Pauloose and George Mathew v. State of Kerala and The Assistant Chemical Examiner to Government of Kerala, Joint Chemical Examiner's Laboratory, Kakkanad, Kochi-30

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **Crl.MC.No.745 OF 2017** **CRIME NO.9/2017 OF Kothamangalam Excise Range Office , Ernakulam** ## **PETITIONERS/ACCUSED NOS.1 & 2:** - **1 PAULOSE AGED 51 YEARS, S/O.PAILY, VADAKKEKARA HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **2 GEORGE MATHEW AGED 62 YEARS, S/O.MATHAI, PARAPPATTU HOUSE, VETTAMBARA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 THE ASST. CHEMICAL EXAMINER TO GOVERNMENT OF KERALA JOINT CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, KOCHI-30.** ## **SRI SUMAN CHAKRAVARTHY-SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.08.2020, THE COURT ON 12.08.2020 PASSED THE FOLLOWING:** **Crl.MC.No.745 OF 2017** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.745 of 2017 ---------------------------------------------- Dated this the 12[th] day of August, 2020 ## **O R D E R** This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing the case registered against the petitioners as C.R.No.9/2017 of the Kothamangalam Excise Range under Sections 56(b) and 57(a) of the Abkari Act, 1077. 2. The petitioners are the first and the second accused in the aforesaid case. On 24.02.2010, the Preventive Officer of Kothamangalam Excise Range took samples of toddy from the toddy shop T.S.No.15 of Group No.IV of Kothamangalam Excise Range as per Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as 'the Rules'). One of the samples was sent for chemical analysis by the Excise Inspector concerned. The certificate of chemical analysis received in respect of the sample revealed that it contained 8.23% by volume of ethyl alcohol. The first petitioner was the salesman and the second petitioner was the licensee of the toddy shop **Crl.MC.No.745 OF 2017** **3** at the relevant time. Since the strength of alcohol in the toddy was found in excess of the limit prescribed, a case was registered against the petitioners as Crime No.9/2017 of the Kothamangalam Excise Range under Sections 56(b) and 57(a) of the Abkari Act. 3. The petitioners have alleged that the case was registered against them in violation of the mandatory provisions of the Rules and on that ground, they have prayed for quashing the same. 4. Heard learned counsel for the petitioners and the learned Senior Public Prosecutor. 5. The case against the petitioners is registered under Sections 56(b) and 57(a) of the Abkari Act. Section 56(b) of the Abkari Act provides that, whoever being the holder of a licence or permit granted under the Act or being in the employment of such holder and acting on his behalf, wilfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for in the Act shall be liable for the punishment prescribed. Section 57(a) of the Abkari Act states that, whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under the Act, mixes or permits to be mixed with the liquor or intoxicating drug, sold or manufactured by him, any drug, other than a noxious drug or any ingredient likely to add to its actual or apparent **Crl.MC.No.745 OF 2017** **4** intoxicating quality or strength, shall be liable for the punishment prescribed. 6. Rule 9(2) of the Rules provides that all toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified by Government under clause (n) of Rule 2 and nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes. As per the Notification issued by the Government as S.R.O No. 145/2007, it is provided that the ethyl alcohol content of coconut toddy shall not exceed 8.1% by volume and that if the ethyl alcohol content of toddy exceeds the above limit prescribed, it will be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality of strength and for all purposes, such extraneous alcohol will be treated as a foreign ingredient. ## 7. In **Komalan v. State of Kerala : 2009 (2) KHC 514 :** **2009 (2) KLT 744** , a Division Bench of this Court has held that, ethyl alcohol, though a natural ingredient, when it exceeds the prescribed limit, the excess quantity is deemed to have been added and it being a substance which increases the intoxicating capacity, the reasonable view that can be taken is that it is a foreign ingredient in terms of **Crl.MC.No.745 OF 2017** **5** Section 57(a) of the Abkari Act. 8. In the light of the decision in **Komalan** (supra), there can be no doubt with regard to the fact that, when the ethyl alcohol content in the coconut toddy, which is kept for sale, exceeds the prescribed limit of 8.1% by volume, the offences under Sections 56(b) and 57(a) of the Abkari Act would be attracted. 