Sri Bharath Chandra Kovi

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IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS :

ADDANKI.

Present: Sri K. Bharath Chandra, Addl. Judicial Magistrate of First Class, Addanki.

Friday, this the Twenty Eighth day of June 2019

M.C No. 22 of 2014

Shaik Parveen, W/o.Shaik Khaja Mohideen, aged 41 years, Muslim, Dependant, care of her brother Shaik Jinna Saheb, Addanki Town Prakasam District.

...Petitioner

Vs

Shaik Khaja Mohiddeen, S/o. Baazi Saheb, aged about 50 years, Muslim, business, Ramnagar, near Maszid, Vetapalem (V&M), Prakasam District.

...Respondent

This petition is coming on 27th day of June 2019 before me for hearing in the presence of Sri S.A. Saleem, Counsel for Petitioner and of

Sri I. Venkata Rao, Counsel for Respondent; having stood over to this day for consideration; this Court made the following:-

// O R D E R \\

01.The Petitioner has filed this petition under Section 125 of

Criminal Procedure Code against Respondent with a prayer to order the respondent to pay her Rs.20,000/- per month towards her maintenance and also costs of the Petition.

02.The averments of the petition in nut shellare that:-

The Respondent married the Petitioner 22 years ago and during their lawful wedlock they were blessed with a female daughter by name

Shaik Saheera banu. At the time of marriage the parents of the Petitioner presented an amount of Rs.50,000/-, four sovereigns of gold to the respondent towards marriage presentations. The couple lived happily for a

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period of five years after their marriage. Later the Petitioner came to know that respondent developed illegal intimacy with one Sundari of Vetapalem village prior to their marriage and the Petitioner requested the respondent to give up his illegal intimacy but the respondent paid deaf ear to the words of the Petitioner and started to harass her by burning on her legs with iron rods and also used to pour hot tea. Not only the torture but also the respondent drove the Petitioner from his house after the birth of their daughter. Having no other go, the petitioner came to her brother’s house at Addanki and later the respondent has contracted the second marriage with one Shaik Sahiron and living with her at Vetapalem village. While so on 16.09.2013 the marriage of the daughter of both Petitioner and respondent was performed by the Petitioner, the respondent and his mother. On the next day of their daughter’s marriage the respondent, his mother and his second wife colluded together and beat the Petitioner indiscriminately and again drove her out of the house at Vetapalem and threatened her not to return again. Having no other go the Petitioner returned back to her brother’s house at Addanki. The Petitioner sent her brother and elders to the respondent with a request to take her back, for which the respondent did not agree at all. They also requested him to provide some maintenance at least to her, but all those efforts were failed and the petitioner is forced to stay on the mercy of her brother, who is also a man of below average financial status. The Petitioner is unable to maintain herself and has no source of income for her maintenance and the respondent is having a turbo lorry, mini lorry and one Auto and he is engaged in transport business. Apart from that, he is having a two portioned dhaba house worth of Rupees thirty lakhs, vacant site Ac.0.2 cents of land worth of twenty lakhs, bank deposits and the respondent is getting an income of ten thousand per month on his transport business and

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he is having properties worth of two crores and he is having capacity to maintain the Petitioner. The Petitioner also submits that she is not habituated to any manual labour from the beginning and her health is not in good condition. Thus the respondent though having sufficient means, completely neglected to maintain the Petitioner, hence this petition is filed.

03.On the other hand the respondent has filed his counter admitting the relationship with Petitioner and denied all other allegations and further mentioned that at the time of marriage the respondent did not receive any presentation from the Petitioner and the petitioner used to harass the respondent in several aspects and used to go to her parental house at Addanki very often without intimating to him and the respondent with a great difficulty used to bring her back to his house. later the respondent came to know that the Petitioner has got illicit intimacy with one Shaik Madarvali of Addanki and when the respondent questioned the same the petitioner openly stated before the family members about her illegal intimacy with her paramour long before her marriage and only due to the pressure of her parents, she married the respondent and the petitioner in the absence of the family members of the respondent, has taken away seven sovereigns of gold and fifty thousand of cash from the house of respondent and went to Addanki by leaving 9 months daughter to her fate.

At the advice of one elder shaik ismail of Vetapalem, the mother of the respondent also accompanied the petitioner and dropped her in her parental house at Addanki. The respondent, his parents along with elders viz., Medikonda Kondala Rao, Shaik Mabu and Shaik Ahamad held mediations with the Petitioner, but the petitioner stated that she does not want to lead marital life with the respondent any more and decided to detach with him once for all. The said elders again held mediations with

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the father of the Petitioner and the father and brother of the petitioner have informed that the petitioner has been living with one Narasimha Rao of

Addanki Town. The respondent after knowing that the petitioner has completely deserted him, married another woman by name Shaik Sahiron at the advice of his near and dear and has begotten two male children through second wife. The respondent further submits that at the time of marriage he was working as lorry cleaner and he alone performed the marriage of his daughter Sahira banu on 15.09.2013 and for the purpose of performing marriage of his daughter, he was compelled to sell the house at

Vetapalem. The respondent being a diabetic patient, suffering with other ailments and due to ill-health he is unable to do any work and the respondent is maintaining his second wife, two children and old aged mother of 80 years and the petitioner on her own accord discarded the company of respondent and the respondent finally prays to dismiss the petition.

04.On behalf of the Petitioner, Petitioner herself was examined as

P.W.1 and her daughter Shaik Sahira banu as PW2 and her brother Shaik

Jinna Saheb as PW3 and no documents were marked on behalf of Petitioner.

The respondent himself examined as RW1 and his mother Sk. Saleema as

RW2, Sk.Ahmed as RW3, M.Kondalarao as RW4, G.Venkata Subbarao as

RW5 and D.V.S. Narayanarao as RW6 and got marked Exs.R1 to R8 on his behalf.

05. Heard both sides. Perused the case record.

06. Now the point that arises for determination is

Whether the maintenance can be granted in favour of Petitioner as contemplated under Sec.125 of Cr.P.C, if so to what relief?

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07. POINT: The chief examination of the Petitioner/PW1 is much- less equal to that of the allegations made in her petition and the assertions in the chief examination of RW1 is much-less equal to that of his counter.

Hence this Court is of the opinion that there is no need to reiterate the chief examinations of the disputing couple once again.

08. As seen from the language employed in Section 125 Cr.P.C a legally wedded wife is entitled for maintenance, if she proves that her husband has either neglected or refused to maintain her and such woman is unable to maintain herself. On proof of such neglect or refusal, the Court is bound to grant maintenance to the Petitioner.

09.The evidence adduced on behalf of both the sides is interesting.

On behalf of the petitioner, there is her own testimony as PW1 and the evidence of her daughter as PW2 and the evidence of her brother as PW3.

On behalf of respondent it is his own testimony as RW1 and the evidence of his mother as RW2 and RW3 to RW6 were also examined on his behalf.

10.PWs 1 and 2 say that petitioner was driven out of the house by the respondent by developing illegal intimacy with another woman and thereby harassing the petitioner, while the respondent maintains that the petitioner on her own left the house by developing illegal intimacy with another man.

11. Needless to say that section 125 of Cr.P.C is a beneficial legislation and keeping this aspect in the mind, this court is inclined to move further to appreciate the evidence available on record.

