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Ms E.Annamani

Judicial Magistrate of First Class, Jangareddigudem (Criminal Court for Agency areas)

Junior Civil Courts Jangareddigudem · West Godavari · Andhra Pradesh

Ms E.Annamani, Judicial Magistrate of First Class, Jangareddigudem (Criminal Court for Agency areas), is posted at Junior Civil Courts Jangareddigudem, West Godavari, Andhra Pradesh, India. 1,242 court orders on record since 2023. 37 judgments with full text available. Primarily handles CC, OS, EP cases.

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CC/749/2022 Acquitted

SHO Probhition and Excise Tadepalligudem vs Paluri Anand Kumar

02 Feb 2024

IN THE COURT OF II ADDL. CIVIL(JUNIOR DIVISION) JUDGE- CUM – II ADDL.

JUDICIAL FIRST CLASS MAGISTRATE, TADEPALLIGUDEM

Present: Smt. E. Annamani,

II Addl.Civil(Junior Division) Judge-cum- II Addl. Judicial First Class

Magistrate,Tadepalligudem

Friday, this the 2 nd day of February, 2024

C.C.No.749/2022

a) The serial number of the case : C.C.No.749/2022

b) Date of commission of offence : 08-12-2021

c) Name of the Complainant, if : The Sub Inspector, SEB Tadepalligudem any PS.

d) Name of the accused person, : 1) Paluri Anand Kumar, S/o Srinivasa her/his parentage and Rao, Age 29 years, C/Kapu, residence, if any Salesman in Retailer Outlet No.5305, R/o Tadepalligudem.

2) Ane Ayyappa, S/o Lakshmana Rao, Age 32 years Supervisor in Retailer Outlet No.5305, C/Kapu, R/o Tadepalligudem.

e) Offence complained of or : Punishable under section 36(b) and proved Section 34(a) of AP Excise Act, 1968.

f) Plea of the accused and his Accused pleaded not guilty examination, if any

This case has come up on 12-01-2024 for final hearing before me in the presence of Learned Asst. Public Prosecutor, for the State and of

Sri V.Leela Krishna, Advocate for Accused-1 and Accused-2 and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector, SEB Tadepalligudem PS had filed charge sheet against the accused in Crime No.202/2021 for the offence punishable under section 36(b) and Section 34(a) of AP Excise Act, 1968.

2. The case of the prosecution in brief:

On 8.12.2021 at about 3.00 PM as per the instructions of Asst.

Commissioner of Proh. & Excise, Vigilance, Eluru G.Murali Mohana Rao, Proh.

2 & Excise Sub-Inspector and K.Ravi Shankar, Proh. & Excise Sub-Inspector of

Vigilance while conducting patrolling duty along with their staff and when they reached infront of the GRO No.05305, and found one person brought a card board box contained with liquor bottles from said liquor shop and the same was placing in the varanda which is situated infront of said liquor shop and then they stopped him and enquired him as to why he was placing the cardboard box in the veranda of liquor shop and then said person disclosed that he is the sales man of said liquor shop and he was instructed by his supervisor that to sale the liquor bottles in the cardboard box for higher rates and he further disclosed that one unknown person will come to the shop and he will take the liquor bottles in the cardboard box as instructed by his supervisor and therefore, he was placing the cardboard box contained with liquor bottles in the veranda of liquor shop and then they caught-hold him and then they brought the cardboard box and sale man into the shop and inspected the inside of shop and they found in the liquor shop that some card board boxes are kept aside and on enquired of salesman about the card board boxes, he disclosed that the Supervisor instructed him to sell the liquor bottles for higher price in all the card board boxes and therefore those card board boxes are kept aside in the liquor shop. Then, they observed the card board boxes and they found total nine (9) card board boxes and they got opened all the card board boxes in the presence of their staff and salesman in which they found liquor bottles, but, the 'HEAL Labels' on the liquor bottles are torned and then they enquired the salesman as to why the 3 'Heal Lables' are torned, he informed that supervisor instructed him to sale the liquor bottles for higher prices and therefore for purpose of sale the liquor bottles he torned the heal label. Then, they sent S.Gangadhara Rao, Head

Constable of Proh. & Excise for securing mediators but, no one come forward to act as mediators and later, they enquired the salesman about the details of Salesman and Supervisor and then he disclosed about the identity particulars. Then they verified the liquor bottles in the cardboard box in which they found liquor bottles.

The labels of liquor bottles disclosed that 'for sale in Andhra Pradesh' and the same are duty paid liquor. The P.W.1/Sub-Inspector of A.C.Vigilance has drawn the one sample bottle from each brand, as such Eighteen (18) sample bottles are drawn for purpose of chemical analysis. Then, P.Ws.1 and 2/Sub-Inspectors of Vigilance and Enforcement informed the Accused No.1 that sale of liquor bottles for higher prices than the MRP rates is an offence under A.P.Excise Rules and arrested him and seized the total case property of 284 liquor bottles. Out of the case property 18 bottles are sample bottles, separated and sealed them and affixed with identity slips. The contraband and sample bottles are seized under the cover of a special report drafted.

Further, while recording the Special Report, the Accused No.1 voluntarily confessed that "he was instructed by his supervisor to sale the liquor bottles in the cardboard box for higher rates and disclosed that one unknown person will come to the shop and he will take the liquor bottles in the cardboard box as instructed by his supervisor. Therefore, he was placing the cardboard box 4 contained with liquor bottles in the veranda of liquor shop". Therefore, the

Accused No.2 who was Supervisor of Retailer Outlet is arrayed as Accused

No.2 and later, in view of the Proceedings vide C.R.No.4880/2020/CPE/A1 dt.02.03.2021 issued by the Office of the Commissioner of Prohibition and

Excise, Andhra Pradesh, Amaravathi, Vijayawada, the P.W.1/Sub-Inspector of

A.C. Vigilance of Prohibtion & Excise, Eluru handed over the Accused No.1 along with Special Report and seized Contraband and sample bottles to the

Station House Officer of Special Enforcement Bureau Station, Tadepalligudem for investigation on 8.12.2021 at 5.00 P.M. The P.W.4/Sub-Inspector of Special

Enforcement Bureau, Tadepalligudem registered the Special Report as a case in Cr.No.202/2021, under section 36(b)(c) r/w rule 17, 18 of A.P. Excise

Act, 1968 (Amendment Act 17 of 2020) and Rule 17, 18 of A.P. Excise (Grant of license of selling by shop and conditions of license Rule, 2019 and Section 36(b) and Section 34(a) of A.P. Excise Act (Amendment) Act, 2020. In view of

Proceedings vide C.R.No.5555/2020/CPE/F1 dt.8.2.2021 issued by the Office of the Commissioner of Prohibition and Excise, Andhra Pradesh, Amaravathi,

Vijayawada on 9.12.2021 at 10.00 AM the P.W.4/Sub-Inspector of Special

Enforcement Bureau Station, Tadepalligudem has handed over the case record, Accused No.1 and case property (contraband and sample bottles) to the P.W.3/Prohibition and Excise Sub-Inspector, APSBCL IMFL Depot, Eluru for further investigation. The L.W.3/Prohibition and Excise Sub-Inspector (In- charge Inspector of Prohibition and Excise), APSBCL Depot, Eluru after receiving the same, she produced the Accused No.1 before the Hon'ble II 5

