IN THE HGIH COURT OF JUDICATURE OF ANDHRA PRADESH THURSDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TEN PRESENT: HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No.315 OF 2008 BETWEEN: G. Rajagopala Reddy …. Petitioner AND The State of A.P., rep. by Public Prosecutor, High Court of A.P. …. Respondent HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No.315 OF 2008 ORDER: This Criminal Petition, under Section 482 Cr.P.C., is filed by the petitioner – accused No.2 seeking to quash the proceedings against him in S.C. No.25 of 2007 on the file of the Metropolitan Sessions Judge-cum- Special Judge for trial of the Cases under NDPS Act cum, Visakhapatnam. 2. Heard both sides. 3. The offence alleged against the petitioner is under Section 8 (c) read with 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). The allegations in the charge sheet are that on 12-07-1996, upon the instructions of the Assistant Commissioner of Prohibition and Excise, Visakhapatnam, a raid was conducted on M/s.R.B. Enterprises in Devi Towers Building, Akayyapalem, Visakhapatnam, wherein A-1 was present. On verification of the building, the raid party found 36 Card Board boxes of Pep-up Black Lable Non-alcoholic Beer Bottles each 650 ml. The Prohibition & Excise Inspector drawn three bottles as samples, sealed them and after affixing the identification slips under the cover of special report, instructed A-1 to keep the stock, until further orders. On 15-07- 1996, one of the samples was sent to the Chemical Examiner, Regional Excise Laboratory, Visakhapatnam for analysis. The Chemical Examiner, on examination of the sample, opined that sample sent vide CE No.1036/96, dated 15-07-1996 contains Diazepam. On 17-07-1996, the Prohibition & Excise Inspector went to M/s.R.B. Enterprises to arrest A-1 and to seize the stock, as per the instructions of the Assistant Commissioner of Prohibition and Excise, Enforcement, Visakhapatnam, along with the staff and mediators. But, A-1 was not present in the building. As A-1 left the town, the Excise Inspector seized 431 Pep-up Black Lable Non-alcoholic Beer Bottles in the presence of the mediators and registered Crime No.514/95-96 under Section 22 read with Section 8 (c) of NDPS Act against the accused. During the investigation, the Excise Inspector sent another sample bottle to the State Food Laboratory, Hyderabad for analysis. The Chief Public Analyst, after due analysis, opined vide Dis.No.310 dated 13-02-1997 that the sample sent in Crime No.514/95-96 contained Alprazolum and therefore, it was adulterated. 4. Learned counsel for the petitioner (A-2) contended that there is no evidence to show that the petitioner is the wholesaler in marketing the Pep-up Black Lable Non-alcoholic Beer, that in view of the amendment to Section 22 of the NDPS Act in the year 2001, the quantities of various substances were introduced and that what quantity of psychotropic substance that was found in the Beer bottles is not clear, that the first report which was given by the Chemical Examiner shows that there was presence of Diazepam and another report which was given by the Chief Public Analyst shows that there was presence of Alprazolum, that the second report is quite contrary to the first report and therefore, continuation of proceedings against the petitioner is nothing but abuse of process of Court. 5. On the other hand, learned counsel representing the learned Public Prosecutor contended that the evidence on record would go to show that A-1 purchased the Beer Bottles in question from the petitioner (A-2) and the petitioner was the wholesaler and therefore, he prays to dismiss the petition. 6. The offence alleged against the petitioner is violation of Section 8 (c) punishable under Section 22 of the NDPS Act. Section 8 (c) of the NDPS Act reads that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tarnship any narcotic drug or psychotropic substance, unless by way of licence, permit or authorization. Admittedly, the petitioner is not having any licence, permit or authorization given by the competent authority. 7. No doubt, the quantities of various psychotropic substances, viz., small quantity, commercial quantity and quantity between small and commercial quantity, are defined by virtue of amendment to Section 22 of the NDPS Act, but, what is small quantity or commercial quantity, have to be decided after considering the evidence on record. But, non-mentioning of the quantity of the psychotropic substance that was found in the Beer Bottles, cannot be a ground to quash the proceedings. Further, Section 22 of the NDPS Act provides for punishment for contravention of any provision, even if small quantity of psychotropic substance is in possession. 8. The other contention is that there is no material to show that the petitioner (A-2) was the wholesaler of the Beer Bottles in question. A specific mention was made in the mediators’ report that when the Beer Bottles were seized from the possession of A-1, he categorically stated that he purchased the same from the wholesaler i.e. the petitioner herein. Therefore, that statement would clearly reveal that the petitioner was doing the wholesale business of Beer Bottles. When the Police found 36 Card Board boxes of Pep-up Black Lable Non-alcoholic Beer Bottles, each containing 650 ml., 3 bottles have been seized, one bottle was sent to the Chemical Examiner on one date and the police again seized the bottles and sent another bottle to the Public Analyst on another date. As per the report dated 15-07- 1996, the sample bottle contained Diazepam whereas the report dated 13-02-1997 would disclose about the presence of Alprazolum. On two occasions, two different sample bottles have been analysed by the analysts and the first report discloses the presence of Diazepam and the second report discloses the presence of Alprazolum. But, on this ground, the proceedings against the petitioner cannot be quashed. Therefore, the allegations, if taken as true and correct, at this stage, made out a prima facie case against the petitioner. Hence, there are absolutely no grounds to quash the present petition. 9. The Criminal Petition is, accordingly, dismissed. Observations, made in this order, are only for the purpose of disposal of this case. Uninfluenced by any observations and findings made in this order, the trial Court shall dispose of the case in accordance with law. ____________ K.C. BHANU, J July 22, 2010. KTL