THE HON'BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 285 OF 2004 Dated: 15.07.2011 Between: Abothu Dhanaiah and another ..... Appellants AND State of Andhra Pradesh .....Respondent The Court made the following : THE HON'BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 285 OF 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the Sessions Judge, West Godavari District at Eluru, in Sessions Case No.159 of 1999, on 23.01.2004. The appellants (A1 and A2) along with other accused (A3) were prosecuted for the offences under Section 304 Part-I of I.P.C. and Section 34 (g) and (h) read with 37 (a) of the Andhra Pradesh Excise Act, 1968 (for short, ‘the Act’). According to the prosecution, A1 is the son of A2, and A3 is the sales man working under A1 and A2. To earn much money, A1 and A2 approached PW.8, who is running his licensed liquor shop at Ravipadu Village and on oral permission to conduct the sale of liquor in loose sales at Chintapalli Village by selling a belt shop, started running the sale of various types of liquor in their thatched hut situated opposite to M.P.P.Elementary School and near Sivalayam Temple in Chintapalli Village. A1 was carrying money lending business and frequently leaving his shop under the control of his father A2, who finds difficulty in running the shop by conducting sale of cheap liquor loosely to their customers. From 01.10.1998 onwards, they employed A3 as their sales man and he advised them to mix the M.B.C. powder with sufficient water to the original liquor so that, the quantity will be increased to a tune of 5 to 6 times of the quantity of liquor used and it will give sufficient satisfaction and kick to the consumers due to the adulteration of liquor and by this way, they will earn more profits than the invested amount, for which A1 and A2 agreed and A3 brought the said M.B.C. powder and mixed the same with sufficient water to the original liquor and made a quarter bottle into six quarter bottles and started selling the same. On 10.10.1998 evening at about 4.00 P.M., A1 went to the licenced shop of PW.8- Alla Subbarao and purchased the cheap liquor quarter bottles and brought them to his shop and handed over the same to A2 and A3 for carrying the sale in loose. Then A3 mixed M.B.C. powder with water in the presence of A2 and increased the quantity by adulterating the liquor and kept the same ready for conducting sales. Meesala Laxmana, Gade Venkatarao and Gannena Brahmayya (Deceased 1 to 3) and others, consumed the said liquor on 10.10.1998 and they purchased the same from the shop of the accused and immediately, they raised alarming cries, fell down and struggling for their lives. Few persons gathered there and found the deceased three persons lost their lives, and PW.1 and another person struggling for their lives, lifted them to the hospital at Tadepalligudem for treatment. On information furnished by PW.12, the then V.A.O. of Chintapalli Village, S.I. of Police, Pentapadu P.S., has registered the case as Crime No.81 of 1998, under Section 174 of Cr.P.C. After conducting postmortem of the dead bodies, the Viscera was sent to the Forensic Science Laboratory for analysis. On receipt of the report from the Forensic Science Laboratory, the section of law was altered from Section 174 of Cr.P.C. to Section 304 of I.P.C. and Section 37 of the Act. The police, after completion of the investigation, filed charge sheet against A1 to A3 for the offence under Section 304 of I.P.C. and under Section 34 (g) and (h) read with Section 37 (a) of the Act, for adulterating the liquor and selling the same without licence under the guise of belt shop, causing death of Deceased Nos.1 to 3. The learned Sessions Judge has framed charges under Section 304 Part-I of I.P.C. and Section 34 (g) and (h) read with 37 (a) of the Act and all the accused pleaded not guilty for the said charges. The prosecution, in order to establish the said charges, examined 28 witnesses i.e., PWs.1 to 28 and got marked Exs.P1 to P37 and M.Os.1 and 2. On behalf of the accused, no oral or documentary evidence was produced. The learned Sessions Judge, by taking into consideration the said oral and documentary evidence, found A1 to A3 not guilty for the offences under Section 304 Part-I of I.P.C. and Section 34 (g) and (h) of the Act and acquitted them and A1 and A2, who are the appellants herein, are found guilty for the offence under Section 34 (a) of the Act and were convicted and sentenced to undergo Rigorous Imprisonment for six months and also with fine of Rs.5,000/- each in default to undergo simple imprisonment for