K. Abraham Mathew, J.:— On 19.8.2000 at about 6 p.m at the Azhiyoor check post the appellants were allegedly found transporting 500 litres of spirit in a car. They were tried for the offence under Section 55(a) of the Abkari Act. The trial ended in their conviction. Each of them has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. One lakh, and in default of payment of the fine to undergo simple imprisonment for a further period of three months. The legality and correctness of the order of conviction and the sentence are called into question.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. The incident that led to the registration of the case has been narrated by PW1 Divakaran and PW6 Gangadharan Nair, who were preventive officers attached to the Excise Office, Kozikode during the relevant period: On 19.8.2000 at about 6 p.m they were on duty at the check post on the National Highway at Azhiyoor, when they checked the car bearing registration No. CTA 7487 which came from Mahi direction. The first appellant was the driver of the vehicle; the second appellant was sitting beside him. Two concealed tanks were noticed inside the vehicle; they contained 500 litres of spirit. The car and the spirit were taken into custody and 375 ml of spirit was taken as sample in a bottle. The remaining spirit was emptied into four containers. The containers and the sample bottle were sealed and labelled. The signatures of the appellants and witnesses were taken on the labels. PW1 also put his signature on the labels. He prepared Ext P1 mahazar and arrested the appellants and produced them along with the seized articles before PW3 Excise Inspector, who registered the case.
4. It is not in dispute that on the next day of the occurrence PW3 produced the appellants and the seized articles before the Magistrate concerned. Ext P1 report issued by the Chemical Analyst for his examination of the contents of the sample which was forwarded by the Magistrate at the request of PW3 proves that it was spirit.
5. PW2 resided near the check post where the occurrence took place. He admitted that at the request of the Excise Officers he put his signature in Ext P1 mahazar, but denied that he witnessed the seizure of arrack.
6. It is not in controversy that the appellants were in the car and spirit was transported in it and the excise officers arrested them at the check post. The defence is that they were only passengers in the car and were not aware of the transportation of the contraband in it.
7. Though the initial and essential question is whether the appellants were in conscious possession of the contraband, some questions relating to the procedure followed by the excise officers raised by the learned counsel may be considered first.
8. One of the contentions raised by the learned counsel for the appellants is that the excise officers took only one sample from the contraband allegedly seized by them though it was mandatory to take three samples as provided in ‘Rule’ 34 in Chapter XXV in the Kerala Excise Manual, the relevant portion of which runs as follows:
Three samples of not less than (1) 130 grams weight from each distinct kind of excisable drug and (2) two litres or such smaller quantity as may be available of each kind of liquor or wash may be taken in the presence of the Excise Inspector or seniormost Excise Officer present and the accused. Each set of these samples then should be sealed and marked with the same number or mark the particulars of which should be entered in the appropriate columns of the contraband register and in the occurrence report of the case.
9. Reliance is placed on the decisions of this court in Crl.A No. 47 of 2006 (Gopalan v. State of Kerala), Ashokan v. State of Kerala (2016 KHC 3285) and Biju v. State of Kerala (2017 (2) KLT 325). Each of these decisions holds that the provision in the Manual is mandatory and its non compliance is fatal.
10. In Gopalan's case (Crl.A No. 47 of 2006) the appeal by the accused was against his conviction for the offence under Section 8(2) of the Abkari Act. It was held:
“10. However, there is one glaring aspect in this case. As per the provisions of the Abkari Act and Excise Manual, the officer concerned is bound to take minimum of two samples. This is a mandatory provision. In the case on hand, only a single sample had been taken and there is also controversy regarding the seal affixed on the sample.
11…………. It is clear that PW1 had taken only one sample. It has been held by this court that violation of such provision is fatal”.
11. The appeal was allowed.
12. After referring to the above judgment the learned Judge in Ashokan's case (supra) held that the failure to take three samples entitles the accused to be acquitted. Accordingly, the conviction of the appellant for the offence under Section 55(a) Abkari Act was set aside. In Biju's case (supra) the accused allegedly committed the offences under Section 8(2) and 58 of the Abkari Act. The trial court convicted him of the said offences. In the appeal after quoting ‘Rule’ 34 in Chapter XXV of the Excise Manual the learned Judge held that non compliance with the ‘Rule’ entitles the accused to be acquitted.
