C.C.347/2018 A.J.C.J.Court, Chirala
1 // 8
IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-Cum- I-ADDL. JUDL.
MAGISTRATE OF FIRST CLASS: CHIRALA
Present: Sri Ch.Venkata Naga Srinivasa Rao Prl. Junior Civil Judge, Chirala FAC:I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala.
Friday, the 10th day of August, 2018
Calendar Case No. 347of 2018
Between:
State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :-
Kokkiligadda Nagaraju, S/o Pala Chandra Rao, Age 27 years, Caste by Pallakarulu, Occ:Cooli, R/o Jeedichatlapalem village, Motupalli Panchayat, Chinnaganjam Mandal … Accused
This C.C. came before the Court on 02.08.2018 for final hearing before me in the presence of Assistant Public Prosecutor, Grade-II for the state-complainant and Sri K.Udaya Bhaskara Rao, Advocate for accused and having stood over for consideration till this day, the court delivered the following:
// J U D G M E N T //
01.The accused is tried for the offence under Sec.34 (a) of A.P.Excise Act in
P.R.No.150/2017 of Chirala Prohibition and Excise Station.
02.The brief averments of the chargesheet are as follows:-
On 07.09.2017 as per the instructions of Prohibition and Excise
Superintendent, Ongole, G.Nagaraju, Prohibition and Excise Constable, ESTF, Ongole (L.W.1), K.Anjaneyulu, Prohibition and Excise Head Constable, ESTF, Ongole (L.W.2),
K.Murali Krishna, Prohibition and Excise Sub-Inspector, ESTF, Ongole (L.W.3) and other staff reached Chirala Prohibition and Excise Station limits and raised suspected places and when they reached at Romparu Vagu Bridge area of Kothareddypalem vilalge road,
Pandillapalli , Vetapalem mandal at about 4-45 P.M, they found the accused in possession of one black colour plastic bag. On suspicion Prohibition and Excise Sub-Inspector, ESTF,
Ongole (L.W.3) detained the accused and sent Prohibition and Excise Constable, ESTF,
Ongole (L.W.1) to secure mediators, but in vain. The Prohibition and Excise Sub-Inspector
C.C.347/2018 A.J.C.J.Court, Chirala
2 // 8
ESTF, Ongole (L.W.3) examined the black plastic bag and found ‘10’ bottles of Heaven’s
Door Whisky each 180 ml duty paid liquor bottles and took one bottle of 180 ml as sample from the above bottles for the purpose of chemical analysis. Sealed and seized the sample bottle and remaining liquor bottles with black plastic cover and affixed identity slips and arrested the accused by drafting special report and later handed over before Prohibition and
Excise station, Chirala. Basing of the special report, A.Joshi Babu, Prohibition and Excise
Sub-Inspector, Chirala (L.W.4) registered a case in P.R.No.150/2017 for the offence under
Sec.34 (a) of A,P. Excise Act. During the course of investigation, the Prohibition and Excise
Sub-Inspector (L.W.4) sent the sample to chemical examiner, Guntur through Court and analyst opined that the sample is “INDIAN LIQUOR” and sent the remaining case property with black plastic bag to the Deputy Commissioner of Prohibition and Excise for confiscation proposals and after completion of investigation laid chargesheet.
03.Basing on the material placed before the court, this Court took cognizance against the accused for the offence under Sec.34 (a) of A.P.Excise Act.
04.On appearance of the accused before the Court, this Court furnished the copies of case documents to the accused as contemplated u/s 207 Cr.P.C.
05.This Court examined the accused u/s 239 Cr.P.C for the accusation levelled against him in the chargesheet, for which he has denied the same. Upon considering the material placed before this Court by the prosecution and upon hearing the Assistant Public
Prosecutor for the state and the learned counsel for the accused, this Court is of the opinion that there are ground for prosecuting that the accused has committed the offence u/s 34 (a) of A.P.Excise Act, framed the charge for the offence u/s 34 (a) of A.P.Excise Act, read over and explained to him in Telugu, for which he denied the same and claimed to be tried.