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12. As per Sec.125 of Cr.P.C the Petitioner is dis-entitled to claim maintenance, if she is living in adultery. The second point that dis-entitles the petitioner from claiming maintenance, if she refuses to live with her husband without any sufficient reason.

13. In the instant case, it can be seen from the averments of petition and chief examinations of PW1 to PW3 that Petitioner has been claiming that she made attempts to rejoin her husband to lead marital life.

The respondent has also claimed that he made attempts for reunion with his wife .

14.The learned counsel for the Petitioner contended that despite several efforts by the Petitioner, the respondent did not receive her to marital fold and left the petitioner to her fate. Whereas the respondent has pleaded in his counter and also in his chief that he tried his level best for reunion, but the Petitioner herself deserted him voluntarily.

15. The learned counsel for the respondent argued that the

Petitioner herself left the matrimonial house without any just cause and respondent has made repeated efforts to bring her back to house and the respondent has contracted 2nd marriage only after passage of time and on these facts no fault can be found on the part of the husband/respondent for contracting 2nd marriage and the counsel further submitted that it was the petitioner/wife, who was guilt of deserting the matrimonial house and that fact is enough to dis-entitle her from claiming maintenance. But, it is not possible to accede to the submission of the learned counsel for respondent because it proceeds on a misconception about the true nature of the proceedings under section 125 of Criminal Procedure Code. The provisions

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of section 125 of code are enacted to give helping hand to a woman, who is unable to maintain herself and whose husband, having means neglects or refuses to maintain her.

16. At this juncture, this Court feels, it may be relevant and worth while to quote the decision rendered by Honble Bombay High court in

Mustafa Sham Suddin Shaik Vs. Shamshad Begum Mustafa Shaik-

1991 Cri.L.J. 1932. Where in it was held that “The proceedings under section 125 of Cr.P.C are of summary nature and the Magistrate is not required to determine which party to the marriage is at fault and in the proceedings under Section 125 of Cr.PC it is not necessary for the court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. Even assuming that the wife in the wrong while leaving the house, she cannot be deprived of maintenance when husband contracts 2 nd marriage and that fact by itself entitle her to live separately”

In the same Judgment, it is also held that “ The Magistrate is not required to examine whether the conduct of the wife in initially leaving the house was just or not; and the conduct of the wife at the time of leaving the house is wholly irrelevant and the

Magistrate must concentrate on the facts and circumstances existing on

the date of passing order”

17. To support the case of respective parties, the petitioner has produced PW2 and PW3 and the respondent has produced RW2 to RW6.

RW3, RW4 deposed in their respective evidences that they conducted mediations with the Petitioner and her family members. It is a matter of ordinary prudence that in matrimonial offences, the best parties, who can

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depose are the married couple themselves and the other parties, who live out of their house can give only second hand information or they can be considered as hearsay witnesses. RW5 in his evidence deposed that the

Petitioner is working as Muta Mastry and he admitted Ex.R8 containing photographs were taken at his dumping yard, chirala and Ex.R7 receipt was issued by him. This Court has perused the vouchers wherein Ex.R4 to

Ex.R7 directly did not show anything that the petitioner has received the amounts as coolie. No where in Exs.R4 to R7 the name of the firm is mentioned and the vouchers do not contain the loading and unloading particulars. On some of the photographs in Ex.R8 no date and time was mentioned, but on some photographs, the date and time was printed as 02.12.2018 but this Court is very much aware of the fact that the present case is filed in the year 2014 and the photographs pertain to the year 2018.

18. The counsel for the respondent contended that the petitioner is hale and healthy woman and she is capable of earning. In order to strengthen his contention respondent has got marked Ex.R1 to Ex.R8, wherein Ex.R1 is a letter addressed by Municipal Commissioner, Addanki under R.T.I Act and it goes to show that the Petitioner is drawing widow pension and Ex.R8 is six colour photographs, along with pen drive and C.D, showing in different angles that the petitioner is doing coolie works. As seen from the photographs submitted by the Respondent, it is observed that the petitioner is respectfully earning her bread and butter out of her hard work to feed her belly. She did not take any unholy route for which she should be appreciated infact. The Respondent has on one hand abandoned the petitioner and on the other hand he is pleading that she can feed herself by attending coolie works. Admittedly the parties to the proceedings are Muslims I.e, followers of Islam. Though this Court would

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not like to dwell into the matter of personal Laws, the relevant aspect touching the case is discussed here. In Islamic Law, generally woman are not permitted to go for coolie works. Veiling herself is customary in Islam.

The practice of Pardha and gosha are in vogue in Muslim Community. But here, only because the respondent neglected the Petitioner, she might have been forced to attend coolie works. The respondent is trying project the miserably situation of the Petitioner in his favour by saying that he need not pay single pie since she is attending for coolie works, that itself shows the attitude of the respondent in evading maintenance. Attending coolie works for keeping away from starvation will not dis-entitle the petitioner from claiming maintenance.

I. The Honourable High Court of Andhra Pradesh in Meduri

Suryaprakash Rao @ Chandrasekher Vs Meduri Syamala 2005 (1)

ALD (Cri) 36 held that “even if a wife is able to earn a small amount by labour or otherwise, to keep herself away from starvation, that fact cannot be a ground for dismissal”.

II. The Honourable Apex Court in Sunita Kachwaha and others Vs.

Anil Kachwaha-AIR 2015 SC 554: 2014 (16) SCC 715, has held that “In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance”. It is also further held that “In a proceeding Under section 125 of Cr.P.C, It is not necessary for the court to ascertain as to who was in wrong and the minute details of the matrimonial disputes between the husband and wife need not be gone into.”

19. The counsel for the Respondent vehemently argued that this maintenance case shall be dismissed on the ground that the petitioner has

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been drawing widow pension though her husband/respondent is alive. Per contra the learned counsel for the Petitioner argued that the petitioner is unaware of the fact that she is drawing widow pension and the same pension will also be granted to a destitute lady or a lonely woman and the

Petitioner is under an impression of drawing lonely woman pension.

20. Now coming to the aspect of Drawing of widow pension by the

Petitioner, Ex.R1 coupled with oral evidence of Muncipal Commissioner,

Nagara Panchayath, Addanki as RW6 goes to show that the Petitioner has been drawing widow pension. That is no doubt true. However, since maintenance under section 125 of Criminal Procedure Code is a beneficial legislation, the court has to visualize the situation in consonance with the intention of legislature in passing such legislation. There is no explanation given by the respondent as to what made the Petitioner to go into pathetic situation by drawing Rs.1,000/- as widow pension. It indicates to the mind of this Court that the respondent has thrown her in a pathetic situation, wherein she was forced to brand herself as a widow only for the sake of her survival. Hence, the contention of the respondent shall be seen in that angle but not from the angle that disentitles her from claiming maintenance. Being an Indian woman, who considers marital status to be more greater than any other thing in the world, she was forced to brand herself as a widow, that itself goes to show how pathetic life she is leading.