9. The procedure for taking samples from toddy shops is provided in Chapter VII of the Rules. Rule 8(1) of the Rules states that all Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any toddy kept for sale in any toddy shop for chemical analysis. Rule 8(2) of the Rules prescribes the procedure to be followed by the Abkari Officer while taking the samples. Under clause (c) of sub-rule (2), the Abkari Officer has to divide the sample into two parts and put each part into separate bottles or containers which are properly cleaned and dried. Clause (e) requires him to affix labels marked 'A' and 'B' on each bottle or container. As per clause (f), the sealed bottle or container marked 'A' shall be forwarded, without unreasonable delay, to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorised by the Government in that behalf. As per clause (h) of sub-rule (2), the 'B' sample shall be kept in the custody **Crl.MC.No.745 OF 2017** **6** of the Deputy Commissioner of Excise. 10. Rule 8 (3) of the Rules is very important. It reads as follows: _“(3). On receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, rules or conditions of licence or any adulteration is noticed, a case shall be registered within 24 hours. The sample marked 'B' shall be produced before the concerned court. If no case is registered, the sample marked 'B' shall be destroyed”._ (emphasis supplied) 11. A reading of Rule 8 makes it absolutely clear that Abkari Officer has to take two samples and one sample is to be labelled as 'A' and other sample as 'B' and sample 'A' shall be sent to the Chief Chemical Examiner or Joint Chemical Examiner or to any officer authorized by the Government for analysis. On receipt of the report of the chemical analysis, if the report is positive, a case shall be registered within 24 hours. The mandate of Rule 8(3) is that, on receipt of the Chemical Analysis Report in respect of 'A' sample, if any violation of the provisions of the Abkari Act, rules or conditions of licence or any adulteration is noticed, a case shall be registered within 24 hours. 12. In the instant case, samples of toddy were taken from the toddy shop on 24.02.2010. The chemical analysis report in respect of 'A' sample is dated 17.06.2010. The case against the petitioners was **Crl.MC.No.745 OF 2017** **7** registered only at 10:30 hours on 20.01.2017. The 'B' sample was produced before the court on 23.01.2017. 13. The prayer for quashing the case registered against the petitioners is made on two grounds: (1) The case was registered not within 24 hours of the receipt of the chemical analysis report in respect of 'A' sample. (2) The 'B' sample was not produced before the court. 14. Learned Public Prosecutor submitted that 'B' sample was produced before the court on 23.01.2017. Learned counsel for the petitioners did not dispute this fact. Rule 8(3) of the Rules does not prescribe any time limit for production of the 'B' sample in the court. In such circumstances, on the ground of non-production of 'B' sample in the court, the case against the petitioners is not liable to be quashed. 15. Now, the entire controversy is on the question whether registration of the case against the petitioners was actually done within 24 hours of the receipt of the chemical analysis report in respect of 'A' sample. 16. Learned Public Prosecutor would submit that the chemical analysis report was received in the Excise Range Office, Kothamangalam only on 19.01.2017 and the case was registered on **Crl.MC.No.745 OF 2017** **8** 20.01.2017, that is, within 24 hours of the receipt of the chemical analysis report and there was no delay in the registration of the case against the petitioners. 17. On the other hand, learned counsel for the petitioners would point out that, it was only the copy of the chemical analysis report which was received in the Excise Range Office on 19.01.2017. It is also pointed out that the copy of the chemical analysis report was actually obtained by the Excise Inspector concerned on a request made by him to the office of the chemical examiner and that the original chemical analysis certificate would have been received in the Excise Range Office much earlier, in the year 2010. 18. In this context, the contents of the affidavit filed by the Joint Chemical Examiner assume significance. The relevant portion of the affidavit filed by the Joint Chemical Examiner reads as follows: _“2. It is respectfully submitted that 4 sealed sample bottles marked 1 to 4 taken by the Kothamangalam Excise Inspector for chemical analysis were received at this office on 25.02.2010 and on its receipt, it has been assigned with receipt No.1443/10. Having completed the chemical examination, the certificate was prepared on 11.06.2010 and the said certificate was approved by the then Assistant Chemical Examiner on 17.06.2010 and the original certificate was compared on 25.06.2010. Thereafter the original certificate of chemical analysis was_ **Crl.MC.No.745 OF 2017** **9** _numbered as 2701 and after making due entry in the despatch register, the said certificate has