13. Does the Abkari Act contain a provision directing taking of more than one samples. The only provision in the Act for drawing a sample is Section 53A, which was inserted by Act 1 of 2003.
a) The Section may be invoked only when it is necessary to dispose of seized liquor, intoxicating drug, articles etc.
b) The Section is applicable only to the liquor, drug, article etc. specified in notification published in a gazette
c) Disposal under the Section can be made only by the authorised officer referred to in Section 67B of the Act
d) The authorised officer shall make an application to the Magistrate concerned
e) One of the two purposes for which an application may be filed is to request the Magistrate to allow the authorised officer to take samples of the seized liquor, intoxicating drug or article in the presence of the Magistrate.
14. The Section does not stipulate that more than one samples should be taken. It may also be noted the Magistrate referred to in the Section is not a judicial Magistrate, but an executive Magistrate, which is clear from Sub Section 4 of Section 3 of the Code of Criminal Procedure, which runs as follows:
“Where under any law, other than this Code, the functions exercisable by a Magistrate relate to matters
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrte; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exericisable by an Executive Magistrate.”
15. A Judicial Magistrate cannot entertain an application under Section 53A Abkari Act since the act contemplated by it is not a judicial one, but executive. This view is supported by two decisions of this court. In Mammo v. State of Kerala (1979 KLT 801) after refering to Section 3(4) Cr.P.C a division bench held:
“Similarly when judicial magistrates are called upon to act under the provisions of any law other than the Code their functions are to be only judicial in character”. In Thankappan v. State of Kerala (AIR 1996 Crl LJ 1754) it is observed:“So going by the provisions contained in the Code, it is clear that administrative matters are to be dealt with by Executive Magistrates and not by Judicial Magistrates”.
16. Section 53 A of the Abkari Act has no application to the facts of this case. The observation in Goplan's case (supra) that the Abkari Act directs taking at least two samples is a mistake. There is no such provision in the Act.
17. There is a provision in the Kerala Abkari Shops Disposal Rules 2002 (Kerala) for taking more than one samples. Rule 8 is the relevant provision. This Rule empowers certain abkari officers to take samples of toddy or foreign liquor kept for sale in toddy shops and foreign liquor-1 shops for chemical analysis. The officer shall divide the sample into two parts and put each part into separate bottles. Obviously, this was not applicable to the facts of Gopalan's case, or for that matter, the cases of Ashokan and Biju (supra).
18. The Kerala Excise Manual consists of two volumes. The first volume has two parts. These two parts contain the Abkari Act and the Opium Act and the Rules, Orders and Notifications issued under the Acts. Volume II, on the other hand, is not a compilation of statutes, or notifications or orders issued under the provisions of any statute. The nature of the contents of Volume II is seen from its Forward. It is extracted below:
This volume (Volume II) contains general instructions regarding the working of the Department and a background information about the subjects dealt with in the Department. The technical aspects of the Distillery, Brewery etc. have also been incorporated in this Volume.
19. No doubt, Volume II also has been issued under the authority of the Government of Kerala, but not in exercise of any provision in the Abkari Act or any other statute.
20. The nature of a Manual containing directions similar to those in Volume II of the Kerala Excise Manual came to be considered by the Supreme Court in several of its decisions. Some of them are State Of Rajasthan v. Ram Saran (AIR 1964 SC 1361), S.G Jaisinghani v. Union of India (AIR 1967 SC 1427), State of U.P v. Kishori Lal Minocha ((1980) 3 SCC 8 : AIR 1980 SC 680), Union of India v. Navin Jindal ((2004) 2 SCC 510 : AIR 2004 SC 1559), State of U.P v. Johri Mal ((2004) 4 SCC 714 : AIR 2004 SC 3800), Municipal Corporation, Amritsar v. Senior Superintendent of Post Offices, Amritsar Division (2004) 3 SCC 92), Punjab Water Supply and Sewerage Board v. Ranjodh Singh with Punjab Water Supply & Sewerage Board, Hoshiarpur v. Harihar Yadav (2007) 2 SCC 491).