AJFCM Court, Tadepalligudem for judicial remand of 15 days. But, on the same day the Hon'ble Court enlarged the Accused No.1 on Bail by executing self-bond and later, the Accused No.2 has surrendered before the Hon'ble

Court on 10.12.2021 and he was also enlarged on bail. After that,

P.W.3/Prohibition and Excise Sub-Inspector handed over the charge to the

Prohibition & Excise Inspector/P.W.4 and then, the P.W.4/Inspector of

Prohibtion & Excise, APSBCL IML Depot has sent the 18 sample bottles to the

Government Chemical Examiner, Regional Prohibition & Excise Laboratory,

Kakinada for chemical analysis. Later, he received Chemical Analysis Report on 25.1.2022 in which the Chemical Examiner opined that "The samples at

Sl.Nos.3683 to 3700 are Indian Made Liquor" and later, P.W.4 submitted proposal for confiscation of seized contraband to the Deputy Commissioner of Prohibition and Excise, Kakinada and awaiting for proceedings and after completion of investigation he filed a charge sheet.

3. The cognizance was taken against the accused for the offence punishable u/s 36(b) and Section 34(a) of AP excise Act 1968.

4.On appearance of accused before this Court, copies of documents were furnished to them as per Section 207 Cr.P.C.

5. The accused were examined U/Sec. 239 Cr.P.C., for the offence punishable U/section 36(b) and Section 34(a) of AP excise Act 1968, read over and explained to them in Telugu language, they pleaded not guilty and claimed to be tried.

6. To prove the offence, the prosecution examined PWs.1 to 4 and Ex’s.P.1 6 to P.4 and MOs.1 to 18 were marked on its behalf.

7.After closure of the prosecution evidence, accused were examined

U/Sec.313 Cr.P.C., stating the incriminating material made against them for which they reported no defence evidence and no documents adduced on their behalf.

8. Heard both sides.

9. The learned Asst. Public Prosecutor argued that the evidence of PWs.1 to 4 coupled with Ex.P1 to P4 and MOs.1 to 18 would establish and prove the charge against accused and the prosecution successfully established the guilt of accused beyond all reasonable doubt, thus, he sought conviction of accused for the offence U/s 36(b) and Section 34(a) of AP excise Act, 1968.

10. On the other hand, the learned advocate for the accused vehemently argued that there are so many infirmities and inconsistencies crept in the evidence of prosecution witness. The Prosecution also failed to examine any one of the independent witnesses at the time of recovery of contraband, which is fatal to the prosecution case, as such, the prosecution failed to prove the guilt of the accused and thus, he sought to acquit the accused.

11. Now the point for determination is: Whether the Prosecution proved the

guilt of the accused for the offence punishable under section 36(b) and

Section 34(a) of AP excise Act, 1968, beyond all reasonable doubt?

12 . POINT: To prove the offence punishable U/Section 36(b) and Section 34(a) of AP excise Act, 1968, the prosecution has to prove that accused were found in possession of the seized liquor bottles i.e., 1)Blenders pride classic premium whisky-750ml, 2)Blackened gold brandy rare premium brandy-750ml 3 7 bottles 3) white hall premium brandy-750ml 8 bottles, 4)Kings well select Brandy- 750ml 3 bottles, 5) Manson house rarest spirit French Brandy-750ml 4 bottles, 6)

Manson house rarest spirit French Brandy-750ml 3 bottles, 7) Manson house rarest spirit French Brandy-375ml, 5 bottles, 8) Blackened gold brandy rare premium brandy-375ml 4 bottles, 9)Royal palace VSOP brandy-180ml 17 bottles, 10)Supreme blend superior whisky 180ml 28 bottles 11) Supreme blend superior whisky 180ml 26 bottles 12)Brilliant blend superior grain whisky 180ml 19 bottles 13)Golden strips luxury whisky-180ml 7 bottles 14)Silver strips original reserve whisky 180ml 7 bottles

15) Manson house rarest spirit French Brandy-180ml 16 bottles 16) Manson house rarest spirit French Brandy-180ml 9 bottles 17)Daaru house XO brandy 180ml 19 bottles 18)AC classic whisky 180ml 35 bottles 19) AC classic whisky 180ml 10 bottles 20) AC classic whisky 180ml 4 bottles 21)Kings well select brandy 180ml 4 bottles 22) 8pm premium black exclusive whisky 180ml 15 bottles 23) 8pm premium black exclusive whisky 180ml 1 bottle 24) 8pm premium black exclusive whisky 180ml 1 bottles 25) White hall rare premium whisky 180ml 20 bottles, total 284 liquor bottles and found it as Government Liquor bottles, which are duty paid and the same were being sold without license or permit and they were moving in public place in the prohibited time.

13. The evidence of PW.1 reveals that on 08.12.2021 at about 3.00 p.m., he along with his staff conducing raids with regard to the Prohibition and excise

A.C Eluru and when they reached Tadepalligudem Town, Tadepalligudem to

Eluru road Government outlet shop No.05305 and when they reached the above said place, they found one person i.e. the sales man of the above said shop brought one cord board box and kept infront of the Government vine shop and on suspicion he detained him with the help of staff and questioned about contents of cord board box and accused disclosed that 8 the box contain liquor bottles and he deputed LW.3 for securing mediators after some time he came back and reported no one are available. Hence, he got opened the cord board box and found total 284 liquor bottles they are 1)Blenders pride classic premium whisky-750ml, 2)Blackened gold brandy rare premium brandy-750ml 3 bottles 3) white hall premium brandy-750ml 8 bottles, 4)Kings well select Brandy-750ml 3 bottles, 5) Manson house rarest spirit French Brandy-750ml 4 bottles, 6) Manson house rarest spirit French

Brandy-750ml 3 bottles, 7) Manson house rarest spirit French Brandy-375ml, 5 bottles, 8) Blackened gold brandy rare premium brandy-375ml 4 bottles, 9)Royal palace VSOP brandy-180ml 17 bottles, 10)Supreme blend superior whisky 180ml 28 bottles 11) Supreme blend superior whisky 180ml 26 bottles 12)Brilliant blend superior grain whisky 180ml 19 bottles 13)Golden strips luxury whisky-180ml 7 bottles 14)Silver strips original reserve whisky 180ml 7 bottles 15)

Manson house rarest spirit French Brandy-180ml 16 bottles 16) Manson house rarest spirit French Brandy-180ml 9 bottles 17)Daaru house XO brandy 180ml 19 bottles 18)AC classic whisky 180ml 35 bottles 19) AC classic whisky 180ml 10 bottles 20) AC classic whisky 180ml 4 bottles 21)Kings well select brandy 180ml 4 bottles 22) 8pm premium black exclusive whisky 180ml 15 bottles 23) 8pm premium black exclusive whisky 180ml 1 bottle 24) 8pm premium black exclusive whisky 180ml 1 bottles 25) White hall rare premium whisky 180ml 20 bottles and found it as Government Liquor bottles, which are duty paid and he ascertained name and address particulars of the accused, he disclosed their names and particulars and further confessed that his supervisor stated that to sell the said liquor bottles for higher price and as per his instructions he is going to sell the said liquor bottles for higher bottles and then he seized entire contraband under cover of Ex.P.1 special report and drawn 01 bottle from each brand as sample i.e., M.Os.1 to M.O.18 and he arrested accused and hand over to Tadepalligudem Rural SEB police station for necessary action along with the contraband.

