IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 Crl.MC.No. 84 of 2011 ----------------------- (CRIME NO. 30/2007 OF EXCISE RANGE OFFICE, ADIMALY,IDUKKI DISTRICT, S.C.No. 439 OF 2008 OF ASST. SESSIONS JUDGE, THODUPUZHA. ). PETITIONERS/ACCUSED ---------------------- 1. KURIAKOSE,S/O.KURIAKOSE,NADUTHOTTAM VEEDU, ANAVIRATTY KARA,VELLATHOOVAL VILLAGE. 2. TIJU, S/O.KURIAKOSE,NADUTHOTTAM VEEDU, ANAVIRATTIKKARA,VELLATHUVAL VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT/COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM (CRIME NO. 30/2007 OF EXCISE RANGE OFFICE, ADIMALY,IDUKKI DISTRICT). BY PUBLIC PROSECUTOR ADV. MR. K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.84 of 2011 -------------------------------------- Dated this the 19th day of January, 2011. ORDER Annexure-A5, order dated December 3, 2010 on Crl.M.P.Nos.366 of 2010 and 367 of 2010 in S.C.No.439 of 2008 of the court of learned Assistant Sessions Judge, Thodupuzha, to the extent it went against petitioners refusing to send the labels on MOs 1 to 8 to the expert for opinion is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”). Petitioners are facing trial in the said court for offences punishable under Sections 8(1) and (2) and 55(g) of the Abkari Act (for short, “the Act”). According to them they are falsely implicated in the case having been summoned to the office of Excise Inspector at Adimali. In support of that contention they examined DW1 who is an Excise Guard. In chief examination, petitioners contend, DW1 gave answers which were favourable to their defence but, in cross examination conducted on a later day he attempted to wriggle out from his statement in chief examination. Dispute related to the alleged seizure of material objects, etc. at the sport of alleged incident. In the light of the evidence given by DW1 in cross examination petitioners filed the above said petitions to send Exts.P5 and P10 and material objects 1 to 8 to the expert for opinion as to the authenticity of the writing and signature. Learned Assistant Sessions Judge considered the applications and by Annexure-A5, order allowed the same to the extent it related to Exts.P5 and P10. But the request to send labels on MOs 1 to 8 was disallowed Crl.M.C.No.84 of 2011 2 for the reason of practical difficulty in removing the labels from MOs 1 to 8 without it being affected. That order to the extent it went against petitioners is under challenge. Learned counsel submits that for proper defence of petitioners it is necessary to send material objects 1 to 8 to the expert for opinion along with Exts.P5 and P10. 2. I have heard learned Public Prosecutor also. Learned Public Prosecutor submits that there is no reason to interfere with the impugned order. 3. I ascertained from the learned Assistant Sessions Judge whether it is possible to send any of material objects 1 to 8 to the expert for opinion along with Exts.P5 and P10. Learned Additional Sessions Judge (Adhoc-I) on behalf of the Assistant Sessions Judge has reported that labels on material objects 1 to 8 cannot safely be detached from the material objects as it is firmly affixed to the material objects. It is pointed out that material objects 1 to 5 and 7 are large vessels and there is considerable practical difficulty in sending the same to the expert. It is reported that MOs 6 and 8 could be forwarded to the Forensic Science Laboratory by deputing a Police Constable. 4. It is seen from the report that of MOs 6 and 8, MO6 is smaller in size. Having regard to the practical difficulty which the learned Assistant Sessions Judge has stated in the impugned order and in the report dated Crl.M.C.No.84 of 2011 3 14.01.2011, I do not consider it is possible to send MOs 1 to 5 and 7 to the expert. But considering the nature of MO6 and since it is comparatively smaller in size, request to send MO6 to the expert for opinion can be allowed after taking sufficient precautions so that identity of MO6 is preserved. 5. The impugned order is modified to the extent it concerned sending of MO6 to the expert for opinion. Application to send the material objects to the expert for opinion will stand allowed to the extent it concerned MO6. Court below will ensure that MO6 is also sent to the expert by deputing a Police Constable after obtaining photographs of MO6 in various positions including its prominent part showing the label as clearly as possible. Photographs shall be obtained at the expense of petitioners whose signatures with date shall also be obtained on the photographs. This petition is allowed in part as above stated. THOMAS P.JOSEPH, Judge. cks