three months. Aggrieved by the said conviction and sentence, A1 and A2 filed the present appeal. Now the point that arises for consideration is whether the appellants (A1 and A2) can be convicted for the offence under Section 34 (a) of the Act without framing a charge and if so whether the prosecution could able to establish the offence under Section 34 (a) of the Act against the appellants (A1 and A2) beyond reasonable doubt. The learned counsel appearing for the appellants has pleaded that the learned Sessions Judge has not framed any charge under Section 34 (a) of the Act, but convicted the appellants for the said offence and thereby A1 and A2 are prejudiced by not framing the charge. He further contended that Section 34 (a) of the Act is not a minor offence to the offence under Section 34 (g) and (h) of the Act. As such, they cannot be convicted under Section 34 (a) of the Act without framing a charge. The Additional Public Prosecutor has pleaded that Section 34 (a) of the Act is a minor offence and the lower Court has rightly given reasons for convicting the appellants for the offence under Section 34 (a) of the Act and such finding does not warrant any interference by this Court. The learned Sessions Judge framed the charges against A1 to A3 under Section 304 Part-I of I.P.C. and Section 34 (g) and (h) read with 37 (a) of the Act, but all the accused are acquitted for the offence under Section 304 Part-I of I.P.C. and Section 34 (g) and (h) read with 37 (a) of the Act, but convicted A1 and A2 for the offence under Section 34 (a) of the Act. The learned Sessions Judge has observed that Section 34 (a) of the Act deals with selling of liquor without licence, whereas 34 (g) deals with purchase of intoxicant in contravention of the Act and Section 34 (h) of the Act deals with contravention of the Act by possessing any material of intoxicant and is liable for punishment under Section 34 (2) of the Act. As A1 and A2 are found selling Alcohol to the customers without licence, the allegations levelled against A1 and A2 are falls under Section 34 (a) of I.P.C. Since 34 (a) of the Act is a minor offence than 304 Part-I of I.P.C. and under Section 34 (g) and (h) of the Act, the learned Sessions Judge held that no charge need to be framed for convicting for the said offence. Section 34 (g) of the Act deals with in contravention of the Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under the Act. Section 34 (h) of the Act deals with possesses any material or film either with or without Government logo of any District in the State of Andhra Pradesh or any other State or wrapper or any other thing in which intoxicants can be packed or any apparatus or implement or machine for the purpose of packing any intoxicant. Section 34 (a) of the Act deals with imports, exports, transports, manufactures, collects or possesses or sells any intoxicant. The punishment prescribed for the offence under Section 34 (a) of the Act is with imprisonment for a term which shall not be less than six months but which may extend upto three years and with fine, which shall not be less than rupees five thousand but which may extend upto rupees twenty thousand. The offence other than the offence under Section 34 (a) of the Act is with imprisonment which shall not be less than six months but which may extend to one year and with fine which may extend upto Rs.10,000/-. Therefore, the punishment prescribed for the offence under Section 34 (g) and (h) of the Act is lesser punishment than the offence punishable under Section 34 (a) of the Act. Therefore, it cannot be said that the offence under Section 34 (a) of the Act is a minor punishment than the offence under Section 34 (g) and (h) of the said Act. The finding of the learned Sessions Judge that Section 34 (a) of the Act is a minor offence, cannot be accepted. Since charge under Section 34 (a) of the Act is not framed against A1 and A2, they had lost an opportunity to defend the case for the said offence. Therefore, prejudice would be caused to A1 and A2 by not framing a charge under Section 34 (a) of the Act and as such, they cannot be convicted for the said offence. Hence, A1 and A2 cannot be convicted for the offence under Section 34 (a) of the Act without framing a charge. In the result, the Appeal is allowed and the conviction and sentence passed by the learned Sessions Judge, West Godavari District, at Eluru in Sessions Case No.159 of 1999, is herby set aside and the appellants/A1 and A2 are acquitted for the offence under Section 34 (a) of the Act. __________________ P.DURGA PRASAD, J 15th July 2011 Ivd