02/04/2019.
ANNEXURE B TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.345/2012 DATED 13/02/2012.
ANNEXURE C TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.1571/2013 DATED 19/08/2013.
ANNEXURE D TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.2052/2014 DATED 01/12/2014.