Ms.A.V.S.Srivalli

1

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I

CLASS, ADONI.

PRESENT: Ms.A.V.S.Srivalli,

II Additional Judicial Magistrate of I Class, Adoni.

Friday, the 25 th Day of October, 2024

C.C.No.104/2024

Between : State: The Sub-Inspector of Police, Isvi Police Station.

.... Complainant

and

Golla Eresh, S/o.Late Thimmappa, aged 50 years, Madire village, Adoni Mandal.

.... Accused

This case coming before me for final hearing on 16-10-2024 in the presence of A.P.P. for State and of Sri.S.Basheer and Sri.B.Masthan Vali, Advocates for the accused and upon hearing both sides and the matter having stood upon for consideration to this day, this court delivered the following:

:: JUDGMENT ::

01.The Sub-Inspector of Police, Isvi Police Station, filed charge sheet against the accused in Crime No.32/2024 for the offence punishable u/Sec.34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

2

As per the instructions of G.Niranjan Reddy, Circle Inspector of Police, Adoni Rural on 29-1-2024 at 0600 hours, L.W.5-

K.Srinivasulu, Sub Inspector of Police, Isvi Police Station along with L.W.1-K.Kasilingam, P.C.850, L.W.2-E.Sudharshan, P.C.3426 of Isvi P.S. LW.3-B.Sudhakar, P.C.2988, Peddathumbalam P.S. and

L.W.4-H.Nagaraju, H.C.2756 of Adoni Rural P.S. left Police Station and reached the house of the accused in Madire village at 0900 hours. There they found the accused standing with a bag. On seeing the Police, the accused tried to escape from there, but,

LW.5 with the help of his staff caught hold of him. On enquiry by

L.W.5, accused revealed his identity particulars and confessed he possess liquor tetra packets and stated that he used to go to

Nagarhal village in Karnataka State to purchase liquor packets from an unknown person at low rates and used to sell them for higher rates in his village. Then, L.W.5 sent L.W.1 to procure mediators, but after some time, LW.1 returned and stated that no one come forward to act as mediators. Thereafter, L.W.5 verified the bag of the accused and found 130-90 ml original choice deluxe whisky tetra packets of Karnataka State. Thereafter, LW.3 seized the total contraband from the possession of accused 3 under the cover of Police Proceedings by drawing 02-90 tetra packets for chemical analysis purpose.

Basing on the Police Proceedings, LW.5 registered a case in

Cr.No.32/2024 u/Sec.34(a) of A.P. Excise Act and on the same day, he arrested the accused and forwarded him to the ocurt for judicial custody. Thereafter, he filed charge sheet in this case.

Hence, the charge.

03.This case was taken on file against the accused for the offence punishable under Section 34 (a) of A.P. Excise Act.

04.After appearance of the accused, case copies and relevant documents were furnished to her as contemplated under section 207 of Criminal Procedure Code, 1973.

05.The accused was examined under Sec.239 of Cr.P.C. and a charge under section 34(a) of A.P. Excise Act, was framed against the accused and the contents of the charge was read over and explained to her in Telugu language, for which she pleaded not guilty and claimed to be tried.

4 06.To substantiate its case, the prosecution examined P.W.1 and got marked Exs.P1 to P4 on its behalf. Assistant Public

Prosecutor has given up the evidence of L.Ws.1 to 4.

07.After closure of prosecution evidence, accused was examined under Sec.313 of Cr.P.C., and the incriminating evidence from the testimony of P.W.1 was read over and explained to him, for which, he denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09.Now the point for determination is:

Whether accused possessed or sold any intoxicant in

contravention of provisions of Excise Act without any valid

license or permit and thereby committed offence

punishable under section 34(a) of A.P. Excise Act, 1968?

Point:

10. The accused in this case is charged for the offence u/sec.34(a) of AP Excise Act. In order to sustain the charge for the offence u/sec.34(a) of AP Excise Act, the prosecution must prove that the accused imported, exported, transported, manufactured, 5 collected or possessed or sold any intoxicant and he was in possession of the intoxicant more than the permissible quantity.

In this instant case the accused were in possession of 130-90 ml original choice deluxe whisky tetra packets. As seen from the allegations in the Charge Sheet, the accused was in possession of more than the permissible quantity. Now, it has to be seen whether the prosecution proved its case beyond reasonable doubt that the accused was in possession of liquor, more than the permitted quantity or not.

Prosecution contentions:-

11. The specific version of the PW1 is that PW1 along with L.W.1-

K.Kasilingam, P.C.850, L.W.2-E.Sudharshan, P.C.3426 of Isvi P.S.

