M. Unnikrishnan, M. Shanmughan and Sivasankaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** **Crl.MC.No. 4609 of 2016 () --------------------------CRL.A 2228/2005 of THIS HON'BLE COURT CR.NO. 32/2016 THRITHALA EXCISE RANGE, PALAKKAD DISTRICT ----------** **PETITIONER(S)/ ACCUSED 1 TO3.: -----------------------------** **1. M.UNNIKRISHNAN S/O. VELAYUDHAN, MANAKKADAVATH HOUSE, KOTHACHIRA DESOM, NAYALASSERY VILLAGE, PATTAMBI TALUK, PALAKKAD.** **2. M. SHANMUGHAN, S/O. CHAMI, 'SHANIVAS' MADAYIL HOUSE, CHALISSERY VILLAGE, PATTAMBI TALUK, PALAKKAD.** **3. SIVASANKARAN, S/O. APPU NAMBIAR, NAYKATH VEEDU, THIRUNAVAYA VILLAGE,** **TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.M.C.JOHN** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 4609 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**ANNEXURE A: TRUE COPY OF THE CRIME & OCCURANCE REPORT (CR)**| |---| |**DATED 13.5.2016.**| |**ANNEXURE B: TRUE COPY OF THE DECISION REPORTED IN 2010(2)**| |**KLJ 444 GIRISHKUMAR VS. STATE OF KERALA.**| |**ANNEXURE C: TRUE COPY OF THE ORDER DATED 11.4.2013 IN**| |**CRL.MC.NO.1560/2013.**| |**ANNEXURE D: PHOTOCOPY OF THE JUDGMENT DATED 18.9.2015 IN**| |**CRL.A.NO.2228/2005 (PARA NO.15)**| |**ANNEXURE E: TRUE COPY OF THE CHEMICAL ANALYSIS REPORT IN**| |**RESPECT OF SAMPLES MARKED AS 'A.**| |**ANNEXURE F: TRUE COPY OF THE ANALYSIS REPORT OF THE SAMPLE**| |**MARKED AS 'B' IN RESPECT OF THE SAME CASE**| |**PERTAINING TO ANNEXURE -F.**| |**ANNEXURE G: TRUE COPY OF THE INTERIM ORDER DATED 22.6.2009**| |**IN SLA (CIVIL) NO.14563-14564/2009 .**| |**ANNEXURE H: TRUE COPY OF THE INTERIM ORDER PASSED BY THE**| |**APEX COURT IN 14.1.2015.**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL**| |**//TRUE COPY//**| **P.A. TO JUDGE** ## **bp** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No. 4609 of 2016** -----------------------------------------Dated this the 25[th] day of July, 2016 ## **O R D E R** ## **~~~~~~~~** 1.The petitioners are the licensees and employees of a Toddy Shop Bearing No. TS No.87/2014-17 in Group No.XII of Thrithala Excise Range. On 8.7.2015, samples of toddy kept for sale in the said toddy shop was taken by the Circle Inspector of Excise, Narcotic Special Squad after following the procedure prescribed under Chapter VII of the Rules, 2002. Annexure-A1 report was prepared evidencing the sampling and seizure. The sample was forwarded to the Chemical Examiners Laboratory and a report was obtained which revealed that Ethyl Alcohol was found in excess strength. Based on which, C.R.No.32 of 2016 of Thrithala Excise Range was registered on 13.5.2016. 2.The proceedings in the aforesaid Crime registered on the **-2-** **Crl.M.C.No.4609/2016** basis of the Chemical Analysis report are sought to be quashed on the ground that the procedure followed by the detecting officer is in violation to 8(2)(g) of the Rules, 2002. 3.I have heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 4.It is submitted by the learned counsel that perusal of the analysis report will reveal that the mandatory provisions contained in Chapter VII of the Rules, 2002 has been blatantly violated. The learned Counsel assiduously urges that Rule 8(2)(a) requires the Excise Inspector lifting the sample to take two samples of toddy and it also requires that Benzoic acid be added as preservative. Rule 8(2)(g) of the Rules, 2012 require the Excise Inspector to forward separately a small quantity of the preservative along with the sample to the Chemical Examiner/Authorized officer. Inviting my attention to the occurrence report, it is **-3-** **Crl.M.C.No.4609/2016** submitted that the said report would not indicate that Benzoic acid was added to the sample or that the preservative was separately sent to the Chemical Examiner/Authorized officer as mandated under the Rules. 5.The learned Counsel would then refer to the orders of this Court in **Girish Kumar V State of Kerala** [2010 (2) KLJ 444] and also an unreported order in Crl.M.C.No.1560 of 2013 to contend that Rule 8(2) & (3) are mandatory and violation of the said provision would seriously prejudice the accused. 6.It is further submitted that the judgment of this Court upholding the validity of Rule 9(2) of the Rules, 2002 which prescribes the maximum strength of Ethyl Alcohol in Toddy as 8.1 % v/v was challenged before the Apex Court and the prosecution has been stayed. By referring to Annexure-G interim order of the Apex Court, it is submitted that a study **-4-** **Crl.M.C.No.4609/2016** report prepared by the Technical Committee on Chemical Composition of Toddy and the Committee has recommended that the maximum strength of Coconut Palm Toddy can go upto 9.59% v/v and if that be the case, the initiation of prosecution on the ground that the content of Ethyl alcohol was above 8.1.% v/v cannot be sustained. 7.The learned Public Prosecutor would vehemently oppose the submissions of the Counsel. It is urged that the contention raised by the petitioner that the proceedings are to be quashed merely based on the entries in Chemical Analysis report is untenable. It is pointed out that it has come out from the report that the sample lifted contained Ethyl Alcohol in excess of the maximum permissible strength. This would squarely attract the penal provisions of Section 56 (b) and 57 (a) of the Abkari Act. It is further urged that in all the cases, there are **-5-** **Crl.M.C.No.4609/2016** contemporaneous records such as the mahazar, which would reveal in unmistakable fashion that preservative was added and that it was separately dispatched to the Chemical Examiners Lab and if that be the case, this Court will not be justified in exercising its extraordinary powers under Section 482 of