Kessler

The People appeal from an order dated March 15, 1966, granting respondent Kessler’s motion to set aside and to dismiss the information against him pursuant to section 995 of the Penal Code. Kessler and his co-defendants were charged with violating sections 11911 (unlawful possession for sale of restricted dangerous drug) and 11912 (unlawful sale of restricted dangerous drug) of the Health and Safety Code, for acts alleged to have occurred on November 12 and November 23,1965. The restricted dangerous drugs involved were amphetamine sulphate, also known as benzedrine, and barbituric acid, namely seco-barbital sodium, also known as seconal.

The appeal presents the question: Is a licensed drug wholesaler who sells or possesses for sale restricted dangerous drugs which are not in stock in correctly labeled containers, subject to prosecution for a felony under sections 11911 and 11912 of the Health and Safety Code, or is he subject to prosecution solely for a misdemeanor under the provisions of sections 4382 and 4393 of the Business and Professions Code ?

Summary of the Evidence

The charges in the information pertain to three alleged sales transactions involving dangerous drugs,…