P.W1 admitted in his cross examination he has not secured ID card of the A1 or not obtainedany proceedings of A1 to show that he is the sales 9 man of Government wine shop and the scene of offence is busy locality and he requested independent persons to act as mediators but no one come forward and he has not seized the cord board box. LW.2 drafted

Ex.P1/special report and Identity slips affixed on the sample bottles at the scene of offence and nothing was written in police station on M.O.1 to

M.O.18 and after completion of Ex.P1 proceeding FIR was registered and that except FIR number the remaining columns on M.O.1 to M.O.18 written at the scene of offence.

14. The evidence of P.W.2 reveals that on 08-12-2021 he received case diary from P.W.1 and registered FIR as case in Cr.No.202/2021 and later he hand over C.D file to L.W.5 for further investigation.

The P.W.2 admitted in his cross examination that the scene of offence is situate in a busy located area.

The evidence of P.W.3 reveals that on 09-12-2021 he received CD file from P.W.2 and after completion of necessary formalities, he produced the

A.1 before the court for judicial remand and then he hand over C.D file to

L.W.6 for further investigation.

The P.W.3 admitted in his cross examination that the scene of offence is situate in a busy located area.

The evidence of P.W.4 reveals that he received CD file from P.W.3 and resumed further investigation and he sent samples for chemical examination through latter of advice marked Ex.P.4 and on 10-12-2021 the A-2 surrendered

before the Court and after completion of investigation charge sheet was

10 filed.

15.It is the case of the prosecution that they examined official witnesses present at the scene of offence and the entire case of the prosecution relied on the testimonies of P.W.1 to P.W.4, who are official witnesses. The Hon'ble

High Court of Andhra Pradesh in the case reported on 27-11-2001 Yeduru

Srinivasulu Reddy Vs. State of Andhra Pradesh observed that the prosecution has to bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate.

Before making a search under this chapter the officer or other person about

to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar

Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgment observed that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery. In this case, it is not the case of the prosecution that the alleged place where the seizure was made is busy locality, and that there were houses and no persons were 11 available to act as mediators at the time of alleged recovery. Therefore, in view of the ratio laid down by the Hon'ble Supreme Court in the above said citation, this Court is of the opinion that securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

16. Any confession made to the Excise officers by the accused while in their custody is hit by section 25 of the Indian Evidence Act.

17. With regard to the seizure the Hon'ble High Court of A.P. Observed that if any seizure is made in contravention of Section 100 (4) of Cr. P.C. entire seizure proceedings are deemed to have been vitiated. In this case also the search was made in the absence of any independent witnesses. The observations of the Hon'ble High Court of A.P. in the case of S .Babu Saheb @

Babu Vs. State of A.P., reported in 2010(1) ALT (Crl.) 32 AP, are very much relevant which are extracted hereunder:

Here it may be noticed that though the official witness P.W.1 to

P.W.4 were examined, cannot be taken on record and all the testimonies of

P.W.1 to P.W.4 only cannot be relied upon as there is no evidence except the testimony of the accused evidence to prove that accused had committed the offence. Further, there is no evidence on record that A.1 and A.2 are waiting in Government GPO, Shops. Thus, the evidence of P.W.1 to P.W.4 cannot be believed and it is not safe to conclude that prosecution proved the guilt of accused. Hence it is held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of 12 doubt goes in favour of the accused. Hence, this point is answered accordingly.

18. In the result, Accused-1 and Accused-2 are found not guilty for the offence under section 36(b) and Section 34(a) of AP excise Act 1968, and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 25 (sample bottles) shall be destroyed, after appeal time is over.

Typed to my dictation, corrected and pronounced by me in the open

court, on this the 2 nd day of February, 2024. Sd/E.ANNAMANI

II ADDL.JUDL.MAGISTRATE OF I CLASS-CUM-

II ADDL.CIVIL(JUNIOR DIVISION) JUDGE,

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE

Witnesses examined For Prosecution : PW.1: G.Murali Mohan Rao, S.I of Police, SEB Jangareddygudem

PW.2: K.Srinibabu, S.I. of Police, SEB Tadepalligudem

PW.3: A.Vasu Veni

PW4: G.Srinivas, P&E, Inspector, Eluru

For Defence: -None- Exhibits Marked:

Prosecution: For Defence

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

No. of Material Objects Marked:

M.O.1: Sample of Blenders pride classic premium whisky M.O.2: Sample of Blackened gold brandy rare premium brandy M.O.3: Sample of white hall premium brandy M.O.4: Sample of Kings well select Brandy M.O.5: Sample of Manson house rarest spirit French Brandy 13

M.O.6: Sample of Manson house rarest spirit French Brandy M.O.7: Sample of Manson house rarest spirit French Brandy M.O.8: Sample of Blackened gold brandy rare premium brandy M.O.9: Sample of Royal palace VSOP brandy- M.O.10: Sample of Supreme blend superior whisky M.O.11: Sample of Supreme blend superior whisky M.O.12: Sample of Brilliant blend superior grain whisky M.O.13: Sample of Golden strips luxury whisky M.O.14: Sample of Silver strips original reserve whisky M.O.15: Sample of Manson house rarest spirit French Brandy M.O.16: Sample of Manson house rarest spirit French Brandy M.O.17: Sample of Daaru house XO brandy M.O.18: Sample of AC classic whisky M.O.19: Sample of AC classic whisky M.O.20: Sample of AC classic whisky M.O.21: Sample of Kings well select brandy M.O.22: Sample of 8 Sample pm premium black exclusive whisky M.O.23: ample 8 pm premium black exclusive whisky 180ml 1 bottle M.O.24: Sample of 8 pm premium black exclusive whisky 180ml 1 bottles M.O.25: Sample of White hall rare premium whisky 180ml 20 bottles.

Id/E.A

II AJFCM, TPG.

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDL. CIVIL(JUNIOR DIVISION) JUDGE–CUM–II

ADDL.JUDICIAL FIRST CLASS MAGISTRATE: AT TADEPALLIGUDEM.

C.C.No.749/2022

1. Date of offence : 08-12-2021

2. Date of release on bail A.1&A.2 : on 8-12-2021(A1) : on 10-12-2021(A2)

3. Date of filing : 08-12-2021

4. Date of Apprehension A.1&A.2 : 08-12-2021

5. Date of commencement of trial : 14-07-2023

6. Date of closing of trial : 20-12-2023

7. Date of sentence : 02-02-2024

8. Explanation for the delay, if any : There is no delay in disposing of the case.

9. The Name of the complainant : The Sub Inspector of Police, SEB Police Station, Tadepalligudem.

10. The Name of the Accused : 1) Paluri Anand Kumar, S/o Srinivasa Rao, Age 29 years, C/Kapu, Salesman in Retailer Outlet No.5305, R/o Tadepalligudem.

