( 1 ) ALLEGING that the petitioners who were found in possession of five whisky and rum bottles, confessed that they intend to sell them without any licence for that purpose, the S. H. O. , Tadepallegudem I town PS registered a case in Cr. No. 35 of 1999 under Section 34 (1) (i) of A. P Excise Act and sec. 8 (b) (i) of A. P Prohibition Act and later filed charge sheet against the petitioners under the said provision, which was taken cognizance is C. C. No. 942 of 2000. This petition is filed to quash the proceedings against the petitioners in the said C. C. ( 2 ) HEARD both sides. ( 3 ) ACCORDING to the charge sheet, first petitioner was in possession of 5 quarter bottles of Kerala malt whisky, and one quarter bottle of Hayward whisky and 2nd petitioner was in possession of 2 quarter bottles of Seller whisky, 3 quarter bottles of Crown whisky, 2 quarter bottles of rusthum XXX rum and one quarter bottle of contessa whisky. In pursuance of the power vested in it by section 14 of the A. P Excise Act, which lays down that Government can by notification specify the maximum quantity of any intoxicant which a person may have in his possession without licence, Government of A. P. issued G. O. Ms. No. 268 Revenue (Ex. III) dated 01. 04. 1997 prescribing maximum quantity of intoxicants which person may have in possession at a time without a permission or licence w. e. f. 18. 04. 1997. It reads: in exercise of powers conferred in sub-section (1) of Section 14 of the Andhra Pradesh Excise Act, 1968 (Andhra Pradesh Act 17 of 1968), the Governor of Andhra Pradesh hereby specifies the maximum quantity of the intoxicants which a person may have in his possession at a time without a permit or licence with effect from 18-4-1997. Maximum Quantity of Intoxicants which a person may have in possession without permit: 1. Indian Liquor : Six (6) Quart bottles each 750 Ml. 2. Foreign Liquor : Six (6) Quart bottles each 750 Ml. 3. Denatured Spirit : Three (3) Bulk Litres. 4. Methylated Spirit : Three (3) Bulk Litres. 5. Beer : Twelve (12) bottles each 650 Ml. 6. Toddy : Two (2) Bulk Litres. 7. Rectified Spirit : No quantity 8. Indian Liquor : Six (6) Quart bottles each 750 Ml. 2. Foreign Liquor : Six (6) Quart bottles each 750 Ml. 3. Denatured Spirit : Three (3) Bulk Litres. 4. Methylated Spirit : Three (3) Bulk Litres. 5. Beer : Twelve (12) bottles each 650 Ml. 6. Toddy : Two (2) Bulk Litres. 7. Rectified Spirit : No quantity 8. Intoxicating drugs : No quantity since the quantity of 1 M. L. found in possession of the petitioners is far less that the quantity prescribed in the aforesaid G. O. , petitioners cannot said to have committed an offence under Section 34 of the Excise Act. ( 4 ) BUT since the charge sheet states that petitioners are liable for punishment under Section 34 (1) (i) of A. P. Excise Act it is likely to give rise to some confusion. To avoid such confusion it is necessary to trace the history of Section 34 of A. P. Excise Act, which was amended by A. P. Excise Amendment Act, 1994 (Act 4 of 1994) which came into force on 26. 11. 1993 by placing A. P Excise Amendment Ordinance 1993. Prior to 1994 amendment, Section 34 of the Act read as follows: penalties for illegal import, etc. 11. 1993 by placing A. P Excise Amendment Ordinance 1993. Prior to 1994 amendment, Section 34 of the Act read as follows: penalties for illegal import, etc. :- Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act.- (a) imports, exports, transports, manufactures, collects or possesses any intoxicant; or (b) cultivates the hemp plant, or fails to take the measures prescribed for checking the spontaneous growth or the extirpation of the hemp plant or collects any portion of such plant from which an intoxicating drug can be manufactured; or (c) taps any excise tree; or (d) draws toddy from any excise tree; or (e) constructs or works any distillery or brewery; or (f) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or (g) bottles any liquor for purpose of sale; or (h) sells or buys any intoxicant; or (i) removes any intoxicant from any distillery, brewery or warehouse licensed, established or continued under this Act shall on conviction, be punished:- (i) In the case of an offence falling under clause (a), clause (e), clause (f) or clause (i) with imprisonment for a term which shall not be (less than six months and with fine which shall not be less than five times the value of the duty playable but shall not exceed ten times of such value in case where the value of duty is assessed, and in other cases, with fine which shall not be less than five thousand rupees ). (ii) in any other case, with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. ( 5 ) THE statement of objects and reasons for amendment to Section 34 are mentioned in A. P. Act 4 of 1994 as in order to effectively implement the new Excise Policy as well as the ban on arrack and in order to implement the recommendations of the said sun-committee, the Government have decided to amend the Andhra Pradesh Excise Act, 1968 suitably to achieve the following objectives: i) to widen the scope of the definition of word bottle so as to include therein tins, barrels, cases, any receptacle, bag or wrapper etc. (Clause 2 (i) of the Bill ). (ii) Section 34 relates to penalties for illegal import etc. , of intoxicants. Clause 9 (A) of that section as it now stands relates to the offences of import, export transport, manufacture, collection or possession of any intoxicant and the punishment