LW.3-B.Sudhakar, P.C.2988, Peddathumbalam P.S. and L.W.4-

H.Nagaraju, H.C.2756 of Adoni Rural P.S. on 29-1-2024 at 9.00 am am went to the scene of the offence and found one person standing in front of his house with a bag. On questioning the accused, the accused revealed his identity particulars and confessed that he possess liquor tetra packets. P.W.1 further stated that they seized the liquor tetra packets and samples were 6 drawn under cover of Police Proceedings and later he registered the case.

Defence contentions:-

12. P.W.1 has subjected cross examination. The learned defense counsel contended that the Police has foisted false case against the accused for statistical purpose by preparing entire record at

Police Station. Further contended that P.W.1 did not secure the presence of two independent mediators at the time of alleged seizure.

Appreciation of the contentions of the learned councils-

13. In so far as securing independent mediators is concerned, admittedly there are no independent mediators present at the time of alleged seizure of liquor from the possession of accused.

The Police Officials were observed in the surrounding for mediators and not found. Hence, P.W.1 seized the liquor tetra packets from the possession of the accused. The evidence of

P.W.1 is clearly showing the said fact. Hence, the non securing independent mediators is itself not fatal to the case of the prosecution.

7

14. It is settled that any confession/Police Proceedings recorded by the police officials has no sanctity in the eye of the law as it is hit by Sec.25 of the Indian Evidence Act, 1872. Therefore, in the instant case, the Special Report Ex.P1 containing the alleged confession of the accused shall not be taken into consideration.

In order to better appreciate the rival contentions it is useful to reproduce section 100 (4) Cr.P.C.

Section 100 (4) and (5) of Cr.P.C. is as follows:

100. Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such 8 officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

Further the Hon'ble High Court of A.P in 'Yeduru

Sreenivasul Reddy Vs State of A.P which was reported in

2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of

Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

In view of the above legal position the Investigating Officer has to secure the presence of two independent mediators at the time of seizing contraband from the possession of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

9

15. In the cross examination of P.W.1 admitted that the scene of offence is a busy area as well as residential area. So, people would be available at the scene of offence. At this juncture the prosecution at least ought to show explanation for non-issuing of summons to the people present at scene of offence to act as mediators. Hence, the evidence of P.W1 that they tried to secure the presence of mediators, but in vain is not believable.

Thereby basing upon above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so.

No doubt, non-observance of the procedure mandated under the Criminal Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from P.W.1 for not following the procedure contemplated under Section 100 10

Cr.P.C. It is also pertinent to note that no M.O’s are marked which itself crates doubt on the seizure.

Therefore, though P.W.1 has followed the procedure to some extent while taking samples, but failed to give any plausible reasons for not securing the presence of mediators at the time of his search, which, in this Court’s considered view, caused great prejudice to the accused. Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond reasonable doubt and the accused is entitled for Acquittal.

16. In the result, Accused is found not guilty for the offence punishable U/Sec.34(a) A.P. Excise Act, and accordingly, he is acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A of Cr.P.C. Un- marked case property if any, shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer Grade-I, corrected and pronounced by me in the open Court on this the 25th day of October, 2024.

Sd/- Ms.A.V.S.Srivalli

II Addl. Judicial Magistrate of I Class,

Adoni.

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant For Defence

Pw1: K.Srinivasulu, S.I. of Police, Isvi P.S. -None-

DOCUMENTS MARKED

For Complainant For Defence:

Ex.P.1: Police Proceedings. Nil Ex.P.2: F.I.R. Ex.P.3: Chemical Analysis report. Ex.P.4: Destruction Proceedings.

Sd/- Ms.A.V.S.Srivalli

II Addl. Judicial Magistrate of I Class,

Adoni.

12

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS :: ADONI.

C.C.No.104/2024

1Date of Offence29-01-2024 2Date of Complaint29-01-2024 3Date of apprehension of the accused29-01-2024 4Date of release on bail01-02-2024 5Date of Commencement of Trial07-10-2024 6Date of Close of Trial07-10-2024 7Date of Judgment25-10-2024

Calendar and Judgment in C.C.No.104/2024 on the file of II Additional

Judicial Magistrate of I Class, Adoni.