06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 3 are examined and Exs.P.1 to P.5 and M.O.1 are marked.
07.After, closure of prosecution side evidence, this Court examined the accused under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied the same and reported that he has no evidence.
C.C.347/2018 A.J.C.J.Court, Chirala
3 // 8
08.On the strength of the above, the point that falls for determination is “Whether the prosecution has proved its case against the accused for the offence under Sec.34 (a) of A.P.Excise Act beyond reasonable doubt ?”
09.Heard both the sides.
10.POINT :-
The learned Assistant Public Prosecutor has contended that while conducting raids by the Prohibition and excise officials ie., P.ws.1 and 2 along with other staff found the accused with black plastic bag at Romparu Vagu bridge area of Kothareddypalem village road, Pandillappalli and on suspicion the accused was detained who made confession of having ‘10’ bottles of Heaven’s Door whisky each 180 ml duty paid liquor bottles and the same were seized and picked up one bottle for chemical analysis purpose and to prove the case P.Ws.1 to 3 are examined and their evidences are consistent throughout and prayed this Court to convict the accused for the offence under Sec. 34 (a) of A.P.Excise Act.
ii)Per contra, the learned counsel for the accused has contended that the accused is falsely implicated in this case only for statistical purpose; that P.W.2 did not secure any persons to act as mediators, eventhough the place of offence is situated in a residential area and the evidences of P.Ws.1 to 3 are not consistent through out and prayed this Court to acquit the accused.
iii)Before adverting to the rival contentions made on both the sides, it is apposite to extract the relevant provision for better determination of the point at hand and the relevant provision is Section 42 of A.P.Excise Act, which mandates as follows:- “Presumption as to commission of offence in certain cases:-
In prosecutions under Section 34, (Section 37 and Section 37-A) it shall be
presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of -
(a) any intoxicant, or
(b) any still utensil, implement or apparatus whatsoever in the manufacture of any intoxicant other than toddy, or
(c) any materials which has undergone any process towards the manufacture
of any intoxicant or from which an intoxicant has been manufactures;
for the possession of which he is unable to account satisfactorily.”
C.C.347/2018 A.J.C.J.Court, Chirala
4 // 8
As per the above said section a presumption stood infavour of the prosecution that until the contra is proved the accused has committed the offence under
Sec. 34 (a) of A.P.Excise Act. The above said presumption is a rebuttal one and it is for the accused to rebut the said presumption. If the accused succeeds in rebutting the said presumption, the prosecution is not further entitled to presumption. Even to avail the said presumption, at first the prosecution has to prove its case as to the alleged seizure of the bottles from the possession of the accused. To prove the case the prosecution in all examined P.ws.1 to 3. P.W.1 is the Prohibition and Excise Constable, ESTF, Ongole, P.W.2 is the Prohibition and Excise Head Constable, ESTF ,Ongole and P.W.3 is the Prohibition and Excise Sub-Inspector who received special proceedings from Sub-Inspector, ESTF,
Ongole and who filed chargesheet. P.W.3 testified that on 07.09.2017 at about 4-45 P.M
P.Ws.1 and 2 along with their their S.I/K.Murali Krishna raided suspected areas and when they reached at Romparu Vagu breidge area of Kothareddypalem village road, Pandillapalli,
Vetapalem Mandla and found one male person holding a black plastic bag and on seeing the police jeep, the said person tried to skulk away from that place, but they caught hold him and, then S.I of Police ESTF, Ongole (L.W.3) deputed P.W.1 to secure mediators, but none came forward to act as mediators and the same was informed by P.W.1. He further testified that accused confessed before ESTF staff that he is in possession of 10 liquor bottles of