the Code to quash the proceedings at the initial stage itself. It is also pointed out that the prosecution will be able to produce the materials at the time of submission of the final report and they will also have an opportunity to explain the entries in analysis report at the stage of trial to substantiate their contention that the procedure as contemplated under the Rules have been complied with in letter and spirit. Elaborating further, the learned Public Prosecutor urged that the criminal proceeding be not quashed for the absence of certain non-essential entries in the analysis report. According to the learned Public **-6-** **Crl.M.C.No.4609/2016** Prosecutor, the rules do not contemplate that the analysis report should contain references to the taking of preservative and all that is required to be stated in the report is that the sample which was lifted from the shop was dispatched to the Lab and that the analysis of the sample revealed that the provisions of the Rules was violated. The learned Public Prosecutor would further submit that the Chemical Examiner would be examined at the stage of trial and the prosecution will be able to prove through the said witness and also the detecting officer that the preservative was in fact sent separately to the lab. According to the learned Public Prosecutor, the investigation is at the nascent stage and this Court will not be justified in razing to the ground the prosecution, which is at the infant stage. 8.I have considered the rival submissions and I have perused the materials on record. **Crl.M.C.No.4609/2016** **-7-** 9.To appreciate the contentions raised by the learned Counsel, it will be apposite to refer to Rule 8(2)(a) and (g) of the Abkari Shops Disposal Rules, 2012. It reads as follows :- 8 (1) xxxxxxxx (2)While taking sample of any liquor by the Abkari Officer for chemical examination, the following procedure shall be followed, namely :- (a) The quantity of sample taken for analysis shall not be less than 500 ml. Benzoic Acid should be added as preservative in toddy at the rate of one gram fro 100 ml of toddy; xxxxxxxxxxxxx (g) A small quantity of the preservative used shall also be forwarded separately along with the sample to the Chemical Examiner/Authorised Officer. 10.There cannot be any dispute that the Abkari Officer while taking sample of any liquor for analysis is required to take a quantity of not less than 500ml and the prescribed preservative, namely, Benzoic Acid, is to be added at the rate of one gram for 100 ml of toddy. The officer then has to comply with sub-clause (b) to (f). The controversy in these **Crl.M.C.No.4609/2016** **-8-** cases is with regard to the alleged non-compliance of Rule 8(2)(g). The petitioners contend that the preservative was neither added to the toddy sample and nor was it sent separately to the laboratory. To buttress the said contention, the petitioners place profuse reliance on the analysis report in the respective cases. 11.The analysis report produced in the the instant case does not reveal that the preservative was separately sent to the lab. The said report also does not reveal that the Analyst had conducted test to determine the presence of Benzoic acid in the sample sent. 12.Question is whether the absence of reference to Benzoic Acid in the report will necessarily lead to the inference that the procedure was violated in letter and spirit . 13.To answer this question a reference to the Kerala Chemico Legal Examination Rules, 1959 will be profitable. **Crl.M.C.No.4609/2016** **-9-** The said Rules govern the mode and manner in which the analysis is to be done in the Chemical Analysis Labs in the State and also the procedure to be followed. The said Rules have been framed by the Government of Kerala to regulate the transmission of substances for chemical analysis to the Chemical Examiner. A brief look at some of the relevant provisions will be apposite. **Rule 3.** In every case in which analysis is required for judicial purposes by the Police, Magistracy, or Excise Officers, the Chemical Examiner shall as far as practicable, furnish a quantitative analysis stating the results of the analysis which led to the conclusion in his report under section 293 of the Code of Criminal Procedure, 1973 the report being legal and a very clinching piece of evidence in any investigation, inquiry, trial or other proceedings under the Code. **Rule 3A.** The contents of the report of the Chemical Examiner under section 293 of the Code of Criminal Procedure is subject to judicial scrutiny and a report stating only the expert's opinion or conclusion without furnishing any data or without showing the particulars on the basis of which he arrived at the conclusions in a particular analysis, may lose its essence and efficacy. It is therefore imperative that the **-10-** **Crl.M.C.No.4609/2016** report disclose the reasons which led to the final opinion or the conclusion, by furnishing relevant technical data, in the report itself. Provided that in any analysis, in which details which led to the conclusion are not given in the report as provided in this rule, it shall be the duty and responsibility of the prosecution to call the Chemical Examiner who issued the report to testify his report in evidence, without prejudice to anything contained in Section 293 of the Code of Criminal Procedure. **Rule 17. (a)** : _Under this head shall fall such examinations as the estimation of morphine and other ingredients in opium examination of ganja and other narcotic drugs, coins, documents, paints, fireams, bullets, etc., in shooting cases, gun barrel residues, fire-works and other explosives incendiaries, articles involved in cases of explosion, bones, hairs, liquors, illicit arrack samples and blood specimens involved in offences, under the Abkari Act in force.”