21. The counsel for the respondent contended that the petitioner has developed illicit intimacy with another man and left the conjugal society. Per contra, the counsel for the Petitioner contended that the respondent developed illegal intimacy with another woman. As seen from the material available on record, the petitioner has alleged that the

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respondent has got illegal intimacy with one Sundari and the respondent has alleged that the Petitioner has got illegal intimacy with one Shaik

Madarvali and one Narasimharao. Except making heavy allegations against one another, none of them produced any cogent or convincing evidence

before this Court. One has thrown blame on the other that they are leading

adulterous lives. Making bald assertions is not sufficient. Since no cogent and considerable evidence is placed before this Court, this Court is not inclined to believe any of the versions of any of the parties so far as the aspect of illegal intimacy is concerned.

22. In the present case, it is not in dispute that the respondent contracted 2nd marriage. So also it is not in dispute that the Petitioner, who professes Muslim religion is entitled to contract second marriage even during the life time of his first wife. It is not in dispute that the wife is unable to maintain herself and her husband has sufficient means. The neglect or refusal to maintain is demonstrated by disinclination of the respondent to take back his first wife/Petitioner after contracting the second marriage. Even assuming the petitioner was in wrong in leaving the respondent, now on the date of passing this order, the petitioner is entitled to live separately because of the action of the husband in contracting 2nd marriage.

23. The learned counsel for the Respondent in cross of PW3 posed a question whether the marriage of the second daughter of PW3 is love marriage and an inter caste marriage or not? This Court is unable to understand how and in what way the marriage of the daughters of PW3 becomes relevant in this case. So also the lengthy cross examination of

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PWs1 to 3 did not yield any benefit to the respondent since all the suggestions favourable to the respondent were denied by PWs1 to 3.

24. A woman, who is constrained to leave marital home, should not be allowed to feel that she has fallen from grace and move hither and tither arranging for sustenance. As per Law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband.

25. The learned counsel for the respondent argued that the petitioner cannot be granted maintenance since she deserted the matrimonial home at her own and she was guilty of desertion. On this aspect this Court would like to rely upon the decision of Honourable High

Court of Madhya Pradesh (Indore Bench) in Gangabai Vs. Shriram @

Shrikishan 1991 Crl.L.J 2018=1990 SCC Online M.P 213, wherein their Lordships have explained ‘desertion’ as follows:- “Desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place, but from a state of things”. It is further held that “in a petition under section 125 of Cr.P.C what is required to be seen is, whether there is sufficient reason for the wife to live separately from her husband. As seen from the material available on record, it is stated by the

Petitioner that the respondent used to harass her physically and mentally and also poured hot tea on her and used to burn with iron sticks and finally necked out her from his house with six months baby. When specific allegations of torture and ill-treatment are alleged and adduced sufficient evidence by the Petitioner in support of her contention, the act of the

Petitioner in leaving the respondent cannot be said to be ‘desertion’ by any

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stretch of imagination. It is also a general presumption that no wife will stay away from her husband unless she faces hardship in the hands of husband.

26. When the woman leaves the matrimonial home, she is deprived of many a comfort. Some times the faith in life reduces. The predicament of the petitioner was not expected to be removed with any kind of magic.

At this stage, the only comfort that law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny.

27. With regard to a quantum of maintenance the Honourable Apex

Court in Jabsirkaur Sehgal Vs. District Judge, Dehradun and others:

1997 (7) SCC 7 held as follows:- “ The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the Law. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, amount so fixed cannot be excessive or extortionate”

28. According to Section 106 of Indian Evidence Act, the fact which is within the knowledge of the party has to be proved by the party alone.

The respondent failed to produce cogent evidence with regard to his income as alleged by the Petitioners, adverse inference can be drawn against the Respondent. It is a settled Law when the husband does not

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disclose to the Court, the exact amount of his income, the presumption will be easily permissible against him.

29. Now coming to the earning capacity of the respondent, the

Petitioner asserted that respondent is having a turbo lorry, mini lorry and one Auto and he is engaged in transport business. Apart from that he is having a two portioned dhaba house worth of Rupees thirty lakhs, vacant site Ac.0.2 cents of land worth of twenty lakhs, bank deposits and the respondent is getting an income of ten thousand per month on his transport business and he is having properties worth of two crores. On the other hand the respondent denied the financial capacity as alleged by the

Petitioner and the respondent also alleged that the Petitioner has capacity to maintain herself. Except making oral assertions against one another, neither parties produced cogent and convincing evidence before this Court.

However the respondent himself admitted in his chief that he is earning

Rs.5,000/- to Rs.6,000/- per month. The respondent in his chief deposed that at the time of his daughter’s marriage he presented an amount of

Rs.3,00,000/- cash, gold ornaments worth of Rs.3,00,000/- and household articles worth of Rs.1,50,000/- to his daughter and the same was supported by his own mother RW2 also. The statement of RW1 and RW2, on Oath, in their respective evidences with regard to the huge presentations made by the respondent to his daughter, itself indicates the respondent has got more than sufficient means. So also RW4 in his cross examination admitted that the respondent is living in a dhaba house worth of Rs.8,00,000/- or

Rs.10,00,000/- at Vetapalem village, which gives more strength to the contention of the Petitioner that the respondent got sufficient means.

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30. It is a settled Law that it is the obligation of the husband to maintain his wife and he cannot be permitted to plead that he is unable to maintain his wife due to financial constraints as long as he is capable of earning.

31. Hence it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife arises. Hence, this Court is of the opinion that as the respondent failed to establish the fact that the petitioner willfully deserted him and since no interim maintenance was paid by the Respondent during the pendency of the proceedings and also nothing is brought on record to prove that the respondent paid any maintenance to the petitioner since 2014, the petitioner is entitled for maintenance from the date of filing of this application.

32. In view of the discussion made supra and in the light of celebrated judgments referred in the preceding paras of this judgment, this

Court is of the Opinion that the Petitioner has successfully proved her case and the circumstances eminently justifies grant of maintenance with effect from date of application. In these circumstances this Court is of the opinion that granting maintenance of Rs.3,000/- per month to the Petitioner, will meet the ends of justice. Accordingly, the point is answered.

33. In the result, this petition is partly allowed and the Respondent is hereby ordered to pay a sum of Rs.3,000/- per month to the Petitioner from the date of filing of this application. The Respondent shall pay the aforesaid amount of maintenance by 10th of each succeeding month. The

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arrears shall be paid in a proportionate manner within the period of 6 months from today. There is no order as to costs.

The Office is directed to furnish the true copy of this Order free of cost to the Petitioner and to receive the acknowledgement of the same.