Heaven’s Door Whisky and purchased the same from unknown persons in order to sell the same for higher rates for his livelihood; that on enquiry with regard to licence to sell the said bottles, the accused kept quite and did not show any receipt to that effect. He further testified that SI of Police, ESTF, Ongole (L.W.3) drafted police proceedings for arrest of the accused, seizure of said 10 liquor bottles of Heaven’s Door whisky from the possession of the accused and the special proceedings under Ex.P.1. He further testified that SI of Police,
ESTF, Ongole (L.W.3) picked up one Heaven’’s door whisky of 180 ml and the same is marked as M.O.1 and later handed over the accused along with case file to him; that later he registered the said proceedings as P.R.No.150/2017 for the offence under Sec. 34 (a) of
A.P.Excise Act, submitted FIR to the Court and the copies of FIR to all concerned Officers,
C.C.347/2018 A.J.C.J.Court, Chirala
5 // 8
and FIR is marked as Ex.P.2. He further testified that he filed a memo along with letter of advice to send M.O.1 for chemical analysis and the said letter is marked as Ex.P.3 and received the analyst report which is marked as Ex.P.4, wherein the analyst opined the sample as “Indian Made Liquor”. He further testified that remaining bottles were sent to
Assistant Commissioner, Prohibition and Excise, Ongole for confiscation purpose, and ad per the proceedings of Deputy Commissioner of Prohibition and Excise, Ongole he destroyed the remaining I.D.Arrack and the said proceedings were marked as Ex.P.5.and after completion of investigation he laid chargesheet.
iv)P.Ws.1 and 2 also testified on the similar lines supporting the evidence of
P.W.3 in toto and the said proceedings was marked as Ex.P.1.
v)A conjoint reading of the testimonies of P.Ws.1 to 3 coupled with Exs.P.1 to
P5 and M.O1; it is manifestly clear that no inconsistent statements even made by P.Ws.1 to 3 in their examinations in chief, and as such the prosecution has proved its initial case and now it is for the accused to rebut the presumption stood infavour of the prosecution under
Sec.42 of A.P.Exicse Act.
vi)As per the cross-examinations of P.Ws.1 to 3 they Ryths are passing through that they did not make any enquiry about the local persons at the scene of offence and they did not issue any notices on the President or the V.R.O of the Epurupalem village to act as mediators. As per the above said elicitiation, it is manifastly clear that P.Ws.1 to 3 did not make any efforts to secure any of the persons to act as mediators and no efforts have been made to that end which makes this court the doubt the veracity of the alleged seizure of the liquor bottles, which is one of the strong circumstances to rebut the presumption. Even if it is assumed for a moment that P.W.3 seized 10 bottles of Heaven’s door whisky each 180 ml duty paid liquor bottles, it would not amount to offence as it is not all the evidence s of
P.Ws.1 to 3 that the accused possessed of the said liquor bottles for sale as the total quantity comes to 1800 ml and a person can possess 4500 ml, which is sufficient to rebut a presumption.
C.C.347/2018 A.J.C.J.Court, Chirala
6 // 8
Vii) Inview of the above discussion, this Court has come to an indomitable, conclusion that the accused has successfully rebutted the presumption stood infavour of the prosecution under Sec.42 of A.P.Excise Act. Eventhough the prosecution examined P.Ws.1 to 3 to prove its case, their evidences are not inpspiring the confidence of this Court to bring home the guilt of the accused for the offence under Sec.34 (a) of A.P.Excise Act.
Hence, the prosecution has miserably failed to prove the case against the accused for the offence under Sec.34 (a) of A.P.Excise Act. Hence, this point is answered accordingly.
11.In the result, In the result, accused is found not guilty ofthe offence under sec. 34 (a) of A.P.Excise Act and thereby he is acquitted of such under Sec.248 (1) Cr.P.C.
The bail bonds executed by the accused shall be in force for a period of six months under
Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time.
Typed to my dictation by Personal Assistant, corrected and pronounced by me in open Court, this the 10 th day of August, 2018.
