JOSEPH JOY Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner in Cr1. R.P. 691 of 1986 was found guilty of the offence under section 55(a) of the Abkari Act, by the courts below. His conviction is challenged in the revision petition. In Cr1. R.C. 99 of 1988, petitioner was directed to show cause why the sentence should not be enhanced. Prosecution case is that on receiving information that petitioner had ganja with him, his house was raided at or about 2.30 p.m. on 21.7.83 by P.W. 1 Excise Inspector and others. When P. Ws. 1 and 2 entered the house, petitioner ran away. They seized 16 K. gms. of ganja from a bedroom in the house. Ext. P 2 mahazar was prepared far the seizure and P. Ws. 3 and 4 are the attesters to Ext. P 2. A sample of the article seized was sent for chemical examination, and by Ext. P 3 it was reported that the sample analysed was ganja. On this evidence, courts below found the charge.

(2.) Learned counsel far petitioner submitted that identity of the person who ran away from the house was not established. The evidence of P.W. 1 is toT the effect that on seeing the excise party, Joy (accused) ran away through the backyard of the house. It is not possible to say that identity has not been established. Then, it was contended that the house belongs toT the father-in law of the petitioner and not to him. Petitioners father-in law John was not examined as a witness, and this was adversely commented an. The door number of the house is not clear but there is evidence that petitioner was residing in the house. The finding entered an this evidence cannot be considered unreasonable.

(3.) It was the further contention of counsel that the certificate of analysis cannot be acted on in the light of the decision in State of Kerala v Shaju1. In the nature of the article seized I am not inclined to think that the certificate does not conclusively establish its nature, May be, in certain cases details would be necessary. But, depending on the nature of the article, even without such details findings in the report can be accepted. Unlike illicit liquor, where the content of ethyl alcohol will 8e material, in the case of ganja identification by sight and smell by persons familiar with it touch as excise officials can be accreted. Apart from the evidence of the excise officials, there is the report of the Joint Chemical Examiner to prove the nature of the article. This evidence can be accepted as conclusive. Counsel raised a further contention that the certificate issued by the Joint Chemical Examiner cannot be accepted under section 293 of the Code, as Joint Chemical Examiner is not named in the Section. I am not inclined to accept this submission. It is true that Joint Chemical Examiner is not named in the section, That may be because, such a post was not in existence at the material time. Joint Chemical Examiner also is comprehended by the expression Chemical Examiner and it is certainly not the intention of the legislature to exclude the Joint Chemical Examiner when the Assistant Chemical Examiner has been included and considered competent. Thus, the finding based an the evidence of P.Ws. 1 and 2 corroborated by the evidence of P. Ws. 3 and 4 and certificate of analysis clearly establishes the offence, and conviction is pra per.