Chandran and Nishad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** ## **Crl.MC.No. 2689 of 2019** **CRIME NO. 22/2018 OF Kunnamkulam Excise Range Office, Thrissur** ## **PETITIONERS / ACCUSED NOS. 1 & 2:** **1 CHANDRAN AGED 62 YEARS S/O.AYYAPPANKUTTY, VADAKKUMPATTU HOUSE, KAVEEDU DESOM, POOKKODU VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **2 NISHAD S/O.NANDANAN, THACHATTIL HOUSE, KOZHUKKULLY DESOM, KOZHUKKULLY VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.NIREESH MATHEW** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **(PP) SRI.C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2689 of 2019** **2** ## **ORDER** Annexure B Crime and Occurrence Report and all further proceedings initiated pursuant to Crime No.22/2018 of Kunnamkulam Excise Range are sought to be quashed. Crime No.22/2018, of Kunnamkulam Excise Range was registered against the petitioners, who are accused numbers 1 & 2 thereto, alleging commission of offences punishable under Section 56(b) and 57(a) of the Abkari Act (for short, 'the Act'). As per the allegation of the prosecution, 1[st] petitioner is the Manager and 2[nd] petitioner is the licensee of all toddy shops in Group No.X of Kunnamkulam Excise It is that on Range. alleged 29.04.2018, the Excise Inspector, Excise Circle Office, Vadakkancherry and party inspected toddy shop No.51 included in Group No.X and had taken samples of toddy therefrom, which when tested at the Chemical Examiner's Laboratory was found to contain 9.59% v/v of ethyl alcohol, **Crl.MC.No.2689 of 2019 3** excess than the permissible quantity of 8.1% v/v as per Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002, (for short, 'Rules, 2002') and therefore, the crime was registered against both petitioners. 2. Samples when sent for analysis before the Chemical Examiner's Laboratory, Ernakulam, report dated 16.07.2018 was obtained, reporting that the percentage by volume of ethyl alcohol present therein is 7.67% and that those were free from any noxious ingredients injurious to health. On the basis of Annexure-B, Crime and Occurrence Report was prepared. 3. Petitioner filed a petition before the Judicial First Class Magistrate Court, Kunnamkulam for forwarding the sample produced therein, to the Chemical Examiner's Laboratory for analysis. The Magistrate concerned allowed the petition and forwarded the sample to the Chemical Examiner's Laboratory, Kozhikode for analysis. The sample forwarded was not accepted by the Laboratory and returned with an endorsement, “The bottle is found to be **Crl.MC.No.2689 of 2019 4** leaking. The seals of Excise Range and DEC are not affixed in the requisition”. The Magistrate, who received the sample, permitted the Excise Inspector of Kunnamkulam, Excise Range to seal the bottle afresh after removing the original seal so as to restrain leaking. The specimen impression of the seals of the Officer who took the samples were thus affixed afresh on the requisite and re-submitted the sample before the Chemical Examiner's Laboratory, Kozhikode. In the said circumstances, the counsel for the petitioners filed application for getting the relevant records. It was found that the records were not available in the Court. The letter issued from the Chemical Examiner's Laboratory, Kozhikode, returning the defective samples noting the defects and the requisition were already returned to the Laboratory after curing the defects. Thereupon, the petitioner filed application before the Chemical Examiner's Laboratory, Kozhikode under the Right to Information Act for getting the relevant records. Accordingly, the records were obtained and those are produced in the case on hand as Annexure-C. **Crl.MC.No.2689 of 2019 5** 4. It is contended by Sri.Nireesh Mathew, the learned Counsel that Annexure B, Crime and Occurrence Report and all further proceedings initiated pursuant thereto are liable to be quashed for the reasons submitted by him. According to him, the sample was found by the Chemical Examiner's Laboratory as leaking and for want of proper seal on the sample forwarded, Rule 8(2) (d) of Rules, 2002 was violated and for the reason, the crime and occurrence report and further proceedings initiated pursuant to that are unsustainable. 5. **Girish Kumar and another v. State of Kerala [2010(3)KHC 171]** and orders of this Court in Crl.M.C Nos. 4276/2017 dated 10.07.2017 and 8413/2018 dated 18.12.2018 were also placed for reliance by the learned counsel to support his argument. In **Girish Kumar's** case supra, a Single Bench of this court observed that want of collection of second sample amounts to violation of Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rule') and thereby prejudice is caused to the accused. Single **Crl.MC.No.2689 of 2019 6** Bench found that in view of violation of the mandatory provisions, it is unlikely for the prosecution to succeed and accordingly the crime registered against the accused and further proceedings initiated thereto were quashed. 6. In the unreported rulings cited supra, a learned Single Judge of this court found that for want of proper packing and sealing of the samples, Sub-rule (2) of Rule 8 of the Rules was violated to the prejudice of the accused and that, the prosecution, evenif allowed to be continued, will only fail. 7. In the case on hand, Sample B forwarded to the Chemical Examiner's Laboratory was returned with a letter (Annexure C) stating that the bottle containing the sample was leaking and that the seals of the Excise Range and the DEC were not affixed on the requisition. On receiving the letter as Annexure C, the court has permitted the investigating officer to get the bottle returned after sealing it properly and affixing the personal seal impression of DEC thereon. **Crl.MC.No.2689 of 2019 7** 8. Therefore, this is a clear case of the sample reaching the chemical Examiner's Laboratory without seals on the bottles containing the contraband intact. At the time when it was brought before the Chemical Examiner, it was found leaking and therefore, contact of the contents with air cannot be ruled out. For want of details for the conduct of a proper Chemico Legal Examination of the sample, it was returned. As revealed from the allegations in the petition on hand, the Judicial First Class Magistrate Court, Kunnamkulam has permitted the investigating officer, who applied for rectifying the anomalies, to do so. 9. By granting permission, the Magistrate has allowed something which was omitted by the Investigating Officer to do or to rectify an anomaly found in their act, which was improper. In either of the way, the accused will be prejudiced. 10. The factual situation in the case on hand is identical to the one available in the unreported rulings cited by the learned counsel. **Crl.MC.No.2689 of 2019** **8** Therefore, Crime No.22 of 2018 of Kunnanmkulam Excise Range and Occurrence Report and all further proceedings initiated pursuant to that are liable to be quashed. In the result, this petition stands allowed and Annexure-B and all further proceedings initiated pursuant thereto as against the petitioners stand quashed. **Sd/-** **MARY JOSEPH** **JUDGE** JJ/ **Crl.MC.No.2689 of 2019 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **PHOTOCOPY OF THE CHEMICAL ANALYSIS REPORT DATED 16.7.2018 ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT., KAKKANAD, KOCHI.** ## **ANNEXURE B** **PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.22/2018 REGISTERED BY THE EXCISE INSPECTOR, KUNNAMKULAM RANGE.** ## **ANNEXURE C** **PHOTOCOPY OF THE LETTER ISSUED BY THE JOINT CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE TO THE JUDL. FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM OBTAINED UNDER RIGHT TO INFORMATION ACT.** ## **ANNEXURE D** **PHOTOCOPY OF THE ORDER DATED 10.7.2017 IN CRL.M.C.NO.4276/2017 PASSED BY THIS HON'BLE COURT.** ## **ANNEXURE E** **PHOTOCOPY OF THE ORDER DATED 18.12.2018 IN CRL.M.C.NO.8413/2018 PASSED BY THIS HON'BLE COURT.**