Dominic vs State of Kerala

Chettur Sankaran Nair, J.—These petitions arise from similar facts and are accordingly disposed of by a common order.

Petitioner in Crl. R.P. 687/86 is the accused in C.C. 1524/83, while Petitioner in Crl. R.P. 688/86 is the accused in C.C. 1525/83 on the file of Judicial Magistrate of Second Class, Ernakulam. Both were charged u/s 55(a) of the Abkari Act. Petitioner in Crl. R.P. 687/86 was found in jeep bearing registration No. KRK 3290 at or about 7.15 a.m. on 5th September 1983 by P.Ws. 2 and 3 Excise Officials. They searched the jeep and recovered 93.26 kgs. of ganja under Ext. P-1 mahazar, attested by P.W. 1 who turned hostile. A sample was sent for chemical analysis, and by Ext. C-1. it was reported to be ''ganja''. On the evidence of P.Ws. 2 and 3 and on the basis of Ext. C-1, Petitioner was found guilty by Courts below.

Petitioner in Crl. R.P. 688/86 was also found in jeep bearing registration No. KLO 9734 in front of the Sea Face Tourist Home, Ernakulam (where Petitioner in Crl. R.P. 687/86 was also found) at or about 7-15 a.m. on 5th September 1983 by P.Ws. 2 and 3. They recovered 89 kgs. of ''ganja'' from the jeep under Ext. P-1 mahazar attested by P.W. 1, who eventually turned hostile. On the evidence of P.Ws. 2 and 3 and on the basis of Ext. C-1, Courts below found the charge.

Learned Counsel for Petitioners challenged the conviction on several grounds. Sample of the article seized on 5th September 1983, was sent for chemical analysis only on 11th April 1985, nineteen months later. In Ext. C-1, there is no mention of any specimen impression of seal, accompanying the sample. The article was produced before the Magistrate only on 26th September 1983, twentyone days after the alleged seizure, and on the same day it was returned to excise officials for safe custody, leaving it with them for nineteen months. Referring to these circumstances, counsel submits that there is no guarantee about authenticity of the sample or proof that it was not tampered with. Therefore, result of analysis cannot be relied on, says counsel. To support his contention, he relied on the decision in Piara Singh and Others Vs. State of Punjab, . In that case, the sample changed hands many times before it reached the Analyst. The Court found that there was no evidence to show that the sample ''was not tampered with'', a fact Which had to be proved affirmatively. The decision in Modan Singh v. State of Rajastan 1979 S.C.C. 56 was also relied on.

It is clear that prosecution paid scant regard to the requirements of the Abkari Act or Excise Manual. Section 36 of the Abkari Act reads:

Searches how to be made. All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898.

(emphasis supplied)

Section 102(3) of the Code requires that, seizure should be reported to the Magistrate ''forthwith''. It is also necessary to produce the article seized in Court, unless it cannot be conveniently transported Paragraphs 17, 26, 34,49 and 77 of the Kerala Excise Manual (Volume II-Chapter XXV) also require notice. Paragraph 17 reiterates that searches should be made in conformity with provisions in the Code of Criminal Procedure. Paragraph 26 requires the article seized to be produced before an Excise Inspector within twelve hours. Paragraph 34 states that one sample should be sent to the Magistrate. Paragraph 49 states that reports of search and seizure should reach the Court within 24 hours. Paragraph 77 reads:

... Whenever contraband liquor or drug is produced in a Court the Courts may be requested to send samples thereof to the Chemical Examiner, for analysis.

(emphasis supplied)

When Section 36 of the Abkari Act and paragraphs 17, 26, 34, 49 and 77 in the Manual are read together, as they should be, it is clear that seizure should be reported to the Court ''forthwith'', and request made for sending a sample for analysis.

