HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2209 of 2004 Date:03.02.2011 Between: Krosuri Madhava Rao ….Appellant And: The State of A.P., rep. by PP., High Court of A.P. .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2209 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the I Additional Sessions Judge, Guntur in S.C.No.41 of 2001 on 16.9.2004. The appellant herein was prosecuted for the offence punishable under Section 22 of N.D.P.S Act and Section 36(a) of A.P. Excise Act, 1968 alleging that the accused is running a toddy shop bearing Licence No.21/96-97 at Karlapudi village. On 29.6.1996 the Sub Inspector of Police, Prohibition & Excise, Mangalagiri along with his staff members inspected the shop of the accused at about 3.00 p.m and the accused failed to produce the Inspection book and also failed to display the shop board. On verification, the Sub Inspector of Police found 10 litres of toddy in the shop. He drawn 350 ml., of toddy as a sample into a separate bottle for analysis and sealed the same after affixing identity slip under cover of Special Report. P.W.1 has registered the case in P.R.544/95-96 under Sections 24 and 41 of A.P. Excise Act and took up the investigation and sent the sample for analysis and on analysis, it was found that the toddy is free from Chloral Hydrate but mixed with Diazepam. On 13.10.98 the accused was arrested at Old Bus Stand Centre, Mangalagiri and remanded to judicial custody. Hence, the accused is liable for punishment under Section 22 of N.D.P.S Act and under Section 36(a)(i) of A.P. Excise Act. The lower court has framed the charge under Section 8(c ) read with Section 22 of N.D.P.S.Act and Section 36(a)(i) of A.P. Excise Act against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the charges, examined P.Ws.1 and 2 and got marked Exs.P.1 to P.8 and M.O.1. The learned I Additional Sessions Judge, Guntur by taking into consideration of both oral and documentary evidence found the accused guilty for the offence under Section 8 (c ) read with Section 22 of N.D.P.S., Act and sentenced him to undergo rigours imprisonment for six months and to pay a fine of Rs.1,000/- in default for three months for offence under Section 36(a)(i) of A.P. Excise Act. Aggrieved by the said conviction and sentence, the present appeal is filed by the appellant. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Section 8(c ) and read with Section 22 of N.D.P.S Act and under Section 36(a) (i)of A.P. Excise Act beyond reasonable doubt? The learned counsel for the appellant has pleaded that even though the name of the accused was known to the Excise Officials at the time of seizure of the sample, his name was not mentioned in the said report Ex.P.1 and also pleaded that the Excise Officials have not followed the procedure as prescribed under Rule 24 and 24(a) of A.P. Excise (Arrack Toddy Licence General Condition) Rules, 1969 for drawing a sample and sealing the same. He also further pleaded that the said sample was sent for analysis after one year and therefore, it is doubtful whether the sample seized from the accused was sent for analysis or not. Therefore, the accused is entitled for a benefit of doubt. The learned Public Prosecutor, on the other hand, pleaded that the drawing of the three samples is only for the purpose of giving an opportunity to the accused for sending the second sample for analysis and report and the accused has not availed that opportunity. He further pleaded that the evidence of P.W.2 is sufficient to establish the seizure of the sample and the analysis report clearly shows that the sample collected from the shop of the accused and as such the prosecution could able to establish the charges as framed against the accused beyond reasonable doubt. The P.W.1 Shaik Imam Saheb, Head Constable working at Pedakurapadu Prohibition and Excise Station has stated that he worked as Head Constable at Mangalagiri from 16.1.1995 to 26.7.1996. On 29.6.1996 at 3.00 p.m himself, and the Sub Inspector of Police and his staff belonging to Excise Department went to inspect the T.F.T shops at Karlapudi in Amaravathi Mandal. By the time they went there the accused who was present in the court hall was present in the said shop as the member of the T.F.T. They found a mud pot with about ten litres of toddy in the said shop and then S.I of police asked the accused to produce the inspection book before him but the accused failed to produce the said inspection book before the S.I of Police as directed. The police also found no board to the said shop. Then the police had taken 350 mille letters of toddy from out of the ten litres of toddy which was found in the mud pot as a sample. A special report was drafted. Ex.P.1 