Sri D. Rama Mohan Reddy

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Present: - Sri. D. Rama Mohan Reddy,

Judicial Magistrate of First Class,

Kodangal.

Today, this the 31st day of October, 2019

C.C. No.377 of 2018

Between: State: Sub Inspector of police, Kosgi. Crime No. 135/2017. …Complainant AND

Ammanolla Ramulu S/o. Anjaneyulu, age 43 years, Occ: Business, R/o. Nagasanipally village of Kosgi Mandal, Mahabubnagar district.

….Accused

This case is coming on 30-10-2019 before me for final hearing in the presence of Sri B. Yadaiah, Assistant Public Prosecutor for the complainant and of Sri Venkat Narsimha Goud, advocate for Accused and upon perusing the material on record, the Court delivered the following:__

J U D G M E N T

The Sub-Inspector of police, Kosgi filed a case against the accused in Cr. No. 135/2017 of his station alleging that accused had committed an offence punishable U/Sec. 34(a) of A.P. Excise Act.

2. The case of the prosecution, in brief, is that, On dt.12.10.2017, at evening hours, LW-5 received credible information about the illegal sales of IML in the hotels at Nagasanpally village H/o. Masaipally village of Kosgi

Mandal. As such, LW-5 along with PW-3 and PW-4 proceeded to said village and conducted raid on Kiranam shop of Ammanolla Ramulu. On interrogation he confessed that he purchased IMFL. from the wine shop at Kosgi and the same are being sole by him at high price in his Kirana shop. On search of the shop they found 13 bottles of K.F strong beer each of 650 ml and 6 bottles of OC whiskey each of 180 ml. LW-5 secured PW- 1 and PW-2 and seized the above said contraband under cover of panchanama by drawing two samples from each brand for chemical analysis. Basing on the panchanama LW-5 registered a suo-moto case in

Cr.No. 5135/2017 for the offence U/sec. 34 (a) of AP Excise Act. On 12.10.2017. During the course of investigation LW-5 examined and recorded the statements of PW-3 and PW-4. LW-5 issued sec. 41-A Cr.PC 2 notice to the accused. After receiving the CE report vide FSL No.

NAR/2770/2017 dt.6.11.2017. On completion of investigation, LW-6 laid charge sheet against the accused for the offence punishable U/Sec. 34 (a) of AP Excise Act.

3. This Court took the cognizance of the offence U/Sec. 34(a) of A.P.

Excise Act against the accused, on dt.12.10.2018. On appearance of accused copies of documents as contemplated U/Sec. 207 of the Cr.P.C.

were furnished to him.

4. Accused was examined U/Sec. 239 of Cr.P.C., for which, he denied the offence. A Charge framed U/Sec. 34(a) of A.P. Excise Act was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

5. In order to establish its case, prosecution has examined PWs-1 to 4 and got marked Ex.P1 and Ex.P2. On 16.10.2019, evidence of LW-5/D.

Venkataiah, ASI of police and LW-6/J. Krishnaiah, SI of police, was clossed as police failed to serve summons on them inspite of giving ample of opportunies.

6. After closure of the prosecution evidence, Accused was examined

U/Sec. 313 Cr.P.C., explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

7. Heard learned counsel for the parties and perused the record.

8. Now the point that arises for determination is___

Whether prosecution has brought home the guilt of accused for the offence under Section 34(a) of A.P. Excise Act beyond all reasonable doubt?

9. Point: In order to establish its case, as already noted, prosecution has examined PWs-1 to 4 and got marked Ex.P1 and Ex.P2. PW-1 and PW- 2 are panch witnesses. PW-3 and PW-4 are the eye witnesses to the seizure of IML. Bottles from the accused. Ex.P1 is the signature on confession- cum-Seizure Panchanama of PW-2, Ex.P2 is signature on scene of offence panchanama of PW2.

3

10. Mainly, prosecution case rests on seizure of contraband from the possession of accused. To establish the same, prosecution examined witnesses to the seizure panchanama i.e, PW.1 and PW.2. But, both of them corroboratively deposed that police never conducted any scene of offence and seizure panchanama in their presence and that they obtained their signatures on white papers without disclosing the purpose. As such, confession-cum-seizure panchanama remains doubtful.

11. The other crucial witnesses to the prosecution case are the testimonies of Pws-3 and 4 who are cited as eye-witnesses. Pws-3 and 4 are police constables and are sub-ordinates of Lws-5 and 6, as such, their testimonies are to be scrutinized with care and caution. It is testimony of

PW-3 that on 12-10-2017 he along with PW-4 were present at PS. Kosgi and on reliable information about illegal sale of IML, they went to

Nagasanipally village at about 6:00 p.m, and on reaching the shop of accused by searching his shop, they found 15 KF Strong Beer Bottles and 6 Officers Choice Whisky bottles and as such they seized the said contraband and handed over to LW-5 at PS. Kosgi at 6:30 pm.

During the course of cross-examination it is elicited that he do not know the shop/door number of the shop and he cannot say the name and style of shop where they found the contraband. It is also elicited that on reaching the shop they collected the contraband and brought the same to

PS. Kosgi, without conducting any panchanama and also that he do not know through whom he received information of illegal sale of IML.

12. PW-4 who are cited as eye-witness who is said to have accompanied

LW-5 to the shop of accused deposed that on 12-10-2017, LW-5 received reliable information regarding illegal sale of IMFL at the Kirana shop of accused, as such he along with PW-2 and LW-5 proceeded to Kirana shop of accused and raided the shop of accused. He also stated that on search of said Kirana shop of accused found 13 KF Beer and 6 Officers Choice

Whisky bottles. He also deposed that on enquiry by LW-5 accused disclosed that he did not obtaine any permission and selling the same in the village at higher rates. He also deposed that on the instructions of LW- 5 he secured the presence of Pws-1 and 2 and in their presence LW-5 seized the contraband under cover of panchanama by following prescribed procedure of pasting sign chits and that LW-5 along with contraband and accused brought to PS. Kosgi and registered the case. PW-4 also identified the accused present in the court.

