Smt.B.Radha Rani

1 C.C.No.490/2021 dt.13.07.2022

IN THE COURT OF THE JUNIOR CIVIL JUDGE CUM JUDICIAL MAGISTRATE OF

FIRST CLASS, MYDUKUR.

PRESENT:: SMT. B. RADHA RANI, Junior Civil Judge Cum Judicial Magistrate of First Class, Mydukur. Wednesday, this the 13th day of July, 2022.

Calender Case No.490/2021

Between: State represented by the SI of Police, Chapadu PS.,

...Complainant

And

Maddela Shiva @ Siva, 38 years, S/o Pullaiah, Caste-SC Madiga, SC Colony, V. Rajupalem Village, Chapadu Mandal.

... Accused

This case coming on this day for final hearing before me in the presence of learned Assistant Public Prosecutor for the state and Sri D. Babu, learned Advocate for accused and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. NATURE OF OFFENCE:- Accused has been arraigned before this Court for the offence U/Sec.34 (a) of A.P Excise Act, under the warrants Procedure prescribed under Code of Criminal Procedure (for short Cr.P.C) basing on the charge sheet filed by SHO of Chapadu PS., 2. THE BRIEF AVERMENTS OF THE CASE OF THE PROSECUTION IN BRIEF AS FOLLOWS:

a)It is pleaded by the prosecution that on 06.12.2020 at 4-00 P.M., PW.2/T. Hari Prasad, Sub-Inspector of police received credible information about the selling of liquor, immediately he along with his staff i.e.,PW.1/C. Nagendra Kumar, Police Constable, LW.1/M. Gangadhar, Head Constable and LW.2/C. V. Siva Reddy, Police Constable went to Rajasekhar Reddy statue, Vedururu village, Chapadu Mandal and found accused in possession of one plastic bag. On seeing them he tried to escape from the place. Then, they caught hold of him and enquired about his identity particulars and he confessed about the commission of the offence. Then, he arrested the accused and seized 10 Numbers of 9 Sea Horses whisky 180ml., liquor bottles from his possession under cover of police proceedings by lifting one bottle for the purpose of chemical analysis. After returning to the police station along with accused and seized contraband, PW.2 registered a case in Cr.No.202/2020 U/sec. 34 (a) of AP Excise Act and forwarded the same to all concerned. Thereafter, he forwarded the sample liquor to Chemical Examiner and received analysis report vide CE No.88/2021, dt.25.02.2021 as the sample is Indian Liquor. Thereafter, he handed over the case file to LW.6/K. Subba Rao, SI of police and he submitted a requisition to Superintendent of police, Kadapa for confiscation 2 C.C.No.490/2021 dt.13.07.2022 ordersandreceivedconfiscationproceedingsvideRCNo.136 /Confiscation/DCRB/SEB-KDP/2021, dt.05.08.2021. Basing on the confiscation proceedings the seized property is kept under safe custody in Chapadu PS. Later a charge sheet was filed against the accused for the offence punishable U/sec. 34 (a) of AP., Excise Act. Hence, the charge.

3. COGNIZANCE :- After perusing the record, the case was taken on file for the offence u/sec.34 (a) of A.P Excise Act against accused and issued summons to him by assigning case number as CC.No.490/2021.

4. COMPLIANCE OF PROCEDURAL REQUIREMENTS :-

a) Accused when appeared before the court, copies of documents were furnished to him as required U/Sec.207 of Cr.P.C.

b) When accused was examined U/Sec.239 of Cr.P.C., charge for the offence punishable u/sec. 34 (a) of A.P Excise Act, was framed against the accused and the same is read over and explained to accused in Telugu. He abjured guilt and claims to be tried. Hence, accused was put on trial.

5. Trail:- To substantiate the case of prosecution, the prosecution agency has examined P.Ws.1 and 2 and Exs.P1 to P4 and MO.1 were marked. The evidence of LWs.1, 2, 4 and 6 /M. Gangadhar, Head Constable, C.V. Siva Reddy, Police Constable, C. Rajeswaramma, Chemical Examiner for P & E, Regional P & E Laboratory, Kurnool and K. Subba Rao, SI of police., were given up by the Learned Assistant Public Prosecutor as PWs.1 and 2 supported the case of prosecution.

6. Sec.313 (1)(b) of Cr.P.C examination:- After closure of prosecution evidence, Sec.313(1)(b) of Cr.P.C examination was held calling upon the accused to give explanation for the incriminating material available from the evidence of prosecution witnesses, the same is read over and explained into Telugu, for which he denied the same and reported no defence evidence.

7.Heard on both sides physically by maintaining the social distance and covid- 19 rules. Perused the record.

