Balan v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 CRL.REV.PET NO. 674 OF 2010 ``` ``` AGAINST THE JUDGMENT IN CRA 1001/2008 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC-II), KOZHIKODE FROM SC 1227/2006 OF ADDITIONAL ASSISTAND ``` ``` SESSIONS JUDGE-III, KOZHIKODE ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` BALAN, S/O APPU, AGED 59 YEARS KUTTIYOTTU KUNNUMMAL HOUSE, CHEVAYUR AMSOM & DESOM, KOZHIKODE. BY ADV SRI.P.K.RAMKUMAR ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_ ``` STATE OF KERALA REP BY THE EXCISE INSPECTOR, KUNNAMANGALAM, THROUGH PUBLIC PROSECUTOR, AT HIGH COURT OF KERALA ``` ## _`OTHER PRESENT:`_ ``` SRI. SANAL P.RAJ-P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 674 of 2010 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl.R.P No. 674 of 2010 ## **========================** ## _**O R D E R**_ ## **Dated this the 07[th] day of December, 2023** This revision is at the instance of the accused in S.C. No.1227 of 2006 on the file of Assistant Sessions Judge-III, Kozhikode, assailing the judgment in Crl.Appeal No.1001 of 2008 on the file of Additional District and Sessions Judge, Fast Track (Adhoc-II), Kozhikode, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that on 06.08.2005 at 12.30 p.m., a can the revision petitioner was found in possession of containing five litres of arrack, at the road lying in front of the house of Kuttiyoth Shobana. PW1, the preventive officer and excise party detected the offence. The revision petitioner was arrested and the contraband was seized. After completing the ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** legal formalities, the contraband along with the revision petitioner were produced before the excise office, where crime was registered against him. PW7 investigated the case and laid charge sheet against him under Sections 8(1) and 8(2) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs.1 to 8, marked Exts.P1 to P7, and identified MO1, to prove its case. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** for one year and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of three months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.1001 of 2008. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction and sentence, and hence, the appeal was dismissed, against which he has preferred this revision. 7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent judgments convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. PW1, the preventive officer, was leading the patrol party, and PW2 another preventive officer, was accompanying him. Their testimony vividly narrated the detection, seizure and arrest of the revision petitioner at the spot itself. Ext.P2 seizure mahazar ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** prepared by PW1, contains specimen impression of the seal with which the sample bottle was sealed. Ext.P1 is the arrest memo prepared by PW1 at the spot itself, and Ext.P4 property list shows production of the contraband along with the sample bottle before the jurisdictional Magistrate, on the date of detection itself. Ext.P5 forwarding note also contains specimen impression of the seal which was used for sealing the sample bottle. It shows the name of the excise guard with whom the sample bottle was sent to the chemical examiner's lab. Ext.P7 chemical analysis report shows that, the seal on the bottle was intact, and found tallied with the sample seal provided. The sample was forwarded to the lab on 07.10.2005 and it reached the lab on the very same day. So, the testimony of PWs.1 to 3 was found reliable and trustworthy by the trial court as well as the appellate court. 10. True, PWs 4 and 5, the independent witnesses, turned hostile to the prosecution. As we know, hostility of independent witnesses is not a ground to disbelieve the testimony of the official witnesses, if it is found reliable and trustworthy. When the testimony ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** of official witnesses is blemishless and free from suspicion, and inspires confidence, the hostility shown by ill-motivated independent witnesses, is of no consequence. 11. In the case on hand, PWs.4 and 5, the independent witnesses turned hostile, after admitting their signature in the seizure mahazar, and also in the label affixed in MO1 can. When independent witnesses turn hostile, after admitting their signature in the seizure mahazar, entire arrest and seizure will not get vitiated (See _**Balachandran v. State of Kerala**_ 2020 (4) KLT 137). 12. Ext.P7 chemical analysis report shows that, on analysing the sample, ethyl alcohol was detected. So, the prosecution succeeded in proving that, the contraband seized from the possession of the revision petitioner was arrack. 13. The main contention put forward by learned counsel for the revision petitioner is that, the detecting officer ought to have taken two samples, as envisaged in the excise manual, and he relied on the decision _**Girish Kumar v. State of Kerala**_ 2010 (3) KLT 95 _**,**_ in which, it was held that, as per Rule 8(2) and (3) of the Kerala Abkari ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** Shops Disposal Rules, it provides preparation of two samples, and to produce the second sample before court once the case is registered and it is mandatory. According to him, it is the right of the accused to seek analysis of the second sample examined by chemical examiner. Since no such second sample was taken, it infringes the valuable right of the accused as stated by him. But, that decision, was held not good law, as per a Division Bench decision of this Court in _**Krishan M.C. and another v State of Kerala and another**_ [2021 (2) KHC 395]. The learned Division Bench held that, the accused has no legal or statutory right to make a request for sending ‘B’ sample for chemical analysis, in the case of the seizure of toddy. It was further held that, the provisions in the excise manual contains only instructions for guidance of subordinate officials of the department, and it will not have any force of law and it will not prevail over the statutory provisions. Excise manual was not issued under the provisions of any statute. The manual contains administrative instructions issued by the department as guidelines of the subordinate officials. Those instructions cannot override the ``` Crl.R.P. No. 674 of 2010 ``` ``` ..8.. ``` provisions of the Abkari Act. 14. In _**Santhosh T A and another v. State of Kerala**_ [2017 (5) KHC 107] _**,**_ this Court held that, there is no provision in the Act directing, taking of two samples, and accused has no right to ask for sending sample for chemical analysis. ## 15. In paragraph 27 of that judgment, it is stated as follows:- _“27. 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 confered 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.”_ ## 16. The statutory force of the Excise manual also was discussed in the decision _**Santhosh T A and another** (Supra)._ Unless Rules in the Manual have been issued by a competent authority under the provisions of a statute, they are merely administrative instructions. Mere executive instructions will have no force of a statutory provision, even if they are called Rules, Circulars or orders. ``` Crl.R.P. No. 674 of 2010 ``` ``` ..9.. ``` 17. In the case on hand, one sample was taken, and it was analysed by the chemical analyst and ethyl alcohol was detected in the sample. The testimony of PWs.1 to 3 clearly proved seizure of the contraband from the possession of the revision petitioner. No material defects affecting the prosecution case, have been brought out by the revision petitioner. Though there is a contention from his part, that the sample was not kept in a tamper proof condition till it reached the chemical examiner's lab, as we have seen, the sample bottle was produced before the court on the date of detection itself, and it was sent to the chemical examiner's lab from the court, and it was analysed and the report was issued. Moreover, the report shows that the seal on the bottle was intact and found tallied with the sample seal provided. So, the prosecution succeeded in proving, tamper proof despatch of the sample from the place of its seizure till it was analysed by the chemical examiner. So, none of the grounds urged by the learned counsel for the revision petitioner could be proved, and hence, this Court also finds nothing to interfere with the conviction and sentence imposed on the revision petitioner, by the ``` Crl.R.P. No. 674 of 2010 ``` **==> picture [37 x 7] intentionally omitted <==** courts below. So, the revision is liable to be dismissed, upholding the conviction and sentence of the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 18. The trial court has to execute the sentence, by issuing arrest warrant against the revision petitioner. If the revision petitioner is reported dead, then also, the fine amount has to be realized from his assets. 19. Registry of this Court is directed to transmit the records to the trial court forthwith, for facilitating execution of the sentence, without further delay. With these directions, the revision petition stands dismissed. ## **Sd/-** ## **SOPHY THOMAS** ## **JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```