* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Criminal Appeal No.156 of 2005 % 10-12-2010 # I.Venkataiah … Appellant Vs. $ State of Andhra Pradesh, Rep. By Public Prosecutor, High Court, Hyderabad … Respondent/State ! Counsel for the Appellant: Sri L.Harish Counsel for the Respondent: Public Prosecutor, High Court of A.P., Hyderabad. < Gist: > Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.156 of 2005 (Dated : 10-12-2010) Between: I.Venkataiah …Appellant A n d State of A.P. rep. by The Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.156 of 2005 JUDGMENT: This Criminal appeal is directed against the judgment dated 24-01-2005 passed in S.C.No.78 of 2002 on the file of I Additional District Judge, Ranga Reddy District, at L.B.Nagar, Hyderabad, whereby and whereunder, the learned Additional District Judge found accused-Venkataiah guilty for the offence under Section 37(a) of A.P. Excise Act and convicted him accordingly and sentenced him to suffer Rigorous Imprisonment for two years and to pay a fine of Rs.10,000/- in default, to suffer simple imprisonment for six months. 2. The prosecution case, in brief, is :- The appellant was a licencee of TFT shop at Laxminarayanapur as on 24.12.2001. Pw-3-N.Mallesham, Prohibition & Excise Inspector inspected the toddy shop of the appellant on 24.12.2001 at about 2.30 P.M. He tested toddy and his test revealed the presence of Chloral Hydrate in toddy. He collected three samples of toddy in the presence of Pws.1 and 2 under cover of panchanama. After collecting the samples, he destroyed the stocks of toddy found in the shop. The appellant- accused also signed on the panchanama. Pw-3 produced the accused along with the samples and panchanama before the Station House Officer, Excise Police Station, Tandur. Pw-4- Madhusudhan Reddy, S.I of Police (Prohibition & Excise), Tandur, received the panchanama along with the samples and registered a case in Crime No.433 of 2001-02 under Section 37(a) of A.P.Excise Act and issued Ex.P-2 Crime Occurrence Report. He submitted requisition to the Court to send the sample to the Chemical Examiner. Ex.P-3 is the report submitted by the Regional Prohibition and Excise Laboratory. As per the report, the sample is fermented toddy adulterated with chloral hydrate. The accused submitted requisition to send the 2nd sample to the State Food Laboratory. Accordingly, the 2nd sample came to be sent to the State Food Laboratory, Hyderabad. Pw-5-Sundareshwara Rao stested the sample and submitted Ex.P-4 report. As per Ex.P-4 report, the sample contains Chloral Hydrate, Diazepam and Saccharine and it does not conform to alcohol content and therefore, it has been branded as adulterated. After completing investigation, Pw-6-R.Srinivasulu filed charge sheet in the designated Court under the provisions of the N.D.P.S.Act. 3. The learned I Additional District Judge took the charge sheet on file as S.C.No.78 of 2002. On appearance of the accused and on hearing the prosecution and the accused, the learned Sessions Judge framed charges under Section 37(a) of A.P.Excise Act and Section 8 ( c ) read with Section 22 of N.D.P.S. Act, read over the same to the accused for which the appellant/accused pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the appellant-accused, the prosecution examined 7 witnesses as Pws.1 to 7 and marked seven documents as Exs.P-1 to P-7 and exhibited one material object as M.O-1. The learned Additional Sessions Judge, on appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, found the appellant- accused guilty for the offence under Section 37(a) of A.P.Excise Act and convicted him accordingly and sentenced him to suffer Rigorous imprisonment for two years and pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months. However, the learned Sessions Judge found appellant- accused not guilty for the offence under Section 8 (c) read with Section 22 of N.D.P.S.Act and acquitted him accordingly. Hence, this appeal by the appellant/accused assailing his conviction and sentence for the offence under Section 37(a) of A.P. Excise Act. 5. Heard learned counsel appearing for the appellant-accused and learned Additional Public Prosecutor appearing for the respondent-State. 6. Learned counsel appearing for the appellant-accused submits that there is no assurance that the samples sent for analysis and the samples seized under the cover of Ex.P-1 panchanama are one and the same and in which case, the conviction and sentence of the appellant basing on Ex.P-3 report cannot be sustained. In a way, his contention is that samples of same stock have been sent to two analysts and the reports submitted by the two analysts are not going together and in which case, no reliance can be placed on any one of the two reports and once the two reports are discarded, there is no material to sustain the finding of the trial Court that the sample is adulterated with Chloral Hydrate. 7. Learned Additional Public Prosecutor submits that two reports, which have been exhibited as Exs.P-3 and P-4 are consistent to the fact that the sample contained Chloral Hydrate and therefore, conviction of the appellant-accused for the offence under Section 37(a) of A.P.Excise Act is legal and proper and the same is not required to be interfered with. 8. The point that arises for consideration in this appeal is : Whether the conviction and sentence of the appellant- accused for the offence under Section 37(a) of A.P.Excise Act can be sustained ? 