Typed to my dictation to the Personal Assistant, corrected and

pronounced by me in the open Court this the 28 th day of June 2019

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First Class, Addanki // Appendix of Evidence // Witnesses examined

For Petitioner: For Respondent:

PW1 : Sk. Parveen RW1 : Sk. Khaja Mohiddin PW2 : Sk. Sahera Banu RW2 : Sk. Saleema PW3 : Sk. Jinnah Saheb RW3 : Sk. Ahmad RW4 : M. Kondala Rao RW5 : G. Venkata Subbarao RW6 : D.V.S Narayana Rao

Documents Marked

For Petitioner: NIL

For Respondent:

Ex.R1 : Letter sent by Public Information Officer, Addanki Nagara Panchayath under R.T.I Act Ex.R2 : Aadhar Card of the Petitioner. Ex.R3 : Household supply card/ration card in the name of the Petitioner. Ex.R4 : Voucher dt.05.08.2018 for receipt of Rs.1,450/- Ex.R5 : Voucher dt.20.07.2017 for receipt of Rs.1,500/- Ex.R6 : Voucher dt.04.08.2017 for receipt of Rs.1,450/- Ex.R7 : Voucher dt.26.10.2018 for receipt of Rs.1,600/- Ex.R8 : Six colour photographs along with Pen Drive and C.D

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First Class, Addanki // True Copy //

A.J.M.F.C, Addanki

CC.NO. 188 of 2019 1 Dt.27.06.2019

Calendar and Judgment in C.C.No. 188 of 2019 on the file of Additional Judicial

Magistrate of First Class, Addanki

1. Date of Offence : 07.08.2018

2. Date of report : 07.08.2018

3. Date of arrest of accused : --

4. Date of release on bail : --

5. Date of commencement of trial : 21.06.2019

6. Date of close of trial : 21.06.2019

7. Date of judgment : 27.06.2019

8. Complainant : State: (Station House Officer, Prohibition & Excise Station), Addanki.

9. Accused : Gosala Singaiah, S/o.Tirupalu, aged 50 years, Bodduvanipalem (V) Korisapadu (M), Prakasam District.

10. Offence : U/s.34 (a) of Andhra Pradesh Excise Act

11. Plea of accused : Pleaded not guilty

12. Finding of court : Found not guilty

13. Sentence or order :In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 vide C.P.R.No. 170 of 2018 shall be destroyed after expiry of appeal time.

14. Explanation for delay : This case was taken on file on 08.05.2019 under section 34(a) of Andhra Pradesh Excise Act against the accused. On 16.05.2019 accused was present, copies of all documents were furnished to him Under Section 207 of Criminal

Procedure Code and on the same day accused was examined Under Section 239 of

Criminal Procedure Code for which he pleaded not guilty, charge was framed U/s.34(a)

CC.NO. 188 of 2019 2 Dt.27.06.2019

of Andhra Pradesh Excise Act against the accused read over and explained to him in

Telugu, he denied the charge and claimed to be tried. On behalf of prosecution PW1 and PW2 were examined and Ex.P1 to Ex.P5 and MO.1 is marked and after prosecution evidence was closed the accused was examined Under Section 313 of

Criminal Procedure Code. On 27.06.2019 heard arguments of both sides and on the same day Judgment pronounced vide separate judgment, Hence the delay.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki

Copy Submitted to :

The Hon’ble 1st Addl. Dist. & Sessions Judge, Ongole.

The Deputy Commissioner Prohibition and Excise, Ongole.

// True Copy //

A.J.M.F.C, Addanki

CC.NO. 188 of 2019 3 Dt.27.06.2019

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF FIRST CLASS: ADDANKI

Present :- K. BHARATH CHANDRA,

Addl. Judl. Magistrate of First Class, Addanki

Thursday, this the Twenty Seventh day of June 2019

Calendar Case No. 188 of 2019

State, represented by: (Station House Officer), Prohibition & Excise Station, Addanki. … Complainant

and

Gosala Singaiah, S/o.Tirupalu, aged 50 years, Mala by caste, R/o.Bodduvanipalem Village, Korisapadu Mandal, Prakasam

District....Accused

This case has come before me on 27th day of June 2019 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of

Sri B. Rama Kotaiah, Legal Aid counsel-cum-Advocate for Accusedupon hearing both sides and having stood over for consideration till this day, this court delivered the following:-

// J U D G M E N T //

1. The State represented by the Prohibition & Excise Sub Inspector,

Addanki laid a charge against Accused in Cr.No.60 of 2018 of Addanki Excise Station for the offence under Section 34 (a) of the A.P. Excise Act.

2. The Brief Averments of Charge-sheet are:-

On 07.08.2018 LW4/D. Sridhar Babu Prohibition and Excise Inspector,

Naidupeta conducted raids along with his staff and reached the place of offence i.e., at western side of Mallapalli of Medarametla Village at about 5.00 P.M, found the accused in possession of bag containing 7 bottles of Officers Choice Reserve Whisky of 180 ml and on questioning the Accused stated that he does not have bills or permit to possess liquor bottles and further confessed the commission of offence. As LW2/E. Ramanaiah,

P & E Constable, Naidupeta failed to secure mediators, LW4 has opened the bag. On verification they found HEALs were removed. Then LW4 drew sample for the purpose

CC.NO. 188 of 2019 4 Dt.27.06.2019

of chemical analysis and has drafted special report at the scene of offence, arrested the accused and handed over the accused and seized property to Excise Officials,

Addanki. LW5/K. Koteswara Rao Prohibition and Excise Inspector, Addanki registered the report as Cr.No. 60 of 2018 under Sec.34 (a) of A.P Excise Act and the accused person was released on self bail after securing solvency certificates and bail bonds and the remaining property was sent to Deputy commissioner, Prohibition and Excise,

Ongole for issuing confiscation proceedings. Sample bottles were sent to RFSL for analysis and after receiving Analysis report and after completion of investigation

LW6/P.Mahaboobvali filed charge sheet in this case.

3. In this case, cognizance was taken under section 34(a) of A.P. Excise Act against the accused. Copies of the documents were furnished to the accused under section 207Cr.P.C, on his appearance.

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

5. In support of its case, prosecution examined PW1 and PW2 and got marked Exs.P1 to P5 and M.O.1. The learned A.P.P has given up the evidence of

LWs1 to 3, 5.

6. After the closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C by explaining the incriminating circumstances appearing against him in the evidence of the prosecution witness. Accused denied the same and reported no defence evidence and hence defence evidence is closed.

CC.NO. 188 of 2019 5 Dt.27.06.2019

7. Heard both sides.

8.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused for the charge under section 34(a) of A.P. Excise Act beyond reasonable doubt?

9. POINT: To substantiate the case of the prosecution, LW4/D. Sridhar

Babu and LW6/P. Mahaboobvali are examined as PW1 and PW2. The evidence of

PW1 goes to show that he has conducted raids along with his staff and found the accused in possession of liquor bottles and as no one came forward to act as mediators, he opened the box and found 7 bottles of Officers Choice Reserve Whisky of 180 ml each and he found EALs were also removed and he drew sample for the purpose of chemical analysis, arrested the accused, drafted special report/Ex.P1 and handed over the accused, samples, seized property to Excise Officials, Addanki.

The evidence of PW2 goes to show that PW1 has handed over the accused and seized liquor bottles to LW5/K. Koteswara Rao, who registered the special report as a case in Cr.No. 60 of 2018 under Sec.34 (a) of A.P Excise Act and the accused was released on self bail after securing solvency certificates and bail bonds, and sample bottle was sent to R.F.S.L for analysis and after receipt of analyst report and after completion of Investigation, he filed chargesheet.