21. The three Judge bench of the apex court in Ramsaran's case (supra) held that unless the ‘Rules’ in the Manual have been issued by a competent authority under the provisions of a statute they are merely administrative instructions. In Jaisinghani's case (supra) the Government of India had in a letter issued by it fixed the quota for promotion of certain categories of officers in the Income Tax Department. It was argued on behalf of the Government that it was merely an administrative direction and hence was not a justiciable issue. The Constitution Bench held:
In the letter of the Government of India dated October 18, 1951 there is no specific reference to rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under rule 4. Having fixed the quota in that letter under rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation (See para 24 of the counter affidavit of respondents 1 to 3 in Writ Petition No. 5 of 1966). We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure.
22. Lalita Kumari v. Government of U.P ((2014) 2 SCC 1 : AIR 2014 SC 187) is another decision of the Constitution Bench of the Supreme Court which requires notice. The Manual involved in that case was Crime Manual of the Central Bureau of Investigation. The Supreme Court has observed: “However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary enquiry in the scheme of the Code of Criminal Procedure.”
23. All the decisions of the Supreme Court referred to above hold that mere executive instructions-whether they are called rules, circulars or orders-have no force of a statutory provision.
24. This court had occasion to consider the effect of non compliance with the directions in Volume II of the Kerala Excise Manual. In Thankachan v. Circle Inspector of Excise (1989 (2) KLT 316) the argument advanced on behalf of the accused was that the non compliance with the direction in the Manual that the Excise Inspector should obtain sanction from the higher officials to prosecute the offenders was fatal. This was repelled by the learned Judge observing thus: “The Manual placed before me is not shown to have been issued under the provisions of any statute. The Manual contains administrative instructions issued by the department for the guidance of its subordinate officials”.
25. It appears that the decisions of the Supreme Court referred to above and the decision in Thankachan's case (supra) were not brought to the notice of the learned Judges who rendered the decisions in the cases of Gopalan, Ashokan and Biju (supra).
26. That the instructions contained in Volume II of the Kerala Excise Manual have no statutory force does not mean that the excise officers are not bound to comply with the instructions in it. Every government servant is bound to comply with the instructions issued by the department. In that sense the instructions are mandatory. But non compliance with the instructions which are issued only for the guidance of detecting or investigating officers cannot have any effect in a criminal case, especially, when it has not caused any prejudice to the accused. If any officer fails to comply with the instructions, appropriate action may be taken against him by the department. Ordinarily, non compliance with executive instructions is not a valid ground to acquit the accused in a criminal case. The decisions in Gopalan v. State of Kerala (Crl.A No. 47 of 2006), Ashokan v. State of Kerala (2016 KHC 3285) and Biju v. State of Kerala (2017 (2) KLT 325) are per incuriam.
27. In Ashokan's case (supra) the learned Judge took the view that the failure to take more than one samples will take away the safeguards given to the accused. The reasons are stated in paragraph 11 of the judgment in Crl.A No. 47 of 2006.
“The insistence for taking two samples has a purpose to serve. If the accused feels that the first sample sent for examination was not sufficient or that there is some defect, of course he can seek the court to sent the second sample for examination.”
28. In Devaky v. State of Kerala (1986 KLT 1) Justice Padmanabhan observed that in the Abkari Act there is no provision to send a second sample for analysis. But in Maniyan v. The Excise Circle Inspector, Karunagappally (Crl.M.C No. 4208 of 1997) the request of the accused for sending a second sample was allowed by this court. In that case excise officers collected three samples of the toddy kept for sale in a toddy shop, obviously, under Rule 6A of the Kerala Abkari Shops (Disposal in Auction) Rules 1974. One sample was sent for analysis. The Chemical Examiner reported that the sample contained cannabinoids. The accused filed an application during the investigation to send the second sample for analysis. It was dismissed by the learned Magistrate. The order was challenged in this court. Though the decisions in Devaky's case was brought to its notice, this court allowed the request of the accused observing that the interest of justice demanded it. The reason apparently was that the Chemical Examiner's Report did not contain any material details.
29. Following the decision in Maniyan's case another learned Judge in State Of Kerala v. Deepak (2001 (2) KLT 433) took the view that if the interest of justice so requires a second sample may be sent for analysis. That was a case where the accused was charged with having committed an offence under the Narcotic Drugs and Psychotropic Substances Act.