8. Arguments submitted by learned Asst. P.P:

i)The learned Assistant Public Prosecutor would submit that the evidence of P.Ws 1 and 2 coupled with Ex.P1 to P4 and MO.1, the prosecution agency successfully established the case against the accused and on the ground that prosecution witness are police officials, their evidence can not be discarded as their evidence has to be considered like that of general public. Therefore, prayed the court to convict the accused.

09.Arguments submitted by the learned counsel for the accused:- ii) Per contra, the learned counsel for accused would submit that PWs. 1 and 2 are police Officials, hence, their evidence can not be relied upon without corroboration. Further, the investigating officer failed to follow the mandatory provisions of Sec.100 (4) (5) & (7) Cr.P.C. Moreover accused was brought under the 3 C.C.No.490/2021 dt.13.07.2022 charges basing on the Police Proceedings which cannot be considered in view of Sec. 25 of Indian Evidence Act. As such, prayed the court to extend benefit of doubt.

10.Now the point determination is:

Whether the prosecution is able to establish the guilt of the accused

for the offence punishable U/sec. 34 (a) of A.P Excise Act, beyond all

reasonable doubt subject to satisfaction of this court by establishing the

essential ingredients there under?

11. In order to establish a charge under Section 34 (a) of A.P Excise Act, the prosecution must establish

(a) that the accused was found in possession of 10 Numbers of 9 Sea Horses whisky 180ml., liquor bottles at the time of his arrest and seizure.

(b) that the said contraband was possessed by the accused without valid permit, license unauthorizedly in order to sell the same for higher price than the actual price for their livelihood. (c )that the evidence of police officials alone can safely relied upon and satisfactory.

(d) that the prosecution established the case beyond all reasonable doubt. At this juncture it is necessary to refer the evidence adduced by the prosecution.

12. Evidence adduced by the prosecution:

i)To bring home of the guilt on the accused, the prosecution relied upon the evidence of P.Ws.1 and 2. PW.1 is examined by the prosecution to speak about his assistance rendered to PW.2 for the arrest of accused and seizure of contraband from the possession of accused. PW.2 is examined by the prosecution to speak about conducting of raids, arrest of accused, seizure of contraband from the possession of accused, registration of case , sending accused to the court for remand, forwarding the sample to chemical analysis, obtaining analyst report, obtaining destruction proceedings from the SP., Kadapa by his successor and investigation done by him. It is apt to appreciate the evidence of prosecution.

13. POINTS No.1 to 4:- In order to establish a charge U/sec. 34 (a) of AP Excise Act, the prosecution relied upon the evidence of PWs.1 and 2. PW.1 is Police Constable,. PW.2 is Sub-Inspector of Police. To the facts on hand, it is necessary to note the evidence of PW.2 as he is the detecting officer in this case and PW.1 assisted him.

14. Evidence of P.W.2:

i)PW.2 being the Sub-Inspector of police supported the case of the prosecution on par with the record about date, year and timing of conducting raids along with PW.1 and his staff. He deposed that at Rajasekhar Reddy Statue, 4 C.C.No.490/2021 dt.13.07.2022

Vedururu village of Chapadu Mandal they noticed the accused in possession of one bag in his hand, then they arrested the accused and seized 10 Numbers of 9 Sea Horses whisky 180ml., liquor bottles from his possession, lifting of sample for chemical analysis under cover of Police Proceedings under Ex.P1. It is his further evidence that basing on Ex.P1, he registered a case in Cr.No.202/2020 U/sec. 34 (a) of AP Excise Act against the accused and submitted Ex.P2 FIR to all concerned. Then, he send the accused to the court for remand. He forwarded the sample bottle to chemical analysis for examination under letter of advise. On due examination the analyst opined that sample is Indian Liquor vide CE No.88/2021, dt.25.02.2021 under Ex.P3. Then his successor obtained destruction proceedings from Superintendent of police, Kadapa vide RC No.136/Confiscation/DCRB/SEB-KDP/2021, dt.05.08.2021 under Ex.P4. MO.1 is sample bottle received vide CPR No.138/2021. Thereafter, LW.6/K. Subba Rao, SI of police filed charge sheet.

(ii)During the course of cross-examination of PW.2, it was elicited that he is the first informant as well as the Investigating Officer in this case. He admitted that scene of offence is busy with the movement of vehicles. He admitted that there are public offices, Sachivalayam, Revenue Officials at Vedururu village. He admitted that separate list of property neither prepared nor served on accused. But PW.2 did not explain the reason for non-securing the independent witnesses as mediators though available throws doubt as to the fact of occurrence which shows lacunas in following the procedure contemplated under the Code of Criminal Procedure.