is the report. But Ex.P-1 report does not contain the name of the accused. In the cross- examination, P.W.1 admitted that the name of the accused was kept blank in Ex.P.1. He also admitted in his cross-examination that there is only one signature on M.O.1 and it is the signature of the Inspector of Police. M.O.1 sample bottle was not covered with a paper. The entire sample bottle was tied with a thread from top to bottom and then sealed. The learned counsel for the appellant has relied upon a decision rendered in Prohibition and Excise Inspector, Kovur v. Madaparthi Srinivasulu[1] wherein a single Judge of this Court has held that when the procedure contemplated under Rules 24, 24-A and 24-B of A.P. Excise (Arrack and Toddy License General Conditions) Rules, 1968 have not followed and the accused cannot be convicted for an offence under Section 22 of N.D.P.S Act and under Sections 36, 72 of A.P. Excise Act. Rule 24 of the A.P. Excise (Arrack and Toddy License General Conditions) Rules, 1968 contemplate the procedure for drawing of the sample and Rule 24-A deals with sealing and labelling and addressing the Samples and Rule 24-B deals with Manner of Despatching the samples. As per Rule 24, the three samples have taken 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 and the said sample has to be sent to the court with a requisition to send, one of the samples expeditiously to the chemical Examiner of the Excise of 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 drawl of the sample. In the present case admittedly only one sample was drawn from the Toddy found in the shop of the accused and no Panchanama was conducted even though the public were available on the road. With regard to following of the procedure prescribed for packing and sealing of the sample as prescribed under Rule 24-A, the prosecution has not complied with Rule 24-A, and Rule 24 in drawing the sample from the shop of the accused. More over, no Panchanama was conducted while drawing the samples. P.W.1 has admitted that they did not try to get any mediators before drawing the sample and admitted that the public was moving on the road at the place of drawing a sample. In another decision rendered in Mudavath Mothia vs. State of A.P[2] a Single Judge of this Court has observed that while drawing the samples when Panchanama was not conducted and the mediators are not examined before the court, it is fatal to the case of the prosecution. Therefore, when Panchanama was not conducted by the investigating agency in the presence of independent mediators, it doubtful whether the said sample was drawn from the shop of the accused. With regard to sending of the sample for analysis which is drawn by the Excise Officials, the learned counsel for the appellant has drawn the attention of this Court to Ex.P.8 which is the analysis report. It shows that the sample was received from them by a letter Dis.No.2084 dated 15.7.1997. Whereas the sample was drawn on 29.6.1996. Therefore, the said sample was sent for analysis after a period of one year. More over no evidence was produced by the Investigating Agency to show that during the said period, the sample was kept in a safe custody. The learned counsel for the appellant has relied upon a decision rendered in Valsala v. State of Kerala[3] wherein the Apex Court has held that “Safe custody of seized article and delay of more than three months in sending seized article to Court and no evidence to show that article was sealed and kept in proper custody in police station and as such it is highly doubtful for such a sample was seized by the investigating agency. Therefore, in the present case, no explanation was given by P.W.2 with regard to delay in sending the sample for analysis and during the period of one year, the said sample was kept in a safe custody. Therefore, in the above circumstances, I hold that it is not safe to rely upon the evidence of P.W.1 to establish the drawing of sample from the shop of the accused and non- compliance of Rule 24 and Rule 24-A of A.P. Excise (Arrack and Toddy License General Conditions) Rules, 1968 is fatal to the case of the prosecution. Hence, I hold that the prosecution has failed to establish the offence against the accused as alleged. Thus, the lower court is not justified to convict the accused for the above said offences. Hence, the appeal is allowed and the conviction and sentence passed by the I Additional Sessions Judge, Guntur in S.C.No.41 of 2001 dated 16.09.2004 is hereby set aside. _____________________ P.DURGA PRASADJ. Date:03.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2209 of 2004 Date:03.02.2011 Gk. [1] 2004 CRI.L.J.3813 [2] 2002-ALT(Cri)1-437 [3] AIR 1994 Supreme Court 117