Sd/- Ch.V.N.Srinivasa Rao
Prl. Junior Civil Judge, Chirala FAC:I-Additional Junior Civil Judg-cum- I-Addl. Judl. Magistrate of First Class, Chirala
// APPENDIX OF EVIDENCE //
-:WITNESSES EXAMINED:-
FOR PROSECUTION FOR DEFENCE
P.W.1-G.Nagaraju, Prohibition and Excise Constable, ESTF, Ongole NONE P.W.2-K.Anjaneyulu, Prohibition and Excise Head Constable, ESTF, Ongole P.W.3: A.Joshi Babu, Prohibition and Sub-Inspector, Chirala
// DOCUMENTS MARKED //
FOR PROSECUTION FOR DEFENCE
Ex.P1/ Special reportNIL Ex.P2/ First Information Report Ex.P3/Letter of Advice Ex.P4/Analyst report Ex.P5/C.C. of Proceedings // MATERIAL OBJECTS MARKED // M.O.1: Sample bottle Ild/- Ch.V.N.S.Rao P.J.C.J FAC:I-A.J.C.J-cum- I-A.J.F.C.M., Chirala
// True copy//
Prl. Junior Civil Judge, Chirala
FAC:I-Additional Junior Civil Judg-cum-
I-Addl. Judl. Magistrate of First Class, Chirala
C.C.347/2018 A.J.C.J.Court, Chirala
7 // 8
IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-Cum- I-ADDL. JUDL.
MAGISTRATE OF FIRST CLASS: CHIRALA
CALENDAR IN C.C.No.347of 2018
Date of offence prior to:07.09.2017 Date of report: 07.09.2017 Date of apprehension of accused: 07.09.2017 Date of release of accused: 07.09.2017 Date of commencement of trial: 02.08.2018 Date of closure of trial: 08.08.2018 Date of Judgment: 10.08.2018
Between :
State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :-
Kokkiligadda Nagaraju, S/o Pala Chandra Rao, Age 27 years, Caste by Pallakarulu, Occ:Cooli, R/o Jeedichatlapalem village, Motupalli Panchayat, Chinnaganjam Mandal … Accused
Offence:u/Sec.34 (a) of A.P.Excise Act
Plea of accused:Pleaded not guilty
Finding of the Court:Found not guilty
Sentence or Order:
In the result, In the result, accused is found not guilty for the offence under sec. 34 (a) of A.P.Excise Act and thereby he is acquitted of such offence under Sec.248 (1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time. Explanation for delay:-
Basing on the material placed before the court, this Court took cognizance against the accused for the offence under Sec.34 (a) of A.P.Excise Act. On appearance of the accused before the Court, this Court furnished the copies of case documents to the accused as contemplated u/s 207 Cr.P.C. This Court examined the accused u/s 239 Cr.P.C for the accusation levelled against him in the chargesheet, for which he has denied the same. Upon considering the material placed before this Court by the prosecution and upon hearing the Assistant Public Prosecutor for the state and the learned counsel for the
C.C.347/2018 A.J.C.J.Court, Chirala
8 // 8
accused, this Court is of the opinion that there are ground for prosecuting that the accused has committed the offence u/s 34 (a) of A.P.Excise Act, framed the charge for the offence u/s 34 (a) of A.P.Excise Act, read over and explained to him in Telugu, for which he denied the same and claimed to be tried. The trial was commenced on 02.08.2018 and concluded on 08.08.2018, during trial P.Ws.1 to 3 were examined and got marked Exs.P1 to P5 besides M.O.1 and prosecution evidence was closed. After, closure of prosecution side evidence, this Court examined the accused under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied the same and reported that he has no evidence. Heard arguments on both the sides. On 10.08.2018
Judgment pronounced. Hence the delay.
Sd/- Ch.V.N.Srinivasa Rao
Prl. Junior Civil Judge, Chirala FAC:I-Additional Junior Civil Judg-cum- I-Addl. Judl. Magistrate of First Class, Chirala
Copy submitted to: The Hon’ble I-Additional District & Sessions Judge, Ongole
// True copy//
Prl. Junior Civil Judge, Chirala
FAC:I-Additional Junior Civil Judg-cum-
I-Addl. Judl. Magistrate of First Class, Chirala