ComplainantSub-Inspector of Police, Isvi Police Station Cr.No.32/2024 of Isvi Police Station. AccusedGolla Eresh, S/o.Late Thimmappa, aged 50 years, Madire village, Adoni Mandal. Section of LawU/Sec.34(a) of A.P. Excise Act. FindingAccused is found not guilty for the offence U/Sec.34(a) of A.P. Excise Act. Sentence of OrderIn the result, Accused is found not guiltyfor the offence punishable U/Sec.34(a) A.P. Excise Act, and accordingly, he is acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A of Cr.P.C. Un- marked case property if any shall be destroyed after lapse of appeal time. // True /

Sd/- Ms.A.V.S.Srivalli

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

ADONI. CIAL MAGISTRATE OF I-

CLA SS

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

ADONI.

PRESENT: Ms.A.V.S.Srivalli,

II Additional Judicial Magistrate of I Class, Adoni.

Friday, the 25 th Day of October, 2024

C.C.No.108/2024

Between : State: The Sub-Inspector of Police, Isvi Police Station.

.... Complainant

and

Kondla Veeresh, S/o.Narasimhulu, aged 31 years, Resident of Kapati village, Adoni Mandal.

.... Accused

This case coming before me for final hearing on 18-10-2024 in the presence of A.P.P. for State and of Sri.Nagesh, Advocate for the accused and upon hearing both sides and the matter having stood upon for consideration to this day, this court delivered the following:

:: JUDGMENT ::

01.The Sub-Inspector of Police, Isvi Police Station, filed charge sheet against the accused in Crime No.36/2024 for the offence punishable u/Sec.34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

On credible information, on 05-02-2024 at 1000 hours, L.W.3-

G.Chandra, ASI 2407 along with his staff L.W.1-M.Ashok Kumar,

P.C.953, L.W.2-K.Kiran Kumar, P.C.3974 of Isvi P.S. left Police Station and reached the house of the accused in Kapati village. There they found the accused is standing with a bag. On seeing the Police, the accused tried to escape from there. But, L.W.3 with the help of his staff caught hold of the accused. On enquiry by the Police, accused revealed his identity particulars and confessed that he used to purchase

Karnataka Tetra packets from an unknown person at Nagarahal village at low rates and used to sell them for higher rates in his village. Then,

L.W.3 sent L.W.2 into the village to procure mediators, but after some time, LW.2 returned and stated that no one come forward to act as mediators. Thereafter, Lw.3 verified the bag and found 96-90 original choice deluxe whisky tetra packets. Thereafter, L.W.3 seized the total contraband from the possession of accused under the cover of Police Proceedings by drawing 02-90 ml tetra packets for chemical analysis purpose.

Basing on the Police Proceedings, LW.3 registered a case in

Cr.No.36/2024 u/Sec.34(a) of A.P. Excise Act and he served Sec.41-A

Cr.P.C. notice to the accused. After completion of investigation, L.W.4-

K.Srinivasulu, S.I. of Police, Isvi P.S. filed charge sheet in this case.

Hence, the charge.

03.This case was taken on file against the accused for the offence punishable under Section 34 (a) of A.P. Excise Act.

04.After appearance of the accused, case copies and relevant documents were furnished to him as contemplated under section 207 of Criminal Procedure Code, 1973.

05.The accused was examined under Sec.239 of Cr.P.C. and a charge under section 34(a) of A.P. Excise Act, was framed against the accused and the contents of the charge was read over and explained to him in Telugu language, for which he pleaded not guilty and claimed to be tried.

06.To substantiate its case, the prosecution examined P.W.1 and got marked Exs.P1 to P4 on its behalf. Assistant Public Prosecutor has given up the evidence of L.Ws.1, 2 and 4.

07.After closure of prosecution evidence, accused was examined under Sec.313 of Cr.P.C., and the incriminating evidence from the testimony of P.W.1 was read over and explained to him, for which, he denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09.Now the point for determination is:

Whether accused possessed or sold any intoxicant in

contravention of provisions of Excise Act without any valid

license or permit and thereby committed offence punishable

under section 34(a) of A.P. Excise Act, 1968?

Point:

10. The accused in this case is charged for the offence u/sec.34(a) of

AP Excise Act. In order to sustain the charge for the offence u/sec.34(a) of AP Excise Act, the prosecution must prove that the accused imported, exported, transported, manufactured, collected or possessed or sold any intoxicant and he was in possession of the intoxicant more than the permissible quantity. In this instant case the accused were in possession of 96-90 ml original choice deluxe whisky tetra packets. As seen from the allegations in the Charge Sheet, the accused was in possession of more than the permissible quantity. Now, it has to be seen whether the prosecution proved its case beyond reasonable doubt that the accused was in possession of liquor, more than the permitted quantity or not.

