JUDGMENT
1. This appeal has been filed on behalf of 22 accused persons who were convicted in CC No.4 of 1994 under Section 8(c) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act. Each of them was sentenced to ten years rigorous imprisonment and was also fined with Rs.1,00,000/- and in default of payment of fine they had to suffer further imprisonment of 2 1/2 years. Charge-sheet was filed against 24 accused, out of which accused No. 10 died and the name of accused No. 17 was deleted as it was found that accused No.1’s name was repeated as accused No.17.
2. I have heard the learned Counsel for the appellants as well as the learned Public Prosecutor. Some of the record was not available which was summoned, today the record has been received and I have perused the record.
3. The allegations against the appellants-accused is that, accused No. I was vendor of toddy and accused 2 to 24 were the licence holders of toddy shop TFT Regadi Mailwar under the range of Kodangal. On 20th February, 1999 at about 6.30 pm., when the Excise Inspector along with some other officials of the Excise Department being PWs.2 to 4 visited the shop, they found A1 conducting sale of toddy, on demand he showed the licence to the visiting excise officials. The licence was in the name of accused 2 to 24. The officers found 10 wooden cases of toddy each containing 24 bottles of toddy, each bottle contained 650 ml. of toddy. The officers collected certain quantity of toddy from each bottle into a pot, a sample was taken and a test tube was used for analysing the sample. The toddy was mixed with chloral hydrate according to the findings of the excise officials. Thereafter, they took the samples into two bottles which were sealed. A panchanama was also drawn. Remaining toddy was destroyed as according to the visiting excise officials it was not fit for human consumption. A1 was arrested and was released on bail. A crime was registered under the provisions of Andhra Pradesh Excise Act. The samples were deposited in the Court and an application was made to the Magistrate concerned to send one of the bottles for chemical analysis. The chemical examiner examined the sample and gave his report being Report No.66391, dated 27-2-1991. On the basis of this evidence a charge-sheet was filed against the accused persons before the Magistrate under the relevant provisions of Andhra Pradesh Excise Act for infraction of provisions of Andhra Pradesh Excise Act. It appears from the record that, suddenly a report came into existence from another public analyst which was produced by the Excise Inspector before the Magistrate which revealed that the sample contained a psychotropic substance namely Dizepam. Thereafter, the Magistrate took steps to transfer the case to the special Court and the
special Court tried the accused under the provisions of Narcotic Drugs and Psychotropic Substances Act. Although it is not clear from the record as to how the second report of the public analyst came on record but it appears that when the Magistrate was trying the accused under the provisions of Andhra Pradesh Excise Act during the recording of evidence the Inspector had produced the report.
4. Two grounds have been agitated by the learned senior Counsel appearing for the appellants to suggest tliat the conviction cannot sustain. Firstly he contends that the second report could not be taken into consideration at all. Secondly he contended that, even if the second analysis report is taken into consideration even then there is no evidence whatsoever against accused 2 to 24.
5. On examining the first argument it appears, when the case was registered under the provisions of Andhra Pradesh Excise Act a second sample was sought to be sent for analysis in terms of Rule 24 of the Andhra Pradesh Excise (Arrack and Toddy licence General conditions) Rules, 1969. Rule 24 is reproduced below:
“24. Drawal of samples :–Any Excise Officer not below the rank of the Sub-Inspector of excise or Food Inspector appointed under the Prevention of Food Adulteration Act, 1954 shall be competent, at any time to take sample of arrack or toddy, in the possession of the licensee or any other person storing arrack or toddy, for the purpose of analysis. Such officer shall take three samples in the presence of the licensee or his agent or other person in charge of the licensed premises or who is found selling toddy in the said premises, after conducting a panchanama. The samples shall be sent to the Court with a requisition to send, one of the samples expeditiously to the chemical examiner
of the Excise Department having jurisdiction in the region, in which licensed premises are situated, for chemical examination. If the sample sent to the chemical examiner is damaged, in transit or otherwise before the completion of the analysis, the Court may be requested by the concerned officer to send a second sample to the chemical examiner. If the licensee desires that the sample should be sent for analysis to an independent laboratory, he may apply to the excise Superintendent within three days of the drawal of the sample. In cases where the licensee or one of his Nowkarnama holders was not present at the time of taking of sample, the licensee should apply within 7 days. The application should be accompanied by a demand draft for an amount sufficient to cover the analysis charges. If no such application is filed within the requisite time limit, the licensee shall not be entitled to seek analysis by an independent laboratory thereafter. On receipt of the application within time and with requisite demand draft, the concerned officer shall request the Court to send a sample to the independent laboratory chosen by licenses.”