(iii) A perusal of the record as rightly contended by the learned counsel for the accused that PW.2 failed to follow the mandatory provisions of Sec. 100 (4) (5) and (7) of Cr.P.C.,

(iv) At this juncture it is just and proper to refer the relevant provisions u/sec.100 (4) (5) and (7) Cr.P.C. Section 100(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 situate 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. Section 100(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 wit- ness of the search unless specially summoned by it.

Section 100(7) : When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

5 C.C.No.490/2021 dt.13.07.2022

(v) As per the above provisions at the time of search and seizure every investigating officer should follow the mandatory provisions contemplated under the code of criminal procedure. Admittedly, in this case PW.2 failed to secure any one of the person as a mediator at the time of conducting raids and seizure of contraband from the possession of accused as contemplated above provisions.

(vi) At this juncture it is necessary to note the judgment of S. Babu Saheb @ Babu Vs., State of A.P., 2010 (1) ALT Crl 32 A.P., held that “when they are (police or excise officials) conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted.”

(vii) In another judgment of Gajamkar Narayana Vs. State of A.P., reported in 2006 (1) ALD Crl page 254 of A.P., wherein his Lordship held that “ Failure to secure local inhabitants near to the place of seizure as envisaged U/sec. 100 (4) of Cr.P.C., without assigning reason as any seizure was effected, such seizure itself is illegal. Hence, to the facts on hand failure to follow the mandatory provision is major lacuna to the case on hand.”

(viii) PW.1 being a subordinate to PW.2 deposed evidence by corroborating the evidence of PW.2. He too admitted all admissions as admitted by PW.2. But in this case, there are several lacunas noticed from the evidence of PW.2.

(ix) Admittedly, PW.2 did not secure any independent mediators to the alleged seizure of contraband. The police officials are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100(4) of Cr.P.C. As referred to in the above provisions, the police officials are also authorized to issue an order in writing asking them to act as mediators under sub-section (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C., is to ensure confidence in the neighbourers and in the public in general that a genuine search has been made and 6 C.C.No.490/2021 dt.13.07.2022 incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable. Investigation must be fair and in accordance with the prescribed procedure. If respectable local mediators are taken the same would inspire confidence.

(x). “Where there are no independent witness from the locality, the prosecution must offer reasonable explanation. But a perusal of record shows that PW.2 did not offer any reasonable explanation for not securing local inhabitants as mediators except admitting the said facts. The testimony of PW.2 disclosed that he didn't try to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators, Ex.P-1 police proceedings, also does not disclose that any effort was made by police officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, this court comes to the conclusion that the provisions of Section 100(4) Cr.P.C are not followed by the police officials while seizing the contraband. Therefore, the seizure made in this case is illegal. Ex.P1 police proceedings is confession statement given to PW.1 the police official cannot be looked into in view of bar U/Sec. 25 of Indian Evidence Act.

(xi) Though the Investigating Officer evidence is to be treated like any other evidence, but rule of caution requires corroboration. Basing, only on the oral testimony of police officials, this Court cannot base conviction. The police proceedings was marked by excluding confession statement of accused, as the confession statement given by accused to a police Officer is hit by Sec. 25 of Indian Evidence Act.

(xii) At this juncture, it is relevant to refer to Sec.25 of Indian evidence Act which is as follows: “ Confession to police Officer not to be proved:- No

confession made to a police officer, shall be proved

as against a person accused of any offence”.

(xiii) When the said confession statement of accused is excluded from consideration, there is no iota of evidence on record to show that accused was found in possession of liquor bottles.

(xiv)Thus, from the above reasons, this court holds that the evidence of PW.1 being constable and PW.2 being the investigating officer cannot form the sole basis for conviction in the absence of independent mediators to corroborate their version.

(xv) In the light of aforesaid discussion and settled legal position, this court holds that the prosecution miserably failed to establish the guilt of the accused for the offence U/sec. 34 (a) of A.P Excise Act, beyond reasonable doubt subject to the satisfaction of this court. Hence, accused is entitled for benefit of doubt. Accordingly, points are answered.

7 C.C.No.490/2021 dt.13.07.2022

15.Result: In the result, accused is not found guilty for the offence punishable u/sec.34 (a) of AP Excise Act and he is acquitted for the same U/Sec.248 (1) of Cr.P.C. The bail bonds of accused and his sureties shall remain in force for a period of six months U/sec. 437-A of Cr.P.C., Property order: MO.1 9 Sea Horses whiskey liquor sample bottle received by this court under CPR No.138/2021 shall be destroyed after appeal time is over. Typed to my dictation, corrected and pronounced by me in the open Court, this the 13 th day of July, 2022. Digitally signed by

BEZAWADABEZAWADA

RADHARANI

RADHARANI

Date: 2022.07.13

17:09:40 +0000 Junior Civil Judge Cum

Judicial Magistrate of First Class,

Mydukur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE--

PW1: C. Nagendra Kumar (Police Constable) PW2: T. Hari Prasad (Investigating Officer)

DOCUMENTS MARKED

FOR PROSECUTION:

EX.P1: Police Proceedings. Ex.P2: FIR. Ex.P3: Analysis Report. Ex.P4: Destruction proceedings.