2) Ane Ayyappa, S/o Lakshmana Rao, Age 32 years Supervisor in Retailer Outlet No.5305, C/Kapu, R/o Tadepalligudem.

11. Offence : Punishable under section 36(b) and Section 34(a) of AP Excise Act, 1968. (Amendment Act 18 of 2020)

12. Finding of Court : Accused found not guilty Sentence/Order : In the result, Accused-1 and Accused-2 are found not guilty for the offence under section 36(b) and Section 34(a) of AP excise Act 1968, and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 25 (sample bottles) shall be destroyed, after appeal time is over.

Sd/E.ANNAMANI Seal II ADDL.JUDL.MAGISTRATE OF I CLASS-CUM-

II ADDL.CIVIL(JUNIOR DIVISION) JUDGE,

TADEPALLIGUDEM.

Copy submitted to: The Hon'ble I Addl. Dist. & Sessions Judge, W.G.,Eluru.

CC/725/2023 Acquitted

Sub Inspector of police, Ganapavaram police station vs Ravipati Srinivasa Raju alias master

04 Nov 2024

IN THE COURT OF I ADDL CIVI JUDGE (Junior Division)- CUM –

I ADDL. JUDICIAL FIRST CLASS MAGISTRATE, TADEPALLIGUDEM

Present: Smt. E. Annamani,

II Addl Civil Judge (Junior Division)-cum- II Addl. Judicial First Class Magistrate, FAC: I Addl Civil Judge (Junior Division), Tadepalligudem. .

Monday , this the 04 th day of November, 2024

C.C.No. 725/2023

a)The serial number of the case:C.C.No.725/2023.

b)Date of commission of offence:19.05.2023

c)Name of the Complainant, if :The Sub Inspector of Police, anyGanapavaram Police Station.

Name of the accused person, : 1. Ravipati Srinivasa Raju @ Master, her/his parentage and S/o Satyanarayana Raju, A: 43 years, residence, if anyNear Water Tank, Pippara Village, Ganapavaram Mandal.

2. Juttiga Nageswara Rao, S/o Harinadh, A: 62 years, Pippara Village, Ganapavaram Mandal.

3. Gadiraju Rambabu @ Ramaraju, S/o Peddiraju, A: 34 years, Pippara Village, Ganapavaram Mandal.

4. Ijjada Papi Naidu, S/o Venkata Ramana @ Ramana, A: 36 years, D.No.32-6-1, Potikucchivari Street, Near Indian Public School, Tanuku Town,N/oVadluruVillage, Undrajavaram Mandal.

e)Offence complained of or :Punishable u/sec. 34-a r/w 9 (1) of proved A.P Excise Act, 2020

f)Plea of the accused and his Accused pleaded not guilty examination, if any

This case has come up on 16.10.2024 for final hearing before me in the presence of Learned Asst. Public Prosecutor, for the State and of Sri V. Leela Krishna, Advocate for the Accused, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Police, Ganapavaram Police Station had filed charge sheet against the accused 1 to 4 in Crime No. 110/2023 for the offence punishable under Section u/ Sec 34-a r/w 9 (1) of AP Excise Act, 1995.

2. The case of the prosecution in brief:

On 19.05.2023 at about 09.00 am, PW.6 received credible information about the illegal activities of accused.No.1 to 3 were possessed and selling of liquor bottles at higher price without any permission with the help of accused.No.4. On that PW.6 along with his staff ie. LW.s 3 to 6 and mediators PW.3 and LW.8 proceeded to Pippara village, Ganapavaram Mandal, at that time they apprehended the accused.No.1 to 3 redhandedly and also seized 1) M.C. Dowels Whisky, Batch.No. 97/L5 750 ml-36 bottles, 2) M.C.Dowels Brandy, Batch.No.6L1 750 Ml bottles-48, 3) Belnders Pride Batch.No. 004U 750 Ml bottles-48, total Arunachal Pradesh State liquor bottles-132, 4) Royal Challenge Whisky, Batch.No.9/L7 750 Ml Bottles -12, 5) Royal Challenge Whisky, Batch.No. 08/L7 750ml bottles-12, 6) Kingfisher Strong Beer Batch.No.001H 750 ML bottles – 18, Total Karnataka State Liquor bottles – 42, Total liquor bottles 174 bottles, total worth of Rs.1,73,760/- were seized under the possession of accused.No.1 to 3 and took into custody in the presence of mediators. During this process Accused.No.4 brought the liquor bottles from other states and the same was kept at the house of accused.No.3. Then, accused.No.1 took the bottles from accused.No.3 and sold in pippara village and surrounding areas to the required persons as per the instructions made by the accused.No.2.

During the course of investigation, PW.6 got drafted the mediator report through PW.3 and 8. Thereafter, PW.6 brought the accused.No.1 to 3 to the police station and registered a case in Cr.No. 110/2023 under Sec 34-(a) r/w 9 (1) of A.P. Excise Act, 2020 of Ganapavaram Police Station. Thereafter, PW.6 filed PT warrant against the Accused.No.4 and produced him before the Hon’ble IAJFCM Court, Tadepalligudem, who is the arrested in Cr.No. 08/2023 under Sec 34-(A) A.P.Excise Act, 2020 by the PW.5/Inspector of Police, Special Enforcement Bureau, Nidadavole. On enquiry, accused.No.4 revealed his name and address particulars and he stated that he purchased those liquor bottles from other states in White Colour Maruthi 800 Car bearing.No.AP 28 G 5553. After completion of investigation he filed charge sheet against accused for the offence punishable Under Sections 34-(a) r/w 9 (1) of AP.Excise Act,2020.

3. The cognizance was taken against the accused 1 to 4 for the offence punishable under Sec 34-(a) r/w 9 (1) of AP.Excise Act,2020..

4.On appearance of accused before this Court, copies of documents were furnished to them as per Section 207 Cr.P.C.

5. The accused were examined U/Sec. 239 Cr.P.C., for the offence punishable U/sec 34-(a) r/w 9 (1) of AP.Excise Act,2020. a charge framed against the accused 3 read over and explained to them in Telugu language, they pleaded not guilty and claimed to be tried.

6. To prove the offence, the prosecution examined PWs.1 to 6 and Ex’s.P-1 to P8 and Mos.1 to 7 were marked on its behalf.

7.After closure of the prosecution evidence, accused were examined U/Sec.313 Cr.P.C., stating the incriminating material made against them for which they denied the same and reported no defence evidence and no documents adduced on their behalf.

8. Heard both sides.

9. The learned Asst. Public Prosecutor argued that the evidence of PWs.1 to 6 coupled with Ex.P1 to P8 and Mos-1 to 5 would establish and prove the charge against the accused and the prosecution successfully established the guilt of the accused beyond all reasonable doubt, thus, he sought conviction of the accused for the offence U/s 34-a r/w 9 (1) of AP.Excise Act,2020.

