IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 84 of 2011()
1. KURIAKOSE,S/O.KURIAKOSE,NADUTHOTTAM
... Petitioner
2. TIJU,S/O.KURIAKOSE,NADUTHOTTAM VEEDU,
Vs
1. STATE OF KERALA,REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.84 of 2011
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Dated this the 19th day of January, 2011.
ORDER
Annexure-A5, order dated December 3, 2010 on Crl.M.P.Nos.366 of 2010
and 367 of 2010 in S.C.No.439 of 2008 of the court of learned Assistant
Sessions Judge, Thodupuzha, to the extent it went against petitioners refusing to
send the labels on MOs 1 to 8 to the expert for opinion is under challenge in this
petition filed under Section 482 of the Code of Criminal Procedure (for short, “the
Code”). Petitioners are facing trial in the said court for offences punishable under
Sections 8(1) and (2) and 55(g) of the Abkari Act (for short, “the Act”). According
to them they are falsely implicated in the case having been summoned to the
office of Excise Inspector at Adimali. In support of that contention they examined
DW1 who is an Excise Guard. In chief examination, petitioners contend, DW1
gave answers which were favourable to their defence but, in cross examination
conducted on a later day he attempted to wriggle out from his statement in chief
examination. Dispute related to the alleged seizure of material objects, etc. at the
sport of alleged incident. In the light of the evidence given by DW1 in cross
examination petitioners filed the above said petitions to send Exts.P5 and P10
and material objects 1 to 8 to the expert for opinion as to the authenticity of the
writing and signature. Learned Assistant Sessions Judge considered the
applications and by Annexure-A5, order allowed the same to the extent it related
to Exts.P5 and P10. But the request to send labels on MOs 1 to 8 was disallowed
Crl.M.C.No.84 of 2011
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for the reason of practical difficulty in removing the labels from MOs 1 to 8
without it being affected. That order to the extent it went against petitioners is
under challenge. Learned counsel submits that for proper defence of petitioners
it is necessary to send material objects 1 to 8 to the expert for opinion along
with Exts.P5 and P10.
2. I have heard learned Public Prosecutor also. Learned Public
Prosecutor submits that there is no reason to interfere with the impugned order.
3. I ascertained from the learned Assistant Sessions Judge whether it
is possible to send any of material objects 1 to 8 to the expert for opinion along
with Exts.P5 and P10. Learned Additional Sessions Judge (Adhoc-I) on behalf
of the Assistant Sessions Judge has reported that labels on material objects 1 to
8 cannot safely be detached from the material objects as it is firmly affixed to
the material objects. It is pointed out that material objects 1 to 5 and 7 are large
vessels and there is considerable practical difficulty in sending the same to the
expert. It is reported that MOs 6 and 8 could be forwarded to the Forensic
Science Laboratory by deputing a Police Constable.
4. It is seen from the report that of MOs 6 and 8, MO6 is smaller in
size. Having regard to the practical difficulty which the learned Assistant
Sessions Judge has stated in the impugned order and in the report dated
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14.01.2011, I do not consider it is possible to send MOs 1 to 5 and 7 to the
expert. But considering the nature of MO6 and since it is comparatively smaller
in size, request to send MO6 to the expert for opinion can be allowed after
taking sufficient precautions so that identity of MO6 is preserved.
5. The impugned order is modified to the extent it concerned sending
of MO6 to the expert for opinion. Application to send the material objects to
the expert for opinion will stand allowed to the extent it concerned MO6. Court
below will ensure that MO6 is also sent to the expert by deputing a Police
Constable after obtaining photographs of MO6 in various positions including its
prominent part showing the label as clearly as possible. Photographs shall be
obtained at the expense of petitioners whose signatures with date shall also be
obtained on the photographs.
This petition is allowed in part as above stated.
THOMAS P.JOSEPH,
Judge.
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