30. The question of sending a second sample for chemical analysis in NDPS cases came up for consideration before the Supreme Court in Thana Singh v. Central Bureau Of Narcotics. ((2013) 2 SCC 590). The court took notice of the decision of this court in Deepak V. Shah (supra) and some other High Courts. The apex court has observed:
“The NDPS Act itself does not permit re-sampling or re-testing of samples. Yet, there has been a trend to the contrary; NDPS Courts have been consistently obliging to applications for re-testing and re-sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS Courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments………… While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act, enacted S.25(4) of the Drugs and Cosmetics Act, 1940, S.13(2) of the Prevention of Food Adulteration Act, 1954 and R.56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re-testing.”
31. The Supreme Court declared: “However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act”. This declaration made in relation to cases registered under the NDPS Act is applicable to cases under the Abkari Act also.
32. Where only one sample is available and it is lost, or found unfit for analysis, or if the court finds that the report of the chemical examiner is not acceptable for one reason or another, no prejudice will be caused to the accused. He only stands to gain. In the absence of evidence to prove that the article seized from him is a contraband, he will be acquitted.
33. During investigation an accused has no right to ask the court to help him collect evidence to disprove the prosecution case, and after the court takes cognizance of the offence he cannot adduce evidence before the case is posted for defence evidence unless such a right is confered on him by a statute. Even if a second sample is available, it cannot be sent for examination at his request merely because the report of the examination of the first sample is unfavourable to him.
34. The prosecution case is that the offence was detected at 6 in the evening on the date of occurrence. Learned counsel for the appellants has brought to my notice the statement in Ext P1 mahazar prepared by PW1 excise officer that the offence was detected in the course of the excise officers' checking vehicles at the check post from 10 in the morning. This does not mean that the occurrence took place at 10 in the morning. What can be gathered from the statement is that the excise officers started their duty at the check post at 10 in the morning.
35. It was brought out in the cross-examination of PW1 that the registered owner of the car involved in the incident was one Muhammed and the registration certificate and the insurance policy were seized and he produced them at the excise range office. But these documents were not made part of the evidence in the case. This is a suspicious circumstance, according to the learned counsel. But in the cross-examination of PW5 excise officer who completed the investigation and filed the final report no question was put in this regard. So no significance may be attached to the non production of those documents.
36. It is submitted that there is no evidence as to the person who was in custody of the contraband and the sample after they were produced at the Excise Range Office and before they were taken to the court. This cannot be accepted. The unchallenged testimony of PW3 Excise Inspector proves that when PW1 produced them at the office, he (PW3) took custody of them and on the next day produced them before the Magistrate.
37. Yet another submission of the learned counsel for the appellants is that there was no investigation to ascertain the identity of the person who was travelling along with the appellants and who ran away when the checking was started. Neither PW1, nor PW3 has a case that in the vehicle in which the contraband was transported there were persons other than the appellants. There is only a suggestion in the cross-examination of PW1 that the driver of the vehicle was a stranger and when the excise officers stopped it, he ran away. The submission cannot even be taken notice of.
38. The learned counsel for the appellant submits that there was delay in completing the investigation and it is a valid reason to acquit the appellants. Reliance is placed on the decision of this court in Krishnan H v. State (2015 (1) KHC 822), wherein it is observed: “Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. Here, in this case, the long delay in conducting the investigation is writ large. The prosecution has not offered any explanation for this inordinate delay in conducting the investigation. This aspect of the matter also cannot be brushed aside”. In Ashokan's case (supra) also the same view was taken. The learned Judge held that inordinate or unexplained delay in conducting the investigation entitles the accused to ‘benefit of doubt’. For this the decision Krishnan's case was relied on.
39. Right to speedy trial is an inalienable right guaranteed by Article 21 of the Constitution. This right encompasses all the stages of the case including the stage of investigation (Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81) and Abdul Rehman Antulay v. R.S Nayak ((1992) 1 SCC 225 : AIR 1992 SC 1701). Again in Vakil Prasad Singh v. State Of Bihar. (2009) 3 SCC 355) the Apex Court has observed: “The right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigation as well”. At the same time, in Japani Sahoo v. Chandrasekhar Mohanty ((2007) 7 SCC 394) the Apex Court held:
“………….a court of law has no power to throw away prosecution solely on the ground of delay”. This was followed in Sajjan Kumar v. Central Bureau Of Investigation of Investigation ((2010) 9 SCC 368).