11. Now the point for determination is:

Whether the Prosecution proved the guilt of the accused for the

offence punishable U/Sec. U/ Sec 34-(a) r/w 9 (1) of AP.Excise

Act,2020 , beyond all reasonable doubt?

12. POINT:

To prove the offence punishable under Section 34-a r/w 9 (1) of AP.Excise Act,2020, the prosecution has to prove that the accused were found in possession of the seized liquor bottles and the same was being sold without license or permit. To prove the same the prosecution examined PW.1, PW.3 to P.W.6, who are official witnesses. PW.2 turned hostile, he do not know anything about the case.

13.The evidence of PW.1/D. Ratna Prasad, Head Constable of Ganapavaram, PW.3/V. John Reddy, VRO of Ganapavaram reveals that on 19.05.2023 at about 03.00 am SI of Police/PW.6 received credible information about selling of illegal liquor, then same was informed to PW.3/VRO through phone, then PW.1, PW.3 and PW.6 were proceeded to the Mathina Venkata Subbayya house at Pippara Village by their police Jeep, when they found three persons present and they were possessed card board box and its containing 174 bottles 1) M.C. Dowels Whisky, Batch.No. 97/L5 750 ml-36 4 bottles, 2) M.C.Dowels Brandy, Batch.No.6L1 750 Ml bottles-48, 3) Belnders Pride Batch.No. 004U 750 Ml bottles-48, Total Arunachal Pradesh State liquor bottles-132, 4) Royal Challenge Whisky, Batch.No.9/L7 750 Ml Bottles -12, 5) Royal Challenge Whisky, Batch.No. 08/L7 750ml bottles-12, 6) Kingfisher Strong Beer Batch.No.001H 750 ML bottles – 18, Total Karnataka State Liquor bottles – 42, Total liquor bottles 174 bottles, total worth of Rs.1,73,760/- and same was seized in the presence of PW.3 and LW.8, on enquiry in their confessional statement and revealed their names and address particulars and purchased the said liquor bottles from other states in lower prices and to sell it higher price and also revealed Accused.No.4 supplied the said liquor bottles. Later seized the liquor bottles by the PW.6 and arrested the accused 1 to 3. PW.3 drafted the E.x.P2 mediator report.

14.During the cross examination of PW.1, scene offence is busy located area. He admitted that he did not sign each and every page of mediators in this case and they did not mention in mediator report that card board box seized. He denied the suggestion that he foisted case against the accused 1 to 4 on the influence of political party and accused did not committed any offence and falsely implicated in this case for their statistical purpose.

15. During the cross examination of PW.3, he did not receive any written summons to act as mediator. He admitted that he did not inform to his higher authorities and act as mediator in this case. He admitted that he did not mention in his movement book as he went to the raid along with police. He did not secure on Mos.1 to 5 and he signed on Ex.P2 on the bottom of the last page. He admitted that did not not secure local people of pippara Village to act as mediator. He admitted that LW.10 did not seize card board box and he did not affix on card board box.

16. PW.4/Garapati Rama Rao, VRO of Ganapavaram, deposed that on 28.07.2023 at 02.00 pm, he received a phone call from Ganapavaram PS, then he went to the Police station along with LW.10, then police informed to him they brought the Accused.No.4 on PT warrant and requested him to act act as a mediator, at that time A4 confessed that before him, he brought the non duty paid liquor bottles from other states in a car bearing.No.AP 28 G 5553 and same was kept at Kotukuchi vari Street, Tanuku. PW.4 recorded the confessional statement of A4 and marked as Ex.P3. On the same he visited the A4 house and found crime vehicle and seized it in his presence under the cover of mediator report/Ex.P4.

17.During the cross examination, he admitted that he has not mentioned about the participation in Ex.P3 and P4 proceedings in moment register and he cant produce the said moment register before the court. He further admitted that he has not visited the scene of offence.

18.PW.5/K. Veera Brahmam, CI of Prohibition and Excise, Nidadavole deposed that on 19.07.2023 he arrested the accseud.No.2 in Cr.No8/2023, who is accused.No4 herein and produced before the court for judicial custody. On 20.07.2023 the SI of police Ganapavaram PS filed a memo as Accused.No.2 in Cr.No. 8/2023 is to be arrested the accused in the present case.

19.PW.6/V. Venkateswara Rao, SI of Police deposed that, on 19.05.2023 at about 03.00 am he received credible information about the illegal possession and selling of NDPL, then, he obtained search proceedings from DSP, Bhimavaram, then PW5 along with his staff proceeded to the Mantena Venkata Subba Raju house along with PW.3/VRO LW.6/VRA by their police Jeep, when they found A1 present and he was trying to escaped from there on seeing in police uniform, then PW.6 detained and enquired accused.No1 and disclosed that he possessed 174 bottles ie., 1) M.C. Dowels Whisky, Batch.No. 97/L5 750 ml-36 bottles, 2) M.C.Dowels Brandy, Batch.No.6L1 750 Ml bottles-48, 3) Belnders Pride Batch.No. 004U 750 Ml bottles-48, Total Arunachal Pradesh State liquor bottles-132, 4) Royal Challenge Whisky, Batch.No.9/L7 750 Ml Bottles -12, 5) Royal Challenge Whisky, Batch.No. 08/L7 750ml bottles-12, 6) Kingfisher Strong Beer Batch.No.001H 750 ML bottles – 18, Total Karnataka State Liquor bottles – 42, Total liquor bottles 174 bottles, total worth of Rs.1,73,760/- and he ascertained the name and address of the A1 to A3. On enquiry they revealed their address particulars and names and the said NDPL liquor supplied by A4 , then same was seized in the presence of PW.3 and LW.6. Later, he brought the accused 1 to 3 to the police station and registered a case in Cr.No.110/2023 under Sec 34-a r/w 9 (1) of AP Excise Act. FIR is Ex.P5. Later, he drawn one bottle from each brand as sample for chemical analysis in the presence of mediators under the cover of mediator report, then he sent the samples to the chemical examiner, Kakinada with letter of advice and marked as/Ex.P6 and received the chemical analysis report/Ex.P.7. later, he visited the scene of offence and recorded the statements of Pw.1, LW.4 to 6. On 27.07.2023 he received information about the arrest of A4 by the PW.5 in Cr.No. 8/2023. Basing on the confessional statement of A4 , he seized the crime vehicle bearing.No. AP 29 G 5553, after completion of investigation he filed charge sheet against the accused 1 to 4.

20.In his cross examination, he admitted that he received information in Cr.No.110/2023 and 111/2023 at same time and two crimes pertaining to the same village, but scene of offence is different. He admitted that there is a chance to alert the other persons if the ride is conducted in one place in the same village. He admitted that in general higher officials arrange teams to conduct ride at one time. He further admitted that there is no eye witnesses at the time of supply of contraband by A4. He admitted that A1 to A3 did not sold and consumption the contraband in his presence.