been despatched from this office on 29.06.2010 to the Excise Inspector concerned. The said certificate was sent by post on IGS and at no point of time it has been returned._ _3. It is further brought to the attention of this Hon'ble Court that as per the procedure being followed by this office the original certificate of chemical analysis is issued immediately after chemical analysis is done and its office copy is kept in the file concerned. If any demand for true copy arises in future either from the Excise officers concerned or from the Hon'ble Court etc the same will be issued as attested true copies after endorsing fresh despatch date on the said office copy. In the given case this office had issued the original certificate as early as on 29.06.2010. However, my office received a request letter from the Excise Inspector, Kothamangalam dated 19.01.2017 by demanding a true copy of the chemical analysis certificate in respect of 3 respective receipts including the receipt No.1443/10 involved in this case. Therefore my office was constrained to issue a true copy of the Certificate No.2701 to the Excise Inspector concerned. Therefore it is respectfully submitted that, going by the file, the original of the Certificate No.2701 was issued on 29.06.2010 and its true copy was issued on 19.01.2017.”_ 19. It is evident from the affidavit filed by the Joint Chemical Examiner that the chemical analysis report in respect of 'A' sample was prepared in the laboratory on 11.06.2010 and it was ready for issue on 25.06.2010. The affidavit further reveals that the original **Crl.MC.No.745 OF 2017** **10** certificate was despatched from the office of the Joint Chemical Examiner on 29.06.2010 to the Excise Inspector concerned by post on I.G.S (India Government Service). 20. Along with the affidavit, the Joint Chemical Examiner has produced the true extract of the despatch register kept in his office, for the date 29.06.2010. It would reveal that the original chemical analysis report in respect of the 'A' sample was despatched from the office of the Joint Chemical Examiner on 29.06.2010 and that it was addressed to the Excise Inspector, Kothamangalam. 21. The Deputy Excise Commissioner, Ernakulam has filed a report in the matter as directed by this Court. It is stated in his report that the chemical analysis report was received in the Excise Range Office, Kothamangalam on 19.01.2017 and that it is a true copy of the original certificate. The Deputy Excise Commissioner has conveniently omitted to mention in his report that it was on a request made by the Excise Range Inspector concerned that a true copy of the chemical analysis report was issued from the office of the Joint Chemical Examiner on 19.01.2017. His report is made as if only a true copy of the certificate of analysis was received in the ordinary course, that too, on 19.01.2017. 22. It is stated in the report of the Deputy Excise **Crl.MC.No.745 OF 2017** **11** Commissioner, Ernakulam that the original chemical analysis report was not received in the Excise Range Office, Kothamangalam. It is not known whether such a report is made by him after conducting any enquiry in that regard. No affidavit is filed by the Excise Inspector concerned that the original chemical analysis report has not been received in his office. 23. Learned Public Prosecutor would contend that the affidavit of the Joint Chemical Examiner would reveal that the original certificate of analysis was despatched from the office on 29.06.2010 only by ordinary post and therefore, it cannot be presumed that it was received in the Excise Range Office, Kothamangalam. 24. Section 114 of the Indian Evidence Act states that, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (f) to Section 114 of the Indian Evidence Act provides that the Court may presume that the common course of business has been followed in particular case. As to illustration (f), it is stated as follows: ”The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances”. **Crl.MC.No.745 OF 2017** **12** 25. The court may presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are examples of circumstances in which certain presumptions may be made. Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case (See **Kali Ram v. State of Himachal Pradesh : AIR 1973 SC 2773** ). 26. Section 114 of the Evidence Act enables the Court to presume the existence of probable facts, regard being had to human conduct and the common course of events, and common sense being used as a judicial tool ( **Tukaram Ganpat v. State of Maharashtra : AIR 1974 SC 514** ). The function of a presumption often is to "fill a gap" in evidence ( **Narayan Govind : State of Maharashtra : AIR 1977 SC 183** ). **Crl.MC.No.745 OF 2017** **13** 27. The court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 of the Evidence Act coupled with the illustration given to Clause (f), enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. 