10. Coming to the evaluation of evidence available on record, it is admitted that the scene of offence is a busy locality consisting of vehicular traffic. PW1 also admitted that around 5 or 6 members gathered at the scene of offence. PW1 did not mention the names of the persons, whom he asked to act as mediators. PW1 also admitted that he did not issue any notices to the persons, who refused to act as mediators. Ex.P1 was drafted after detaining the accused by PW1 itself. No separate seizure mahazar was drafted except Ex.P1. When the scene of offence is a busy locality, it is very easy for Excise Officials to ask any responsible citizen in that vicinity

CC.NO. 188 of 2019 6 Dt.27.06.2019

itself to act as mediators for seizure and arrest in this case. If anybody refuses to act as mediators or any one denies aiding the Excise officials, the Excise officials have got ample power to issue summons to them to act as mediators. Admittedly when the scene of offence is a busy locality, there is no explanation given by PW1 as to why they could not secure mediators in the vicinity itself. When such power is vested in excise officials, not securing any mediators creates a doubt in the mind of this court as to whether the excise officials have really arrested the accused when the accused was in possession of liquor bottles?

11. On perusal of oral and documentary evidence placed by the prosecution, in excise cases, seizure is very important and panch witnesses play pivotal role to prove the seizure. Curiously it is evident on the record that there is no availability of panch witnesses to support the case.

12.Preponderance of probability is not useful in criminal cases. The

prosecution has to establish the case beyond all reasonable doubt. Apart from

the evidence of PW1 and PW2, who are Excise officials, no other independent

witnesses have been examined to support the case of prosecution.

13. Keeping such doubt in mind, this court feels that it is not safe to convict the accused based on the testimony of PW1 and PW2, who are Excise Officials without any independent and corroborative evidence. As prosecution has failed to adduce cogent and convincing evidence and and there is no explanation offered by PW1 for not securing mediators from the scene of offence which is admittedly a busy locality.

Hence, this court is of the considered opinion that prosecution failed to bring home guilt of the accused for the offence under Section 34(a) of AP Excise Act and accused is entitled for benefit of doubt and acquittal.

CC.NO. 188 of 2019 7 Dt.27.06.2019

14.In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 vide C.P.R.No. 170 of 2018 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open court, this the 27 th day of June 2019.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // APPENDIX OF EVIDENCE // Witnesses Examined For Prosecution : For Defence: PW1 : D.Sridhar Babu --None-- PW2 : P. Mahaboobvali Documents Marked

For Prosecution: For Defence:

Ex.P1: Special report, --Nil-- Ex.P2: First Information Report Ex.P3: Letter of request, Ex.P4: Letter of advice, Ex.P5: Analysis report Material Objects Marked

For Prosecution:

M.O.1 : One sample bottle of Officers Choice Reserve Whisky of 180 ml

For defence: : Nil

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // True Copy //

A.J.M.F.C, Addanki

CC.NO. 261 of 2019 1 Dt.27.06.2019

Calendar and Judgment in C.C.No. 261 of 2019 on the file of Additional Judicial

Magistrate of First Class, Addanki

1. Date of Offence : 04.10.2018

2. Date of report : 04.10.2018

3. Date of arrest of accused : 04.10.2018

4. Date of release on bail : 08.10.2018

5. Date of commencement of trial : 21.06.2019

6. Date of close of trial : 21.06.2019

7. Date of judgment : 27.06.2019

8. Complainant : State: (Station House Officer, Prohibition & Excise Station), Addanki.

9. Accused : Athuluri Anjaiah, S/o. Venkata Seshaiah, aged 45 years, Mala by caste, Sankarapuram (V), Mundlamuru (M), Prakasam District.

10. Offence : U/s.34 (a) of Andhra Pradesh Excise Act

11. Plea of accused : Pleaded not guilty

12. Finding of court : Found not guilty

13. Sentence or order :In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 and M.O.2 vide C.P.R.No. 209 of 2018 shall be destroyed after expiry of appeal time.

14. Explanation for delay : This case was taken on file on 21.05.2019 under section 34(a) of Andhra Pradesh Excise Act against the accused. On 03.06.2019 accused was present, copies of all documents were furnished to him Under Section 207 of Criminal

Procedure Code and on the same day accused was examined Under Section 239 of

Criminal Procedure Code for which he pleaded not guilty, charge was framed U/s.34(a) of

CC.NO. 261 of 2019 2 Dt.27.06.2019

Andhra Pradesh Excise Act against the accused read over and explained to him in

Telugu, he denied the charge and claimed to be tried. On behalf of prosecution PW1 is examined and Ex.P1 to Ex.P5 and MO.1, M.O.2 are marked and after prosecution evidence was closed the accused was examined Under Section 313 of Criminal

Procedure Code. On 27.06.2019 heard arguments of both sides and on the same day

Judgment pronounced vide separate judgment, Hence the delay.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki

Copy Submitted to :

The Hon’ble 1st Addl. Dist. & Sessions Judge, Ongole.

The Deputy Commissioner Prohibition and Excise, Ongole.

// True Copy //

A.J.M.F.C, Addanki

CC.NO. 261 of 2019 3 Dt.27.06.2019

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF FIRST CLASS: ADDANKI

Present :- K.BHARATH CHANDRA,

Addl. Judl. Magistrate of First Class, Addanki

Thursday, this the Twenty Seventh day of June 2019

Calendar Case No. 261 of 2019

State, represented by: (Station House Officer), Prohibition & Excise Station, Addanki. … Complainant

and

Athuluri Anjaiah, S/o. Venkata Seshaiah, aged 45 years, Mala by caste, Sankarapuram Village, Mundlamuru (M),

Prakasam District....Accused

This case has come before me on 27th day of June 2019 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of

Sri Y. Ramesh Babu, Counsel for the Accused, upon hearing both sides and having stood over for consideration till this day, this court delivered the following:-

// J U D G M E N T //

1. The State represented by the Prohibition & Excise Sub Inspector, Addanki laid a charge against Accused in Cr.No. 73 of 2018 of Addanki Excise Station for the offence under Section 34 (a) of the A.P. Excise Act.

2. The Brief Averments of Charge-sheet are:

On 04.10.2018 LW4/P. Mahaboobvali, Prohibition and Excise Sub

Inspector, Addanki conducted raids along with his staff and reached the place of offence i.e, at left side road margin of Narketpalli Highway towards eastern side of

Chakrayapalem village at about 5.30 P.M, found accused in possession of bag containing 15 bottles of Officers Choice Reserve Whisky of 180 ml each and 10 bottles of Aristocrat

Premium reserve whisky of 90 ml each. As LW1/K. Rajareddy P & E Head Constable,

Addanki failed to secure mediators, LW4 opened the bag and found liquor bottles and the

Accused stated that he does not have any bills or permit to possess the liquor bottles and further confessed the commission of offence. On verification they found EALs were

CC.NO. 261 of 2019 4 Dt.27.06.2019

removed. Then LW4 drew sample for the purpose of chemical analysis and has drafted special report at the scene of offence, arrested the accused and registered the report as

Cr.No.73 of 2018 under Sec.34 (a) of A.P Excise Act and the accused was sent to

Judicial remand and the remaining property was sent to Deputy commissioner,

Prohibition and Excise, Ongole for issuing confiscation proceedings. Sample bottles were sent to RFSL for analysis and after receiving Analysis report and after completion of investigation, he filed charge sheet in this case.

3. In this case, cognizance was taken under section 34 (a) of A.P. Excise Act against the accused. Copies of the documents were furnished to the accused under section 207 Cr.P.C, on his appearance.

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

5. In support of its case, prosecution examined PW1 got marked Exs.P1 to

P5 and M.O.1 and M.O.2. The learned A.P.P has given up the evidence of Lws 1 to 3.