21. As per the prosecution witnesses that they have not examined any independent witnesses present at the scene of offence in as much as no person was cited as independent witness in this case. The entire case of the prosecution relied on the testimonies of P.W.1, PW.3 to P.W.6, who are official witnesses. It is the duty of the prosecution to explain as why he could not secure independent witnesses.Non-mentioning of the reasons for not securing independent witnesses is fatal to the case of the prosecution. The Hon'ble High Court of Andhra Pradesh in the case reported on 27-11-2001 Yeduru Srinivasulu Reddy Vs. State of Andhra Pradesh observed that the prosecution has to bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate. Before making a search under this chapter 6 the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgment observed that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery.

22.In this case, the alleged place where the seizure was made is busy locality, but no persons were secured to act as mediators at the time of alleged recovery. If the scene of offence is busy area it is impossible for non availability of persons to act as mediator. Therefore, in view of the ratio laid down by the

Hon'ble Supreme Court in the above said citation, this Court is of the opinion

that securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

23. Further, according to the evidence of P.W.1, PW.3 to 6, the accused gave confession before the P.Ws.1, PW.3 to 6, who are revenue and Excise Officials. The point to be noted is that as per the section 56 of AP Excise Act 1968 the Prohibition & Excise Officer in the matter of investigation for the offence u/s. 34(a) r/w 9(1) of AP Excise Act, 1995 are vested with the powers and shall be deemed to be the officers in charge of the police station u/s. 156 of Cr.P.C 1973 as per sec.57 of Excise Act the report submitted by the Excise Officers shall be deemed to be a police report. Hence, the confession made to the Excise officers by the accused while in their custody is hit by sec. 25 of the Indian Evidence Act.

24. With regard to the seizure the Hon'ble High Court of A.P. observed in S. Babu Saheb @ Babu Vs. State of A.P., reported in 2010(1) ALT (Crl.) 32 AP that if any seizure is made in contravention of Section 100 (4) of Cr. P.C. entire seizure proceedings are deemed to have been vitiated.

25.In this case also the search was made in the absence of any independent witnesses. It may be noticed that admittedly no independent witnesses were examined in this case except the testimonies of P.W.1, PW.s3 to 6, who are interested witnesses. Thus, the evidence of P.W.1, PW.s3 to 6 cannot be believed, basing on the evidence of excise officials and revenue officials, it is not safe to conclude that the prosecution proved the guilt of the accused. Hence, it is held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of doubt goes in favour of the accused. Hence, this point is answered accordingly.

21. In the result, the Accused 1 to 4 are found not guilty for the offence under Section 34(a) r/w 9(1) of AP Excise Act, 1995 and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 5 (sample bottles) shall be destroyed, after appeal time is over.

Typed to my dictation, corrected and pronounced by me in the open court, on this the 04 th day of November, 2024.

Sd/-E.Annamani

II Addl Judl Magistrate of I Class, FAC: I Addl Judl Magistrate of I Class, Tadepalligudem

APPENDIX OF EVIDENCE

Witnesses examined For Prosecution : For Defence: PW.1: D. Ratna Prasad, Head Constale PW.2: D. Prasad Raju, Pw.3: V. John Kennady, VRO PW.4: Garapati Rama Rao, VRO PW.5: K. Veera Brahmam, CI PW.6:V. Venkateswara Rao, SI Exhibits marked Prosecution: For Defence Ex.P1: 161 Cr.P.C statement of PW.2 --Nil-- Ex.P2: Mediator report Ex.P3: Confession statement of accused.No.4 Ex.P4: Mediator report Ex.P5: FIR Ex.P6: Letter of advice Ex.P7: Analysis report No. of Material Objects marked MO.1 : 300 ml Sample of ID liquor MO.2 : 300 ml Sample of ID liquor MO.3 : 300 ml Sample of ID liquor MO.4 : 300 ml Sample of ID liquor MO.5 : 300 ml Sample of ID liquor Id/-E.A IIAJCJ,FAC: IAJCJ,TPG.

CALENDAR & EXTRACT

IN THE COURT OF THE I ADDITIONAL CIVIL JUDGE (Junior Division)-CUM- I

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

CALENDER CASE No.725/2023

1. Date of offence:19.05.2023

2. Date of complaint or report:19.05.2023

3. Date of apprehension of Accused :19.05.2023

4. Date of release on bail of Accused :A1 to A3 on 23.05.2023, A4 on 31.07.2023.

5. Date of commencement of trial:05.08.2024

6. Date of close of trial:30.09.2024

7. Date of sentence or Order:04.11.2024

8. Explanation of delay if any:No delay COMPLAINANT: The State represented by the Sub Inspector of Police, Ganapavaram Police Station, Ganapavaram.

ACCUSED:

1. Ravipati Srinivasa Raju @ Master, S/o Satyanarayana Raju, A: 43 years, Near Water Tank, Pippara Village, Ganapavaram Mandal.

2. Juttiga Nageswara Rao, S/o Harinadh, A: 62 years, Pippara Village, Ganapavaram Mandal.

3. Gadiraju Rambabu @ Ramaraju, S/o Peddiraju, A: 34 years, Pippara Village, Ganapavaram Mandal.

4. Ijjada Papi Naidu, S/o Venkata Ramana @ Ramana, A: 36 years, D.No.32-6-1, Potikucchivari Street, Near Indian Public School, Tanuku Town, N/o Vadluru Village, Undrajavaram Mandal. Cr.No.:Cr.No.110/2023 Section of Law :Under Section 34(a) r/w 9 (1) of AP Excise Act,1995. Plea of the accused:Pleaded not guilty Finding of Court:Found not guilty Sentence/Order: In the result, the Accused 1 to 4 are found not guilty for the offence under Section 34(a) r/w 9(1) of AP Excise Act, 1995 and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 5 (sample bottles) shall be destroyed, after appeal time is over.

Sd/-E.Annamani

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

FAC: I ADDL. JUDICIAL MAGISTRATE OF I CLASS, Seal TADEPALLIGUDEM.

Copy submitted To the Hon'ble I Addl. District & Sessions Judge, West Godavari District through CD.

CC/724/2023 Acquitted

Sub Inspector of police, Ganapavaram police station. vs Thotakura Sivaramaraju

04 Nov 2024

IN THE COURT OF I ADDL CIVI JUDGE (Junior Division)- CUM –

I ADDL. JUDICIAL FIRST CLASS MAGISTRATE, TADEPALLIGUDEM

Present: Smt. E. Annamani,

II Addl Civil Judge (Junior Division)-cum- II Addl. Judicial First Class Magistrate, FAC: I Addl Civil Judge (Junior Division), Tadepalligudem. .

Monday , this the 04 th day of November, 2024

C.C.No. 724/2023

a)The serial number of the case:C.C.No.724/2023.

b)Date of commission of offence:19.05.2023

c)Name of the Complainant, if :The Sub Inspector of Police, anyGanapavaram Police Station.

Name of the accused person, : 1. Thotakura Sivaramaraju, S/o her/his parentage and Anjaneya Raju, A: 45 years, Pippara residence, if anyVillage, Ganapavaram Mandal.

