Roshy v. State Of Kerala

K. Thankappan, J.

1. Accused 1 to 3 in S.C. No. 86/1999 on the file of the Court of the Addl. Sessions Judge, Fast Track Court-I, Palakkad are the appellants. The offence alleged against the appellants and the 4th accused, who was discharged by this Court as per order dated 28-5-2002 in Crl. RP. No. 206/2000, is under Section 57A(1)(iii) of the Abkari Act. As per the prosecution case, on 15.4.1996 at about 3 p.m. while on the basis of the permit issued to the 1st appellant, who was the toddy shop contractor of Group Nos. III, XIII, XVI, XVIII and XXIX of Thrithala Range for the period 1996-1997, appellants 2 and 3 were transporting 400 litres of toddy in two plastic barrels of 200 litres each in the Mini Lorry KL 7B 745, the excise party stopped the vehicle and took the sample of toddy for examination and on chemical examination 8 milligram of chloral hydrate per one millilitre was found in the sample of the toddy, which, according to the prosecution, is a dangerous substance to human life. Before the Trial Court, the prosecution examined P.Ws.1 and 2 and Exts.P-1 to P-5 were marked. M.O.1 sample bottle was also marked. Neither any witness was examined nor any document marked on the side of the defence. While the appellants were questioned under Section 313 of the Code of Criminal Procedure, they denied their involvement in the offence as alleged by the prosecution. On considering both oral as well as documentary evidence adduced by the prosecution, the Trial Court found the appellants guilty of the offence under Section 57A(1)(iii) of the Abkari Act and they were convicted thereunder and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for 6 months each. Aggrieved by the above, the appellants have approached this Court by filing the appeal.

2. Learned counsel appearing for the appellants submits that the findings entered by the Trial Court are not based on any legal basis or evidence. Learned counsel also submits that the Trial Court misread the evidence of the Excise Officials who are the only witnesses examined on the side of the prosecution to prove the prosecution case and failed to appreciate the evidence in its true spirit. Further learned counsel submits that the charge under Section 57A(l)(iii) itself will not lie in the light of the evidence adduced in the case. It is also submitted that the Excise Officials had violated all the mandatory provisions with regard to the transmission of the sample to the Chemical Examiner.

3. Before considering the arguments of the learned counsel for the appellants, it is advantageous to consider Section 57A(1)(iii) of the Abkari Act, which reads as follows:

"57 A. For adulteration of liquor or intoxicating drug with noxious substances, etc.:

(1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug, shall, on conviction, be punishable-

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(iii) in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees."

A reading of the above provision would clearly indicate that who ever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings with any liquor or any intoxicating drug shall be punishable either under Sub-clauses (i), (ii) or (iii). This Court shall consider Ext.P-3 chemical analysis report. In Ext.P-3 it is stated that chloral hydrate was detected in items 3 and 4 and those items contained 8.3 mg. and 8 mg. respectively of chloral hydrate per one hundred millilitres of the same. But in Ext.P-3 it is not stated that the sample is adulterated with any noxious substance which is likely to endanger human life. In this context, it is to be noted that there is no evidence to show that the toddy, from which sample is taken, caused injury to any person who consumed the same. Admittedly, the Excise Officials themselves allowed the accused to transport the entire toddy after taking the sample.

4. The question to be examined is whether Ext.P-3 report can be relied on as evidence purporting to be a report obtained under Section 293 of the Code of Criminal Procedure. Section 293(1) of the Cr.P.C. reads as follows:

"293. Reports of certain Government Scientific Experts.-(1) Any document purporting to be a report under the hand of a Government Scientific Expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code."