28. The question arises whether the presumption of service can be raised under Section 114 of the Evidence Act for registered letters only or in respect of letters despatched under the ordinary post also. 29. Section 16 of the Evidence Act states that, when there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. Illustration (b) to Section 16 of the Evidence Act provides that, if the question is, whether a particular letter reached A, the fact that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. 30. In **Mobarik Ali Ahmed v. State of Bombay : AIR 1957 SC 857** , the Supreme Court has held that the proof of posting of a letter is presumptive evidence of the receipt thereof by the addressee. ## 31. In **State of Bihar v. Amrendra Kumar Mishra : (2006)** **12 SCC 561** , the Apex Court has observed as follows: **Crl.MC.No.745 OF 2017** **14** _“It may be true that the appointment letter was sent by ordinary post; but even in relation thereto a statutory presumption arises”._ ## 32. In **Surender Bala v. M/s Sandeep Foam Industries :** ## **AIR 2000 Delhi 300** , it has been held as follows: _“Presumption under Section 114 (f) of the Evidence Act is on the same footing, as a presumption under Section 27 of the General Clauses Act. Presumption under Section 114 (f) arises on proof the facts of posting of letter in the ordinary post, whereas presumption under Section 27 of the Act is with regard to the letter sent through registered post”._ ## 33. In **Chinar Trust v. Usha Rectifier Corporation : 2005** ## **(30) PTC 441 Delhi: MANU/DE/0632/2005** , it has been held as follows: _“It goes without saying that the presumption under Section 114 of the Evidence Act could not be confined to Registered letters only and was extendable to the dispatch or ordinary letters also, which was however rebuttable. It all, however, depended on the facts and circumstances of the case. Where it is shown that the letter was dispatched through the post and was properly stamped and that there was nothing to show that it was not received by the addressee, it should be presumed to have reached the addressee. A generalised or bald denial would not be enough to demolish the presumption of service raised under Section 114.”_ ## 34. In **Sukumar Guha v. Naresh Chandra Ghosh : AIR 1968 Cal** **Crl.MC.No.745 OF 2017** **15** ## **49** , it has been held as follows: _“I unhesitatingly reject that argument of Mr. Mukherjee and hold that though presumption under Section 27 General Clauses Act can only arise when the notice is sent by registered post, there may arise a presumption under Section 114 Evidence Act when notice is sent by ordinary post or under Certificate of Posting”._ 35. In the instant case, the contents of the affidavit filed by the Joint Chemical Examiner alongwith the entries in the copy of the despatch register produced by him establish the fact that the original chemical analysis report in respect of 'A' sample was sent through post from his office on 29.06.2010 to the Excise Inspector, Kothamangalam. The Excise Inspector concerned has not filed any affidavit to the effect that the original certificate of analysis was not received in his office. In such circumstances, this Court is inclined to draw a presumption that the analysis report was received in the office of the Excise Inspector within three or four days from the date 29.06.2010. 36. Annexure-B is the copy of the crime and occurrence report registered against the petitioners by the Excise Inspector on 20.01.2017 as Crime No.9/17 of Kothamangalam Excise Range. On a perusal of Annexure-B report, it can be seen that the Excise Inspector concerned has made a deliberate attempt to make it appear that the chemical analysis report is dated 19.01.2017 and that the case has **Crl.MC.No.745 OF 2017** **16** been registered within 24 hours from that date. At two places in Annexure-B report it is mentioned that the certificate of the Regional Chemical Examiner is dated 19.01.2017. In fact, the original chemical analysis report is dated 17.06.2010. The certificate of analysis dated 19.01.2017 is only a true copy of the original chemical examination report dated 17.06.2010. 37. In the aforesaid circumstances, I have no hesitation to hold that the case against the petitioners was registered as per Annexure-B crime and occurrence report not within 24 hours of the receipt of the original chemical analysis report in respect of 'A' sample in the Excise Range Office, Kothamangalam. 