2. Kolaniwada Suresh Raju, S/o Sivaramaraju, A: 27 years, Pippara Village, Ganapavaram Mandal.

3. Indukuri Suryanarayana, S/o Suraparaju, A: 70 years, Pippara Village, Ganapavaram Mandal.

4. Ijjada Papi Naidu, S/o Venkata Rama na @ Ramana, A: 36 years, D.No.32-6-1, Potikucchivari Street, Near Indian Public School, Tanuku Town.

e)Offence complained of or :Punishable u/sec. 34-a r/w 9 (1) of proved A.P Excise Act, 2020

f)Plea of the accused and his Accused pleaded not guilty examination, if any

J U D G M E N T

1. The Sub-Inspector of Police, Ganapavaram Police Station had filed charge sheet against the accused 1 to 4 in Crime No. 111/2023 for the offence punishable under Section u/ Sec 34-a r/w 9 (1) of AP Excise Act, 1995.

2. The case of the prosecution in brief:

On 19.05.2023 at about 09.00 am, PW.5 received credible information about the illegal activities of accused.No.1 was possessed and selling of liquor bottles at higher price without any permission. On that PW.5 along with his staff ie. LW.s 1 to 4 and mediators LW.5 and LW.6 proceeded to Pippara village, Ganapavaram Mandal, at that time they apprehended the accused.No.1 and seized 192 bottles of Kingfisher Lazar Beer, 24 bottles of Corona Beer, 11 bottles of Ballantine Scotch whisky, total 227 liquor bottles its worth of Rs.65,200/- from his possession. During enquiry A2 and A4 colluded together and decided to do liquor business and brought the liquor bottles from other states and same was sell in Andhra Pradesh at higher price. During this process Accused.No.4 brought the liquor bottles from other states and the same was kept at the house of accused.No.3. Then, accused.No.1 took the bottles from accused.No.3 and sold in pippara village and surrounding areas to the required persons as per the instructions made by the accused.No.2.

During the course of investigation, PW.5 seized the liquor bottles in the presence of mediators/LW.5 and 6 and got drafted the mediator report. Thereafter, PW.5 brought the accused.No.1 to the police station and registered a case in Cr.No. 111/2023 under Sec 34-a r/w 9 (1) of A.P. Excise Act, 2020 of Ganapavaram Police Station. On 31.05.2023 Accused.No.2 and 3 turned up the police station and surrendered before the PW.5 and they got anticipatory bail order,which was issued by the Hon’ble II ADJ Court, West Godavari District, Eluru, then PW.5 released the accused.No.2 and 3. Thereafter, PW.5 filed PT warrant against the Accused.No.4 and produced him before the Hon’ble IAJFCM Court, Tadepalligudem, who is arrested in Cr.No. 08/2023 under Sec 34-(A) r/w 9 (1) A.P.Excise Act, 2020 by the PW.4/Inspector of Police, Special Enforcement Bureau, Nidadavole. On enquiry, accused.No.4 revealed his name and address particulars and he stated that he purchased those liquor bottles from other states in White Colour Maruthi 800 Car bearing.No.AP 28 G 5553. After completion of investigation he filed charge sheet against accused for the offence punishable Under Sections 34-a r/w 9 (1) of AP.Excise Act,2020.

3. The cognizance was taken against the accused 1 to 4 for the offence punishable under Sec 34-a r/w 9 (1) of AP.Excise Act,2020..

4.On appearance of accused before this Court, copies of documents were furnished to them as per Section 207 Cr.P.C.

5. The accused were examined U/Sec. 239 Cr.P.C., for the offence punishable U/sec 34-a r/w 9 (1) of AP.Excise Act,2020. a charge framed against the accused read over and explained to them in Telugu language, they pleaded not guilty and claimed to be tried.

6. To prove the offence, the prosecution examined PWs.1 to 5 and Ex’s.P-1 to P7 and Mos.1 to 3 were marked on its behalf.

8. Heard both sides.

9. The learned Asst. Public Prosecutor argued that the evidence of PWs.1 to 5 coupled with Ex.P1 to P7 and Mos-1 to 3 would establish and prove the charge against the accused and the prosecution successfully established the guilt of the accused beyond all reasonable doubt, thus, he sought conviction of the accused for the offence U/s 34-a r/w 9 (1) of AP.Excise Act,2020.

11. Now the point for determination is:

Whether the Prosecution proved the guilt of the accused for the

offence punishable U/Sec. U/ Sec 34-a r/w 9 (1) of AP.Excise

Act,2020 , beyond all reasonable doubt?

12. POINT:

13.The evidence of PW.1/D. Ratna Prasad, Head Constable of Ganapavaram, PW2/V. John Reddy, VRO of Ganapavaram reveals that on 19.05.2023 at about 03.00 am SI of Police/PW.5 received credible information about selling of illegal liquor, then same was informed to PW.2/VRO through phone, then PW.1, PW.5 proceeded to the I. Suryanarayana house, who is the accused.No.3 at Pippara Village along with PW.2/VRO LW.6/VRA by their police Jeep, when they found three persons present at the house of accused.No.3 and they were possessed card board box and its containing 192 bottles of King fisher, 24 bottles of Carona beer, 11 bottles of scotch Whisky and same was seized in the presence of PW.2 and LW.6, on enquiry in their confessional statement and revealed their names and address particulars and purchased the said liquor bottles from other states in lower prices and to sell it higher price and also revealed Accused.No.4 4 supplied the said liquor bottles. Later seized the liquor bottles by the PW.5 and arrested the accused 1 to 3. PW.2 drafted the E.x.P1 mediator report.

14.During the cross examination of PW.1, scene offence is busy located area. He admitted that he did not sign each and every page of mediators in this case and they did not mention in mediator report that card board box seized. He denied the suggestion that he conducted table investigation in this case and foisted case against the accused 1 to 3 on the influence of political party and accused did not committed any offence and falsely implicated in this case for their statistical purpose.

15. During the cross examination of PW.2, he did not receive any written summons to act as mediator. He admitted that he did not inform to his higher authorities and act as mediator in this case. He admitted that he did not mention in his movement book as he went to the raid along with police. He did not secure on Mos.1 to 3 and he signed on Ex.P1 on the bottom of the last page. He admitted that did not not secure local people of pippara Village to act as mediator. He admitted that LW.10 did not seize card board box and he did not affix on card board box.

16. PW.3/Garapati Rama Rao, VRO of Ganapavaram, deposed that on 28.07.2023 at 02.00 pm, he received a phone call from Ganapavaram PS, then he went to the Police station and police informed to him they brought the Accused.No.4 on PT warrant and requested him to act act as a mediator, at that time A4 confessed that before him, he brought the non duty paid liquor bottles from other states in a car bearing.No.AP 28 G 5553 and same was kept at Kotukuchi vari Street, Tanuku. PW.3 recorded the confessional statement of A4 and marked as Ex.P2. On the same he visited the A4 house and found crime vehicle and seized it in his presence under the cover of mediator report/Ex.P3

18.PW.4/K. Veera Brahmam, CI of Prohibition and Excise, Nidadavole deposed that on 19.07.2023 he arrested the accseud.No.2 in Cr.No8/2023, who is accused.No4 herein and produced before the court for judicial custody. On 20.07.2023 the SI of police Ganapavaram PS filed a memo as Accused.No.2 in Cr.No. 8/2023 is to be arrested the accused in the present case.