prescribed therefore is imprisonment for a term which shall not be less than six months and fine which shall not be less than five times the value of the duty payable on the intoxicant involved in the offence. The punishment prescribed as the provision now stands, is the same whatever be the quantity of the intoxicant involved in the offence. It has been decided to enhance the punishment for the illegal import, export etc. , of intoxicant and to impose a higher punishment where the quantity of the intoxicant involved is more. Therefore, it is proposed to notify the quantity for the purpose of imposing graded punishments. ( 6 ) AFTER its amendment, by virtue of Act 4 of 1994, Section 34 of A. P. Excise Act reads as follows: penalties for illegal import etc. Therefore, it is proposed to notify the quantity for the purpose of imposing graded punishments. ( 6 ) AFTER its amendment, by virtue of Act 4 of 1994, Section 34 of A. P. Excise Act reads as follows: penalties for illegal import etc. :- Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or b) taps any excise tree; or c) draws toddy from any excise tree; or d) constructs or works any distillery or brewery; or e) uses, keeps or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or f) bottles any liquor for purposes of sale; or g) buys any intoxicant; or h) possesses any material or film either with or without government logo of any district in the State of Andhra Pradesh or any other State or wrapper or any other thing in which intoxicants can be packed or any apparatus, or implement or machine for the purpose of packing any intoxicant; i) removes any intoxicant from any distillery, brewery or ware house licensed, established or continued under this Act; shall on conviction be punished.- 1) in the case of an offence falling under Clause (a ).- j) Where the intoxicant involved in the offence is less than such quantity as may be notified in this behalf with imprisonment for a term which shall not be less than six months but which may extend upto three years and with fine which shall not be less than rupees five thousand but which may extend upto rupees twenty thousand; ii) Where the intoxicant involved in the offence is not less than the quantity notified as aforesaid with imprisonment for term which shall not be less than one year and which may extend upto five years and with fine which shall not be less than rupees ten thousand but which may extend upto rupees one lakh; and 2) in the case of an offence other than an offence falling under Clause (a) with imprisonment which shall not be less than six months but which may extend to one year and with fine which may extend upto rupees ten thousand. ( 7 ) AS per G. O. Ms. No. 146 Revenue (Ex-III), dated 14. 2. 1994 issued under Section 34 of A. P. Excise Act the Government notified the following quantities: 1) Arrack - (500) litres 2) illicity distilled liquor - (100) 3) toddy (300) litres 4) (a) I. M. L. (Duty paid) - (192) quart bottles 5) Beer a) Non-duty paid (48) quart bottles b) Duty paid (384) quarat bottles c) Bhung (500) grams. ( 8 ) SINCE both Sections 14 and 34 of A. P Excise Act empower the government to issue notifications, Notifications under Section 14 and Section 34 of the A. P. Excise Act have to be read harmoniously, for understanding the punishment prescribed for violation of Section 34. In view of G. O. Ms. No. 146 Excise Revenue dated 14. 2. 1994 read with G. O. Ms. No. 268 dated 1. 4. 1997 read with extracted above, it is easy to see that Section 34 (1) (i) of A. P. Excise Act relates to cases of persons holding quantity in excess of the quantity prescribed in G. O. Ms. No. 268 Revenue (Ex. III) dated 1. 4. 1997, and less than the quantity prescribed in G. O. Ms. No. 146 Revenue (Ex. III) dated 14. 2. 1994 and Section 34 (i) (ii) of the A. P. Excise Act relates to persons holding quantity in excess of the limits prescribed by G. O. Ms. No. 146 dated 14. 2. 1994. ( 9 ) SECTION 34 (1) (i) would not apply to the petitioners because petitioners cannot be said to have committed any offence under the A. P. Excise Act because of the notification in G. O. Ms. No. 268 dated 01. 04. 1997 extracted above. ( 10 ) SECTION 8 (b) of the Andhra Pradesh Prohibition Act, 1995 reads: whoever possesses, collects, buys, sells, transports, produces or manufactures any liquor other than arrack except in accordance with the provisions of the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968 ). Or the terms of any rule, notification, order, licence or permit issued thereunder) shall be punished. So it is clear an offence Section 8 (b) of A. P. Prohibition Act is committed only when an offence under A. P. Excise Act is committed. Or the terms of any rule, notification, order, licence or permit issued thereunder) shall be punished. So it is clear an offence Section 8 (b) of A. P. Prohibition Act is committed only when an offence under A. P. Excise Act is committed. When the petitioners cannot be said to have committed an offence under the A. P. Excise Act, question of petitioners committing an offence under Section 8 (b) of the A. P. , Prohibition Act does not arise. ( 11 ) THEREFORE continuation of proceedings against the petitioners is but an abuse of process of law and hence, the proceedings against the petitioners in C. C. No. 492 of 2000 are liable to be and hence are quashed. Before parting with the case, I place on record my appreciation for the serviced rendered by Sri. P. V. Vidhyasagar as amicus curae.