Smt G Sabitha

Page No.1 CC No.6/2018

IN THE COURT OF THE SPL. JUDICIAL FIRST CLASS MAGISTRATE FOR

EXCISE CASES, HYDERABAD

Present: - Smt. G. Sabitha, Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Dated Tuesday, this the 12th day of January,2021

C.C. No.6 of 2018

Between:

The State through the The Sub-Inspector of Police, Police Station Bahadurpura.

And

…Complainant A1) Md.Arif, S/o. Mohd.Nizamuddin, Aged 52 years, Occ:Driver, R/o. Near SK gardens, Nawabsabkunta, Falaknuma, Hyderabad.

A2) Mohsin Qureshi, S/o. Moinuddin Qureshi, Aged 28 years, Occ:Driver, R/o. Jahanuma, Near New 786 Hotel, Hyderabad.

A3) Mohd.Abdul Nawaz, S/o.M.A.Razzak, Aged 28 years, Occ:Chicken business, R./o. Near Diary Farm piller No.270, Rajender Nagar, R.R.dist.

A4) Mohd.Imranuddin, S/o. Mohd.Sadiquiddin, Aged 33 years, Occ:Business, R/o. Plot No.53, jahanuma, Near New 786 Hotel, Hyderabad.

A5) Sk.Aqeel, S/o. Sk.Ismail, Aged 42 years, Occ:Bike Puncture shop, r/o. Near Guid ka Dawakhana, N.S.Kunta, Jahanuma, Hyderabad. (Abated)

A6) Syed Aziz, S/o. Syed Nayeemuddin, Aged 32 years, Occ: Business, R/o. H.No.19-2-137/B. Tadbun, Kalapathar, Hyderabad.

A7) Mohsin Khan, S/o. Umar Khan, Aged 30 years, OccL:Business, R/o. H.No.19-3-110/1/A, Jahanuma, Hyderabad. …Accused. (The case against A-5 is abated, dt. 24-6-2019 )

Page No.2 CC No.6/2018

This case is coming on dt.07-01-2021 before me for final hearing in the presence of Assistant Public Prosecutor, for the complainant and of Sri.Mohammed Jani, - Counsel for A-1 to A-4 and A6 & A-7, 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, Bahadurpura Police Station filed this case vide

Crime No. 191 of 2017 of his station alleging that A-1 to A-7 had committed the offences punishable under Section 420 of IPC and Sec.7(c) of Essential

Commodities Act.

2The Crux of prosecution case is that on dt.18-09-2017, at about 18.00 hours, PW-1 - Asst. Civil Supply Officer, Charminar, Circle-III, Hyderabad received credible information with regard to illegal storage of PDS rice.

Immediately, he alongwith PW-2 - Enforcement, CRO, proceeded to the suspected place, at Akber Travels, Bahadurpura and inspected the premises. On search of the premises, they found 16 tonnes of PDS rice. They found A-1 at the scene of offence, who on enquiry revealed about purchase of 16 tonnes of PDS rice from

Food Security card holders @ 7/- per kg and selling the same @ 9/- per kg, for needy people. On further enquiry, A-1 disclosed about purchase of 47.80 quintals from A-3; 39 quintals from A-5 & 41.80 quintals from A-2. In addition, 7 quintals procured from A-6, who was Fair Price shop dealer bearing No.372,

Circle-III, Tadbun. After procuring PDS rice from A-2 to A-7, the same was stored in the garage of A-7, at Akber Travels, Bahadurpura, Hyderabad, on rental basis.

Though, A-7 of Akber Travels was having knowledge about the illegal storage of

PDS rice, he assisted A-1 to store PDS rice and to transport PDS rice in his travels in his lorry bearing No. AP 12V 7488. PW-2 conducted panchanama in the presence of two mediators, seized the suspected PDS rice of 16 tonnes, one lorry bearing No. AP 12V 7488 and one auto trolley bearing No. AP 28TE 1362, under cover of panchanama. The said seized PDS rice was handed over to MLS point,

Circle-III, Charminar, Hyderabad, for safe custody. On dt.18-9-2017, at about 6.00pm, PW-1 lodged report before PW-5/ Investigating Officer. Basing on which,

Page No.3 CC No.6/2018 a case vide Cr.No.191/2016, U/Sec.420 of IPC and Sec.7(c) of EC Act was registered by PW-4. During investigation, PW-4 examined and recorded the statements of PW-1 & PW-2. On interrogation, A-1 voluntarily confessed his guilt of committing the offence alongwith A-2 to A-7. PW-4 issued Sec.41-A

Cr.P.C. notices on A-1 to A-7 and they obliged the same. On completion of investigation, PW-4 laid charge sheet against A-1 to A-7, for the offences punishable U/Sec. 420 of IPC and Sec.7(c) of EC Act.