6. From bare perusal of the Rule, it becomes clear that the excise officials have no authority under the rules to send the second sample for analysis after they have got the report in the first analysis. This appears reasonable also because in terms of the rules the first sample is sent for chemical analysis to the chemical examiner belonging to the Department of Excise, therefore they cannot question the findings of the report given by their chemical examiner. However this report may be challenged by the accused persons and they can make an application to the Magistrate within a particular period of time for sending the second sample for analysis. The record does not show that at any point of time the accused persons had made any such
application. However, the record shows that, for the first sample there is an order of the Magistrate passed on 25-2-1991. The order of the Magistrate is addressed to, the Chemical Examiner, Regional Excise Laboratory asking him to analyse the sample, the full description of the sample is given therefore there cannot be any doubt that the sample which was lifted from the appellants-accused was the same sample which was sent for chemical analysis by the Magistrate concerned. This order was passed by the Magistrate on an application filed by the Excise Inspector. But, while forwarding the second sample the Magistrate also devised a novel method by sending the sample to the Excise Superintendent, Mahabubnagar and not to the public analyst. The Magistrate’s order reads as under:
“With reference to the subject cited above 1 am handing over the second bottle of toddy to the Sub-Inspector of Excise, Kodangal in Cr.No.55 of 1990-91 dated 23-2-1991 excise Kodangal as per your proceedings cited above for onwards depositing at your office”.
7. This order shows that the Magistrate had sent the sample back to the Excise Superintendent for depositing in his office and not for sending it to any analysis. There is no record to establish that after the Excise Superintendent received the sample he actually sent it to the public analyst for analysis, because the second report which is Ex.P6 does not give any reference to any tetter written to him by the Excise Superintendent forwarding the sample. The report needs to be reproduced:
“Sub: SFL Nacharam – Excise offences – Analysis of toddy sample bottle of toddy shop: Regar Mailwar TFT Cr.No.55 of 1990-91, dated 23-2-1991.
With reference to hour letter cited, I am furnishing the analytical result of the toddy sample.
Tests done
Values
obtained.
Methyl
alcohol
Absent
Paraldehyde
Absent
Saccharin
Present
Chloral
hydrate
Absent
Diazepam
Present
Coal-tar-dye
Absent
Alcohol content
2.95%
I am of the opinion that the sample does not conform to Alcohol content; contains Diazepam and Saccharin and is therefore Adulterated.”
8. Although he makes a mention about the letter for analysis, but no letter in fact is cited in the report. There is not even an iota of evidence to suggest that the report contained in Ex.P6 is in fact a report of analysis of the material seized from accused No.l. Therefore, this report cannot be used against the accused persons. It may also be curious to note that, the sample was taken on 20th February, 1991 and the first sample was sent for analysis on 25th February, 1991 whereas the second sample was analysed on 8th September, 1992. According to the first analysis the sample was free from Dizepam but it contained Chloral hydrate. Therefore, on this ground alone this appeal should succeed.
9. This Court considers it necessary to observe that the learned Judges who are trying the offences such as offences under Narcotic Drugs and Psychotropic Substances Act where the minimum punishment prescribed is 10 years imprisonment and where the punishment could go up to 20 years imprisonment with heavy fine, the Judges should be careful and cautious while convicting the persons. It is true that persons who are dealing with psychotropic substances are the enemies of the society at large and must be dealt with very severely, but it must also be ensured that the people who cannot be
connected to the offences are not punished unnecessarily.
10. The second argument advanced by the learned Counsel for the appellants is that there is no evidence against accused 2 to 24. The only evidence which was pressed into service by the statement of the witnesses was that accused 2 to 24 were licence holders. The licences were also not produced in the trial Court. Therefore, it was also doubtful whether the accused 2 to 24 were licence holders. Even if they were licence holders, even then it had to be proved that the adulterated toddy belonged to them or it was supplied by them or it was being marketed by them. There was no evidence to suggest that accused 2 to 24 were responsible for mixing or had permitted mixing of an intoxicant with the toddy. There is no dispute with regard to the fact that the accused No.l was in possession of the toddy at the time of seizure. The first public analysis report is also not doubtful. Therefore, while acquitting all the accused for the offences under Sections 8(c) and 22 of the Narcotic Drugs and Psychotropic Substances Act, I feel that the accused No.1 should have been convicted under Section 37-A of the Andhra Pradesh Excise Act.
11. For these reasons, I allow this appeal and acquit all the accused of the offences under Sections 8(c) and 22 of the Narcotic Drugs and Psychotropic Substances Act, however, accused No.l is convicted under Section 37-A of the Andhra Pradesh Excise Act and he is sentenced to one year rigorous imprisonment. He is also fined with Rs.10,000/- and in default of payment of fine, he shall undergo three months simple imprisonment. He shall however get set off for the period during which he was in custody and he shall be released after serving the sentence completely. All other accused-appellants shall be released forthwith.