In practice, as is evident from several instances that have come to our notice, this requirement is systematically honoured by its breach. In this situation, Joint Excise Commissioner was called upon to file a report, to throw light on the causes for delay, and allied matters. He stated that the Manual did not prescribe a time limit. Having regard to the provisions noticed in the preceding paragraph, the view expressed by the Joint Excise Commissioner is not correct. It reveals a total lack of understanding of the material provisions. Even assuming, for the sake of argument that no time is fixed, it should be plain, that speedy action is required. Otherwise there is no need for the stipulation in paragraph 77. Besides, every prosecuting agency should be alive to the need for prompt action in these areas. Prompt reports, proper preservation of samples with proof, of its authenticity and proper analysis, are essential.

One Mr. Jose, who was connected with the case and who was cited as a witness, also filed an affidavit stating that sample was sent for analysis only after nineteen months. After admitting the delay, he goes on to find a justification, for the unjustifiable. Says, he:

...in some cases there may be possibility of compounding.

(emphasis supplied)

The Officer seems to think that his foremost concern is compounding of offences and not bringing to book those who are guilty of committing serious offences against public health. In whose interest the zeal for compounding is shown, is a disturbing thought. If anybody thought of compounding offences involving about 200 kgs. of ganja, quantity sufficient to do harm to thousands of people, Government must seriously consider, whether the responsibility of enforcing such laws, or containing drug abuse can be left with such persons.

This Court had occasion to comment on this attitude and the potential mischief, in Crl. R.P. 434/86. It was observed:

Perhaps Section 67 in its present form also is responsible for the situation. Possibility of power of compounding being abused cannot be ignored. Persuasions and temptations could be extended. Officers themselves may explore possibility of compounding and thus delay submission of report to the court, regarding commission of offences, making chances of conviction remote, warily or unwarily. Power must be vested in Officers of higher ranks, and even in such cases, prompt reports should be sent to the Court and follow up action taken so that, in the event of prosecution becoming necessary, evidence should not be lacking.

The apprehensions expressed have heen proved right, by the statement of Mr. Jose. One fails to see why the officers should keep compounding in the forefront of their minds, or why such power should be left with officers at the lower level. One cannot turn the Nelson''s eye to hard facts.

Time has come to identify drug menace as an area of national priority and adopt remedial measures, not only by generating awareness of the high risk factors, but also by effective law enforcement. The press, Social and Cultural groups, and governmental agencies have sensitively reacted to the challenge posed by drugs. The excise department, responsible for enforcement cannot be entirely insensitive to the problem of their own responsibilities. Perhaps only the tip of the iceberg is seen. If what surfaces also is dealt with ineffectively, inspired by zeal for ''compounding'' it would be failing in a basic trust. The outlook revealed in many cases including Crl. R.P. 434/86 and in the affidavit of Jose, is dismal. I am distressed to note that has been warmly endorced by the Joint Excise Commissioner, who has suggested that no action is called for against officers, who delay sending samples. The Department has great responsibilities, and it cannot remain a compounding agency. Magistrates also must realise that they are not

merely passive agents at the trial.

If a criminal court is to be an effective instrument in dispensing justice, presiding judge must cease to be a mere spectator....

Ram Chander Vs. State of Haryana, (See also State of U.P. Vs. Anil Singh,

If necessary amendments should be made in the Excise Manual to bring out the scheme more clearly and ensure that:

(a) immediately on seizure and not beyond the next working day, the article is produced before court with a request for sending a sample for analysis.

(b) samples are properly taken, covered by brown paper, fastened, sealed, and authenticated by witneses, and forwarded with specimen seals, to analyst.

(c) power of compounding is not abused to defeat punishment in serious cases.

(d) power of compounding is vested only in officers of senior levels and that the requirements aforesaid are followed, in all cases, including those likely to be compounded.

The improprieties noticed in the manner of sending sample for analysis, do not vitiate the conviction, by themselves. Other items of evidence must be considered.