Reading of the above proviso would indicate that the evidentiary value of a report received under Section 293 Cr.P.C. would depend on two conditions: (1) the sample should be duly sent for chemical examination and (2) report should be obtained in the course of any proceeding under the Code. This Court finds that action of P.W.1 with regard to the taking of the sample, sending the same for analysis and the production of Ext.P-3 report is not in accordance with the above conditions. P.W.1 deposed that he sent the sample for chemical analysis without any permission of the Court. In this context Rule 17(b)(2) of the Kerala Chemico-Legal Examination Rules, 1959 is very relevant, which stipulates that the Excise Officials shall submit along with the charge sheet, the prescribed application before the Court for forwarding the articles to the Chemical Examiners Laboratory, for examination or analysis as the case may be. It is the admitted case of P.W.1 that the sample was sent for chemical analysis through one K.N. Mohanan. He was not examined in the case. Apart from the above infirmity, yet another irregularity and illegality have been committed by P.W. 1 while taking the sample and getting the report from the Chemical Analyst. As per Sections 100(4) and 102(3) of the Code of Criminal Procedure, it is imperative on the part of the officer who makes any search or seizure to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search and may issue an order in writing to them or any of them so to do. It is seen from the evidence that the vehicle in question was intercepted on the Koottanad Panchayat road where so many independent witnesses are available to witness the search. But no independent witness was called upon to witness the search or to attest Ext.P-1 mahazar. Apart from the above, as per Section 36 of the Abkari Act, all searches under the provisions of the Act shall be made in accordance with the provisions of the Code of Criminal Procedure. Proviso to Section 36 would clearly states that persons called upon to attend and witness such searches shall include at least two persons neither of whom is an abkari, police or Village Officer. It means persons called upon to attend and witness the search shall be independent witnesses. Infraction of the proviso by itself does not vitiate the trial, if materials brought on record justify the conviction. But in the present case the action of the Excise Officials in taking the sample, preparation of the mahazar and forwarding the same to the Chemical Examiner is not in accordance with the provisions of Sections 100(4) and 102(3) of the Code of Criminal Procedure and also Section 36 of the Abkari Act. Hence, this Court is of the view that P-3 cannot be relied on as basis to prove the case against the appellants. Further, it is seen that Ext.P-3 is copy of the alleged chemical report. As per Section 64 of the Indian Evidence Act, documents which could be relied on in evidence must be proved by primary evidence except in the case mentioned in Sections 65, 65A and 65B. In this context a decision of the Apex Court reported in Ashok Dulichand v. Madhavlal Dube and Anr., : [1976]1SCR246 is relevant. In the above decision the Apex Court held that the petitioner could not be permitted to lead secondary evidence in the shape of photostat copy unless it is proved that the original document was in possession of the respondent. In the case in hand either P.W.1 or P.W.2 have not given any evidence before the Trial Court that the original of Ext.P-3 is lost. It is also pertinent to note that Ext.P-3 is not received as evidence during the course of any proceeding before the Court. On that score also Ext.P-3 cannot be considered as an acceptable document. To support this, this Court fortifies the observations made by this Court in a decision reported in All v. State of Kerala 2001 (2) KLT 389, wherein it is held that when there was doubt with regard to the authenticity of the sample that reached the laboratory the accused was entitled to the grant of benefit of doubt. So, Ext.P-3 cannot be considered as a basis to find the appellants guilty of the offence committed under Section 57A(1)(iii) of the Abkari Act.

5. The next point to be considered is whether the appellants have committed any offence punishable under Section 57A(1) and (iii) of the Abkari Act. Though Ext.P-3 reported that the sample was unfit for human consumption, there is no evidence to show that the chloral hydrate is a noxious substance or any substance which is likely to endanger human life. In this context it may be noted that as per World Book Dictionary, chloral hydrate as a colourless, crystalline drug used to quiet nervousness. Even if the presence of chloral hydrate in the sample is admitted, it will come only as an offence under Section 55(a) of the Abkari Act. Clause (k) of Sub-section (2) of Section 29 of the Abkari Act provides that Government makes rules prohibiting the use of any article which shall be deemed to be noxious or otherwise objectionable in the manufacture of liquor or of any intoxicating drug. It has come out in evidence that there is no notification prescribed by the Government notifying that the chloral hydrate is a noxious substance to endanger human life. From Ext.P-3 it is not clear whether necessary test is conducted to find out chloral hydrate in the sample. Hence, Ext.P-3 report cannot be relied on.

6. The next contention to be decided is that even if the evidence of prosecution is accepted as such, the conviction entered against the 1st appellant cannot be sustained. It is the case of the prosecution that 1st appellant is a holder of toddy transit permit for the relevant period. But it is not proved by the prosecution that the sample is adulterated with knowledge or with the consent of the 1st appellant.

In this context, the presumption under Section 64 of the Abkari Act cannot be invoked, unless it is proved by cogent evidence that the offence was committed with his knowledge or his consent. In this context, it may be noted that even though P.W.I admits that the 1st appellant is the permit holder for the period 1996-1997, it is not proved that the permit has been renewed or not during the relevant time. That apart Exts.P-2 and P-5, transit permits, are the photocopies and not the originals. So, Exts.P-2 and P-5 could not be utilised to have the presumption under Section 64 of the Evidence Act, unless it is proved that they are lost. So, the non-production of the original of Exts.P-2 and P-5 is inadmissible. To the above conclusion this Court relies on a decision of this Court reported in Sreedevi Amma v. Jayalakshmi 1998 (1) KLT 197 wherein this Court held that copy of the document could not be presumed to be genuine unless it is proved that originals are lost. Hence the findings entered by the Trial Court with regard to the offence charged against the 1st appellant is not sustainable.

7. From the discussions made above, the conviction and sentence ordered against the appellants are set aside and the appellants are acquitted.

The appeal is allowed as above.