9. POINT : To bring home the guilt of the appellant-accused for the offence with which he stood charged, prosecution examined seven witnesses and marked seven documents and exhibited one material object. Pws.1 and 2 are the panch witnesses for the seizure of toddy from the shop of the appellant-accused. They did not support the prosecution and prosecution declared them hostile. Pw-3 is the Sub Inspector of Police, who inspected the toddy shop of the appellant-accused and collected three samples of toddy under the cover of Ex.P-1-panchanama. He handed over three samples along with panchanama to the S.H.O., Prohibition and Excise, Tandur. Pw-4 received sample bottles along with panchanama and registered a case in Crime No.433 of 2001-02 under section 37(a) of A.P.Excise Act and issued Ex.P-2-F.I.R. Pw-5 is the Chief Public Analyst who tested the 2nd sample and submitted a report, which has been exhibited as Ex.P-4. Pw-6 is the Sub Divisional Police Officer, who filed the charge sheet. Pw- 7 is the Head of the Team, which surprised the shop of the appellant-accused and collected samples. 10. As per Ex.P-3, the sample is fermented toddy adulterated with Chloral Hydrate whereas as per Ex.P-4, the sample contains Chloral Hyderate, Diazepam and Saccharine. It is specifically stated in Ex.P-4 that the test for presence of Diazepam proved to be negative. 11. It is crystal clear that two public analyst reports are not going together. One report speaks of the presence of Diazepam and another report speaks of absence of Diazepam. Of course, in view of the contradiction in the two reports with regard to the presence of diazepam, the learned Sessions Judge recorded acquittal of the appellant-accused for the offence under Section 8(c ) read with 22 of N.D.P.S.Act. Incidentally, it is required to be examined whether the prosecution is able to prove that representative samples collected from the toddy shop of the appellant-accused and the samples sent for analysis are one and the same. If the two representative samples of one product are sent, there cannot be any variation with regard to the ingredients of the product. The three samples came to be seized at the toddy shop of the appellant-accused. M.O-1 is one such sample bottle. Pw-3 does not claim to have affixed his specimen seal on the sample. He even showed his ignorance in cross-examination as to whose specimen seal has been affixed on the sample. For better appreciation, I may refer the cross-examination of Pw-3 in his own words and it is thus:- “ It is our DSP (Lw.4) who received the information. I do not know the nature of the information received by him. It is Khaleel (Lw.6) my colleague, who secured the panch witness and who scribed the panchanama Ex.P.1. All the officers who participated in the raid signed on the panchanama. I cannot say whose specimen seal among the officers was affixed on the sample. M.O.1 contain the seal. ON perusal of the same the witness stated that it is the seal of Khaleel (Lw.6) that was affixed. Ex.P.1 does not show it is a specimen of Khaleel that was affixed on the sample. It is not true that M.O.1 sample bottle is also same bottle that was alleged to have been seized and it is a planted one. On that day two cases were registered by me, including this case. It is not true that accused has been falsely implicated in this case”. 12. Pw-4 is the S.H.O., Prohibition and Excise P.S., Tandur, who received the samples and Ex.P-1 panchanama. He stated in cross-examination that he cannot say as to who put specimen signature on the sample bottle. For better appreciation, I may refer the cross examination of Pw-4 in his own words:- “ The sample was deposited before the Court on 26-12- 2001. The accused was also produced before the Court on 26-12-2001. As there are 4 or 5 officers were there I cannot say whose specimen signature on the sample bottle. It is not true that the material objects produced by us were not the same sample bottles alleged to be seized from the shop of the accused and they are planted by us.” 13. The prosecution has not examined the officer, who affixed his seal on the sample bottles. In view of the contradictory reports of Public Analysts, non-examination of the officer who affixed his seal on the samples is fatal to the prosecution case. It cannot be said with certainty that the samples seized from the shop of the appellant-accused and the samples sent to the analysts are one and the same. Such is the situation; no reliance can be placed on either Ex.P-3 report or Ex.P-4 report. Once the reports are discarded, there is no material to show that the toddy seized from the shop of the appellant-accused is adulterated. Therefore, the conviction of the appellant-accused cannot be sustained. 14. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence of the appellant for the offence under Section 37(a) of A.P.Excise Act and he is acquitted of the same. The appellant-accused shall be set at liberty forthwith if he is otherwise not required in any other case. _____________________ B.SESHASAYANA REDDY, J Dt.10-12-2010 Note:- L.R copy to be marked (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.156 of 2005 (Dated : 10-12-2010)