Prosecution contentions:-

11. The specific version of the PW1 is that PW1 along with L.W.1-

M.Ashok Kumar, P.C.953 and L.W.2-K.Kiran Kumar, P.C.3974 of Isvi

Police Station on 5-2-2024 at 10.00 a.m. went to the scene of the offence and found one person standing in front of his house in Kapati village with a bag. On questioning the accused, the accused revealed his identity particulars and confessed that he possess liquor tetra packets. P.W.1 further stated that they seized the liquor tetra packets and samples were drawn under cover of Police Proceedings and thereafter he registered a case in Cr.No.36/2024 u/sec.34(a) of A.P.

Excise Act and thereafter L.W.4-K.Srinivasulu, S.I. of Police, Isvi P.S.

filed charge sheet.

Defence contentions:-

12. P.W.1 was been subjected cross examination. The learned defense counsel contended that the Police has foisted false case against the accused for statistical purpose by preparing entire record at Police Station. Further contended that P.W.1 did not secure the presence of two independent mediators at the time of alleged seizure.

Appreciation of the contentions of the learned councils-

13. In so far as securing independent mediators is concerned, admittedly there are no independent mediators present at the time of alleged seizure of liquor from the possession of accused. The Police

Officials were observed in the surrounding for mediators and not found.

Hence, P.W.1 seized the liquor tetra packets from the possession of the accused. The evidence of P.W.1 is clearly showing the said fact. Hence, the non securing independent mediators is itself not fatal to the case of the prosecution.

14. It is settled that any confession/Police Proceedings recorded by the police officials has no sanctity in the eye of the law as it is hit by

Sec.25 of the Indian Evidence Act, 1872. Therefore, in the instant case, the Police Proceedings Ex.P1 containing the alleged confession of the accused shall not be taken into consideration.

In order to better appreciate the rival contentions it is useful to reproduce section 100 (4) Cr.P.C.

Section 100 (4) and (5) of Cr.P.C. is as follows:

100. Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

Further the Hon'ble High Court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1)

ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

In view of the above legal position the Investigating Officer has to secure the presence of two independent mediators at the time of seizing contraband from the possession of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

15. In the cross examination of P.W.1, it is admitted that the scene of offence is a busy area as well as residential area. So, people would be available at the scene of offence. At this juncture the prosecution at least ought to show explanation for non-issuing of summons to the people present at scene of offence to act as mediators. Hence, the evidence of P.W.1 that they tried to secure the presence of mediators, but in vain is not believable.

Thereby basing upon above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so.

No doubt, non-observance of the procedure mandated under the

Criminal Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from P.W.1 for not following the procedure contemplated under Section 100 Cr.P.C. It is also pertinent to note that no M.O’s are marked which itself crates doubt on the seizure.

Therefore, though P.W.1 has followed the procedure to some extent while taking samples, but failed to give any plausible reasons for not securing the presence of mediators at the time of his search, which, in this Court’s considered view, caused great prejudice to the accused.

Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond reasonable doubt and the accused is entitled for Acquittal.

16. In the result, Accused is found not guilty for the offence punishable U/Sec.34(a) A.P. Excise Act, and accordingly, she is acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A of Cr.P.C. Un-marked case property if any, shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer Grade-I, corrected and

pronounced by me in the open Court on this the 25th day of October, 2024.

Sd/- Ms.A.V.S.Srivalli

II Addl. Judicial Magistrate of I Class,

Adoni.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant For Defence

Pw1: G.Chandra, ASI 2407, Isvi P.S. -None-

DOCUMENTS MARKED

For Complainant For Defence:

Ex.P.1: Police Proceedings. Nil Ex.P.2: F.I.R. Ex.P.3: Chemical Analysis report. Ex.P.4: Destruction Proceedings.

Sd/- Ms.A.V.S.Srivalli

II Addl. Judicial Magistrate of I Class, Adoni.

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS ::

ADONI.

C.C.No.108/2024

1Date of Offence05-02-2024 2Date of Complaint05-02-2024 3Date of apprehension of the accusedSec.41-A Cr.P.C. notice served 4Date of release on bail-- 5Date of Commencement of Trial08-10-2024 6Date of Close of Trial08-10-2024 7Date of Judgment25-10-2024

Calendar and Judgment in C.C.No.108/2024 on the file of II Additional

Judicial Magistrate of I Class, Adoni.