During the course of cross-examination of the the accused it is 4 elicited that door number of kirana shop of accused is 1-39 and no documents were collected to show that kirana shop belongs to accused. It is also elicited that they did not enquire about purchasing of alleged contraband from the wine shop of Kosgi and that at the time of conducting panchanama by LW-5 none else were present except himself, Pws-1 to 3 and also that LW-5 received information at about 5:30 pm., and immediately they rushed to kirana shop of accused.

13. From the perusal of above testimonies of Pws-3 and 4 it is apparent that their testimonies are contrary to each other since according to PW-3, he and PW-4 raided the shop and seized the contraband. Where as, according to PW-4, he along with PW-2 and LW-5 raided the kirana shop of accused. That apart, according to PW-3 no panchanama was conducted at the house of accused, while PW-4 stated that LW-5 conducted panchanama at the house of accused and brought the accused to PS. Kosgi. Even the time of receiving the information by LW-5 is contrarily stated by Pws-3 and 4, as such, their testimonies who are interested in the out come of the case cannot be relied, when they failed to atleast state clearly as to who among them have raided the shop of accused.

Also as it could be seen from the above evidence, it is clear that no search memo was issued by LW-5, while conducting raid over the alleged shop of the accused. Thus the provisions of Sec.55 of A.P. Excise Act, 1968 which are mandatory are not followed by LW-5. There is also nothing on record showing the fate of remaining contraband, which further raises about the very raid by LW-5.

14. Admittedly no documents were collected to show that kirana shop belongs to accused. In such a case, when the witnesses to the seizure panchanama did not support the prosecution case and the testimonies of

Pws-3 and 4 being contrary to each other, in the absence of atleast the documentary evidence, it cannot be said that accused is having nexus with the contraband. On this aspect, the then Hon'ble High court Andhra

Pradesh in the decision reported in 2003(1) ALD Criminal 805 (A.P) between T.Subbanna V/s. State of Andhra Pradesh held that :

"where the ownership or possession of the accused is not established over the place of offence and where independent mediators are turned hostile, no conviction can be recorded in an excise offence on the version of official witness."

15. Further, according to the prosecution case LW-5 who is the ASI. of 5 police raided the Kirana shop of accused, but as per Rule 3 of AP Excise (Power and Duties) Rules, 1972, any Police Officer below the rank of inspector is not authorized to conduct any such raid relating to excise offences. Hence, it is expedient to extract the said proviso, which reads as follows :

Rule 3 of AP Excise (Power and Duties) Rules, 1972, to do investigation of the offence under AP Excise Act :-

Rule 3:- Powers to arrest without warrant, to seize articles

liable for confiscation and to make searches:- (1) Any Excise Officer not below the rank of a Sub-Inspector, any police officer of and above the rank of an Inspector and any officer of the Revenue Department of and above the rank of a Deputy Tahasildar having jurisdiction over the place may:-

a) Arrest without warrant any person found committing an offence punishable under sections 34, 35, 36 or 37.

b) Seize and detain any excisable or other articles which he has reason to believe to be liable to confiscation under the Act or any other law for the time being in force relating to excise revenue;

and

c) Detain and search any person upon whom and any vessel, raft vehicle, animal, package, receptacle or covering in or upon which he may have reasonable cause to suspect any such article to be.

(2) The officers of the Government employed in the Revenue Department exerting the power under Section 53, shall however follow the procedure prescribed in Sections 59 and 60 and make over the case for investigation by an Excise Officer under sections 57 and 58 and for prosecution under section 61 of the Act.

From the bare perusal of the above rule,it is crystal clear that the police officer below the rank of Inspector is not having any authority to do investigation of the offence under AP Excise Act. As such, the very raid and seizure is contrary to law.

16. It is the case of prosecution that, LW-5 seized the contraband on 12- 10-2017 and as per CPR No.238/2018 of this court the case property was deposited before this court on 28-9-2018 i.e., almost after a gap of nearly one year from the date of seizure for which there is no explaination offered by the prosecution to show that the samples were in proper custody. As there is no evidence to show that the samples were kept in proper custody without giving scope for tampering, the same is itself fatal to the prosecution case, as held by the then Hon'ble High Court of A.P. in

Ratnala Brundavanam Vs. State of A.P., reported in 2004 (1) ALD Crl.

905 wherein it was held that :

6 "the delay in sending the sample is always fatal to the case of prosecution, where no explanation is offered for such delay. "

17. In the light of supra discussion, I hold that prosecution miserably failed to prove the guilt of accused for the offence U/Sec.34(a) of A.P.

Excise Act, 1968 beyond all reasonable doubt and thus the accused is entitled for acquittal.

18. In the result, accused is found not guilty of the offence U/Sec.34(a) of A.P. Excise Act and he is accordingly acquitted U/Sec. 248(1) of Cr.P.C.

Bail bonds of accused shall be in force for a period of 6 months from today, as prescribed under Sec. 437-A of Cr.P.C. The unmarked sample bottles shall be destroyed after completion of appeal time.

Typed by me, corrected and pronounced by me, in open Court, on this the 31st day of October, 2019.

JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Appendix of Evidence Witnesses Examined For Prosecution: For Defence:

PW-1: Harijan Pentappa. -None-

PW-2: Ammanolla Narayana.

PW-3: P.Gopal, PC 2306.

PW-4: Ganesh Goud, PC 3014.

Documents Marked For Prosecution:

Ex.P1: Signature of PW-2 on confession-cum-Seizure Panchanama.

Dt.12.10.2017.

Ex.P2: Signature of PW-2 on scene of offence panchanama. Dt.12.10.2017.

For Defence: -Nil-

Material Objects Marked -NIL-

JFCM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Present: - Sri. D. Rama Mohan Reddy,

Judicial Magistrate of First Class,

Kodangal.

