IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 Crl.MC.No. 1375 of 2011() ------------------------------- (CRIME NO.18/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOYILANDI) ............. PETITIONER(S): ACCUSED 1 TO 3 ---------------------------------------- 1. P.P.SANTHOSH KUMAR, SECRETARY, KOZHIKODE TALUK KALLUCHETTU VYAVASAYA SAHAKARANA SANGAM, KOZHIKODE. 2. C.RAJEESH, ACTING SECRETARY, KOZHIKODE TALUK KALLUCHETTU VYAVASAYA SAHAKARANA SANGAM, ANNIE HALL ROAD, KOZHIKODE. 3. VELAYUDHAN, S/O CHOYI, AREEKAL HOUSE, NANMINDA AMSOM, CHEEKILODE DESOM, KOZHIKODE. BY ADVS. SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI RESPONDENT(S):COMPLAINANT -------------------------------------- 1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHELANNUR, KOZHIKODE - 673 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2011, ALONG WITH CRMC. NO.1380/2011 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. Nos.1375, 1380, 1381 1382 and 1383 of 2011 ==================================== Dated this the 10th day of June, 2011 O R D E R These petitions are filed by the accused in O.R. Nos.18, 16, 19, 17 and 20 of 2011 respectively, all of Excise Range Office, Chelannur for offence punishable under Section 57(a) of the Abkari Act (for short, “the Act”). The Excise Inspector of the said Range submitted crime and occurrence reports in the courts of learned Judicial First Class Magistrates at Quilandy, Thamarassery, Kozhikode and Perambra alleging that the samples of toddy drawn from the shops in question contained chlorpheniramine. Petitioners-accused 1 to 3 challenge the crime and occurrence reports in the above cases on various allegations such as ill- motivation of the Circle Inspector of Excise Enforcement Squad, Kozhikode, non-compliance with the requirements of the Abkari Shops Disposal Rules, 2002 (for short, “the Rules”) and what petitioners say, forgery and fabrication done at the Chemical Examiner's Laboratory. Further contention is that to attract Sec.57 (a) of the Act there is no allegation that either petitioners or any of their employees have mixed the alleged foreign ingredient if any in CRL.M.C. Nos.1375 & connected cases -: 2 :- the toddy kept in the toddy shops in question. It is contended that the second petitioner-second accused had nothing to do with the toddy shops in question during the time samples were collected as the licences were transferred in his name only as per order of Deputy Commissioner of Excise dated 16.02.2011 which is much after samples were collected. It is prayed that crime and occurrence reports against petitioners in the circumstances may be quashed. I have heard learned Public Prosecutor also. 2. The first petitioner the Secretary of the Kalluchethu Vyvasaya Thozhilali Sahakarana Sangham, a Co-operative Society and in his capacity as Secretary, licences were issued in his name in respect of the toddy shops in question and also in respect of certain other toddy shops. While so, it is alleged that on 08.09.2010 Preventive Officer of Chelannur Range inspected the said toddy shops, collected samples of toddy and the samples marked 'A' were sent to the Public Analyst for examination. Based on the reports of the Public Analyst, that the samples contained chlorpheniramine the Excise Inspector registered the above said cases arraying petitioners as accused 1 to 3 for CRL.M.C. Nos.1375 & connected cases -: 3 :- offence punishable under Sec.57(a) of the Act. It is argued by the learned counsel that the Circle Inspector of Excise Enforcement Squad demanded illegal gratification from the Society, at the rate of Rs.10,000/- per month and the Society refusing to oblige him preferred a complaint to the Excise Commissioner which was forwarded to the Vigilance Department and a preliminary enquiry is pending with the Vigilance And Anti Corruption Bureau. According to the learned counsel, it is at the behest of the said Officer that the alleged search and seizure were made. Learned counsel has argued that as per Rule 8(2)(g) of the Rules it is mandatory that a small quantity of the preservative (if used) was forwarded along with the samples to the Public Analyst which has not happened in the cases on hand. Learned counsel submitted that the said provision is made to ensure quality and nature of preservative the seizing Officer had added to the toddy so that the Public Analyst could ensure that it did not in any way affect preservation of toddy in the condition it was seized and to avoid any foul play in the matter. Learned counsel contended that there is total non-compliance of Rule 8(2)(g) of the Rules which vitiated analysis made by the Public Analyst and the CRL.M.C. Nos.1375 & connected cases -: 4 :- proceeding initiated by the Excise Inspector. It is also argued by the learned counsel that it is necessary that quantity of preservative (if any used by the Officer concerned) is estimated by the Public Analyst for proper analysis of the sample which also is not done. Learned counsel contended that the most advanced test to ascertain whether toddy contained any foreign ingredient is Gas Chromatography test and as seen from Annexure-A5 (obtained under the Right to Information Act (for short, “the RtI Act”) that test was done in these cases on 17.09.2010 on the samples recovered in the laboratory on 09.09.2010 but no foreign ingredient could be found in the samples. In the Gas Chromatography test only Ethyl Alcohol with 6.09 v/v could be detected in the samples. Hence the allegation in the crime and occurrence reports about presence of chlorpheniramine in the toddy cannot be accepted. 