ComplainantSub-Inspector of Police, Isvi Police Station Cr.No.36/2024 of Isvi Police Station. AccusedKondla Veeresh, S/o.Narasimhulu, aged 31 years, Resident of Kapati village, Adoni Mandal. Section of LawU/Sec.34(a) of A.P. Excise Act. FindingAccused is found not guilty for the offence U/Sec.34(a) of A.P. Excise Act. Sentence of OrderIn the result, Accused is found not guiltyfor the offence punishable U/Sec.34(a) A.P. Excise Act, and accordingly, he is acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A of Cr.P.C. Un-marked case property if any shall be destroyed after lapse of appeal time. // True /

Sd/- Ms.A.V.S.Srivalli

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

ADONI. CIAL MAGISTRATE OF I-

CLASS

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

1

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS, ADONI.

PRESENT: Smt.A.V.S.Srivalli,

II Additional Judicial Magistrate of I Class, Adoni.

Wednesday, the 06 th day of May, 2026

C.C.No.81/2021

Between : State: The Sub-Inspector of Police, Kowthalam Police Station. … Complainant

and

1. Boya Pedda Thayappa, age 25 years, S/o Yerigeri Hanumanthu of Chiruthapalli village, Kowthalam Mandal.

2. Harijana Mahadeva, age 30 years, S/o Mukaiah,

Mallanahatti village, Kowthalam mandal. .... Accused

This case coming before me for final hearing on 05.05.2026 in the presence of

A.P.P. for State and of Sri. B.Veeresh, Advocate for the accused A1 and A2 and upon hearing both sides and the matter having stood upon for consideration to this day, this court delivered the following:

:: JUDGMENT ::

01.The Sub-Inspector of Police, Kowthalam Police Station, filed charge sheet against the accused A1 and A2 in Crime No.61/2020 for the offence punishable

U/Sec.34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

On 05.04.2020 at about 11.00 hours near Chiruthapalli village bus stop, while Lw.2/M.Sudheesh Babu, H.C. along with Lw.1/PC, of Kowthalam P.S.

conducting raids the accused A1 and A2 were standing by keeping one plastic bag, 2 on seeing the police they tried to skulk away, then Lw.2 caught hold the accused A1 and A2 with the help Lw.1/Police constable. On enquiry, they confessed that they bought the liquor packets from Karnataka state and sell the same in their village for higher rate. Lw.2/HC opened the bag and found 36 Original Choice 90ml packets of Karnataka State, the police seized the contraband from the possession of accused. LW.2/H.C. of Kowthalam P.S. served notice U/sec.41(A) Cr.P.C. to the accused on 05.04.2020 and seized the property under the cover of police proceedings.

Basing on the police proceedings, LW.2/M.Sudheesh Babu, H.C. registered a case in Cr.No.61/2020 for the offence U/Sec.34(a) of A.P. Excise Act and investigated. LW.3/Sub Inspector of Police received destruction orders from the

Superintendent of Police, Kurnool and destroyed the property under cover of panchanama. After completion of investigation LW.3-S.I. of Police filed charge sheet against the accused A1 and A2 in this case. Hence, the charge.

03.This case was taken on file against the accused A1 and A2 for the offence punishable under Section 34(a) of A.P. Excise Act.

04.After appearance of the accused A1 and A2 case copies and relevant documents were furnished to them as contemplated under section 207 of Criminal

Procedure Code, 1973.

05.The accused A1 and A2 were examined under Sec.239 of Cr.P.C. and a charge under Section 34(a) of A.P. Excise Act was framed against the accused and the contents of the charge were read over and explained to them in Telugu language, for which they pleaded not guilty and claimed to be tried.

3 06.To substantiate its case, the prosecution examined P.W.1 and got marked

Ex.P1 on its behalf. Assistant Public Prosecutor has given up the evidence of L.W.2 and 3.

07.After closure of prosecution evidence, accused A1 and A2 were examined under Sec.313 of Cr.P.C., and the incriminating evidence from the testimony of

P.W.1 was read over and explained to them, for which, they denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09.Now the point for determination is:

Whether accused A1 and A2 possessed or sold any intoxicant in

contravention of provisions of Excise Act without any valid license or

permit and thereby committed offence punishable under section 34(a) of

A.P. Excise Act, 1968?

Point:

10. The accused A1 and A2 in this case are charged for the offence u/sec.34(a) of AP Excise Act. In order to sustain the charge for the offence u/sec.34(a) of AP

Excise Act, the prosecution must prove that the accused were imported, exported, transported, manufactured, collected or possessed or sold any intoxicant and they were in possession of the intoxicant more than the permissible quantity. In this instant case the accused were in possession of total 36-90 ml original choice tetra packets of Karnataka State. As seen from the allegations in the Charge Sheet, the accused were in possession of more than the permissible quantity. Now, it has to be seen whether the prosecution proved 4 its case beyond reasonable doubt that the accused were in possession of liquor, more than the permitted quantity or not.