6. After the closure of the prosecution evidence, the accused was examined under section 313Cr.P.C. by explaining the incriminating circumstances appearing against him in the evidence of the prosecution witness. Accused denied the same and reported no defence evidence and hence defence evidence is closed.

7. Heard both sides.

8.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused for the

charge under section 34(a) of A.P. Excise Act beyond reasonable

doubt?

9. POINT: To substantiate the case of the prosecution, LW4/P. Mahaboobvali is examined as PW1. The evidence of PW1 goes to show that he has conducted raids

CC.NO. 261 of 2019 5 Dt.27.06.2019

along with the staff and found the accused in possession of liquor bottles and as no one came forward to act as mediators, he opened the bag and found 15 bottles of Officers

Choice Reserve Whisky of 180 ml each and 10 bottles of Aristocrat Premium reserve whisky of 90 ml each and he found EALs were also removed and he drew one sample from each brand for the purpose of chemical analysis, arrested the accused, drafted special report/Ex.P1 and registered the special report as a case in Cr.No.73 of 2018 under Sec.34 (a) of A.P Excise Act and forwarded the accused to judicial custody, samples were sent to R.F.S.L for analysis and after receipt of analyst report and after completion of Investigation, he filed chargesheet.

10. Coming to the evaluation of evidence available on record, it is admitted that scene of offence is a residential locality. It is admitted that general public are moving in and around the scene of offence. PW1 also admitted that he did not try to secure the presence of mediators before reaching the scene of offence. So also he did not issue notices to the persons, who refused to act as mediators. Ex.P1 was drafted after detaining the accused by PW1 itself. No separate seizure mahazar was drafted except

Ex.P1. When the scene of offence is a residential locality, it is very easy for Excise

Officials to ask any responsible citizen in that vicinity itself to act as mediators for seizure and arrest in this case. If anybody refuses to act as mediators or any one denies aiding the Excise officials, the Excise officials have got ample power to issue summons to them to act as mediators. Admittedly when the scene of offence is a residential locality, there is no explanation given by PW1 as to why he could not secure mediators in the vicinity itself. When such power is vested in excise officials, not securing any mediators creates a doubt in the mind of this court as to whether the excise officials have really arrested the accused when the accused was in possession of liquor bottles?

11. On perusal of oral and documentary evidence placed by the prosecution, in excise cases, seizure is very important and panch witnesses play pivotal role to prove the

CC.NO. 261 of 2019 6 Dt.27.06.2019

seizure. Curiously it is evident on the record that there is no availability of panch witnesses to support the case.

12.Preponderance of probability is not useful in criminal cases. The prosecution has to establish the case beyond all reasonable doubt. Apart from the evidence of PW1, who is Excise official, no other independent witnesses have been examined to support the case of prosecution.

13. Keeping such doubt in mind, this court feels that it is not safe to convict the accused based on the sole testimony of PW1, who is Excise Official without any independent and corroborative evidence. As prosecution has failed to adduce cogent and convincing evidence and and there is no explanation offered by PW1 for not securing mediators from the scene of offence which is admittedly a residential locality. Hence, this court is of the considered opinion that prosecution failed to bring home guilt of the accused for the offence under Section 34(a) of AP Excise Act and accused is entitled for benefit of doubt and acquittal.

14.In the result, the accused is found not guilty of the offence under section 34

(a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of

Criminal Procedure Code. M.O.1 and M.O.2 vide C.P.R.No.209 of 2018 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open court, this the 27 th day of June 2019.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // APPENDIX OF EVIDENCE // Witnesses Examined For Prosecution : For Defence: PW1 : P. Mahaboobvali --None--

CC.NO. 261 of 2019 7 Dt.27.06.2019

Documents Marked

For Prosecution: For Defence:

Ex.P1: Special report, --Nil-- Ex.P2: First Information Report Ex.P3: Letter of request, Ex.P4: Letter of advice, Ex.P5: Analysis report

Material Objects Marked

For Prosecution:

M.O.1 : One sample bottle of Officers Choice Reserve Whisky of 180 ML M.O.2 : One sample bottle of Aristocrat Premium reserve whisky of 90 ml

For defence: : Nil

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // True Copy //

A.J.M.F.C, Addanki

CC.NO. 262 of 2019 1 Dt.27.06.2019

Calendar and Judgment in C.C.No. 262 of 2019 on the file of Additional Judicial

Magistrate of First Class, Addanki

1. Date of Offence : 06.10.2018

2. Date of report : 06.10.2018

3. Date of arrest of accused : 06.10.2018

4. Date of release on bail : 08.10.2018

5. Date of commencement of trial : 21.06.2019

6. Date of close of trial : 21.06.2019

7. Date of judgment : 27.06.2019

8. Complainant : State: (Station House Officer, Prohibition & Excise Station), Addanki.

9. Accused : Yalagala Srinivasa Babu S/o.Yedukondalu, aged 36 years, Yadava by caste, R/o.Martur (V&M) Prakasam District.

10. Offence : U/s.34 (a) of Andhra Pradesh Excise Act

11. Plea of accused : Pleaded not guilty

12. Finding of court : Found not guilty

13. Sentence or order :In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 and M.O.2 vide C.P.R.No.

191 of 2018 shall be destroyed after expiry of appeal time.

14. Explanation for delay : This case was taken on file on 21.05.2019 under section 34(a) of Andhra Pradesh Excise Act against the accused. On 03.06.2019 accused was present, copies of all documents were furnished to him Under Section 207 of

Criminal Procedure Code and on the same day accused was examined Under Section 239 of Criminal Procedure Code for which he pleaded not guilty, charge was framed

U/s.34(a) of Andhra Pradesh Excise Act against the accused read over and explained

CC.NO. 262 of 2019 2 Dt.27.06.2019

to him in Telugu, he denied the charge and claimed to be tried. On behalf of prosecution PW1 is examined and Ex.P1 to Ex.P5 and MO.1, M.O.2 are marked and after prosecution evidence was closed the accused was examined Under Section 313 of Criminal Procedure Code. On 27.06.2019 heard arguments of both sides and on the same day Judgment pronounced vide separate judgment, Hence the delay.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki

Copy Submitted to :

The Hon’ble 1st Addl. Dist. & Sessions Judge, Ongole.

The Deputy Commissioner Prohibition and Excise, Ongole.

// True Copy //

A.J.M.F.C, Addanki

CC.NO. 262 of 2019 3 Dt.27.06.2019

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF FIRST CLASS: ADDANKI

Present :- K. BHARATH CHANDRA,

Addl. Judl. Magistrate of First Class, Addanki

Thursday, this the Twenty Seventh day of June 2019

Calendar Case No. 262 of 2019

State, represented by: (Station House Officer), Prohibition & Excise Station, Addanki. … Complainant

and

Yalagala Srinivasa Babu, S/o.Yedukondalu, aged 36 years, Yadava by caste, Martur (V&M), Prakasam

District....Accused

This case has come before me on 27th day of June 2019 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of

Sri G. Srinivasa Rao, Counsel for the Accused, upon hearing both sides and having stood over for consideration till this day, this court delivered the following:-

// J U D G M E N T //

1. The State represented by the Prohibition & Excise Sub Inspector,

Addanki laid a charge against Accused in Cr.No. 74 of 2018 of Addanki Excise Station for the offence under Section 34 (a) of the A.P. Excise Act.