3. Further contention placing reliance on the copy of report of the Public Analyst maintained in his office (Annexure-A8) obtained under the provisions of the RtI Act and Annexure-A9 copy of Certificate sent from that Office to the Excise Department is that the said Certificates are the result of fabrication and CRL.M.C. Nos.1375 & connected cases -: 5 :- forgery. It is contended that though Ultra Violet Spectrograph test is said to have been conducted on the samples on 10.07.2010, samples were allegedly drawn on 08.09.2010. It is also contended from Annexure-A7, report regarding thin layer chromatography test that the column for date of examination remained blank. Learned counsel contended that assuming that the test was conducted on 18.02.2011 on which day that report (Annexure-A7) is signed, it is much after samples were collected on 08.09.2010. It is also contended that if Annexure-A5 were to be accepted, the samples were opened for gas chromatography test on 17.09.2010 but the thin layer chromatography test is said to be conducted only on 18.02.1011, i.e., after the samples were opened on 17.09.2010. Further argument is that on the same day (08.09.2010) the police had inspected one of the five toddy shops involved in these cases, collected samples and the same were subjected to examination by the Public Analyst. But Annexure-A13, Certificate would show that there was no foreign ingredient in the sample of toddy. 4. Learned Public Prosecutor contends that as per policy of the Government toddy shops are entrusted to Co- CRL.M.C. Nos.1375 & connected cases -: 6 :- operative Societies, it is accordingly that licence was issued in the name of the Secretary of the Society in question in these cases and that second petitioner, as per instruction given to him was connected with conduct and affairs of the Society even as on the date samples were collected. Whether petitioners are actually involved in the incident is a matter which investigation has to reveal and at this stage, based on the argument of learned counsel for petitioners it is premature and inappropriate to interfere with the proceedings of the Department. Learned Public Prosecutor has relied on the decision in Kunhambu v. Food Inspector (1989 [1] KLT 707) to contend that mere delay in instituting prosecution is of no consequence unless it is shown that prejudice has been caused to the petitioners. Relying on the decision in Narayanan Nair v. Food Inspector (2003 [2] KLT 419) it is contended that question whether samples were in proper condition at the time of analysis and whether on account of absence of sample of preservative forwarded to the Public Analyst any prejudice has been caused is a matter which has to be decided in the course of trial. 5. Rule 8(2)(g) of the Rules, no doubt says that a small CRL.M.C. Nos.1375 & connected cases -: 7 :- quantity of preservative used shall also be forwarded along with the sample to the Public Analyst. Learned Public Prosecutor has invited my attention to Annexure-A3, copy of mahazar prepared by the detecting Officer to contend that sample of preservative was also collected. In that mahazar it is stated that adding preservative, samples of toddy were collected in two bottles marked 'A & B' which were properly tied and sealed. It is also stated that two grams of the preservative was separately packed and tied to the bottles marked 'B'. It is not mentioned in Annexure-A3, mahazar that on the bottle marked 'A' the preservative was thus separately packed and tied. Annexure-A10 is a letter dated 02.05.2011 issued to one P.A. Chndrasekharan of Kozhikode Taluk Kalluchethur Vyavasaya Sahakarana Sangham (the Society) by the State Pubic Information Officer where it is stated, in answer to a query under RtI Act that no sample of preservative (Benzoic acid) was received separately (in the laboratory) along with the five toddy samples marked as 'A' mentioned in chemical analysis report No.921 dated 18.02.2011 (same number is given in Annexure-A9, photocopy of certificate of chemical analysis). Learned counsel contends from CRL.M.C. Nos.1375 & connected cases -: 8 :- Annexures-A3 and A10 that along with bottles marked 'A', packets containing sample of preservative were not received by the Public Analyst. 6. I stated from Annexure-A3 that the Officer who collected samples has stated that preservative was added to the samples in the bottles marked as 'A & B”. The mere use of the expression “shall” in Rule 8(2)(g) of the Rules cannot by itself make the provision mandatory. Assuming that as contended by learned counsel and as stated in Annexure-A10, samples of preservative were not forwarded to the Public Analyst and thereby Rule 8(2)(g) of Rules is violated, the trail court has yet to decide whether the said Rules is mandatory and at any rate, its non-compliance has in any way affected the analysis or caused prejudice to the petitioners in view of the statement in Annexure- A3 that preservative was added in the samples. 