M.K. Paulose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** **CRL.A.No. 3 of 2010 ( ) ------------------------** **AGAINST THE JUDGMENT IN SC 950/2005 of ADDL.DISTRICT COURT (ADHOC)-II, PALAKKAD DATED 02.01.2010** **APPELLANT(S)/ACCUSED NO.2: -------------------------** **M.K.PAULOSE, AGED 52 YEARS, S/O. KURIAKOSE, MANAPPAT HOUSE, PULLISSERI DESOM, MANNARKKAD I VILLAGE, PALAKKAD DISTRICT.** ## **BY ADV. SRI.NIREESH MATHEW** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, MANNARKKAD EXCISE RANGE, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rkj** ## **P.UBAID, J.** ============================ ## **Crl.Appeal No.3 of 2010** ============================ Dated this the 12[th] day of July, 2017 ## **JUDGMENT** The appellant herein is the second accused in S.C.No.950 of 2005 of the Court of Session, Palakkad. He, along with the first accused, Balakrishnan, faced trial in the court below on the allegation that when the Circle Inspector of Excise attached to the Excise Enforcement and Anti Narcotic Special Squad, Palakkad inspected the toddy shop No.22/2003-04 of Mannarkkad Range, the accused were found possessing toddy mixed with diazepam, for sale. The first accused was the salesman of the toddy shop at that time. The toddy shop was run by a committee consisting of 22 persons. The appellant herein was the Convener of the said committee. The prosecution was initiated against the salesman as the first accused, and against the Convener and the members as accused Nos.2 to 23. The accused Nos.3 to 23 were discharged by Crl.Appeal No.3 of 2010 2 the trial court under Section 227 Cr.P.C., and the case proceeded against the accused Nos.1 and 2. The case was tried before the learned Additional Sessions Judge, AdhocII, Palakkad. The trial court framed a charge against the first accused under Section 57A of the Kerala Abkari Act (“the Act”), and under Section 57, against the second accused. Both the accused pleaded not guilty to the charge. Thereafter, the charge against the second accused was altered to one under Section 57A of the Act. The prosecution examined six witnesses in the trial court, and proved Exts.P1 to P9 documents. When examined under Section 313 Cr.P.C., the two accused denied the incriminating circumstances. They did not adduce any oral evidence in defence, but Ext.D1 was marked on their side. On an appreciation of the evidence, the trial court found the first accused not guilty, and accordingly he was acquitted, but the second accused was found guilty by the trial court. On conviction under Section 57A of the Act, he was sentenced to undergo simple imprisonment for five years, and to pay a fine of Rs.25,000/- by judgment dated Crl.Appeal No.3 of 2010 3 02.01.2010. Aggrieved by the judgment of conviction, the second accused has come up in appeal. 2. When this appeal came up for hearing, the learned counsel for the appellant submitted that the factual aspects regarding the inspection at the toddy shop, or the seizure of toddy, need not be probed into in this case because, the appellant is otherwise entitled for acquittal on legal grounds. One ground argued by the learned defence counsel is that the detection in this case was made by an incompetent officer, and the other is violation of the provisions in Rule 8 of the Kerala Abkari Shops Disposal Rules (the Rules). 3. The detection in this case was made by a Circle Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Palakkad, on 05.09.2003. According to him, he collected sample from the toddy kept there for sale, and on analysis at the laboratory, it was found containing diazepam. On the basis of the report of analysis, the Excise Inspector of the Mannarkkad Excise Range brought this prosecution under Section 57A of the 4 Crl.Appeal No.3 of 2010 Act. 4. This Court has consistently held in so many decisions that only the officers specifically appointed and authorised by the Government under Section 4 of the Act, can discharge the various functions under the Act. In 1967, the Government of Kerala issued a notification as SRO 234/1967 in terms of Section 4, conferring various powers on different categories of excise officials, functionwise and territorywise. Officers of the Special Squads like Excise Intelligence Squad, or the Excise Enforcement and Anti Narcotic Special Squad were not given powers under the said notification. In 2009, the Government issued another notification as SRO 361/2009 dated 08.05.2009, in suppression of the 1967 notification. As per this notification, different powers were conferred on excise officials of the Special Squads also. Thus, such categories of officers got powers under the Act only in 2009. The detection in this case was 05.09.2003. The Excise Circle Inspector who made detection in this case had no power under the Act to make such detection, Crl.Appeal No.3 of 2010 5 because, he was not a Circle Inspector of the regular wing of the excise department at that time. A prosecution built on the detection made by an incompetent excise official will have to collapse. 5. Another infirmity argued by the defence is violation of Rule 8 of the Rules. In this case, the detecting officer had collected two samples. On analysis, the sample was found containing diazepam. The report of chemical analysis in this case was issued on 05.11.2003. The Excise Inspector must have received it without any delay. But the prosecution was initiated only on 11.11.2003. Rule 8 of the Rules contains the procedure regarding collection of sample, and also regarding the period within which complaint will have to be filed. 6. Ofcourse, the detecting officer had collected two samples in this case. These are two separate samples. Clause(a) of Sub Rule 2 of Rule 8 provides that the quantity of sample taken for analysis shall not be less than 500ml in the case of toddy, and benzoic acid shall be added as preservative. Clause (b) provides that the 6 Crl.Appeal No.3 of 2010 contents in the vessel wherein the sample is taken shall be thoroughly mixed so as to get a representative sample. Clause (c) provides that the sample shall be divided into two parts in two separate bottles or containers which are properly cleaned and dried. What Clause (c) in fact provides is that the sample which shall not be less than 500ml in the case of toddy collected as provided under Clause (a), and thoroughly mixed as provided under Clause (b), shall be divided into two parts. The object of this Rule is to ensure that both the parts are really representative in nature. What the law provides is not that two separate samples shall be taken, but a single sample made representative by mixing properly, shall be divided into two parts. Instead of taking a single sample, and dividing it into two parts after making it a representative in nature, the detecting officer in this case collected two different samples. 7. Sub Rule 3 of Rule 8 of the Rules provides that on receipt of the chemical analysis report, a crime shall be registered within 24 hours, if any violation of the 7 Crl.Appeal No.3 of 2010 provisions of the Act is reported in the analysis report. The complaint in this case was not filed within 24 hours from the date of receipt of the report of analysis. There is no provision anywhere to condone the delay in making complaint. When specific provision is made in the Rules, the Court cannot condone the delay by applying the provisions of the Code of Criminal Procedure. The complaint in this case, filed beyond the time prescribed under Sub Rule 3 to Rule 8 should not have been entertained by the trial court. Such a complaint will have to be treated as non-est. This is also a legal ground on the basis of which the accused can claim acquittal. 8. There is yet another aspect here that the report of chemical analysis was wrongly admitted in evidence under Section 293 Cr.P.C. The position is covered by **Rajappan v. State of Kerala [2012(2) KLT 898]** . 9. On the basis of the findings on legal aspects, the appellant is entitled for acquittal. In the above circumstances, the factual aspects need not be probed into. 8 Crl.Appeal No.3 of 2010 In the result, this appeal is allowed. The appellant herein is found not guilty of the offence under Section 57A of the Kerala Abkari Act, and accordingly, he is acquitted of the said offence in appeal under Section 386 (b)(i) Cr.P.C. The conviction and sentence against the appellant in S.C.No.950 of 2005 of the court below will stand set aside, and the bail bond, if any, executed by him will stand discharged. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence, will be released. Sd/- **P.UBAID, JUDGE** rkj //TRUE COPY// P.A. TO JUDGE