Dated, this the 10th day of August, 2018

C.C. No. 10 of 2018

Between: State: Prohibition & Excise Sub Inspector, Pargi. …Complainant

AND

1. Sabavath Tikya Naik S/o. Seethya Naik age, 40 years,

2. Sabavath Seethe Bai W/o. Seethya Naik, age 62 years, Both are Occupation: ID seller, R/o. Nandya Naik thanda, H/o Dewarfasalwad village of Doulathabad Mandal. ….Accused

This case is coming on 9-8-2018 before me for final hearing in the presence of Sri B. Yadaiah, Assistant Public Prosecutor for the complainant and of Sri Venkataiah, advocate for Accused and upon perusing the material on record, the Court delivered the following___

J U D G M E N T

The Prohibition & Excise Sub-Inspector, Pargi filed this case against the A-1 and A-2 vide PCOR No. 218/17 of his station alleging that A-1 and A-2 had committed an offence punishable U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act.

2.The case of the prosecution, in brief, is that, having received reliable information about illegal sale of ID liquor at Nandya Naik thanda, on dt.20.5.2017, about 11:10 am, PW-3 along with staff proceeded to said thanda and secured PW-1 and PW-2 as panch witnesses. On reaching the suspected house of said thanda, PW-3 found a person coming out of it, with a bag. On suspicion PW-3 checked the bag and found 2 lts of ID liquor in a plastic can, and on further checking of suspected place, found 30 kgs of black jaggery at the scene of offence. On enquiry he revealed, his name as S. Tikya

Naik S/o. seethya Naik and he also revealed, that A-2 purchased the black jaggery for manufacturing of ID liquor and held in manufacture of

ID liquor. Then PW-3 seized the I.D liquor after drawing two samples of 2

ID liquor each of 350 ml, black jaggery was destroyed on the spot under cover of panchanama by pasting sign chits. PW-3 apprehended

A-1 and brought to the excise station along with samples and seized property and handed over the same to PW-4 for further necessary action. Basing on the panchanama, PW-4 registered case in

PCOR.No.218/17, dt.20.5.2017, for the offence U/sec.7 (A) r/w 8 (e) of

AP Prohibition Act. PW-3 deposited the sample bottles before the court vide CPR No.300/17, with a request to send one of the samples for chemical analysis. The remaining contraband (I.D liquor) was deposited

before the Dy. Commissioner of P&E, Mahabubnagar for confiscation.

The CE report vide No.4253/2017/8, dt.24.6.2017 denotes the sample as illicitly distilled liquor unfit for human consumption and injurious to health. On 20.5.2017, PW-3 issued sec. 41-A Cr.P.C notice to A-1. On completion of investigation, PW-4 laid charge sheet against the A-1 and A-2 for the offence punishable U/sec.7(A) r/w 8(e) of AP Prohibition

Act.

3.This court took cognizance of the offence U/Sec. 7(A) r/w 8 (e) of

A.P. Prohibition Act against the A-1 and A-2, on dt.11.1.2018. On appearance of A-1 and A-2, copies of documents as contemplated under Section 207 of Cr.P.C. were furnished to them.

4.A-1 and A-2 were examined U/Sec. 239 of Cr.P.C., for which, they denied the offence. A charge framed U/Sec. 7(A) R/W 8(e) of AP.

Prohibition Act was read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs-1 to

PW-4 and got marked Ex.P1 to Ex.P4. MO.1 is sample bottle of 350 ml

I.D. Liquor and MO-2 is sample of 100 gms. Black Jaggery.

6.After closure of prosecution evidence, A-1 and A-2 were examined U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against them, for which, they pleaded all such evidence is false and reported no defence.

7.Heard learned counsel for the parties.

8.The point for determination is__ 3

Whether prosecution has brought home the guilt of A-1 and A-2 for the offence U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act beyond all reasonable doubt?

9.Point:- In order to establish its case, as already noted, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 and

Ex.P4. MO-1 is sample bottle of 350 ml ID liquor and MO-2 is sample of 100 gms. Black Jaggery. PW-1 and PW-2 are the panch witnesses for scene of offence-cum-seizure panchanama. PW-3 and PW-4 are the

Investigating Officers of the case. Ex.P1 is the signature of PW-2 on scene of offence-cum-seizure panchanama, Ex.P2 is the scene of offence-cum-seizure panchanama. Ex.P3 is PCOR, Ex.P4 is CE report.

10.Upon perusal of prosecution evidence, it is apparent that PW-1 and PW-2 panch witnesses for Scene of Offence-Cum-Seizure

Panchanama totally turned hostile. In their evidence, PW-1 and PW-2 deposed that excise police obtained their signatures/thumb impression on white papers without disclosing any purpose, Except Ex.P1 signature nothing can be taken from the evidence of PW-1 and PW-2 against the A-1 & A-2. As such, Ex.P2 panchanama remains doubtful.

11.It is the case of prosecution that PW-3 got reliable information about illegal possession 30 Kgs of black jaggery for preparation of I.D liquor at Nandya Naik thanda, but, PW-3 did not whisper the names of persons through whom he learnt such information. According to PW-3, on search of the premises, he found of 2 lts. Of ID liquor in a plastic can and 30 kgs black jaggery from the possession of A-1, at the scene of offence and seized the ID liquor, and also destroyed the black jaggery on the spot in the presence of panch witnesses. A-1 also confessed that the black jaggery purchased by A-2 for manufacturing of ID liquor. As already noted, PW-1 and PW-2 panch witnesses did not support the case.

12. Basing on the panchanama, PW-4 P&ESI registered a case against

A-1 and A-2. PW-3 is Investigating officer, and from his cross- examination, learned counsel for defence elicited that PW-3 did not examine or record the statements of respectable persons the scene of offence locality. Though PW-3 deposed that he received reliable information about illegal sale and preparation of I.D liquor, he failed to mention the names of persons through whom he learnt such 4 information. PW-3 and PW-4 failed to do any further investigation in this regard. Further more. PW-3 did not collect any documents to show that scene of offence house/shop belongs to the accused, and that the alleged I.D liquor can be easily procured from the market.