7. Next argument is that as seen from Annexure-A5, Gas Chromatography test revealed that the samples were free from any foreign ingredient. Learned Public Prosecutor was not able to say whether Annexure-A5 concerned the samples in question. Assuming that Annexure-A5 relates to the samples in question it CRL.M.C. Nos.1375 & connected cases -: 9 :- is for the trial court to decide in the light of other tests conducted by the Analyst which (allegedly) revealed presence of foreign ingredient in the samples whether those tests should be rejected and Annexure-A5 could be preferred. Learned counsel also relied on Annexure-A11 to show that the Analyst has not conducted a quantitative estimation of the preservative added in the samples. How far that has affected the test results is a matter which the trial court has to decide. The delay if any in conducting Ultra Violate Spectrography and thin layer Chromatography tests, its consequences and acceptability are also matters which the trial court has to decide. 8. So far as the next contention regarding fabrication and forgery of records and absence of foreign ingredient as revealed by Annexure-A5, Gas Chromatography test is concerned Annexures-A8 and A9 Certificates are referred to. Annexure-A8 is the photocopy of Certificate of analysis (allegedly) maintained in the office of the Public Analyst. Page 2 of Annexure-A8 show some corrections in the printed matter which originally read that Ethyl Alcohol was detected in all the samples, samples were found to be free from noxious ingredients which are injurious to CRL.M.C. Nos.1375 & connected cases -: 10 :- health but the printed matter is scored off and additions are made as if the samples contained Ethyl Alcohol and chlorpheniramine. Learned counsel submits that going by the first page of Annexure-A8, the printed form on which that Certificate is prepared was printed in the year 2008 whereas the last page of Annexure-A8 would show that the printed form was prepared in the year 2010. It is also contended from Annexure-A9, photocopy of the report of Public Analyst that the said form is also printed for preparation of certificate for samples not containing any noxious or foreign ingredient in which relevant materials are typewritten. 9. I must bear in mind that Annexure-A8 is the photocopy of Certificate initially prepared by the Public Analyst in his office at the time of analysis. Naturally corrections in it may be possible when the test result is noted in the printed form. That form is for use in the office. Corrections in that form need not necessarily indicate forgery or fabrication. Whether there is forgery or fabrication in this regard as contended by learned counsel, I am afraid, is not a matter which this Court should decide in a proceeding under Section 482 of the Code of Criminal CRL.M.C. Nos.1375 & connected cases -: 11 :- Procedure (for short, “the Code”). Certificate of chemical examination is admissible in evidence under Sec.293 of the Code and it is open to the court to summon the expert who issued the certificate and examine him as to the subject matter of his report. Petitioners have the opportunity to summon the Expert and prove the alleged forgery or fabrication as the case may be. The issue has to be left to the trial court for its decision. 10. Next argument is based on Annexure-A12, report of Public Analyst for examination (allegedly) with respect to a sample stated to be collected by the police from one of the toddy shops in question on the very same day, i.e., 08.09.2010. It is to be ascertained whether the police had collected the sample from the same toddy from which the Preventive Officer had collected samples. Even when there are conflicting reports of chemical examination on the samples collected by the same Officer it is for the court to decide, as held in Sudhakaran v. State of Kerala (2011 [1] KLT 799) as to which of the reports is acceptable. Trial court has to decide, assuming that the Preventive Officer and the police drew samples from the same toddy, which of the Certificates - whether Annexure-A9 of A12 is CRL.M.C. Nos.1375 & connected cases -: 12 :- to be accepted. 11. On the above contentions request of petitioners to quash proceedings cannot be accepted. But I make it clear that I have not expressed any opinion on the merit of the contentions advanced. 12. It is contended by learned counsel that it is not even alleged in the crime and occurrence reports that petitioners or their employees had mixed foreign ingredient in the toddy in any of the shops in question. It is also contended that in the absence of any allegation even to that effect the crime and occurrence reports cannot be sustained. Learned counsel has invited my attention to Sec.57(a) of the Act. Learned Public Prosecutor would contend that in such situation the presumption under Sec.64 of the Act is available. 