Prosecution contentions:-

11. The specific version of PW1 is that on 05.04.2020 he along with LW.2 were went on raid to Chiruthapalli village bus stop at 11.00 am, there they found the accused A1 and A2 were standing by holding one plastic bag. On seeing the police, they tried to escape from the place, but the police caught hold of them. On enquiry they had revealed their identity particulars and stated that they bought the liquor from Karnataka state at lower price in order to sell them at higher price.

On opening the bag, the bag containing 36-90ml Original Choice Deluxe Whisky tetra packets. They had taken 2 90ml tetra packets and sent the same for chemical analysis. They had seized the remaining contraband and affixed the signature of accused A1 and A2 on the samples and arrested the accused A1 and A2 under cover of police proceedings.

Defence contentions:-

12. P.W.1 has been subjected cross examination. The learned defense counsel contended that the Police has foisted false case against the accused for statistical purpose. Further contended that they never went to the scene of offence. Further contended that entire proceedings were cooked up in the police station. Further contended that they had not seized the property. He contended that except the evidence of PW.1, prosecution failed to examine the other 5 witnesses in this case. It shows that the prosecution failed to prove its case against the accused.

Appreciation of the contentions of the learned councils-

13. In so far as securing independent mediators is concerned, admittedly there is a distance of 10 K.M. from the police station to the scene of offence and they saw the accused at a distance of 10 meters and the scene of offence is moderately busy locality, there are no independent mediators present at the time of alleged seizure of liquor from the possession of accused. Hence, P.W.1 seized the liquor tetra packets from the possession of the accused. The evidence of P.W.1 is clearly showing the said fact. Hence, the non securing independent mediators is itself not fatal to the case of the prosecution.

14. It is settled that any confession/Police Proceedings recorded by the police officials has no sanctity in the eye of the law as it is hit by Sec.25 of the Indian

Evidence Act, 1872. Therefore, in the instant case, the Special Report Ex.P1 containing the alleged confession of the accused shall not be taken into consideration.

In order to better appreciate the rival contentions it is useful to reproduce section 100 (4) Cr.P.C.

Section 100 (4) and (5) of Cr.P.C. is as follows:

100. Persons in charge of closed place to allow search.- 6 (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

Further the Hon'ble High Court of A.P in 'Yeduru Sreenivasul Reddy Vs

State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :-

“When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order.

Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

In view of the above legal position the Investigating Officer has to secure the presence of two independent mediators at the time of seizing contraband 7 from the possession of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

Thereby basing upon above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so.

No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from P.W.1 for not following the procedure contemplated under Section 100 Cr.P.C. It is also pertinent to note that no M.O’s are marked which itself crates doubt on the seizure.

Therefore, though P.W.1 has followed the procedure to some extent while taking samples, but failed to give any plausible reasons for not securing the presence of mediators at the time of his search, which, in this Court’s considered view, caused great prejudice to the accused. Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond reasonable doubt and the accused A1 and A2 are entitled for Acquittal.

8

15. In the result, Accused A1 and A2 are found not guilty for the offence punishable U/Sec.34(a) A.P. Excise Act, and accordingly, they are acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of the accused A1 and A2 are ordered to be in force for a period of six months along with surety bonds as per Section 437-A of Cr.P.C. Un-marked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer Grade-II corrected and pronounced by me in the open Court on this the 06 th day of May, 2026.

II Addl. Judl.Magistrate of I Class, Adoni.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant For Defence

Pw1: G.Somanna, S.I. of Police None Kowthalam Police station

DOCUMENTS MARKED

For Complainant For Defence:

Ex.P.1: Police proceedings. Nil

MATERIAL OBJECTS

NIL

II Addl. Judicial Magistrate of I Class, Adoni

1

IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE, ADONI

Present: Smt.A.V.S.Srivalli, II Additional Junior Civil Judge, Adoni

Wednesday, the 06 th day of May, 2025

E.P.No.59/2023 in O.S.No.12/2019

N.Meghadhipathi, S/o Chinna Anjinaiah, Hindu, aged about 67 years, Retired Mill Worker,

R/o H.No.15/1399, Bheerappa Nagar, Adoni. .... Petitioner/D.Hr

Vs.

P.Thayanna, S/o Padmasale Shankar, Hindu, aged about 37 years, Merchant,

R/o H.No.17/319/A, Revenue Colony, Adoni. ... Respondent/J.Dr.