40. In Ranbir v. State of Punjab (1973) 2 SCC 444) the Supreme Court held: “The delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case”. This has been reiterated by the Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra ((1978) 4 SCC 371 : AIR 1979 SC 135) in the following words: “Delay may not, by itself, amount to serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced “. It added: If the circumstances of the case lead to “the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion”, it is fatal. The same view has been taken by the Supreme Court in Banti @ Guddu v. State of Madhya Pradesh (2004) 1 SCC 414) and Surajit Sarkar v. State Of West Bengal. ((2013) 2 SCC 146).
41. For the court to take notice of the delay in recording statements of witnesses, it is necessary for the defence to question the investigating officer about it so that he may give an explanation for it. If that is not done, the court will ignore the delay (see the decisions of the Supreme Court in the cases of Ranbir (supra) and Banti (supra).
42. The observation in the cases of Krishnan H. and Ashokan (supra) that mere delay in completing the investigation is fatal to the prosecution is not in conformity with the Supreme Court decisions referred to above.
43. The part of the investigation which is said to have been done long after the registration of the case is the investigating officer's recording the statements of the witnesses. It was disclosed in the testimony of the investigating officer, who was examined as PW5, that he recorded the statements of the witnesses in the first month of 2003 i.e after about 1 = years of the registration of the case on 19.8.2000 The signatures of the independent witnesses were taken in Ext P1 seizure mahazar, which reached the court on the next day of the occurrence itself. The contraband was seized while it was being transported. The sample of it was taken and the appellants were admittedly arrested at the place of occurrence. The appellants, the seized contraband, the sample of it and the documents relating to the incident were produced before the Magistrate on the next day of the occurrence. The sample was forwarded to the chemical examiner by the court at the request of the investigating officer as provided in Rule 17(2) of the Chemico-Legal Examiner's Rules.
44. Where the investigation is practically over immediately after the occurrence, the delay in recording statements of the witnesses, whose particulars and role in the incident are evidenced by the document prepared at the place of occurrence is not material. Delay is not a valid ground to acquit the accused if it has not caused prejudice to him. The delay occurred in recording the statements of the witnesses in Ext P1 seizure mahazar has not caused any prejudice to the appellants.
45. That apart, no question was put to the investigating officer (PW5) about the delay in recording the statements of the witnesses. For this reason alos the delay cannot be a ground of attack for the defence.
46. Lastly, the essential question. Were the appellants in conscious possession of the contraband? Possession and conscious possession are matters for inference to be drawn from the facts and the circumstances proved in the case.
47. The testimony of PW1 and PW5, the excise officers who detected the offence, proves that the first appellant was driving the car in which the contraband was transported and the second appellant was sitting beside him. The evidence given by PW1 proves that there was smell of alcohol in the car. It is not in dispute that the car was a private vehicle.
48. The facts in Madan Lal v. State of U.P [(2003) 7 SCC 465] and in this case are almost similar. In the search of the car, of which the first accused was the driver and in which the other accused were passengers ‘a black coloured bag was found which contained a steel ‘doloo’ kept in a plastic bag’. The doloo contained 820 gms of charas. The Supreme Court observed “……..all the accused persons were travelling in a vehicle……………. they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle”. The court held that the accused were in conscious possession of the contraband.
49. “Once possession is established the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge”. (Megh Singh v. State Of Punjab. 2004 SCC (Cri) 58). Under Section 64 of the Abkari Act there is a presumption that an accused in a prosecution under Section 55 of the Act has committed the offence in respect of the liquor, the possession of which he is unable to account satisfactorily. The appellants have not been able to explain how the contraband happened to be in the car in which they were travelling.
50. The only conclusion is that they were in its conscious possession. The trial court rightly convicted them. The sentence imposed on them is not harsh having regard to the nature of the offence. This appeal fails and accordingly, it is dismissed.