13.Evidence of PW-4 Investigating Officer is replica of his charge sheet that the samples were not deposited in the court within the prescribed period of 24 hours. Further, PW-4 did not file any documents to establish depositing of remaining contraband before Dy.

Commissioner, P&E, Mahabubnagar. Adding to it, PW-4 did not do any further investigation of this case. In these circumstances, argument of defence attracts the attention of this court, if really, PW-3 visited the scene of offence nothing would prevent him from drawing rough sketch and mentioning the boundaries or land marks of scene of offence to identify it.

14.Now, it is clear that except the evidence of PW-3 and PW-4 interested witness, prosecution does not have any other evidence on record. Testimony of PW-4 creates doubt as he could not deposit the samples in court within the prescribed period of 24 hours. More so, PW- 3 failed to examine the staff members who accompanied him to show the possession of ID liquor and black jaggery by the accused. Further, no details were brought on record showing the fate of remaining contraband. Adding strength to this view, procedure adopted by PW-3 in sealing the samples were also not described in Ex.P2 Panchanama.

Under AP Prohibition Act, it is mandatory to follow certain procedure to seal the samples.

15.It is the arguments of learned counsel for A-1 and A-2 that no investigation is done to show that A-2 purchased black jaggery, for preparation of ID. Liquor, as PW.3 did not made attempts to show from whom A-2 purchased black jaggery. The arguments of defence counsel has force as PW.3 did not examine any other persons who were assisting A-1 in preparation of ID. liquor by using the black jaggery, and also no instruments were seized by either PW-3 or PW-4.

16.It is pertinent to mention here that except the panchanama, no further investigation, i.e., examination of neighbours of the scene of offence was done. In these circumstances, when the seizure of alleged contraband itself is not established by the prosecution, Ex.P4 C.E 5 report does not help the prosecution. In that view of the matter, this

Court opines that prosecution has miserably failed to bring home the guilt of accused for the offence with which A-1 and A-2 are charged and accordingly entitled to benefit of doubt.

17.In the result, A-1 and A-2 are found not guilty of the offence under section 7(A) R/W 8(e) of A.P. Prohibition Act and accordingly they are acquitted U/Sec. 248(1) of Cr.P.C. The bail bonds of A-1 and A-2 shall be in force for a period of six months from today as prescribed

U/Sec.437-A of Cr.P.C. MO-1 and MO-2 shall be destroyed after completion of appeal time.

Typed to my dictation by the typist on Chamber computer, corrected and pronounced by me, in open Court on this the 10th day of August, 2018.

Judicial Magistrate of First Class

Kodangal

For Prosecution: For Defence:

PW-1: Sabavath Manjulal. None. PW-2: Sabavath Sunder Naik. PW-3: N. Veera Reddy, P&EI PW-4: Md. Shakeer Ahmed, P&ESI

Documents Marked

For Prosecution:

Ex.P1: Signature of PW-1 Sabavath Manjulal on scene of offence-cum- seizure Panchanama, Dt.20.5.2017. Ex.P2: Scene of offense-cum-seizure panchanama, Dt.20.5.2017. Ex.P3: PCOR, Dt.20.5.2017. Ex.P4: CE Report, Dt.26.4.2017.

For Defence: -Nil-

Material Objects Marked.

MO.1: Sample bottle of 350 ml I.D. Liquor MO.2: Sample of 100 gms. Black Jaggery.

JFCM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Present: - Sri. D. Rama Mohan Reddy,

Judicial Magistrate of First Class,

Kodangal.

Dated, this the 10th day of August, 2018

C.C. No. 10 of 2018

Between: State: Prohibition & Excise Sub Inspector, Pargi. …Complainant

AND

1. Sabavath Tikya Naik S/o. Seethya Naik age, 40 years,

2. Sabavath Seethe Bai W/o. Seethya Naik, age 62 years, Both are Occupation: ID seller, R/o. Nandya Naik thanda, H/o Dewarfasalwad village of Doulathabad Mandal. ….Accused

This case is coming on 9-8-2018 before me for final hearing in the presence of Sri B. Yadaiah, Assistant Public Prosecutor for the complainant and of Sri Venkataiah, advocate for Accused and upon perusing the material on record, the Court delivered the following___

J U D G M E N T

The Prohibition & Excise Sub-Inspector, Pargi filed this case against the A-1 and A-2 vide PCOR No. 218/17 of his station alleging that A-1 and A-2 had committed an offence punishable U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act.

2.The case of the prosecution, in brief, is that, having received reliable information about illegal sale of ID liquor at Nandya Naik thanda, on dt.20.5.2017, about 11:10 am, PW-3 along with staff proceeded to said thanda and secured PW-1 and PW-2 as panch witnesses. On reaching the suspected house of said thanda, PW-3 found a person coming out of it, with a bag. On suspicion PW-3 checked the bag and found 2 lts of ID liquor in a plastic can, and on further checking of suspected place, found 30 kgs of black jaggery at the scene of offence. On enquiry he revealed, his name as S. Tikya

Naik S/o. seethya Naik and he also revealed, that A-2 purchased the black jaggery for manufacturing of ID liquor and held in manufacture of

ID liquor. Then PW-3 seized the I.D liquor after drawing two samples of 2

ID liquor each of 350 ml, black jaggery was destroyed on the spot under cover of panchanama by pasting sign chits. PW-3 apprehended

A-1 and brought to the excise station along with samples and seized property and handed over the same to PW-4 for further necessary action. Basing on the panchanama, PW-4 registered case in

PCOR.No.218/17, dt.20.5.2017, for the offence U/sec.7 (A) r/w 8 (e) of

AP Prohibition Act. PW-3 deposited the sample bottles before the court vide CPR No.300/17, with a request to send one of the samples for chemical analysis. The remaining contraband (I.D liquor) was deposited

before the Dy. Commissioner of P&E, Mahabubnagar for confiscation.