This petition coming on 04.05.2026 for final hearing in the presence of Sri G.C.Ranganna, Advocate for the Petitioner/D.Hr.,and of Sri K. Venkata Swamy, Advocate for the Respondent/J.Dr., and this Court delivered the following:

O R D E R

1.This is the Execution Petition filed by the Petitioner/D.Hr against the

Respondent/J.Dr., seeking arrest of the J.Dr under Order XXI Rules 37 and 38 CPC.

2.The averments of the petition in nutshell are that :

The Petitioner/D.Hr obtained the decree against the Respondent/J.Dr. in

O.S.No.12/2019 on 08.09.2022 for the realization of the decree amount & the D.Hr.

filed the present EP for arrest of respondent/J.Dr. detain him for civil prison in the interest of justice.

3. After receipt of Notice, the J.Dr., chosen to engage an advocate and filed his counter by firstly denying the petition averments. The J.Dr submitted that he is living in pathetic condition and he himself is dependent on his wife for his livelihood. He has 2 no means to pay the amount, therefore prays to dismiss the petition.

4. During enquiry, the Petitioner/D.Hr himself examined as PW-1 and got one witness on his behalf sworn in as PW-2. On the other hand, J.Dr himself was sworn in as RW-1.

5.Heard both sides. Perused the record.

6.Now the point arisen for consideration is that Whether the D.Hr could able

to establish the means of J.Dr and his avoidance to pay the decretal

amount despite his capacity ?

7.POINT:-

Before embarking into the evidence on record, this court opines it is apt to

mention the illustrative guidelines given by the Hon’ble High court of Andhra Pradesh , while dealing with the cases of Order 21 Rule 37 and 38 C.P.C, reported in 2001 (2)

APLJ 109, in a case between Kalidindi Rama Raju Vs. Vijaya Bank (Nationalized)

with its Head Office, rep. by its Branch Manager Hon'ble Judge: P.S. Narayana

garu, in para 10 given the illustrative guidelines that;

a) Passing cryptic orders not based on reasons have to be avoided.

b) Courts are expected to be cautious while making order of arrest in execution of decree since it involves personal liberty.

c) Proper opportunity has to be given and necessary enquiry has to be made while making an order of arrest.

d) Courts may also examine whether other modes of recovery are available to the decree holder and is it necessary to order arrest for recovery of the amount 3 and whether judgment debtors are willfully and intentionally neglecting to discharge the decree debts and courts may examine the relevant circumstances also in this regard.

e)Even while making an order of arrest in default of appearance of the judgment debtors courts have to prima facie satisfy themselves on the material placed

before them that an order of arrest can be made.

f) Courts shall also fix the period for which the judgment debtors are to be kept in detention.

8.By virtue of above guidelines, it is settled law that, it is the primary onus of the

D.Hr to establish the means of the J.Dr and it is the duty of the Court, not to pass any cryptic orders without establishing the means by the D.Hr. It is settled law that the

D.Hr can prove the case either by documentary evidence or oral evidence.

9.To substantiate the contention of the D.Hr, he himself was examined as PW-1.

It is the contention of the D.Hr by virtue of affidavit filed in support of his E.P, that the

J.Dr is doing hotel business, having own house, plots and have sufficient means to pay the EP amount. However, no document has been filed by PW1 to show that either the lorry nor the house nor some property (immovable in specific )stands in the name of the J.Dr. In the cross examination of PW1 at one juncture deposed that J.Dr used to work as lorry driver. However, he again deposed that J.Dr owns the lorry. If that is the case, the D.Hr had failed to show that there is one lorry in the name of J.Dr nor at least had given the details of the said lorry nor had examined any independent witness to show that J.Dr owns one lorry. Here it is also worthwhile to note that though PW1 in 4 his chief affavit stated that J.Dr is doing one hotel business, however, he himself in his cross examination deposed that he does not know whether at present JDR owns the hotel or not. Therefore, it is quite contradictory.

10.As a matter of fact, one witness who was brought on record in support of the

D.Hr contention was sworn as PW2. PW2 has filed his chief affidavit by stating that he is one third party to the case. That the J.Dr is doing hotel business opposite to

Timmareddy bus stand, which is situated in a busy locality and is gaining an income of 10,000 to 15,000 per day, he is having own house and several plots at Adoni₹₹ and thus he is having sufficient means. Whereas when PW2 was cross examined, he deposed that J.Dr runs one hotel under the name and style Seena. He further himself admitted that the elder brother of J.Dr runs the hotel Seena. Thereby nothing is elicited by D.Hr on record to show whether it was J.Dr alone who runs the business or

J.Dr along with his brother runs the hotel business.

