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2003 DIGILAW 334 (AP)

A. Vidya Prakash Goud v. State Of A. P.

2003-03-03

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS petition under Section 482 of the code of Criminal Procedure seeks to quash the proceedings in C. C. No. 1/2000 on the file of the learned Additional Sessions Judge, mahaboobnagar. ( 2 ) THE brief facts that are necessary for disposal of the present petition are that on 25-1-1996 at about 3. 00 p. m. , on prior information, the excise police went to the outskirts of Kothapet village and while conducting a route watch they found a lorry bearing No. AP 28t 32273 with 12 plastic blue colour barrels of 200 Itrs. capacity with toddy, that A-1 and A-2, who were present in the lorry at that time, failed to produce any license or permit, that the police took two samples of toddy after observing formalities and registered a case under Section 34 (a) of the A. P. Excise Act, 1968, that the police deposited the samples with the Special judicial I Class Magistrate for Prohibition and excise, Mahaboobnagar, tha t one simple was sent to the Chemical Analyzer, that the chemical Analyst opined that the sample was fermented toddy adulterated with diazepam, that after investigation it came to light that A-1 and A-2 were illegally transporting toddy as per the instructions of a-3, and A-4, the owner of the vehicle, provided the vehicle for illegal transportation of toddy/and that the accused committed offences punishable under Section 8 (c) read with Section 22 of the Narcotic Drugs and psychotropic Substances Act, 1985. The case was registered as C. C. No. 1/2000 on the file of the learned Additional Sessions Judge, mahaboobnagar. To quash the said proceedings, A-3 and A-4 filed the present petition. ( 3 ) THE only ground raised by the learned counsel for the petitioners is that there was a delay of nearly four years in sending the sample, which was found fermented beca use the real values would not have been derived when the Analyst analysed the samples. To quash the said proceedings, A-3 and A-4 filed the present petition. ( 3 ) THE only ground raised by the learned counsel for the petitioners is that there was a delay of nearly four years in sending the sample, which was found fermented beca use the real values would not have been derived when the Analyst analysed the samples. On the other hand, the learned Additional Public prosecutor contended that the Chemical analyser did not say that the sample toddy was unfit fof analysis and in fact the Analyst found Diazepam in the toddy, and that even if due to administrative reasons there was delay in sending the samples for analysis, the toddy would not have derived or developed Diazepam because of any chemical process due to the delay in conducting analysis. He, therefore, prays to dismiss the petition. ( 4 ) LEARNED counsel for the petitioners relied upon a decision in D. Shiv Kumar v. D. C. of Excise, A. P. , Hyderabad, wherein a division Bench of this Court has held that chemical examination can be made with regard to sample of arrack or toddy within a reasonable time limit and thereafter the sample may not be fit for chemical examination due to decomposition and therefore sending the sample with the licensee for chemical examination after more than six months cannot be ordered. ( 5 ) AS seen from the charge-sheet, the samples in question were lifted on 21-1-1996 and deposited with the learned Magistrate on 4-ll-1999,and on 15-ll-1999 thechemical analyser gave opinion that the sample was fermented toddy adulterated with diazeapam. ( 6 ) THERE cannot be any dispute that diazepam is a psychotropic substance, as per serial No. 43 oi the Schedule to the n. D. P. S. Act. The chemical name of diazepam is 7-Chloro-1, 3-dyhydro-1 methy 15-Phenyl-2h-1, 4-benzodiaze pin-2- one . In view of this chemical structure, it cannot be doubted that Diazepam cannot develop in fermented toddy, even if there is a lapse of time in conducting chemical examination of toddy. As rightly pointed out by the learned Additional Public prosecutor, this chemical substance cannot be derived due to fermentation or due to some chemical reaction in toddy. In view of this chemical structure, it cannot be doubted that Diazepam cannot develop in fermented toddy, even if there is a lapse of time in conducting chemical examination of toddy. As rightly pointed out by the learned Additional Public prosecutor, this chemical substance cannot be derived due to fermentation or due to some chemical reaction in toddy. Therefore, by no stretch of imagination can it be said that Diazepam as found by the Chemical analyser in the samples in question was a result of chemical reaction in the toddy due to lapse of time in conducting the chemical examination. It is pertinent to note that in the above-cited case, this Court has held that, after a reasonable time the sample may not be fit for chemical examination. (Emphasis supplied by me ). In the present case, the chemical Analyser did not opine that the toddy was adulterated because of fermentation. He found a totally new substance in the toddy. Therefore, it cannot be said that due to the delay in sending the samples for chemical examination, Diazepam had developed in the toddy due to reaction by chemical process. ( 7 ) SECTION 8 (c) of the N. D. P. S. Act lays down 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 tranship any narcotic drug or psychotropic substance, except for medical or scientific purpose and in the manner and to the extend provided by the provisions of the Act. Section 22 is the penal provision which provides that whoever, in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter- state or uses any psychotropic substance, shall be punishable with imprisonment. ( 8 ) ACCORDING to the charge-sheet, 1st petitioner-A-3 was the supplier of toddy and as per his instructions, A-1 and A-2 were transporting toddy to several villages, viz. , sangam, Kothapet, Santhapur, Eklaskhanpet and Velijerla etc. 2nd petitioner-A-4 was the owner of the vehicle seized in the present case while it was transporting toddy. It is also specifically stated in the charge-sheet that petitioners actively participated and were responsible for illegal transportation of toddy from Rallaguda village to the above- mentioned village. , sangam, Kothapet, Santhapur, Eklaskhanpet and Velijerla etc. 2nd petitioner-A-4 was the owner of the vehicle seized in the present case while it was transporting toddy. It is also specifically stated in the charge-sheet that petitioners actively participated and were responsible for illegal transportation of toddy from Rallaguda village to the above- mentioned village. Therefore, prima facie offences under Section 8 (c) read with section 22 of the N. D. P. S. are made out against the petitioners. As already stated supra, the delay in sending the sample for chemical analysis would not cause prejudice to the petitioners. Therefore, it is not a fit case to invoke inherent powers under Section 482 cr. P. C. The petition is, therefore, dismissed. However, any observations made in this order are only for the limited purpose of deciding this petition and shall not have any effect in the case.