Purushothaman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** **Crl.Rev.Pet.No. 1571 of 2013 ()** **------------------------------------------** **AGAINST THE ORDER IN CMP No. 4854/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT - II, MAVELIKKARA DATED 30-07-2013** ## **REVISION PETITIONER/COMPLAINANT:** **--------------------------------------------------------** **PURUSHOTHAMAN, S/O. BHASKARAN, PUTHUIYAVEETTIL HOUSE, CHORALLOOR MURI, THEKKEKARA VILLAGE, MAVELIKKARA.** **BY ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **RESPONDENT/STATE:** **-------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.LIJU V STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **K.HARILAL, J ----------------CRL.R.P.NO.1571 OF 2013** **------------------------------Dated this the 19[th] day of August, 2013** ## **ORDER** The Revision Petitioner is the 1[st] accused in Crime No.55 of 2013 of the Chengannur Excise Range, in Alappuzha Division, registered for the offences punishable under Sections 57 (a) and 56 (b) of the Abkari Act. On 16/05/2008 at 11.30 A.M. the Excise Range Officers, in the course of their routine check, took samples from the toddy kept for vending, from the Toddy Shop No.4/2008-09 of the Chengannur Excise Range, marked as 'A' & 'B' and sample 'A' sent for chemical analysis. On chemical analysis, sample 'A' found containing 8.47% v/v of ethyl alcohol, which is allegedly in violation of Rule 9(2) of the Kerala Abkari Shops Disposal Rules 2002 (hereinafter called Rules 2002). The maximum strength fixed by the Rule is 8.1% **Crl.R.P. No. 1571 of 2013** -: 2 :- v/v. The above crime is registered on the basis of the said chemical analysis report. 2. The Petitioner is aggrieved by the chemical examination report now received from the Chemical Examination Laboratory at Thiruvananthapuram, stating that the sample marked as 'A' contains 8.47% v/v of Ethyl Alcohol. The Petitioner believes that some inadvertent mistakes would have crept in the analysis at the Chemical Laboratory, Thiruvananthapuram. Thus, the Petitioner bona fide doubts the veracity of the chemical analysis report presently available and relied on by the prosecution. In short the petitioner doubts some mistakes in the report. 3. In the above context, the petitioner filed an application before the learned Magistrate for sending the second sample marked as 'B' for chemical examination. The learned Magistrate, after hearing the Revision Petitioner and the prosecution, dismissed the above petition mainly on the grounds that the request for re-testing shall not be **Crl.R.P. No. 1571 of 2013** -: 3 :- entertained, as a matter of course, and the petition does not state any exceptional circumstances to do so. 4. This Revision Petition is filed challenging the above said order passed by the learned Magistrate on various grounds. 5. Sri. C.C. Thomas, the learned senior counsel for the Revision Petitioner submits that the order under challenge is passed in defiance of the well settled judicial precedents laid down by this Court. According to the learned senior counsel, the lower court went wrong by relying on 2013(1) KLD 349 (SC) ( _**Thana Singh V.Central Bureau of Narcotics**_ ) and holding that the request as to re-testing and re-sampling shall not be entertained under the Abkari Act, as a matter of course. Further, it is contended that the court below further erred in finding that the petitioner has not mentioned any exceptional circumstances as to forward the second sample for analysis. So, the petitioner is not entitled to get the second sample analysed. **Crl.R.P. No. 1571 of 2013** -: 4 :- 6. Per contra, Sri. Liju V. Stephen, the learned Public Prosecutor advanced arguments to justify the above said two reasons for which the impugned order has been passed. The learned Public Prosecutor submits that the accused has no right to get the second sample examined as of right and the second sample can be examined only on exceptional circumstances. Even if the result of the analysis of B sample is in favour of the accused, that would not prevail over the test result of 'A' sample. Therefore, the accused does not have a right to file the application for sending 'B' sample for analysis. Unless compelling circumstances indicating infraction in procedure of sampling are shown, 'B' sample cannot be tested. In view of the above contentions, two questions emerge for consideration of this Court in this Revisional Jurisdiction. (i) Whether the accused has a right to file an application for testing 'B' sample, as of right? (ii) Whether the accused is liable to narrate exceptional **Crl.R.P. No. 1571 of 2013** -: 5 :- circumstances indicating infraction in the procedure, in the application for sending 'B' sample for analysis? 