The court declined to grant anticipatory bail to accused persons facing trial for adulterated toddy containing alprazolem. The court directed the petitioner to surrender and seek regular bail instead.
Petitioner advised to surrender and move for regular bail. Application for anticipatory bail dismissed.
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HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No.9932 of 2016
ORDER:
The petitioners, who are accused Nos.1 and 2, filed the present Criminal Petition under Section 438 Cr.P.C. seeking release in the event of their arrest in connection with Crime No.984-2013-2014 of Prohibition and Excise Kodangal, registered for an offence punishable under Rule 27 (1) of A.P.Excise Rules, 2007.
The case of the prosecution is that on 10.10.2013 at about 9.30 a.m. the Excise Officials ie. Enforcement Party, Ranga Reddy District, inspected the toddy shop, Burhanpur Village, tested the toddy and found the same free from chloro hydrate, but however on suspicious the excise officials seized three samples of toddy and sent them to an expert. The analyst opined that the toddy was adulterated with alprazolem. Basing on these allegations the above case came to be registered.
Heard learned counsel for the petitioners and Public Prosecutor appearing for the respondent-State.
Learned counsel for the petitioners submits that in view of the orders passed by this Court in W.P.No.4397 of 2014 the authorities failed to send the second sample for analysis, as such the petitioner is entitled for the relief. The same is opposed by the Public Prosecutor on the ground that a copy of the order was not communicated to the authorities.
As seen from the material on record after receipt of analyst report dated 07.01.2014, the petitioner herein filed W.P.No.4397 of 2015 seeking issuance of writ of Certiorari calling for records
pertaining to order No.Rc.No.B1/54/2014, dt. 03.02.2014 issued by the respondent herein and to quash the same. The order came to be passed on 20.02.2014 and the same was dispatched to the petitioner on 04.03.2014. Much prior to the date of receipt of the order, the petitioner made a representation dated 21.02.2014 before the Prohibition and Excise Superintendent, Mahaboobnagar, without enclosing the copy of the order. The averments in the representation show that the petitioner herein requested the authorities to send second sample to the analyst, but no orders are passed. Insofar as the first analyst report is concerned, a perusal of the same would show that the toddy was adulterated with alprazolem which is a narcotic substance, but however the report is silent as to the extent of adulteration.
The issue as to whether the petitioner is entitled for bail if the toddy seized is adulterated with alprazolem came up for consideration before this Court in Criminal Petition No.5735 of 2014. Dealing with the said aspect, a learned Single Judge of this Court held that though the contraband is found to be adulterated with psychotropic substances but the quantity of substance was not indicated to say as to whether it is above small quantity or above commercial quantity. It has been held that it is important to consider whether it is a commercial quantity or not for the purpose of entitlement or disentitlement of the bail in view of Section 37 of the N.D.P.S.Act. It has been further held that in the absence of any material, the quantity which is found to be adulterated is to be taken as small quantity, the approximate punishment would be upto three years and as such the petitioners therein are entitled for regular bail though not for anticipatory bail.
In view of the judgment referred above and having regard to the facts and circumstances of the case, I am not inclined to grant
anticipatory bail to the petitioner. However, the petitioner, if so, advised to surrender before the learned Magistrate or Special Judge concerned and move an application for regular bail, in which event, the same shall be considered in accordance with law, at the earliest.
_________________________ JUSTICE C. PRAVEEN KUMAR
25.07.2016 gkv
3 issues framed by the court
Whether the petitioner is entitled to anticipatory bail on the ground that the analyst report was silent regarding the extent of alprazolem adulteration.
Whether the seized toddy containing alprazolem constitutes a commercial quantity attracting harsher punishment under the N.D.P.S. Act without explicit quantification.
Whether the petitioner should be granted anticipatory bail or advised to seek regular bail after surrender.
3 provisions across 3 enactments
Accused Nos.1 and 2
State
C. PRAVEEN KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