19.PW.5/V. Venkateswara Rao, SI of Police deposed that, on 19.05.2023 at about 03.00 am he received credible information about the illegal possession and selling of NDPL, then, he obtained search proceedings from DSP, Bhimavaram, then PW5 along with his staff proceeded to the I. Suryanarayana house, who is the accused.No.3 at Pippara Village along with PW.2/VRO LW.6/VRA by their police Jeep, when they found A1 present and he was trying to escaped from there on seeing in police uniform, then PW.5 detained and enquired accused.No1 and disclosed that he possessed 192 bottles of King fisher, 24 bottles of Carona beer, 11 bottles of Ballantile Squaze whisky-750ml and he ascertained the name and address of the A1 and on enquiry A1 revealed the said NDPL liquor supplied by A2 5 and A4 , then same was seized in the presence of PW.2 and LW.6. Later, he brought the accused 1 to the police station and registered a case in Cr.No.111/2023 under Sec 34-a r/w 9 (1) of AP Excise Act and drawn one bottle from each varied as sample for chemical analysis in the presence of mediators under the cover of mediator report, then he sent the samples to the chemical examiner, Kakinada with letter of advice and marked as/Ex.P5 and received the chemical analysis report/Ex.P.6. later, he visited the scene of offence and recorded the statements of Pw.1, LW.2 to 4. On 31.05.2023 A2 and A3 turned up to the police station and A3 got anticipatory bail, then he arrested the accused.No.2. On 27.07.2023 he received information about the arrest of A4 by the PW.4 in Cr.No. 8/2023. Basing on the confessional statement of A4 , he seized the crime vehicle bearing.No. AP 29 G 5553, after completion of investigation he filed charge sheet against the accused 1 to 4.

20.In his cross examination, they conducted ride at 06.00 pm in another case. He admitted he has not received any written report. He denied the suggest that scene of offence house was not used for residential purpose and it was used for storage purpose. He admitted that he did not mentioned that, who are residing to the scene of offence. He secured the mediators at pippara centre.

21. As per the prosecution witnesses that they have not examined any independent witnesses present at the scene of offence in as much as no person was cited as independent witness in this case. The entire case of the prosecution relied on the testimonies of P.W.1 to P.W.5, who are official witnesses. It is the duty of the prosecution to explain as why he could not secure independent witnesses.Non-mentioning of the reasons for not securing independent witnesses is fatal to the case of the prosecution. The Hon'ble High Court of Andhra Pradesh in the case reported on 27-11-2001 Yeduru Srinivasulu Reddy Vs. State of Andhra Pradesh observed that the prosecution has to bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate. Before making a search under this chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgment observed that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery.

Hon'ble Supreme Court in the above said citation, this Court is of the opinion

6 that securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

23. Further, according to the evidence of P.W.1 to 5, the accused gave confession before the P.Ws.1 to 5, who are revenue and Excise Officials. The point to be noted is that as per the section 56 of AP Excise Act 1968 the Prohibition & Excise Officer in the matter of investigation for the offence u/s. 34(a) r/w 9(1) of AP Excise Act, 1995 are vested with the powers and shall be deemed to be the officers in charge of the police station u/s. 156 of Cr.P.C 1973 as per sec.57 of Excise Act the report submitted by the Excise Officers shall be deemed to be a police report. Hence, the confession made to the Excise officers by the accused while in their custody is hit by sec. 25 of the Indian Evidence Act.

25.In this case also the search was made in the absence of any independent witnesses. It may be noticed that admittedly no independent witnesses were examined in this case except the testimonies of P.Ws.1 to 5, who are interested witnesses. Thus, the evidence of P.Ws.1 to 5 cannot be believed, basing on the evidence of excise officials and revenue officials, it is not safe to conclude that the prosecution proved the guilt of the accused. Hence, it is held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of doubt goes in favour of the accused. Hence, this point is answered accordingly.

21. In the result, the Accused 1 to 4 are found not guilty for the offence under Section 34(a) r/w 9(1) of AP Excise Act, 1995 and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 3 (sample bottles) shall be destroyed, after appeal time is over.

Typed to my dictation, corrected and pronounced by me in the open court, on this the 04 th day of November, 2024.

II Addl Judl Magistrate of I Class, FAC: I Addl Judl Magistrate of I Class, Tadepalligudem 7

APPENDIX OF EVIDENCE

Witnesses examined For Prosecution : For Defence: PW.1: D. Ratna Prasad, Head Constale Pw.2: V. John Kennady, VRO PW.3: Garapati Rama Rao, VRO PW.4: K. Veera Brahmam, CI PW.5:V. Venkateswara Rao, SI Exhibits marked Prosecution: For Defence Ex.P1: Mediator Report --Nil-- Ex.P2: Confession statement of accused.No.4 Ex.P3: Mediator report Ex.P4: FIR Ex.P5: Letter of advice Ex.P6: Analysis report. No. of Material Objects marked MO.1 : 300 ml Sample of ID liquor MO.2 : 300 ml Sample of ID liquor MO.3 : 300 ml Sample of ID liquor

IIAJCJ,FAC: IAJCJ,TPG.

CALENDAR & EXTRACT

IN THE COURT OF THE I ADDITIONAL CIVIL JUDGE (Junior Division)-CUM- I

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

CALENDER CASE No.724/2023

1. Date of offence:19.05.2023

2. Date of complaint or report:19.05.2023

3. Date of apprehension of Accused :A2, A3 got anticipatory bail A4 on PT warrant, A1 arrested on 19.05.2023

4. Date of release on bail of Accused :A1 on 23.05.2023, A4 on 31.07.2023.

5. Date of commencement of trial:05.08.2024

6. Date of close of trial:30.09.2024

7. Date of sentence or Order:04.11.2024

8. Explanation of delay if any:No delay COMPLAINANT: The State represented by the Sub Inspector of Police, Ganapavaram Police Station, Ganapavaram.

ACCUSED:

1. Thotakura Sivaramaraju, S/o Anjaneya Raju, A: 45 years, Pippara Village, Ganapavaram Mandal.

2. Kolaniwada Suresh Raju, S/o Sivaramaraju, A: 27 years, Pippara Village, Ganapavaram Mandal.

3. Indukuri Suryanarayana, S/o Suraparaju, A: 70 years, Pippara Village, Ganapavaram Mandal.

4. Ijjada Papi Naidu, S/o Venkata Rama na @ Ramana, A: 36 years, D.No.32-6-1, Potikucchivari Street, Near Indian Public School, Tanuku Town Cr.No.:Cr.No.111/2023 Section of Law :Under Section 34(a) r/w 9 (1) of AP Excise Act,1995. Plea of the accused:Pleaded not guilty Finding of Court:Found not guilty Sentence/Order: In the result, the Accused 1 to 4 are found not guilty for the offence under Section 34(a) r/w 9(1) of AP Excise Act, 1995 and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused, if any, shall stand cancelled and MOs.1 to 3 (sample bottles) shall be destroyed, after appeal time is over.