11.Moreover PW2 while he was cross examined, deposed that D.Hr is his maternal uncle. However PW2 stated in his affidavit that he is a third party. Though he might be a third party to the suit, he is related to PW1. Therefore, it is quite unsafe to believe the version of PW2 that J.Dr is running the hotel business. No independent witnesses were brought on record to at least to show that the J.Dr is running one hotel business.

12.PW1 and PW2 had filed their affidavit respectively by stating that J.Dr is having one own house. J.Dr was examined and was sworn in as RW1. In the cross- examination, RW 1 had deposed that :- " it is true that my house number mentioned in the 5 promissory note is 17/319/A" . "Before pronouncing the decree, my address is mentioned as 17/319/A".

13.However, this particular statement by J.Dr cannot be regarded to show that J.Dr is having one own house. The said statement by J.Dr only shows to an extent that he is residing at so and so house number. Nothing is elicited by the D.Hr to show that the said house is actually his own house. It could also be a rented house.

14.In general, it is very difficult for a person to prove the property of others. Even the D.Hr is not expected to prove the case beyond reasonable doubt. The duty of the decree holder in the matters like this nature, will end when he has placed some material before the court indicating that the J.Dr owned and possessed the property and means. Thereafter, the burden shifts to the J.Dr to establish as to how he is handicapped from discharging the decree debt.

15.At this juncture, this court would like to recollect Judgment of our Hon'ble High

Court in 2006 (4) ALT 665, in a case between G.Sudhakar Reddy Vs. Jahnavi Chit

Fund private Company, it is held :

“Except a bald averment in his evidence as P.W. 1 that 2nd judgment-debtor is owning a house, the decree-holder has not produced any other evidence either oral or documentary, to show that the judgment-debtor is owning any such house and that he is deriving any income from that house, which would be sufficient to discharge the decree debt.”

16.The above dictum squarely applies to the present fact of the case. The dictum is that the D.Hr expected to prove the house of J.Dr and means arising from it. In the 6 above case, house of J.Dr as well as means not established. By virtue of the above dictum, unless the income if any arising from the house is established, mere owning of a house, particularly when the J.Dr residing in that house only, cannot be termed as means of the J.Dr and he cannot be arrested. However in this case firstly the ownership is itself not established therefore the question of establishing the means i.e.

the income arising from that particular house does not arise.

17.In view of the above discussion, since the D.Hr failed to establish the means of the J.Dr and his avoidance to pay the E.P. amount, he is not entitled to seek arrest of the J.Dr.

18.In the result, the petition is dismissed with costs.

Typed to my dictation to the Stenographer Grade-II typed by her corrected and

pronounced by me in the Open Court this the 06 th day of May, 2026.

II ADDL.JUNIOR CIVIL JUDGE,

ADONI

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner/D.Hr : For Respondent/J.Dr

Pw.1: MeghadhipathiRw.1: P.Thayanna

Pw.2: Kuruva Ramanji

DOCUMENTS MARKED

NIL

II AJCJ, Adoni.

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS, ADONI.

PRESENT: Smt.A.V.S.Srivalli,

II Additional Judicial Magistrate of I Class, Adoni.

Wednesday the 13 th day of May, 2026

C.C.No.54/2026

State: Represented by Proh.&Excise Inspector, P & E Station, Kosigi.… COMPLAINANT. - Versus -

Yerigeri Anjineyulu, age 56 years, S/o Y.Pullayya, R/o H.No.2/27, Kolmanpeta village, Kosigi Mandal.… ACCUSED.

This Case coming before me for hearing on 13.05.2026 in the presence of learned

Additional Public Prosecutor for complainant and of Sri B.Veeresh, counsel for the accused.

Having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The charge stands against the accused for the offence U/sec.34(a) of AP Excise Act 2020 of SEB, Kosigi.

2.The Station House Officer, Proh.&Excise Inspector, filed charge sheet against the accused for the offence U/sec.34(a) of AP Excise Act 2020 of Prohibition and excise P.S., Kosigi in Cr.No.196/2021.

3.While this case is coming for issuance of summons of accused, death certificate of sole accused filed through learned Additional Public Prosecutor. Hence, case is abated.

Pronounced by me in the Open Court, this the 13th day of May, 2026.

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

ADONI. CIAL

Appendix of evidence

None

EXHIBITS MARKED

NIL

II ADDL.JMFC, ADONI.