The CE report vide No.4253/2017/8, dt.24.6.2017 denotes the sample as illicitly distilled liquor unfit for human consumption and injurious to health. On 20.5.2017, PW-3 issued sec. 41-A Cr.P.C notice to A-1. On completion of investigation, PW-4 laid charge sheet against the A-1 and A-2 for the offence punishable U/sec.7(A) r/w 8(e) of AP Prohibition

Act.

3.This court took cognizance of the offence U/Sec. 7(A) r/w 8 (e) of

A.P. Prohibition Act against the A-1 and A-2, on dt.11.1.2018. On appearance of A-1 and A-2, copies of documents as contemplated under Section 207 of Cr.P.C. were furnished to them.

4.A-1 and A-2 were examined U/Sec. 239 of Cr.P.C., for which, they denied the offence. A charge framed U/Sec. 7(A) R/W 8(e) of AP.

Prohibition Act was read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs-1 to

PW-4 and got marked Ex.P1 to Ex.P4. MO.1 is sample bottle of 350 ml

I.D. Liquor and MO-2 is sample of 100 gms. Black Jaggery.

6.After closure of prosecution evidence, A-1 and A-2 were examined U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against them, for which, they pleaded all such evidence is false and reported no defence.

7.Heard learned counsel for the parties.

8.The point for determination is__ 3

Whether prosecution has brought home the guilt of A-1 and A-2 for the offence U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act beyond all reasonable doubt?

9.Point:- In order to establish its case, as already noted, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 and

Ex.P4. MO-1 is sample bottle of 350 ml ID liquor and MO-2 is sample of 100 gms. Black Jaggery. PW-1 and PW-2 are the panch witnesses for scene of offence-cum-seizure panchanama. PW-3 and PW-4 are the

Investigating Officers of the case. Ex.P1 is the signature of PW-2 on scene of offence-cum-seizure panchanama, Ex.P2 is the scene of offence-cum-seizure panchanama. Ex.P3 is PCOR, Ex.P4 is CE report.

10.Upon perusal of prosecution evidence, it is apparent that PW-1 and PW-2 panch witnesses for Scene of Offence-Cum-Seizure

Panchanama totally turned hostile. In their evidence, PW-1 and PW-2 deposed that excise police obtained their signatures/thumb impression on white papers without disclosing any purpose, Except Ex.P1 signature nothing can be taken from the evidence of PW-1 and PW-2 against the A-1 & A-2. As such, Ex.P2 panchanama remains doubtful.

11.It is the case of prosecution that PW-3 got reliable information about illegal possession 30 Kgs of black jaggery for preparation of I.D liquor at Nandya Naik thanda, but, PW-3 did not whisper the names of persons through whom he learnt such information. According to PW-3, on search of the premises, he found of 2 lts. Of ID liquor in a plastic can and 30 kgs black jaggery from the possession of A-1, at the scene of offence and seized the ID liquor, and also destroyed the black jaggery on the spot in the presence of panch witnesses. A-1 also confessed that the black jaggery purchased by A-2 for manufacturing of ID liquor. As already noted, PW-1 and PW-2 panch witnesses did not support the case.

12. Basing on the panchanama, PW-4 P&ESI registered a case against

A-1 and A-2. PW-3 is Investigating officer, and from his cross- examination, learned counsel for defence elicited that PW-3 did not examine or record the statements of respectable persons the scene of offence locality. Though PW-3 deposed that he received reliable information about illegal sale and preparation of I.D liquor, he failed to mention the names of persons through whom he learnt such 4 information. PW-3 and PW-4 failed to do any further investigation in this regard. Further more. PW-3 did not collect any documents to show that scene of offence house/shop belongs to the accused, and that the alleged I.D liquor can be easily procured from the market.

13.Evidence of PW-4 Investigating Officer is replica of his charge sheet that the samples were not deposited in the court within the prescribed period of 24 hours. Further, PW-4 did not file any documents to establish depositing of remaining contraband before Dy.

Commissioner, P&E, Mahabubnagar. Adding to it, PW-4 did not do any further investigation of this case. In these circumstances, argument of defence attracts the attention of this court, if really, PW-3 visited the scene of offence nothing would prevent him from drawing rough sketch and mentioning the boundaries or land marks of scene of offence to identify it.

14.Now, it is clear that except the evidence of PW-3 and PW-4 interested witness, prosecution does not have any other evidence on record. Testimony of PW-4 creates doubt as he could not deposit the samples in court within the prescribed period of 24 hours. More so, PW- 3 failed to examine the staff members who accompanied him to show the possession of ID liquor and black jaggery by the accused. Further, no details were brought on record showing the fate of remaining contraband. Adding strength to this view, procedure adopted by PW-3 in sealing the samples were also not described in Ex.P2 Panchanama.

Under AP Prohibition Act, it is mandatory to follow certain procedure to seal the samples.

15.It is the arguments of learned counsel for A-1 and A-2 that no investigation is done to show that A-2 purchased black jaggery, for preparation of ID. Liquor, as PW.3 did not made attempts to show from whom A-2 purchased black jaggery. The arguments of defence counsel has force as PW.3 did not examine any other persons who were assisting A-1 in preparation of ID. liquor by using the black jaggery, and also no instruments were seized by either PW-3 or PW-4.

16.It is pertinent to mention here that except the panchanama, no further investigation, i.e., examination of neighbours of the scene of offence was done. In these circumstances, when the seizure of alleged contraband itself is not established by the prosecution, Ex.P4 C.E 5 report does not help the prosecution. In that view of the matter, this

Court opines that prosecution has miserably failed to bring home the guilt of accused for the offence with which A-1 and A-2 are charged and accordingly entitled to benefit of doubt.