_ **(b)** (1) In forwarding any miscellaneous article such as mentioned herein before, the Magistrates, Police Officers or Excise Officers as the case may be shall follow the instructions laid down in Rule 30 of Section III so far as they may be applicable and shall be careful to include in their letter or advice to the Chemical Examiner information as to the nature and object of the examination required, and to furnish any other information likely to assist the Chemical Examiner in making the required Examination. **-11-** **Crl.M.C.No.4609/2016** (2) In all miscellaneous cases, where samples or thondy articles are required to be examined by the Chemical Examiner, the concerned Police Officer, or Excise Officer shall submit along with the charge sheet, the prescribed application before the court for forwarding the articles to the Chemical Examiner's Laboratory, for examination or analysis as the case may be. **(e)** Excise Officers shall forward articles seized under the provisions of the Abkari Act in force through the Magistrates within whose jurisdiction the offence has been committed.” 14.When the rules which govern the analysis and which is bound to be followed by the Chemical Examiner do not require the mentioning of the aspects pointed out by the learned Counsel in the analysis report, it will be idle to contend that the prosecution has to be quashed on the strength of the said report. Further, the Rules also provides that in any analysis, in which details which led to the conclusion are not given in the report as provided in this rule, it shall be the duty and responsibility of the prosecution to call the Chemical Examiner who issued the **-12-** **Crl.M.C.No.4609/2016** report to testify his report in evidence, without prejudice to anything contained in Section 293 of the Code of Criminal Procedure. 15.The analysis report pertains only to the analysis of the sample of toddy and the percentage of Ethyl alcohol in it. The said report cannot be the basis to conclude that the provisions were violated. As rightly contended by the learned Public prosecutor, when other contemporaneous records are available, the prosecuting agency will be able to produce the same before the Court along with the final report to substantiate its case that the provisions have been substantially complied. The Chemical Examiner can be examined and the investigating officer will also enter the box to substantiate that the provisions has been complied with in its letter and spirit. 16.I am therefore of the view that the failure of the **-13-** **Crl.M.C.No.4609/2016** Chemical Analyst to mention about the receipt of the preservative along with the sample or his failure to note in the report that Benzoic acid was also present in the sample cannot by itself be sufficient to quash the Crime at the inception itself. 17.The learned Counsel is amply justified in placing reliance on the judgment of this Court in **Gireesh Kumar** (supra) and a host of other judgments wherein this Court had held that Rule 8 (2) and (3) are mandatory. In **Gireesh Kumar** (supra), it was admitted by the Officer, who affected the seizure, that he did not take a second sample. This was held to grossly prejudice the accused. In the case on hand, the prosecution assert that the preservative was added to the liquor and a sample was sent to the analyst. In other words, the assertions of the petitioner is disputed by the prosecution. The prosecution relies on the mahazar and **-14-** **Crl.M.C.No.4609/2016** other records prepared by the detecting officer to contend that the provisions have been complied with. I am of the view that the Analysis report cannot be the basis at the initial stages to conclude that the provision has been violated. 18.In so far as the contention raised by the learned counsel with regard to the report submitted by the Technical Committee on chemical composition of toddy, I am afraid that this Court will not be justified in taking note of the above fact as Rule 9(2), as it stands now, prescribes the maximum permissible strength as 8.1% v/v. The analysis report clearly reveals that the Ethyl alcohol concentration was above the above threshold limit. 19.Terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. The Apex Court **-15-** **Crl.M.C.No.4609/2016** in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. Reference can be made to the the following judgments of the Apex Court where a note of caution was sounded to the Courts exercising powers under Section 482 of Cr.P.C. 20.In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in **Crl.M.C.No.4609/2016** **-16-** ## exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. **-17-** **Crl.M.C.No.4609/2016** (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” ## 21.In **Kurukshetra University v. State of Haryana** [1977 ## (4) SCC 451, the Apex Court had laid down as follows : “It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” **Crl.M.C.No.4609/2016** **-18-** ## 22.Finally, in **Som Mittal V Government of Karnataka** ## [2008 (3) SCC 574], it was held as follows:- “We may observe here that despite this Court has consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.” 23.After having bestowed my anxious considerations to the submissions and contentions and after having tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioners have failed to make out a case for quashing the criminal proceedings at **Crl.M.C.No.4609/2016 -19-** the threshold itself. This petition is accordingly dismissed. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/1/8/16