Accused Has No Right To Seek Chemical Analysis Of 'B Sample' Of Toddy In Abkari Cases : Kerala High Court

Settling divergent views expressed by different single bench decisions, a division bench of the Kerala High Court has held that in cases related to adulteration of toddy, the accused has no legal right to seek the chemical analysis of 'B Sample'.

As per Rule 8 of the Kerala Abkari Shops Disposal Rules, two samples of toddy should be taken in cases of suspected adulteration. The sample labelled 'A' will be forwarded to Chief Chemical Examiner for chemical analysis. The other sample, labelled 'B', will be kept at the office of the Deputy Excise Commissioner.

If the chemical analysis report shows adulteration, case should be registered within 24 hours. And, the 'B' sample should be produced before the court as well.

In many abkari cases, accused raised an argument that even the 'B' sample must be send for examination. When 'B' sample is subjected to analysis, very often the result contradicted the analysis of 'A' sample. In many cases, courts acquitted the accused due to the contradiction between the results of 'A' and 'B' samples.

In view of the conflicting judgments delivered by different single benches, the matter was referred to the division bench.

The prosecution argued that due to efflux of time, chemical decomposition will take place in 'B Sample', and therefore a belated analysis of this sample will yield an inaccurate analysis.

A division bench comprising Justices A Hariprasad and MR Anitha, which answered the reference, noted that there was no provision in the Abkari Rules which gave accused the right to seek examination of 'B' samples. The Rules only prescribe the analysis of 'A' sample.

"Obviously there is no provision in Rule 8 for enabling the licensee or the vendor for getting the 'B' sample or making a request to the Court for sending the 'B' sample for analysis once the report of 'A' sample is found to be not in favour of him.

So we are of the considered view that once the legislature has intentionally omitted to provide an option to a party to get the sample retested, the Court cannot add words to a statute or read words which are not there. Even if there is a defect or omission in the Statute the Court is not expected to correct the defect or supply the omission and provide a chance to the accused to send the B sample for retest which the Act and Rules do not envisage", the division bench observed.

Overruling 7 single bench decisions, the division bench answered the reference as follows :

"Petitioners/accused have no legal or statutory right to make a request for sending 'B' sample for chemical analysis. The dictum laid down by this Court to the contrary in Girish Kumar v State of Kerala (2010 (3) KHC 171), Joshy George v State of Kerala (2011 (4) KHC 818), Rajappan and Another v State of Kerala (2012 (2) KHC 657), Harikrishnan R. v State of Kerala (2016 (4) KHC 57), Santhosh and Another v State of Kerala (2020 (1) Crl.M.C.2719 of 2020 KHC 480), Saneesh v State of Kerala (2020 (1) KHC 289) and Vijayan v. State of Kerala (2020 (3) KLT 602) are held to be not good law. The principles laid down in Santhosh T.A.and Another v. State Of Kerala (2017 (5) KHC 107) is held to be the correct law. The findings in Sudhakaran and others v. State of Kerala (2011 (1) KHC 610) to the extent that the report of the Chemical Examiner in 'B' sample will not supersede the report of the Chemical analysis in sample 'A' is upheld. Since the direction of the learned Judge that which among the two reports are acceptable is left with Court is stated to be pending before the Apex Court, we are not making any further observation in that regard."

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