IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2579 of 2004 DATE: 22.09.2011 Between: 1) Padma Goud and another …… Appellants And: The State of A.P, rep. by its Public Prosecutor, High Court of A.P, …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2579 of 2004 JUDGMENT: The appellants/Accused Nos.1 and 2 were convicted by the lower Court by the impugned judgment, of the offence under Section 8(c)/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and were sentenced to simple imprisonment for 10 years and fine of Rs.1,00,000/- each; and were also convicted of the offence under Section 37-A of the Andhra Pradesh Excise Act and were sentenced to imprisonment of one year and fine of Rs.10,000/- each. Questioning the same, A-1 and A-2 filed this appeal. It is stated that after filing of this appeal, the 1st appellant/A-1 died. Therefore, this appeal in so far as the 1st appellant is concerned, stood abated. Arguments were addressed in this appeal only on behalf of the 2nd appellant/A-2. 2) It is the prosecution case that P.W-1 who was Sub- Inspector of Prohibition and Excise, Balanagar Excise Station, inspected toddy shop of A-2 on 09.07.2011 at 1.00 P.M along with staff and panch witnesses including P.W-2 and took three samples of toddy which was being sold in that shop. Spot test conducted by P.W-1 did not reveal presence of any Chloral Hydrate in the toddy being sold in that shop. In spite of it, P.W- 1 collected the samples during the course of routine inspection. After coming to the Excise station, P.W-1 registered case in Crime No.235/2001-02 under Rule 24 of the A.P. Excise Toddy Licences General Conditions Rules 1969 and issued Ex.P-2 crime and occurrence report. At the time of taking the samples of toddy, P.W-1 prepared Ex.P-1 panchnama in the presence of mediators. 3) According to the prosecution, A-2 as President of Toddy Tappers Cooperative Society is the licencee of the said shop and that A-1 was vending toddy in that shop on behalf of A-2 on the date of P.W-1’s inspection. Sample of toddy sent to Government chemical examiner of Prohibition and Excise, Regional Prohibition and Excise Laboratory was analysed and Ex.P-3 laboratory analysis report was sent. It was found in Ex.P-3 that the sample of toddy was adulterated with Chloral Hydrate and Diazepam. Second sample of the toddy was sent to the Public Analyst of State Food Laboratory, Nacharam, Hyderabad for analysis and report. It is the prosecution case that Public Analyst sent Ex.P-6 report confirming presence of Chloral Hydrate and Diazepam in the sample and opining that the sample does not conform to alcohol content, total acidity and volatile acidity and is therefore adulterated. Thereupon, prosecution was launched against A-1 and A-2 for the above offences. After trial, the lower Court found both the accused guilty under both the charges. 4) It is firstly contended by the senior counsel appearing for the 2nd appellant/A-2 that the prosecution has not produced any documentary proof to the effect that A-2 as President of the Society was the licencee in respect of the shop in which A-1 was doing business and that the shop is located within the boundaries of the licenced premisis. This is a new contention raised by the appellant for the first time in this appeal. This contention was not raised by the defence counsel in the lower Court nor this contention was put forward in the line of cross-examination of the prosecution witnesses during trial in the lower Court. The lower Court in the impugned judgment (vide paras 9 and 19) observed that there is no dispute that A-2 was President of the society and that A- 2 as president of the society was the licencee in respect of the shop from which the samples were taken by P.W-1 during the course of routine inspection. I am of the opinion that this contention which is a pure question of fact cannot be permitted to be raised by the 2nd appellant in the appeal for the first time. That apart, P.W-1 deposed that he proceeded to the toddy shop at Shamshiguda, Balanagar Mandal and found A- 1 in that toddy shop conducting sales of toddy and that he gave his name as Padma Goud and selling toddy on behalf of A-2 the licence holder. It is further evidence of P.W-1 that on demand, A-1 produced licence bearing No.280, dated 01.10.1996 valid upto the year 2000-01 and that on verification he found the boundaries of the premisis tallied with the boundaries of the shop as per the licence. In Ex.P-1 panchanama also it is noted that A-1 produced licence bearing No.280, dated 01.10.1996 valid upto September, 2001. The boundaries are also given in Ex.P-1 panchanama. The lower Court pointed out that though P.W-2 who is one of the mediators did not speak to the entire contents of Ex.P-1 panchanama, generally supported taking sample from the shop under the cover of Ex.P-1 mediators report. 