Accused has no right to get B Sample examined
In Krishnan M.C vs State Of Kerala, a Division Bench of the Kerala High Court, in view of the conflicting decisions in different cases, examined as part of a reference whether the accused has got a right to get the second sample taken for analysis to the Chemical Examiner’s Laboratory, under Section 8 of the Kerala Abkari Shops Disposal Rules,2002.
It was decided by the bench that the accused has no right seek chemical analysis of B Sample. There is no specific provision in the law for the purpose, as well.
Rules mandate preparation of two samples
The Rule 8 of the Kerala Abkari Shops Disposal Rules mandates preparation of two samples, A Sample and B Sample, and production of the second sample before the court. In the absence of collection of second sample it becomes a violation of procedure prescribed by the rules.
However, nowhere in the Rules the purpose behind preparation and forwarding of the second sample has been dealt with.
Procedure for taking sample as per rules
The Section 8 of the Abkari Shops Disposal Rules 2002 states the procedure for taking samples as follows: –
“8. (1) All Abkari Officers not below the rank of a Preventive Officer shall have the authority to take samples of any chemical analysis.
(2) While taking sample of any liquor by the Abkari Officer for chemical analysis, the following procedure shall be followed, namely.
(a) The quantity of sample taken for analysis shall not be less than 500 ml. Benzoic Acid should be added as preservative in toddy at the rate of one gram for 100 ml. of toddy:
(b) The contents in the vessel in which the liquor is stored shall be thoroughly mixed so as to get a representative sample;
(c) Divide the sample in to two parts and put each part in to separate bottles or containers which are properly cleaned and dried;
(d) The bottles or containers shall be securely fastened with suitable caps or corks so as to make it leak proof to prevent any spillage. The neck portion of bottles or containers and the caps or corks shall be covered with a piece of cloth and tied together with a string securing the covered cloth. The officer taking the samples shall inform the licensee or his representative to put his seal if he so desires. If he desires to put his seal, the string shall be tied such a way that it shall have two knots in opposite sides. The officer taking the sample shall put his seal on one knot and the licensee or his representative shall put his seal on the other knot. If the licensee or his representative is not willing to put his seal, in such cases, the string shall be tied with one knot and the officer shall put his seal on that knot. The seal shall be affixed on the knot of the string using sealing wax in such a manner that the caps or corks cannot be removed unless the string is cut or the seal is broken.
Only the official or personal seal of the officer taking sample shall be used for sealing. The seal shall be legible and decipherable. If the licensee or his representative has no seal or if they are not willing to put their seal, it shall be recorded in the mahazer/report drawn at the time of taking sample. The specimen of the seal(s) used for sealing the samples shall also be put on the Mahazer/report.
(e) Labels marked ‘A’ and ‘B’ shall be affixed on each bottle or container, bearing the signature, name, designation of the officer taking the samples with the details of the shop and the item of the sample taken with quantity along with the signature or thump impression of the person from whom the sample is taken: Provided that in case the person from whom the sample is taken, refuses to affix the signature/thump impression, the signature or thump impression of two independent witnesses shall be obtained on the label;
(f) The sealed bottle or container marked ‘a’ shall be forwarded to the Chief Chemical Examiner or Joint Chemical Examiner to the Government of Kerala or to any officer authorized by the Government in this behalf along with a memorandum in Form No. V appended to these rules, without unreasonable delay. The memorandum shall be forwarded in a sealed cover.
(g) A small quantity of the preservative used shall also be forwarded separately along with the sample to the Chemical Examiner/Authorized Officer;
(h) The bottle or container marked as ‘B’ shall be handed over to the concerned [Deputy Commissioner of Excise) of the division who shall be the Authorised Officer with a copy of the memorandum, immediately, under proper acknowledgment. He shall affix his seal over the string on the neck portion of the bottles or containers and shall assign a register number on the label affixed;
(i) The Deputy Commissioner of Excise of the Division shall maintain an exclusive register for registering the details of samples received by him. The samples shall be registered serially and that serial number shall be assigned as the register number. The details of further action taken by him shall be noted in the register.
(3) On receipt of the Chemical Analysis Report, if any violation of the provisions of the Abkari Act, rules or conditions of License or any adulteration is noticed, a case shall be registered within 24 hours. The sample marked as ‘B’ shall be produced before the concerned court. If no case is registered, the sample marked ‘B’ shall be destroyed.”
Kerala Excise Revised Manuel -2018 states
The Chapter XVI of the deals with the collection of samples for chemical analysis of toddy as follows: -.
“Toddy: –
(I) The quantity of sample taken for chemical analysis shall not be less than 500 ml.
(ii) Bensoic Acid should be added as preservative in toddy at the rate of one gram for 100 ml of toddy.
(iii) The contents in the vessel in which the liquor is stored shall be thoroughly mixed so as to get a representative sample. Divide the sample in to two parts and put each part in two separate bottles or containers which are properly cleaned and dried. If toddy is kept for sale in bottles, sufficient number of bottles of toddy may be taken and they may be poured in a separate vessel and thoroughly mixed, as as to get a representative sample.
(iv) The bottles or containers shall be securely fastened with suitable caps or corks so as to make it leak proof to prevent any spillage. The neck portion of bottles or containers and the caps or corks shall be covered with a piece of cloth and tied together with a string securing the covered cloth.
(v) The Officer taking the sample shall inform the licensee or his representative to put his seal if he so desires. If he desires to put his seal, the string shall be tied in such a way that it shall have two knots in opposite sides. ………………….”
Accused cannot seek chemical analysis of B Sample
The Division Bench came to the conclusion that the accused has no legal or statutory right to make a request for sending ‘B’ sample for chemical analysis. 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.
In Santhosh T A case it was held that 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 conferred 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.
The judgement adds that 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 conferred 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.
However, in numerous cases contrary decisions came out> Those cases have been held by the Division Bench to be not good law. Such cases are, 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) KHC 480), Saneesh v State of Kerala (2020 (1) KHC 289), and Vijayan v. State of Kerala (2020 (3) KLT 602).
The Division Bench upheld the judgement in Sudhakaran and others v. State of Kerala (2011 (1) KHC 610) where it was held that the report of the Chemical Examiner in ‘B’ sample will not supersede the report of the Chemical analysis in sample ‘A’.
The issue which among the two reports is acceptable is with the SC
The Division bench has not made any observation in regard to the issue which among the two reports are acceptable, as it is stated to be pending before the Supreme Court.
Additional reading
- Santhosh T.A.and Another v. State Of Kerala (2017 (5) KHC 107)
- Sudhakaran and others v. State of Kerala (2011 (1) KHC 610)
- Krishnan M.C vs State Of Kerala (Judgement of the Kerala High Court on 18 February 2021)