Counsel then contended that there was violation of Section 31 of the Abkari Act and that this vitiates prosecution. He referred to the decision in K.L. Subbayya Vs. State of Karnataka, to support his argument that failure to record reasons vitiates the search. Section 31 was not complied with, in making the search. Violation of the provision is indeed a serious matter, and that calls for serious notice. But, irregularity in search and seizure, by themselves will not make the evidence inadmissible. It has been so held in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, , Pratap Singh v. Director of Enforcement 1985 S.C. 989 and State of Maharashtra Vs. Natwarlal Damodardas Soni, . In Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, a Constitution Bench of the Supreme Court had held that evidence obtained as a result of illegal search or seizure, is not liable to be shut out. It was observed:

So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England has consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure...It would thus be seen that in India, as in England, where test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.

Then counsel referred to the evidence of P.Ws. 2 and 3 to suggest that it was artificial. Both the witnesses would say that mahazars were prepared at 7-15 a.m., after saying that they sent an official to Kalamassery to get a Balance to weigh the article and that it took 45 minutes to get the same. Counsel submits that the statement that mahazars were prepared at 7-15 a.m. could not be true. For this reason alone, I am not inclined to reject the evidence, though I am inclined to think that witnesses were very casual in their manner. The two courts who saw witnesses and heard their evidence, have chosen to believe them. There is further assurance about the truth of the prosecution case because, the occurrence report containing important details regarding search and seizure reached the court on the same day viz., 5th September 1983. Seizure is properly proved.

The question then is whether, identity of the article seized has been, established conclusively. As noticed hereinbefore, a series of improprieties were committed by prosecution in the matter of preserving the sample and sending the same for analysis. In the light of the observations in Piara Singh and Others Vs. State of Punjab, , evidence afforded chemical analysis cannot be conclusive. But, in the instant case, the finding of guilt is not based solely on the evidence of chemical analysis. The evidence of chemical analysis is only a corroborating piece of evidence. P.Ws.2 and 3 have both stated that large quantities of ganja were taken into custody from two jeeps, of which Petitioners were the only occupants. It must be held that Petitioners had conscious possession of the commodity. As to what the commodity was there is evidence available from P.Ws. 2 and 3. They say that the smell of ganja was emanating from the carton. According to them, the smell was strong. The evidence of experienced officers that the article smelt of ganja cannot be rejected. Olfactory sense can be relied on, though that may not always be conclusive. It is common knowledge not to say experience of everyday life that many articles are identified by smell, particularly those one is familiar with. Smell is one of the senses of perception, with which man is endowed. It is as important, as sight, or hearing. Many moments of life are mingled with smells. Identification by smell, cannot be rejected as inconclusive in all cases. There may be cases where two articles have like smells, due to the presence of a common component, or inherent similarities. Ganja or ''cannabis sativa'' is known to have a distinctive smell. Even memories. Identification made by P.Ws. 2 and 3, who had decades of experience in the Department with several opportunities to see and smell ganja can be accepted, more so, when the quantity was large and smell so strong as stated''by them. Law cannot be oblivious to what is obvious to Ors. .

Panciful doubts or lingering suspicious have no place in a criminal trial. The Supreme Court has time and time again, indicated, " dangers of exaggerated devotion to rule of benefit of doubt, at the expense of social defence". Sir Carlton Allen said:

...if our ratio is extended indefinetely then comes a point, when the shole system of justice is broken down and society left in a state of chaos.

While it is better to let a hundred guilty escape, than punish an innocent, letting a hundred escape is not the ideal. Petitioners were found in conscious and exclusive possession of articles which by smell was identified as ganja. This identification is corroborated by chemical examination. The contemporaneous occurrence report lends further assurance. Having regard to the circumstances aforementioned, the conviction is proper. Sentence, surely, is not harsh.

Registrar of this Court will forward a copy of this order to the Chief Secretary to the Government of Kerala for taking appropriate remedial action to ensure effective enforcement of provisions of the Act and Manual. He will also consider whether any other action is called for.

Conviction and sentence are confirmed and revision petitions are dismissed.