7. Going by the impugned order, as rightly contended by the learned senior counsel for the revision Petitioner, the learned Magistrate dismissed the petition on two grounds. Firstly, the learned Magistrate found that, in view of the proposition laid down in _**Thana Singh V. Central Bureau of Narcotics**_ [2013 (1) KLD 349 (SC)], any request as to re testing or re-sampling shall not be entertained as a matter of course in a prosecution under the Abkari Act also. Secondly, in the absence of exceptional circumstances indicating infraction in the procedure, the second sample cannot be forwarded for testing. The learned senior counsel for the revision Petitioner drew my attention to the decisions reported in _**Girish Kumar v. State of Kerala**_ (2010(2)KLJ 444); _**Thana Singh V.Central Bureau of Narcotics**_ [2013 (1)KLD 349 (Supreme Court)]; _**Joshy George v. State of Kerala**_ (2011 (4) KHC 818) and _**Rajappan and Another v.**_ **Crl.R.P. No. 1571 of 2013** -: 6 :- _**State of Kerala**_ (2012 (2) KHC 657). In the decision in 2010 (2) KLJ 444 _**(Girish Kumar v. State of Kerala),**_ this court held as follows: “ There is force in the submission of the learned Senior counsel that when it is admitted by the Abkari Officer himself, who affected seizure that mandatory provisions under Rule 8 (2) and (3) are violated, it would definitely prejudice the accused. If the second sample is available with the court, it would definitely be examined by another expert to find out whether sample was prepared properly. It would also enable the accused to get a report from the laboratory on such examination, if he is aggrieved by the first report. When only one sample is prepared in violation of the provisions of sub rule (2) of Rule 8, petitioners are seriously prejudiced. Consequent to the violation of the mandatory provisions, there is no likelihood of a successful prosecution. If so, it is not in the interest of justice to continue the prosecution.” ## 8. In **2011(4) KHC 818 (Joshy George V.State of** **Kerala),** this Court again considered the above question and relied on 2010 (2) KLJ 444. Besides, this Court in Crl.M.C. 4535 of 2010, while considering the question, whether the sending of 'B' sample is a mandatory provision, held that **Crl.R.P. No. 1571 of 2013** -: 7 :- “if the prosecution or the defence has no right to get the sample marked as 'B' examined, there is no purpose in the mandatory provision for the production of the second sample before the court or for a further direction to destroy the same, if no case is registered.” It is thus clear that sample 'B' produced in court could be sent for chemical analysis either at the instance of the prosecution or the defence. In such circumstances, the learned Magistrate should have sent the second sample for examination by another expert as sought for. In **2012 (2) KHC 657 (Rajappan and Another V. State of Kerala),** this Court again analysed the above question and held as follows. “On carefully going through the above provision, I find that sample A was sent for analysis and obtained Annexure-A report not in the course of any proceedings under the Code of Criminal Procedure. At the same time, Annexure-B report was obtained by forwarding sample B in the course of the proceedings. So, Annexure-B report has the support of Section 293 of the Code of Criminal Procedure. Annexure-A report wouldn't get such a support as sample A was not sent for examination in the course of proceedings under the **Crl.R.P. No. 1571 of 2013** -: 8 :- Criminal Procedure Code. In this view of the matter, I find that the principle followed in Joshy George's case (supra) is in tune with the statutory provisions. In Sudhakaran's case that legal aspect was not considered. 6. Adding to the above, when there are two conflicting reports in one case, the one which in favour of the accused is to be relied upon so long as the prosecution has no good explanation for impeaching the report in favour of the accused.” 