2. The Brief Averments of Charge-sheet are:

On 06.10.2018 LW4/P. Mahaboobvali, Prohibition and Excise Sub

Inspector, Addanki conducted raids along with his staff and reached the place of offence i.e, at left side road margin of Martur Village, found accused in possession of bag containing 25 bottles of Officers Choice Reserve Whisky of 180 ml each and 14 bottles of Old Tavern Fine Whisky of 180 ml each. As LW2/V.V.S.N. Prasada Rao, P &

E constable, Addanki failed to secure mediators, LW4 opened the bag and found liquor bottles and the Accused stated that he does not have any bills or permit to possess the liquor bottles and further confessed the commission of offence. On verification they found EALs were removed. Then LW4 drew sample for the purpose of chemical

CC.NO. 262 of 2019 4 Dt.27.06.2019

analysis and has drafted special report at the scene of offence, arrested the accused and registered the report as Cr.No.74 of 2018 under Sec.34 (a) of A.P Excise Act and the accused was sent to Judicial remand and the remaining property was sent to

Deputy commissioner, Prohibition and Excise, Ongole for issuing confiscation proceedings. Sample bottles were sent to RFSL for analysis and after receiving

Analysis report and after completion of investigation, he filed charge sheet in this case.

3. In this case, cognizance was taken under section 34 (a) of A.P. Excise

Act against the accused. Copies of the documents were furnished to the accused under section 207 Cr.P.C, on his appearance.

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

5. In support of its case, prosecution examined PW1 got marked Exs.P1 to

P5 and M.O.1 and M.O.2. The learned A.P.P has given up the evidence of Lws 1 to 3.

6. After the closure of the prosecution evidence, the accused was examined under section 313Cr.P.C. by explaining the incriminating circumstances appearing against him in the evidence of the prosecution witness. Accused denied the same and reported no defence evidence and hence defence evidence is closed.

7. Heard both sides.

8.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused for the charge under section 34(a) of A.P. Excise Act beyond reasonable doubt?

9. POINT: To substantiate the case of the prosecution, LW4/P.

Mahaboobvali is examined as PW1. The evidence of PW1 goes to show that he has conducted raids along with the staff and found the accused in possession of liquor

CC.NO. 262 of 2019 5 Dt.27.06.2019

bottles and as no one came forward to act as mediators, he opened the bag and found 25 bottles of Officers Choice Reserve Whisky of 180 ml each and 14 bottles of Old

Tavern Fine Whisky of 180 ml each and he found EALs were also removed and he drew one sample from each brand for the purpose of chemical analysis, arrested the accused, drafted special report/Ex.P1 and registered the special report as a case in

Cr.No.74 of 2018 under Sec.34 (a) of A.P Excise Act and forwarded the accused to judicial custody, samples were sent to R.F.S.L for analysis and after receipt of analyst report and after completion of Investigation, he filed chargesheet.

10. Coming to the evaluation of evidence available on record, it is admitted that general public are moving in and around the scene of offence. PW1 also admitted that scene of offence is a residential locality. PW1 also admitted that he did not try to secure the presence of mediators before reaching the scene of offence. So also he did not issue notices to the persons, who refused to act as mediators. Ex.P1 was drafted after detaining the accused by PW1 itself. No separate seizure mahazar was drafted except Ex.P1. When the scene of offence is a residential locality, it is very easy for

Excise Officials to ask any responsible citizen in that vicinity itself to act as mediators for seizure and arrest in this case. If anybody refuses to act as mediators or any one denies aiding the Excise officials, the Excise officials have got ample power to issue summons to them to act as mediators. Admittedly when the scene of offence is a residential locality, there is no explanation given by PW1 as to why he could not secure mediators in the vicinity itself. When such power is vested in excise officials, not securing any mediators creates a doubt in the mind of this court as to whether the excise officials have really arrested the accused when the accused was in possession of liquor bottles?

11. On perusal of oral and documentary evidence placed by the prosecution, in excise cases, seizure is very important and panch witnesses play pivotal role to

CC.NO. 262 of 2019 6 Dt.27.06.2019

prove the seizure. Curiously it is evident on the record that there is no availability of panch witnesses to support the case.

12.Preponderance of probability is not useful in criminal cases. The

prosecution has to establish the case beyond all reasonable doubt. Apart from

the evidence of PW1, who is Excise official, no other independent witnesses

have been examined to support the case of prosecution.

13. Keeping such doubt in mind, this court feels that it is not safe to convict the accused based on the sole testimony of PW1, who is Excise Official without any independent and corroborative evidence. As prosecution has failed to adduce cogent and convincing evidence and there is no explanation offered by PW1 for not securing mediators from the scene of offence which is admittedly a residential locality. Hence, this court is of the considered opinion that prosecution failed to bring home guilt of the accused for the offence under Section 34(a) of AP Excise Act and accused is entitled for benefit of doubt and acquittal.

14.In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 and M.O.2 vide C.P.R.No.191 of 2018 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open court, this the 27 th day of June 2019.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // APPENDIX OF EVIDENCE // Witnesses Examined For Prosecution : For Defence: PW1 : P. Mahaboobvali --None--

CC.NO. 262 of 2019 7 Dt.27.06.2019

Documents Marked

For Prosecution: For Defence:

Ex.P1: Special report, --Nil-- Ex.P2: First Information Report Ex.P3: Letter of request, Ex.P4: Letter of advice, Ex.P5: Analysis report

Material Objects Marked

For Prosecution:

M.O.1 : One sample bottle of Officers Choice Reserve Whisky of 180 ML M.O.2 : One sample bottle of Old Tavern Fine Whisky of 180 ml

For defence: : Nil

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // True Copy //

A.J.M.F.C, Addanki

CC.NO. 266 of 2019 1 Dt.27.06.2019

Calendar and Judgment in C.C.No. 266 of 2019 on the file of Additional Judicial

Magistrate of First Class, Addanki

1. Date of Offence : 27.10.2018

2. Date of report : 27.10.2018

3. Date of arrest of accused : 27.10.2018

4. Date of release on bail : 31.10.2018

5. Date of commencement of trial : 22.05.2019

6. Date of close of trial : 04.06.2019

7. Date of judgment : 27.06.2019

8. Complainant : State: (Station House Officer, Prohibition & Excise Station), Addanki.

9. Accused : Kumbha Kanakaiah, S/o.Tirupathaiah, aged 58 years, Erukala by caste, Rajupalem (V), Martur (M), Prakasam District.

10. Offence : U/s.34 (a) of Andhra Pradesh Excise Act

11. Plea of accused : Pleaded not guilty

12. Finding of court : Found not guilty

13. Sentence or order :In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 vide C.P.R.No.12 of 2019 shall be destroyed after expiry of appeal time.