5) It is further contended by the senior counsel basing on Section 38 of the Act that since this is an offence which is stated to have been committed by the Society which comes within the meaning of “Company” as per the expression contained therein, there must be necessary allegations and evidence to show that A-2 was incharge of and was responsible to the society for conduct of business of the society. Since A-2 happened to be president of the society, no more allegations or further proof is required by law to show that he was incharge of and was responsible for conduct of business of the society. By virtue of his designation as president of the society, it pre-supposes that he is incharge of and is responsible for conduct of business of the society (see S.M.S.Pharmaceuticals V. Neeta Bhalla[1]of the Supreme Court), I am of the further opinion that Exs.D-1 and D-2 minutes and proceedings of the society undoubtedly proved that A-2 was its President during the relevant period. Though the lower Court did not place reliance on Exs.D-1 and D-2 on the ground that they were antedated for the purpose of this case, there was no dispute at all in the lower Court that A-2 was President of the society during the relevant period and the licence was issued in his name as president of the society. Though some comment was made for non-production of licence into Court, I am of the opinion that it is for the accused who is in possession of the licence to produce the same and make out an argument on the basis of entries therein. The question of seizure of the licence at the time of inspection will not arise, because by the date of inspection of P.W-1 there was no violation of terms of licence made out during inspection and because business in the toddy shop cannot be run without a licence being kept in the shop after that date. 6) Contention of A-2 that the shop was leased out to a third party as per Exs.D-1 and D-2 resolution and proceedings of the society, was rightly repelled by the lower Court on the ground that Exs.D-1 and D-2 are self-serving and are antedated for the purpose of this case. Further, the licencee unilaterally without reference to the licensing authority cannot lease out or sub-lease the shop to a third party. It is not as if the alleged lease of the shop by the society was recognised by the licensing authority or was even intimated to the licensing authority or such intimation was approved by the licensing authority. Therefore, the lower Court rightly negatived contention of the appellant basing on evidence of D.W-1 and Exs.D-1 and D-2. 7) The question of complying with the requirements of Section 42(2) and 43 of the Act in this case does not arise because P.W-1 did not raid on the shop on any information or on any suspicion muchless having reason to believe that an offence has been committed by the accused in the shop. It was during routine inspection of the shops, P.W-1 made a visit to the shop and even though the toddy did not test for presence of Chloral Hydrate during spot test with the equipment available with him, he collected the samples in a routine fashion by following the procedure under Rule 24 of the above Rules. It is only after analysis by the Regional Excise Laboratory and also the public analyst it was found out that the sample contained Chloral Hydrate as well as Diazepam. Chloral Hydrate is not a psychotropic substance. It is only Diazepam which is a psychotropic substance. It appears, a crude attempt was made in the lower Court to manipulate the record by way of introducing Ex.P-4 as if it was the public analyst report. Ex.P-4 reads that the sample after test showed absence of Chloral Hydrate as well as absence of Diazepam. For the sake of clarification and to find out truth, the prosecution examined the public analyst as P.W-4 in the lower Court. P.W-4 on verification certified that Ex.P-4 was not the report issued by him and that Ex.P-6 is the genuine report issued by him and that Ex.P-4 does not contain his signature at all. It appears that this fact rubbed the lower Court on wrong side and the lower Court invoked Section 22(c) of the Act to impose maximum punishment of imprisonment of 10 years and fine of Rs.1,00,000/-. 8) The prosecution though proved presence of Diazepam in the sample, could not prove that the Diazepam present in the toddy which is the main ingredient being sold in the shop, was of commercial quantity or at least above small quantity as notified by the Central Government. In the absence of proof that the quantity of Diazepam was of commercial quantity, the lower Court should not have resorted to punishing the accused under Section 22(c) of the Act. I am of the opinion that the appropriate penal provision which attracts to facts of the case is Section 22(a) of the Act. 9) In so far as Chloral Hydrate is concerned, though it could not be detected in spot inspection with the equipment which was available with P.W-1, it could be traced during analysis in the laboratory. It shows that quantity of Chloral Hydrate contained in the sample was minimal. There is no previous offence against the accused under Section 37-A of the A.P. Excise Act. 10) Therefore, for all the above reasons, I am of the opinion that the lower Court rightly convicted the 2nd appellant/A-2 under Section 32-A of the A.P. Excise Act and imposed minimum sentence of imprisonment of one year apart from fine and that conviction of the 2nd appellant/A-2 is liable to be altered from Section 8(c)/22(c) to Section 8(c)/22(a) of the Act. 11) In the result, the appeal is partly dismissed in respect of conviction and sentence of the 2nd appellant/A-2 under Section 37-A of the A.P. Excise Act; and the appeal is partly allowed altering conviction of the 2nd appellant/A-2 from Section 8(c)/22(c) of the Act to Section 8(c)/22(a) of the Act and imposing sentence of simple imprisonment of six months and fine of Rs.5,000/- for the said offence. The appeal in so far as 1st appellant/A-1 is concerned, is dismissed as abated. Both the sentences of imprisonment shall run concurrently. _______________________________ SAMUDRALA GOVINDARAJULU, J September 22, 2011 KSH [1] (2005)8 Supreme Court Cases 89