17.In the result, A-1 and A-2 are found not guilty of the offence under section 7(A) R/W 8(e) of A.P. Prohibition Act and accordingly they are acquitted U/Sec. 248(1) of Cr.P.C. The bail bonds of A-1 and A-2 shall be in force for a period of six months from today as prescribed

U/Sec.437-A of Cr.P.C. MO-1 and MO-2 shall be destroyed after completion of appeal time.

Typed to my dictation by the typist on Chamber computer, corrected and pronounced by me, in open Court on this the 10th day of August, 2018.

Judicial Magistrate of First Class

Kodangal

For Prosecution: For Defence:

PW-1: Sabavath Manjulal. None. PW-2: Sabavath Sunder Naik. PW-3: N. Veera Reddy, P&EI PW-4: Md. Shakeer Ahmed, P&ESI

Documents Marked

For Prosecution:

Ex.P1: Signature of PW-1 Sabavath Manjulal on scene of offence-cum- seizure Panchanama, Dt.20.5.2017. Ex.P2: Scene of offense-cum-seizure panchanama, Dt.20.5.2017. Ex.P3: PCOR, Dt.20.5.2017. Ex.P4: CE Report, Dt.26.4.2017.

For Defence: -Nil-

Material Objects Marked.

MO.1: Sample bottle of 350 ml I.D. Liquor MO.2: Sample of 100 gms. Black Jaggery.

JFCM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

KODANGAL

Present: - Sri. D. Rama Mohan Reddy,

Judicial Magistrate of First Class,

Kodgangal

Dated, this the 10th day of August, 2018

C.C. No. 04 of 2018

Between: State: Prohibition & Excise Sub Inspector, Pargi. …Complainant AND

Kethavath Thulsya Naik S/o. Bandya Naik, age 30 years, Occ: ID seller, R/o Chervumundu thanda, Bomraspet Mandal. ….Accused

This case is coming on 09-08-2018 before me for final hearing in the presence of Sri B. Yadaiah, Assistant Public Prosecutor for the complainant and of Sri Baswaraju, advocate for accused and upon perusing the material on record, the Court delivered the following___

J U D G M E N T

The Prohibition & Excise Sub-Inspector, Pargi filed this case against the Accused in PCOR No.96/2017 of his station alleging that

Accused had committed an offence punishable U/Sec.7(A) r/w 8(e) of

A.P. Prohibition Act.

2.The case of the prosecution, in brief is that, on 3.3.2017 at about 10:30 am, PW-3 received credible information about illegal sale and possession of illicitly distilled liquor, at outskirts of Cherumundari thanda. Immediately PW-3 along with staff members proceeded to the said thanda and secured PW-1 and PW-2 as panch witnesses. When they reached outskirts of said thanda found a person running away from the scene of offence on seeing excise officials at some distance.

Excise officials find to catch hold of him but in vain. On enquiry PW-3 came to know the particulars of ran away person as Tulsya Naik S/o.

Bandya Naik. On search of the premises PW-3 found a plastic can containing 5 lts of ID liquor and 200 lts of FJ Wash in a mud pot. PW-3 conducted scene of offence-cum-seizure by drawing 2 sample bottles of ID liquor each of 350 ml, and FJ wash destroyed on the spot under cover of panchanama by pasting sign chits. Basing on the panchanama

PW-3 registered a case in PCOR No.96/17, dt.3.3.2017 for the offence

U/sec.7(A) r/w 8 (e) of AP Prohibition Act by showing the accused as 2 absconding. The remaining contraband was deposited before the

Dy.Commissioner of P&E, Rangareddy for confiscation. PW-3 deposited the samples in court vide CPR No. 178/17, with request to send one of the sample for chemical analysis. PW-3 received CE report vide No.

2683/2017/11, dt.26.4.2017 denotes the sample as illicitly distilled liquor unfit for human consumption and injurious to health. On 3.3.2017, PW-3 issued sec. 41-A Cr.PC notice to the accused. After completion of investigation PW-3 laid charge sheet against the accused for the offence U/sec. 7 (A) r/w 8 (e) of AP Prohibition Act.

3.This court took cognizance of the offence U/Sec. 7(A) r/w 8(e) of

A.P. Prohibition Act against the accused, on dt.11.1.2018. On appearance of accused, copies of documents as contemplated

U/Sec.207 of Cr.P.C. were furnished to him.

4.Accused was examined U/Sec. 239 of Cr.P.C., for which, he denied the offence. A charge framed U/Sec. 7(A) r/w 8(e) of AP.

Prohibition Act was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs-1 to 3 and got marked Ex.P1 to Ex.P4. MO.1 is sample bottle of 350 ml I.D.

Liquor and MO-2 is sample bottle of 350 ml JF wash.

6.After closure of prosecution evidence, accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

7.Heard learned counsel for the parties.

8.The point for determination is__

Whether prosecution has brought home the guilt of Accused for the offence U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act beyond all reasonable doubt?

9.Point:- In order to establish its case, as already noted, prosecution has examined PW-1 to PW-3 and got marked Ex.P1 to

Ex.P4. MO-1 is sample bottle of 350 ml ID liquor and MO-2 is sample bottle of 350 ml JF wash. PW-1 and PW2 are the panch witnesses for scene of offence-cum-seizure panchanama. PW-3 is the Investigating

Officer of the case. Ex.P1 is the signature of PW-1 on the scene of 3 offence-cum-seizure panchanama, Ex.P2 is the scene of offence-cum- seizure panchanama, Ex.P3 is PCOR and Ex.P4 is CE report.

10.Upon perusal of prosecution evidence, it is apparent that PW-1 and PW-2 panch witnesses for Scene of Offence-Cum-Seizure

Panchanama totally turned hostile. In their evidence, PW-1 and PW-2 deposed that excise police obtained their signature/thumb impressions on white papers without disclosing any purpose. Except Ex.P1 signature, nothing can be taken from the evidence of PW-1 and PW-2 against the accused. As such, Ex.P2 panchanama remains doubtful.

