IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2634 of 2004 DATE: 21.10.2011 Between: Vaddepalli Narasimham and another …… Appellants And State of Andhra Pradesh through Public Prosecutor …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2634 of 2004 JUDGMENT : The appellants 1 and 2/A-1 and A-2 were convicted by the lower Court under 8(c)/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and were sentenced to rigorous imprisonment of 10 years and fine of Rs.1,00,000/- each; and were also convicted under Section 37-A(i)(ii) of the Andhra Pradesh Excise Act, 1968 and were sentenced to Rigorous Imprisonment of Two years and fine of Rs.5,000/- each. Questioning the same, A-1 and A-2 filed this appeal. It is alleged that when the excise officials along with mediators raided house bearing No.1-19 in Yarazarla Village on 28.04.2000 at about 10.30 A.M, A-1 and A-2 were in that house and that after search, they seized 9 liters of toddy in a plastic can and also 200 grams of diazepam in polythene bag. It is further alleged that samples of toddy and diazepam powder were sent for analysis and the samples were found to be toddy and diazepam. Plea of A-1 and a-2 is one of total denial and not guilty. After trial, the lower Court found A-1 and A-2 guilty of both the charges. 2) The appellants’ counsel after filing of the appeal became Special Government Pleader more than one year ago. In spite of it, no alternative arrangements were made by the appellants in this appeal. 3) In support of the prosecution case, two mediators were examined as P.Ws 1 and 2. P.Ws 3 to 5 are from Prohibition and Excise Station, Ongole and they were in the raid party. P.Ws 1 and 2 turned hostile to the prosecution. They were village servants of Yarazarla village. They stated that the excise officials came to Yarazarla village on 28.04.2000 and obtained their signatures in the mediators report. They admitted their respective signatures as Ex.P-1 and P-2 in the mediators report. P.W-3 is Prohibition and Excise constable, P.W-4 is Sub-Inspector of Prohibition and Excise and P.W-5 was Inspector of Prohibition and Excise at Ongole during the relevant period. They speak to raid on house bearing No.1-19 of Yarazarla village on 28.04.2000, finding A-1 and A-2 in the house, searching the said house and finding Diazepam in white polythene bag and 9 liters of toddy in plastic can and seizure of the same under the cover of Ex.P-3 mediators report. They further speak to preparation of sample bottle of toddy and sample packet of Diazepam at the same place in the presence of mediators. M.Os 1 and 2 are the respective samples. M.O-3 is the polythene bag containing Diazepam and M.O-4 is white plastic can containing toddy which were found in that house. When P.W-4 sent the sample packets to Government Chemical Examiner for Prohibition and Excise, after analysis Exs.P-4 and P-5 analysis reports were sent. Ex.P-4 report reads that the sample examined thereunder was toddy free from chloral hydrate and Diazepam. Ex.P-5 reads that the sample examined thereunder was found to be Diazepam. Therefore, finding of the lower Court that the accused was selling toddy adulterated with Diazepam, is incorrect. Evidence of P.Ws 3 to 5 read with Ex.P-3 proved that the accused who were occupying the house at the time of search were in possession of 9 liters of unadulterated toddy as well as Diazepam of 200 grams. 4) P.W-5 deposed that when he was in the Excise Station on that day at about 10.00 hrs, he received credible information. He further says that immediately he entered the same in the general diary and brought the said information to the notice of his superior officer. He further says that both A-1 and A-2 stated that both of them were residing in the house bearing door No.1-19 of Yarazarla village and that he served search proceedings under Section 165 Cr.P.C to the accused and that he also informed the provisions of Section 50 of the Act to the accused in writing about their right to be searched before Gazetted Officer or Magistrate and that the accused did not seek presence of any such officers for search. Since this is not a case of personal search of A-1 or A-2, the question of complying with Section 50 of the Act may not arise at all in this case. Ex.P-7 is the notice served on the accused under Section 50 of the Act. This is only a case of house search. P.W-5 also sent Ex.P-8 report of arrest of the accused and seizure of contraband to his superior official under Section 57 of the Act on the same date. The fact that P.W-5 noted information received by him in general diary of the station and brought the same to the notice of his superior official, is sufficient compliance of Section 42(2) of the Act. There are no statutory violations in this case at the time of search of the house, seizure of the contraband and arrest of the accused. On the basis of Ex.P-3 mediators report, Ex.P-6 F.I.R was issued. 5) At any rate, quantity of Diazepam seized in this case is only 200 grams. As per the notification issued under Section 2 (viia) and (xxiiia) of the Act, 20 grams of Diazepam is small quantity and 500 grams of Diazepam is commercial quantity. Quantity of Diazepam seized in this case is less than commercial quantity and above small quantity. Therefore, the lower Court should have found the accused guilty under Section 22(b) of the Act and not under Section 22(c) of the Act. As per clause (b) of Section 22 of the Act, where the contravention in relation to psychotropic substances involves quantity lesser than commercial quantity but greater than small quantity, the person is liable to be sentenced with Rigorous Imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. There is no statutory minimum of sentence prescribed under that clause. 6) The lower Court erred in finding A-1 and A-2 guilty under Section 37-A of the A.P. Excise Act because there was no adulteration of any liquor in this case which is likely to cause death etc., As per Ex.P-4 analysis report, sample of toddy was found to be free from Chloral Hydrate and Diazepam. 7) In the result, the appeal is partly allowed setting aside the conviction and the sentence passed by the lower Court against the appellants 1 and 2/A-1 and A-2 in respect of the offence under Section 37-A(i)(ii) of the A.P. Excise Act; and the appeal is further partly allowed altering conviction of the appellants 1 and 2/A-1 and A-2 from Section 8(c)/22(c) of the Act to Section 8(c)/22(b) of the Act and altering the sentence to rigorous imprisonment of one year and fine of Rs.5,000/- and in default to suffer simple imprisonment of three months. _______________________________ SAMUDRALA GOVINDARAJULU, J October 21, 2011 ksh