13. Section 57(a) of the Act makes the holder of a licence for sale or manufacture of liquor or any intoxicating drug liable for mixing or permitting to be mixed with the liquor or intoxicating drug sold or manufactured by him any drug other than a noxious drug or any foreign ingredient likely to add to its actual or apparent intoxicating quality or strength or any article prohibited CRL.M.C. Nos.1375 & connected cases -: 13 :- other than an article which the Government shall deem to be noxiously by any rule made under Sec.29(k). Section 64 of the Act relates to presumption as to commission of offence in certain cases which takes in offence under Sec.57 of the Act as well. I am not going into the question whether presumption would apply. For, the matter is under investigation. The materials prima facie reveal that samples which allegedly contained foreign ingredient were drawn from the toddy found in the shops run by the Society. 14. Coming to the role of second petitioner, it is alleged that he is the present Secretary of the Society and licensee of the shops. Learned Public Prosecutor has a contention that second petitioner was associated with the conduct of the Society even as on the date of incident. But the crime and occurrence reports do not mention so. Annexure-A1 is the copy of licence which was issued in the name of first petitioner and which stood in force on the date of (alleged) seizure of samples (08.09.2010). Annexure-A1 contains the endorsement that as per order dated 16.02.2011 of the Commissioner of Excise, licence was transferred in the name of second petitioner. Certainly that is CRL.M.C. Nos.1375 & connected cases -: 14 :- done after the date of alleged seizure of the samples (08.09.2010). Under Sec.57 of the Act it is the holder of a licence who is liable. No doubt, going by Sec.64 of the Act the holder of a licence as well as the actual offender who is employed and acting on behalf of the licensee are also liable to be punished for offence mentioned therein including one under Sec.57 of the Act. But as of now there is no case that second petitioner has mixed any ingredient with the toddy in question. Therefore the crime and occurrence reports to the extent it concerned second petitioner cannot stand. But I do not foreclose an investigation as to the alleged role if any of the second petitioner in the matter as learned Public Prosecutor submitted and if such role is revealed in implicating him also. So far as petitioners 1 and 3 are concerned allegation is that they were the licensee and salesman of the toddy shops, respectively during the relevant time. Prima facie they are answerable for the offence mentioned in the crime and occurrence reports, if proved. 15. Learned counsel submitted that petitioners 1 and 3 are, as per order of the learned Sessions Judge while releasing them on bail required to report to the Investigating Officer on all CRL.M.C. Nos.1375 & connected cases -: 15 :- alternate days and that they are asked not to enter Chelannur which causes much inconvenience and difficulties to them. Learned counsel requested that the said conditions may be lifted. Having heard learned Public Prosecutor also, I am inclined to interfere in that regard. 16. I make it clear that I have not pronounced verdict on any of the contentions learned counsel for petitioners has advanced in these petitions and that the findings and observations contained in this order are only for the limited purpose of disposal of these cases. It is open to petitioners 1 and 3 to urge all their contentions before the trial Judge at the appropriate stage. 17. In view of the contention learned counsel advanced referring to the alleged involvement of Circle Inspector of Excise Enforcement Squad, Kozhikode, I consider it appropriate (without expressing any opinion on the merit of that contention either way) that further investigation of these cases are conducted by the Assistant Excise Commissioner, Kozhikode. Resultantly, these Criminal Miscellaneous Cases are disposed of in the following lines: CRL.M.C. Nos.1375 & connected cases -: 16 :- (1) The Crime and occurrence reports in Crime Nos.16, 17, 18, 19 and 20 of 2011 of the Excise Range Office, Chelannur to the extent it concerned the second petitioner-second accused are quashed subject to the rider I have made above. (2) So far as alleged involvement of petitioners 1 and 3 in the incident is concerned it is made clear that it is open to the trial court to decide on the contentious issues. Petitioners 1 and 3 can raise all their contentions in the trial court. (3) Direction issued by the court below while granting bail to petitioners 1 and 3 to appear before the Investigating Officer on all alternate days and the condition that they shall not enter Chelannur are deleted. Instead, they CRL.M.C. Nos.1375 & connected cases -: 17 :- shall report to the Officer investigating the case as and when required. Other conditions imposed by the court below while granting bail will remain in force. (4) Further investigation of the cases shall be conducted by the Assistant Excise Commissioner, Kozhikode. The Deputy Commissioner of Excise shall issue necessary orders in that regard within two weeks from the date of production of a copy of this order before that Officer by petitioners 1 and 3. THOMAS P. JOSEPH, JUDGE. vsv