11.It is the case of prosecution that PW-3 received reliable information about the sales and possession of ID liquor at outskirts of

Cheruvumundari thanda, but, he did not whisper the names of persons through whom he learnt such information. According to PW-3, on search of the premises, he found 5 lt of ID liquor in a plastic can and 200 lts of FJ wash in a mud pot at the scene of offence and seized the

ID liquor, and FJ wash destroyed on the spot in the presence of panch witnesses. As already noted, PW-1 and PW-2 panch witnesses did not support the case.

12.Evidence of PW-3 Investigating Officer is replica of his charge sheet. From his cross-examination, learned counsel for defence elicited that he did not mention the boundaries of scene of offence.

Admittedly, the samples were not deposited in the court within the prescribed period of 24 hours, and that the alleged I.D liquor can be easily procured from the market. Further, PW-3 did not file any documents to establish depositing of remaining contraband before Dy.

Commissioner, Prohibition and Excise. Adding to it, PW-3 did not examine the persons from whom he came to know about the particulars of accused. In these circumstances, argument of defence attracts the attention of this court, if really, PW-3 visited the scene of offence nothing would prevent him from drawing rough sketch and mentioning the boundaries or land marks of scene of offence to identify it.

13.Now, it is clear that except the evidence of PW-3 interested witness, prosecution does not have any other evidence on record.

Testimony of PW-3 creates doubt as he could not deposit the sample bottles in court within the prescribed period of 24 hours. More so, PW-3 failed to examine the staff members who accompanied him to show the possession of ID liquor by the accused. Further, no details were 4 brought on record showing the fate of remaining contraband. Adding strength to this view, procedure adopted by PW-3 in sealing the sample bottles was also not described in Ex.P2 Panchanama. Under AP

Prohibition Act, it is mandatory to follow certain procedure to seal the sample bottles.

14.It is pertinent to mention here that except the panchanama, no further investigation, i.e., examination of neighbours of the scene of offence was done. In these circumstances, when the seizure of alleged contraband itself is not established by the prosecution, Ex.P4 C.E report does not help the prosecution. In that view of the matter, this

Court opines that prosecution has miserably failed to bring home the guilt of accused for the offence with which he is charged and accordingly entitled to benefit of doubt.

15.In the result, accused is found not guilty of the offence under section 7(A) R/W 8(e) of A.P. Prohibition Act and accordingly he is acquitted U/Sec. 248(1) of Cr.P.C. The bail bonds of accused shall be in force for a period of six months from today as prescribed U/Sec.437-A of Cr.P.C. MO-1 and MO-2 shall be destroyed after completion of appeal time.

Typed to my dictation by the typist on chamber computer, corrected and pronounced by me, in open Court on this the 10th day of August, 2018.

Judicial Magistrate of First Class

Kodangal

Appendix of Evidence Witnesses Examined For Prosecution: For Defence: PW-1: Kethavath ShankerNone. PW-2: Kethavath Chandrya PW-3: Md. Shakeer Ahmed, P & ESI

Documents Marked

For Prosecution: Ex.P1: Signature of PW-1 Kethavath Shanker, on Scene of offense-cum- seizure panchanama, Dt..3.3.2017. Ex.P2: Scene of offense-cum-seizure panchanama, Dt3.3.2017. Ex.P3: PCOR, Dt 3.3.2017. Ex.P4: CE Report, Dt.26.4.2017.

For Defence: -Nil- Material Objects Marked

MO-1: Sample bottle of 350 ml. ID liquor. MO-2: Sample bottle of 350 ml. FJ wash.

5

JFCM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Present: - Sri D.RAMA MOHAN REDDY

Judicial Magistrate of First Class,

Kodangal

Dated, this the 30th day of October, 2019

C.C.No. 155 of 2015

Between: State: Sub Inspector of Police, Doulthabad Police Station. Crime No.84/2014. …Complainant

AND

T. Ram Reddy S/o Ranga Reddy, age 37 years, Occ: Tractor Driver, Caste:Kapu, R/o Yamki village of Doulthabad Mandal.

…..Accused

This case is coming on 25-10-2019 before me for final hearing in the presence of Sri B. Yadaiah, Assistant Public Prosecutor for the complainant and of Sri Baswaraj, Advocate for both the accused and upon perusing the material on record, the Court delivered the following___

J U D G M E N T

The Sub-Inspector of Police, Doulthabad Police Station filed this case in Cr. No. 84 of 2014 of his station alleging that Accused has committed the offence punishable under Section 379 of the Indian Penal

Code and Sec. 3 of PDPP Act of 1984.

2. The case of prosecution in brief is that on 27-12-2014 at 20.30 hrs.

Accused who is driver of the tractor bearing No.AP 22 U1265 and its trolley

No.AP 22 E 7461 was transporting the sand illegally without any valid bill or permission from Yamki stream to Neelampally village, as such, Pws-1, 2 and 3 stopped the tractor and enquired about the valid documents from the concerned authorities, but he failed to disclose any valid permit or documents and revealed that he do not have any legal documents from the concerned authorities and he is trasporting the sand illegally by lifting the sand from Yamki stream by damaging the public property and committing theft of sand in order to sell the same at Neelampally village.

2

Basing, on the report of PW-1, LW.8/Ravikanth Rao, SI. registered the case vide Cr.No. 84/2014, U/s.379 of IPC. and Sec. 3 of PDPP Act of 1984 and took up the investigation. During the course of investigation,

LW.8/Ravikanth Rao, SI. recorded the statement of Pws-1 to 3 and visited the scene of offence situated at Yamki village and conducted the scene of offence panchanama in the presence of PW-4 and PW-5. On 31.12.2014 accused surrendered before LW.8/Ravikanth Rao, SI. and on interrogation

Accused confessed about his guilt as such, LW.8/Ravikanth Rao, SI.