38. Learned Public Prosecutor would contend that Rule 8(3) of the Rules only provides for registration of the case within 24 hours of the receipt of the chemical analysis report and in the instant case, since the chemical analysis report was received in the Excise Range Office only on 19.01.2017, registration of the case on 20.01.2017 does not amount to violation of Rule 8(3). There is no merit in this contention. The mandate of Rule 8(3) of the Rules is registration of the case within 24 hours of the receipt of the chemical analysis report and not registration of the case within 24 hours of obtaining a true copy of the chemical analysis report. **Crl.MC.No.745 OF 2017** **17** 39. As already stated, Rule 8(3) of the Rules gives a mandate that the case for violation of the provisions of the Abkari Act or the Rules thereunder shall be registered within 24 hours of the receipt of the chemical analysis report in respect of 'A' sample. Time limit for registration of the case under Rule 8(3) is expressed in terms of 'hours'. In this context, it is to be noted that clause (f) of Rule 8(2) only provides that 'A' sample shall be forwarded to the chemical examiner without any reasonable delay. The very fact that the legislature has fixed the time limit for registration of the case under Rule 8(3) in terms of 'hours', instead of using the expressions like 'forthwith', 'immediately', 'without delay' etc., indicates that adhering to the time limit prescribed thereunder is mandatory. 40. The question whether a provision is mandatory or directory is not to be resolved merely by reference to the emphatic or gentle language employed in the provision, nor even by the presence or absence of an express stipulation regarding the consequences of a breach of the provision. These are, no doubt, circumstances of importance which naturally have to be considered. But one must give greater consideration to the statutory design and the importance of the provision in the context of that design. Where the rights of citizens are involved, a provision should be regarded as mandatory. The **Crl.MC.No.745 OF 2017** **18** provision cannot be considered as a mere rule of convenience. ## 41. In **Sasidharan v. State of Kerala : 2013 (3) KHC 402 :** **2013 (3) KLT 703** , this Court has held that the provisions contained under Rule 8(3) of the Rules are mandatory. A mandatory provision shall be obeyed or fulfilled exactly. The prosecution proceedings against the petitioners based on a case registered in violation of the time limit prescribed under Rule 8(3) are vitiated. 42. Even if it is accepted or assumed that the time limit for registration of the case provided under Rule 8(3) is not mandatory, the fact remains that, in the instant case, there was a delay of about six and a half years in the registration of the case. Such a long delay, even for the registration of the case, has certainly caused prejudiced to the accused. The concept of speedy trial is an essential part of the fundamental right to life and liberty guaranteed and preserved under Article 21 of the Constitution. The right to speedy trial includes and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, shall be averted (See **Kartar Singh v. State of Punjab : (1994) 3 SCC 569** ). The right to speedy trial in all criminal prosecutions is an **Crl.MC.No.745 OF 2017** **19** inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in Court but also includes within its sweep the preceding investigation as well (See **Pankaj Kumar v. State of Maharashtra : AIR 2008 SC 3077** ). The proceedings against the petitioners based on Annexure-B crime and occurrence report are liable to be quashed on the ground of inordinate delay in the registration of the case which has resulted in causing prejudice to the accused and thereby violation of the rights of the accused under Article 21 of the Constitution. 43. In the aforesaid circumstances, I find that the proceedings against the petitioners in Crime No.9/2017 of the Kothamangalam Excise Range are liable to be quashed. 44. Consequently, the petition is allowed. The entire proceedings against the petitioners in the case registered as Crime No.9/2017 of the Kothamangalam Excise Range are hereby quashed. ## Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr **Crl.MC.No.745 OF 2017** **20** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A- PHOTOCOPY OF THE CHEMICAL ANALYSIS REPORT DATED 17/06/2010 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT., KAKKANAD, ERNAKULAM.** - **ANNEXURE B- PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.9/2017 REGISTERED BY THE EXCISE INSPECTOR, KOTHAMANGALAM RANGE.** - **ANNEXURE C- PHOTOCOPY OF THE ORDER DATED 14/01/2015 IN CIVIL APPEAL NOS.4039-4053/2009 PASSED BY THE HON'BLE SUPREME COURT.** - **ANNEXURE D- PHOTOCOPY OF THE ORDER DATED 04/07/2013 IN CRL.M.C.NO.2727/2013 PASSED BY THIS HON'BLE COURT.** - **ANNEXURE E- PHOTOCOPY OF THE ORDER DATED 23/12/2015 IN CRL.M.A.NO.12031/2015 IN CRL.M.C.NO.8058/2015 PASSED BY9 THIS HON'BLE COURT.** - **ANNEXURE F- PHOTOCOPY OF THE ORDER DATED 07/10/2015 IN CRL.M.A.NO.10594/2015 IN CRL.M.C.NO.6786/2016 PASSED BY THIS HON'BLE COURT.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.S TO JUDGE** **JSR**