9. The learned Public Prosecutor drew my attention to the decision reported in _**Sudhakaran v. State of Kerala**_ (2011 (1) KLT 799) and contended that in view of the above decision the accused has no right to claim the second sample also to be tested, as of right. But going by the decision, I am of the opinion that in that case this Court considered the question whether the test result of B sample if would be in favour of the accused would supersede the test result of 'A' sample and that alone is the question considered in that case. Going by the facts of that case, it could be seen that a Criminal M.C. was filed to quash the entire proceedings on the basis of the test result of 'B' **Crl.R.P. No. 1571 of 2013** -: 9 :- sample. But in that case also the court held that the accused has a right even in the absence of specific provision or the rules to have the second sample analyzed . But the only difference of opinion expressed by the court is, even if the test result of B sample is in favour of the accused, that does not ipso facto, supersede the test result of 'A' sample. This decision was considered again in 2012(2) KHC 657 and observed that in 2011(1) KLT 799 the legal aspects of the chemical analysis of 'B' sample have not been considered at all. 10. The principle that can be derived from the above decision is that the test result of 'B' sample is more authentic and reliable than the result of 'A' sample, as the latter one is the test result of the sample sent directly to the Chemical Examiner without cognizance of the court; but the former one is the test result of the sample sent to the chemical examiner by process of the court under Section 293(1) of the Code of the Criminal Procedure. In the above **Crl.R.P. No. 1571 of 2013** -: 10 :- view, I am of the opinion that the accused has a right to apply for forwarding 'B' sample for chemical examination as of right and no exceptional circumstances need be narrated on the application for sending 'B' sample for analysis. Further, in 2012 (2) KHC 657, this Court held that when there are two conflicting reports in one case the one which is in favour of the accused is to be relied upon. Since 'B' sample was sent during the course of procedure under Section 293(1) of the Cr.P.C., more reliance can be placed on the second report than the first report. 11. What remains is the question, whether the decision laid down in _**Thana Singh V. Central Bureau of Narcotics**_ is applicable to the instant case. In the above case, going by Paragraph-23 of the said judgment it could be seen that the Apex Court specified a 'time-frame', in the absence of a prescription of specific time, to send a sample for re-testing in the NDPS Act, unlike the Drugs and Cosmetic Act, 1940 and the Prevention of Food Adulteration Act, 1954. The **Crl.R.P. No. 1571 of 2013** -: 11 :- court held that any request as to re-testing or re-sampling shall not be entertained under the NDPS Act, as a matter of course, after a long lapse of time. Thus, delay in applying for re-testing and re-sampling was the question in controversy and the decision was rendered in answer to that question. Here, there is no delay in applying for analysis of 'B' sample. Therefore , I find that the proposition laid down in _**Thana Singh V. Central Bureau of Narcotics**_ is not applicable to the instant case. 12. Therefore, in the light of discussions made above, I am of the opinion that the learned Magistrate went wrong by relying on _**Thana Singh V. Central Bureau of Narcotics**_ and also arriving on a finding that exceptional circumstances need to be narrated in the application for sending the second sample for analysis. The legal proposition settled by judicial precedents of this Court is that the accused can apply for sending B sample for chemical examination, as of right and no extraordinary **Crl.R.P. No. 1571 of 2013** -: 12 :- circumstances need to be narrated in the said application for sending 'B' sample for chemical analysis. 13. Consequently, I set aside the impugned order under challenge and the application for sending 'B' sample would stand allowed. The learned Magistrate is directed to take further steps to send 'B' sample to any other Laboratory except the Chemical Laboratory at Thiruvananthapuram, for chemical analysis forthwith. This Revision Petition is allowed. Sd/- **K.HARILAL, JUDGE** MJL //true copy// P.A. to Judge