Recorded confession panchanama of accused in the presence of mediators

PW-6 and PW-7. Accused was released on personal bail and directed to appear before the court whenever summoned,by complying Sec.41(A) (I) of Cr.P.C. On completiton of investigation, LW.8/Ravikanth Rao, SI. laid charge sheet against the Accused for the offence U/s.379 IPC. and Sec. 3 of PDPP Act of 1984.

3. On 13-04-2015, this court took cognizance of the offences under section 379 of the Indian Penal Code and Sec. 3 of PDPP Act. against accused. On appearance of Accused, copies of case papers as contemplated under Section 207 of the Code of Criminal Procedure, 1973 were furnished to him.

4. Accused is examined under Section 239 of Cr.P.C., for which he denied the offence. Charges framed under section 379 of the Indian Penal

Code and Sec. 3 of PDPP Act. were read over and explained to him in

Telugu, for which Accused is pleaded not guilty and claimed to be tried.

5. In order to establish its case, prosecution has examined PW-1 to PW- 7 and got marked Ex.P1 to Ex.P6. Inspite of granting ample of opportunities, as police failed to serve summons on LW.8//Ravikanth Rao, and produce before the court, his evidence was closed on 17-10-2019.

3

6. After closure of the prosecution evidence, no incriminating evidence appeared against the accused, as such, examination as contemplated

U/Sec. 313 of Cr.P.C. was dispensed with.

7. Heard the learned counsel for the parties and perused the record.

8. Now the point that arises for determination is ___

Whether the prosecution has brought home guilt of Accused for the offence U/Sec.379 of the Indian Penal Code and Sec. 3 of PDPP. Act. beyond reasonable doubt?

9.Point:- In support of its case, as already noted, prosecution has examined PW-1 to PW-7 and got marked Ex.P1 to Ex.P6. PW-1 is the complainant. Pws-2 and 3 are the eye-witnesses. PW-4 and PW-5 are the witnesses for scene of offence panchanama. PW-6 and PW-7 are the witnesses for confession cum recovery panchanama. Ex.P1 is the Report of PW-1.Ex.P2 is the Sec. 161 Cr.P.C. statement of PW-1. Ex.P3 is the Sec.

161 Cr.P.C. statement of PW-2. Ex.P4 is the Sec. 161 Cr.P.C. statement of

PW-3.Ex.P5 is the signature of PW-4 on CDF. Ex.P6 is the signature of

PW-5 on Scene of offence panchanama.

10. Now the prosecusion has to establish the seizure of sand laden tractor from the accused, as in the case of offence of this nature, seizure is the basis for the prosecution case.

PW-1 who is the complainant himself deposed that on 27-12-2014 at 8:30 pm, he along with PW.2 proceeded to Yamki village to attend the duties on the instructions of their MRO, meantime he found a tractor which was halted at Yamki village and on suspicion, he inspected the said tractor loaded with sand but no one were present at that time. He do not remember the registration number of the said tractor and there was no person to recognize the said tractor and its owner and on enquiry he came to know that the name of the driver is Ram Reddy. He lodged a report.

11. PW-2 and PW-3 who are the direct eye witnesses corroboratively 4 deposed that they do not know anything about this case and they never witnessed any tractor while transporting the sand illegally.

12. Likewise, PW-4 and PW-5 who are witnesses to the scene of offence panchanama also turned hostile and corroboratively deposed that police never conducted any panchanama in their presence and that police have obtained their signatures on white papers without disclosing any purpose.

13. Similarly, PW-6 and PW-7 who are witnesses to the confession cum recovery panchanama also turned hostile and deposed that accused never confessed before them and hewas illegally transporting the sand from

Yamki stream. At about 3 years back police have obtained their thumb impressions on white papers without disclosing any purpose.

Though, PW-1 to 7 were cross examined by Lr.APP., nothing positive yielded in favour of prosecution case. In this scenario when the direct eye- witnesses i.e. PW-2 and PW-3 and also witnesses to confession cum seizure panchanama ie., PW-6 and PW-7 did not support the prosecution case, due to whichthe very seizure panchanama is not proved. Hence, absolutely, there is nothing on record to connect the accused for the alleged offence.

14. Thus, absolutely, there is nothing on record pointing the guilt of accused except Sec.161 Cr.P.C. statements, which are useful only to contradict the witnsses. In these circumstances, as there is no iota of evidence to connect the Accused for the offences with which he is charged,

Accused is entitled for acquittal. Hence, this point is answered against the prosecution and in favour of accused.

15. In the result, accused is found not guilty of the offences under

Sections 379 of IPC. and Sec.3 of PDPP. Act and accordingly he is acquitted

U/Sec. 248(1) of Cr.P.C. The bail bonds of Accused shall be in force for a 5 period of six months from this day as provided U/Sec. 437-A of Cr.P.C.

The unmarked case property vide CPR.No.4/2015 returned to its original owner towards interim custody shall be made absolute after lapse of appeal time. Sand sale proceeds to an amount of Rs.1700/- was already confiscated to the state vide STO Challan No.5664, dt.16-01-2015.

Typed by me, corrected and pronounced by me in open Court, on this the 30th day of October 2019.

JUDICIAL MAGISTRATE OF I CLASS,

KODANGAL

Appendix of Evidence Witnesses Examined

For Prosecution: For Defence:

PW-1: D. Anjilaiah. None PW-2: Siddappa. PW-3: K.K. Sudhakar Reddy. PW-4: T. Ashappa. PW-5: B. Jaipal Reddy. PW-6: M. Hanumanthu. PW-7: M. Mallappa.

Documents Marked

For Prosecution:

Ex.P1: Report of PW-1. Ex.P2: Sec. 161 Cr.P.C. Statement of PW-1. Ex.P3: Sec. 161 Cr.P.C. Statement of PW-2. Ex.P4: Sec. 161 Cr.P.C. Statement of PW-3. Ex.P5: Signature of PW-4 on CDF. Ex.P6: Signature of PW-5 on Scene of offence panchanama.

For Defence:

Nil

Material Objects Marked -Nil-

JFCM