14. Explanation for delay : This case was taken on file on 21.05.2019 under section 34(a) of Andhra Pradesh Excise Act against the accused. On 22.05.2019 accused was present, copies of all documents were furnished to him Under Section 207 of

Criminal Procedure Code and on the same day accused was examined Under Section 239 of Criminal Procedure Code for which he pleaded not guilty, charge was framed

U/s.34(a) of Andhra Pradesh Excise Act against the accused read over and explained

CC.NO. 266 of 2019 2 Dt.27.06.2019

to him in Telugu, he denied the charge and claimed to be tried. On behalf of prosecution PW1 is examined and Ex.P1 to Ex.P5 and MO.1 are marked and after prosecution evidence was closed the accused was examined Under Section 313 of

Criminal Procedure Code. On 27.06.2019 heard arguments of both sides and on the same day Judgment pronounced vide separate judgment, Hence the delay.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki

Copy Submitted to :

The Hon’ble 1st Addl. Dist. & Sessions Judge, Ongole.

The Deputy Commissioner Prohibition and Excise, Ongole.

// True Copy //

A.J.M.F.C, Addanki

CC.NO. 266 of 2019 3 Dt.27.06.2019

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF FIRST CLASS: ADDANKI

Present :- K.BHARATH CHANDRA,

Addl. Judl. Magistrate of First Class, Addanki

Thursday, this the Twenty Seventh day of June 2019

Calendar Case No. 266 of 2019

State, represented by: (Station House Officer), Prohibition & Excise Station, Addanki. … Complainant

and

Kumbha Kanakaiah, S/o.Tirupathaiah, aged 58 years, Erukala by caste, Rajupalem (V), Martur (M), Prakasam

District....Accused

This case has come before me on 27th day of June 2019 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of

Sri G. Srinivasa Rao, Counsel for the Accused, upon hearing both sides and having stood over for consideration till this day, this court delivered the following:-

// J U D G M E N T //

1. The State represented by the Prohibition & Excise Sub Inspector,

Addanki laid a charge against Accused in Cr.No. 83 of 2018 of Addanki Excise Station for the offence under Section 34 (a) of the A.P. Excise Act.

2. The Brief Averments of Charge-sheet are:

On 27.10.2018 LW4/S. Anjaneyulu, Prohibition and Excise Sub Inspector,

Addanki conducted raids along with his staff and reached the place of offence i.e, at left side road margin of Rajupalem Village at about 12.00 P.M, found accused in possession of bag containing 12 bottles of Old Tavern Fine Whisky of 180 ml each.

As LW1/V. Gopala Reddy, P & E Constable, Addanki failed to secure mediators, LW4 opened the bag and found liquor bottles and the Accused stated that he does not have any bills or permit to possess the liquor bottles and further confessed the commission of offence and further stated that the liquor bottles were purchased from unknown persons and selling the same at higher price to ekeout his livelihood. On verification

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they found EALs were removed. Then LW4 drew sample for the purpose of chemical analysis and has drafted special report at the scene of offence, arrested the accused and registered the report as Cr.No.83 of 2018 under Sec.34 (a) of A.P Excise Act and the accused was sent to Judicial remand and the remaining property was sent to

Deputy commissioner, Prohibition and Excise, Ongole for issuing confiscation proceedings. Sample bottle was sent to RFSL for analysis and after receiving Analysis report and after completion of investigation, he filed charge sheet in this case.

3. In this case, cognizance was taken under section 34 (a) of A.P. Excise

Act against the accused. Copies of the documents were furnished to the accused under section 207 Cr.P.C, on his appearance.

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

5. In support of its case, prosecution examined PW1 got marked Exs.P1 to

P5 and M.O.1. The learned A.P.P has given up the evidence of Lws 1 to 3.

6. After the closure of the prosecution evidence, the accused was examined under section 313Cr.P.C. by explaining the incriminating circumstances appearing against him in the evidence of the prosecution witness. Accused denied the same and reported no defence evidence and hence defence evidence is closed.

7. Heard both sides.

8.Now the point for determination is:

Whether the prosecution has proved the guilt of the accused for the charge under section 34(a) of A.P. Excise Act beyond reasonable doubt?

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9. POINT: To substantiate the case of the prosecution, LW4/S. Anjaneyulu is examined as PW1. The evidence of PW1 goes to show that he has conducted raids along with the staff and found the accused in possession of liquor bottles and as no one came forward to act as mediators, he opened the bag and found 12 bottles of Old

Tavern Fine Whisky of 180 ml each and he found EALs were also removed and he drew sample for the purpose of chemical analysis, arrested the accused, drafted special report/Ex.P1 and registered the special report as a case in Cr.No.83 of 2018 under Sec.34 (a) of A.P Excise Act and forwarded the accused to judicial custody, samples were sent to R.F.S.L for analysis and after receipt of analyst report and after completion of Investigation, he filed chargesheet.

10. Coming to the evaluation of evidence available on record, it is admitted that scene of offence is a busy locality consisting of vehicular traffic. PW1 admitted that he did not ask the people who gathered at the scene of offence to act as mediators. So also he did not issue notices to the persons, who refused to act as mediators. Ex.P1 was drafted after detaining the accused by PW1 itself. No separate seizure mahazar was drafted except Ex.P1. When the scene of offence is a busy locality, it is very easy for Excise Officials to ask any responsible citizen in that vicinity itself to act as mediators for seizure and arrest in this case. If anybody refuses to act as mediators or any one denies aiding the Excise officials, the Excise officials have got ample power to issue summons to them to act as mediators. Admittedly when the scene of offence is a bus locality, there is no explanation given by PW1 as to why he could not secure mediators in the vicinity itself. When such power is vested in excise officials, not securing any mediators creates a doubt in the mind of this court as to whether the excise officials have really arrested the accused when the accused was in possession of liquor bottles?

11. On perusal of oral and documentary evidence placed by the prosecution, in excise cases, seizure is very important and panch witnesses play pivotal role to

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prove the seizure. Curiously it is evident on the record that there is no availability of panch witnesses to support the case.

12.Preponderance of probability is not useful in criminal cases. The

prosecution has to establish the case beyond all reasonable doubt. Apart from

the evidence of PW1, who is Excise official, no other independent witnesses

have been examined to support the case of prosecution.

13. Keeping such doubt in mind, this court feels that it is not safe to convict the accused based on the sole testimony of PW1, who is Excise Official without any independent and corroborative evidence. As prosecution has failed to adduce cogent and convincing evidence and and there is no explanation offered by PW1 for not securing mediators from the scene of offence which is admittedly a busy locality.

Hence, this court is of the considered opinion that prosecution failed to bring home guilt of the accused for the offence under Section 34(a) of AP Excise Act and accused is entitled for benefit of doubt and acquittal.

14.In the result, the accused is found not guilty of the offence under section 34 (a) of A.P. Excise Act, and hence he is acquitted under section 248(1)Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Criminal Procedure Code. M.O.1 vide C.P.R.No.12 of 2019 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open court, this the 27 th day of June 2019.

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // APPENDIX OF EVIDENCE // Witnesses Examined For Prosecution : For Defence: PW1 : S. Anjaneyulu --None--

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Documents Marked

For Prosecution: For Defence:

Ex.P1: Special report, --Nil-- Ex.P2: First Information Report Ex.P3: Letter of request, Ex.P4: Letter of advice, Ex.P5: Analysis report

Material Objects Marked

For Prosecution:

M.O.1 : One sample bottle of Old Tavern Fine Whisky of 180 ml

For defence: : Nil

Sd/- K. Bharath Chandra

Addl. Judl. Magistrate of First class, Addanki // True Copy //

A.J.M.F.C, Addanki