IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2134 of 2004 DATE: 21.12.2011 Between: Sanjanna Goud …… Appellant And The State of A.P, rep. by Public Prosecutor, High Court of A.P, Hyderabad …… Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2134 of 2004 JUDGMENT : The appellant/accused was convicted by the lower Court under Section 37-A(3) of the Andhra Pradesh Excise Act and was sentenced to rigorous imprisonment of three years and fine of Rs.3,000/-. Questioning the same, the accused filed this appeal. 2) It is prosecution case that the accused is toddy licence holder of Boyapalli village running toddy shop in that village by employing P.W-4 for selling toddy in that shop and that the accused was manufacturing toddy mixed with Chloral Hydrate and supplying the adulterated toddy in his shop to the customers and that on 14.02.2002 around 10.45 P.M. the deceased Murgani Anjaneyulu consumed adulterated toddy in shop of the accused and on the way to his house fell down in front of school at Jainallipur and died because of consuming adulterated toddy mixed with Chloral Hydrate. On these allegations, the investigating officer filed charge sheet before the Magistrate alleging the offence under Section 37-A of the Andhra Pradesh Excise Act (in short, the Act). Even though the said offence is triable by the Magistrate, the Special Judicial Magistrate of the First Class for Excise cases committed the case to the Court of Session and it was registered as Sessions Case by the latter Court. The Additional Sessions Judge framed charge against the accused under Section 37-A of the Act. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found him guilty of the charge. 3) It is contended by the appellant’s counsel that committal of the case involving offence under Section 37-A of the Act to the Court of Session is without jurisdiction and that there was no evidence to show that the deceased Anjaneyulu consumed toddy from shop of the accused before his death. It is further contended that collection of samples of toddy by the head constable P.W-9 is contrary to Rule 24 and 24-A of the A.P.Excise (Arrack and Toddy Licences General Conditions) Rules, 1969 and that therefore conviction of the accused is vitiated. 4) Even though the offence punishable under Section 37-A of the Act is triable by a Magistrate, committal of the said case to the Court of Session and trial of the case by the Court of Session will not amount to without jurisdiction. At best they may amount to irregularity which may not go to root of the matter. In case an offence triable by Court of Session is disposed of by a Magistrate, then it becomes without jurisdiction and an illegality and not vice-versa. 5) P.W-1 is wife of the deceased. P.Ws 2 and 3 are parents-in-law of the deceased. P.W-4 is worker in toddy shop of the accused in Boyapalli village. All of them turned hostile to the prosecution. P.Ws 1 to 3 deposed that they do not know as to how the deceased died. P.W-4 deposed that he does not know whether the deceased was consuming toddy in shop of the accused. P.W-6 is Civil Assistant Surgeon in Government Head Quarters Hospital, Mahaboobnagar, who conducted Post Mortem examination on dead body of the deceased and issued Ex.P-6 Post Mortem Certificate along with final opinion. During Post Mortem examination, P.W-6 preserved viscera and it was sent to Forensic Science Laboratory for chemical examination. After chemical examination, Forensic Science Laboratory, Hyderabad sent Ex.P-7 report. On the basis of Ex.P-7, P.W-6 gave final opinion of cause of death of the deceased to the effect that he died of Chloral Hydrate a hypnotic along with Ethyl Alcohol. But there is no connection between death of the deceased with shop of the accused. 6) During the course of investigation, P.W-9 deposed that he went to toddy shop in Boyapalli and seized two bottles of toddy under a panchanama, relevant portion of which was marked as Ex.P-12. He says that he prepared the file and handed over the same to the Sub-Inspector. P.W-8 is the Sub-Inspector of Police, Mahabubnagar Rural Police Station. He arrested the accused and filed charge sheet after completing investigation. None of the police officers speak to sending of seized bottle of toddy for chemical examination. There is nothing on record to show that the police officers took any steps either through Court or through their higher officers to send bottle of toddy seized under Ex.P-12 to Forensic Science Laboratory. But Ex.P-7 Forensic Science Laboratory report reads that a bottle with whitish turbid liquid was received in that laboratory labelled as Crime No.35/2002 of Mahabubnagar Rural Police Station. After analysis, report was sent to the effect that viscera as well as the said bottle contents contained Chloral Hydrate a hypnotic substance along with Ethyl Alcohol. It is further reported therein that 1300 Mgs of Chloral Hydrate was found in contents of that bottle. P.W-9 except stating that he seized two bottles of toddy under Panchanama, did not state that those bottles were sealed and packed. P.W-7 who is one of the mediators in Ex.P-12 deposed that in his presence the police did not seize toddy bottles from shop of the accused at any time. From the above reading and analysis of the prosecution evidence, it is evident that apart from there being no connection between death of the accused and toddy being sold in shop of the accused at Boyapalli, the prosecution failed to prove that the bottles of toddy seized from shop of the accused were sent to Forensic Science Laboratory for analysis. In the light of the above state of affairs in prosecution evidence, the lower Court erred in finding the accused guilty under Section 37-A of the Act. I do not agree with reasoning and conclusion of the lower Court. 7) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J December 21, 2011 ksh