FOR DEFENCE:: NIL.

MATERIAL OBJECTS:

MO.1 9 Sea Horses whiskey liquor sample bottle. Digitally signed BEZAWADAby BEZAWADA

RADHARANI

RADHARANI

Date: 2022.07.13

17:09:53 +0000 JCJ Cum JFCM

MYD 8 C.C.No.490/2021 dt.13.07.2022

CALENDER AND JUDGMENT

IN THE COURT OF THE JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS, MYDUKUR.

C.C. No.490/2021

Date of offence:06.12.2020 Date of filing: 06.12.2020 Date of apprehension of accused:06.12.2020 Date of release on bail:11.12.2020 Date of commencement of trial:04.07.2022 Date of close of trial:12.07.2022 Date of sentence or order:13.07.2022 Explanation of delay:-- Name of the complaint:The Sub-Inspector of Police, Chapadu, (Crime No.202/2020)

Between: State represented by the SI of Police, Chapadu PS.,

...Complainant

And

Maddela Shiva @ Siva, 38 years, S/o Pullaiah, Caste-SC Madiga, SC Colony, V. Rajupalem Village, Chapadu Mandal.

... Accused

Offence : U/Sec. 34 (a) of A.P., Excise Act Plea of accused : Not Guilty Finding : Found not guilty

Sentence or Order: In the result, accused is not found guilty for the offence punishable u/sec.34 (a) of AP Excise Act and he is acquitted for the same U/Sec.248 (1) of Cr.P.C. The bail bonds of accused and his sureties shall remain in force for a period of six months U/sec. 437-A of Cr.P.C., Property order: MO.1 9 Sea Horses whiskey liquor sample bottle received by this court under CPR No.138/2021 shall be destroyed after appeal time is over.

Digitally signed by

BEZAWADABEZAWADA

RADHARANI

RADHARANI

Date: 2022.07.13

17:10:07 +0000 Junior Civil Judge Cum

Judicial Magistrate of First Class,

Mydukur.

Copy submitted to : The Hon’ble I Additional District Judge, Kadapa.

In the Court of :Junior Civil Judge, Mydukur

Case No. :EP/0000029/2020 Godi Peddi Reddy Vs Gudipati Chinna Venkata Subbaiah

Date : 12-07-2022

Business: The judgment debtor is produced by court Amena by name Sudhakar, with aid of police aid i.e., PC No.1054 of Khajipet PS., on execution of warrant at about 12-00 P.M., dt.12.07.2022. Hence, the matter is advanced from 18.07.2022 to this day i.e., 12.07.2022. the decree holder also present. The judgment debtor and decree holder filed memo to refer the matter to Lok Adalat for amicable settlement and to pass award, as both parties have compromised the matter. Matter is referred to Lok Adalat. Judgment debtor and Decree holder called present before Lok Adalat and on due negotiations Both parties agreed to compromise the matter at the intervention of Lok Adalath members with the following terms. 1. The judgment debtor agreed to pay an amount of Rs.60,000/- towards full and final settlement of EP amount i.e., for a sum of Rs. 99,136/- for which the decree holder agreed. 2. Today the judgment debtor paid Rs.20,000/- out of Rs.60,000/- and the same is received by the decree holder. Further the judgment debtor agreed to pay the remaining balance amkount of Rs.40,000/- under two installments within two months. 3. The judgment debtor agreed to pay the first installment of Rs.20,000/- on or before 20.08.2022 and the second installment of Rs.20,000/- being the remaining balance amount to the decree holder as on before 20.09.2022 for which the decree holder agreed. In default of payment of two installment amounts, the decree holder is at liberty to take steps against the judgment debtor for total amount of EP amount i.e., for Rs.99,136/- for which the judgment debtor agreed. 4. Part satisfaction memo for Rs.20,000/- filed and recorded. Accordingly, the award is passed. The judgment debtor is ordered to be released on execution of self bond for EP amount. Nature of Disposal: SETTLED BEFORE LOK ADALAT Disposal Date: 12-07-2022 Junior Civil Judge, Mydukur

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Date : 13-07-2022

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Date : 13-07-2022

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Date : 13-07-2022

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