3. This Court has taken cognizance of the offences under Sec.406, 420 of IPC and Sec. 7(c) of Essential Commodities Act, 1955 against Accused Nos.1 to 7. On appearance of A-1 to A-7, copies of documents as contemplated under Section 207 of the Code of Criminal Procedure, 1973 were furnished to them. On dt.24-6-2019, the case against A-5 was abated.

4.Accused Nos.1 to 4, 6 & 7 were examined under Section 239 of Cr.P.C.

explaining the charges framed against them, for the offences punishable under

Sec.420 of IPC and Sec. 7(c) of Essential Commodities Act, 1955, for which, they denied, pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution examined PWs-1 to 4 and got marked Exs.P1 to P5. Evidence of LW-4 was closed by the prosecution.

6.After closure of the prosecution evidence, Accused Nos. 1 to 4, 6 & 7 were examined under Section 313 of Cr.P.C., with regard to the incriminating material appearing against them, for which, they submitted all such evidence is false and reported no defence.

7.Heard both sides. Perused the record.

Page No.4 CC No.6/2018

8.Now the points that arise for determination are___

1) Whether prosecution has brought home the guilt of Accused Nos.1 to 4, 6 & 7 for the offences under Section 420 of IPC and Sec.7(c) of Essential

Commodities Act, 1955 beyond all reasonable doubt?

9.Point - 1: In order to establish the case, as already noted, prosecution examined PW-1 to PW-4 and got marked Ex.P1 to Ex.P5. PW-1 is Asst.Civil

Supply officer, Circle-III, Charminar, Hyderabad. PW-2 is CRO, Enforcement,

Hyderabad. PW-3 is the panch witness for confession panchanama. PW-4 is the

Investigating Officer of the case.

10.Coming to the documentary evidence, Ex.P1 is the report lodged by PW-1.

Ex.P2 is the Sworn Statement of A-1. Ex.P3 is the panchanama conducted by

PW-2. Ex.P4 is custodian receipt obtained by PW-2 from Godown incharge,

Circle-III. Ex.P5 is FIR.

11.Story of the prosecution case is that on dt. 18-9-2017, on receipt of credible information, PW-1 & PW-2 proceeded to the suspected place, at Akber Travels,

Bahadurpura and noticed one person in possession of 16 tonnes of suspected

PDS rice . According to the confession of A-1, he has procured suspected PDS rice from A-2,A-3, A-5 & A-7, who had purchased the rice from Food security card holders and so also from A-6, who is the Fair price shop dealer bearing

No.372, Circle-III, Tadbun, Hyderabad. PW-1 recorded the Sworn Statement of

A-1 and lodged report before PS Bahadurpura, seeking necessary action against

A-1 and others. The seized 16 tonnes of suspected PDS rice was handed over by

PW-1 to MLS point, Circle-III, Charminar, Hyderabad, for safe custody.

12.Prior to the analysation of prosecution evidence, it is essential to give a glance on Sec. 420 of IPC and Sec. 7 (c) of Essential Commodities Act.

Page No.5 CC No.6/2018

13.Coming to the ingredients under Sec. 420 of IPC is concerned, prosecution shall prove the following points:- •Accused Nos.1 to 7 shall be shown to have dishonestly induced any person to deliver any property or destroy or alter the same; •Accused Nos.1 to 7 have cheated any person by dishonestly inducing him to deliver such property.

14 On mere prima facie glance over the set of allegations against A-1 to A7, it is apparent that none of the ingredients of Sec.420 of IPC are attracted, even if the entire story of the prosecution is admitted to be true.

15.Coming to the offence U/Sec.7(A) of EC Act is concerned, prosecution shall establish contravention of provisions of Telangana State Public Distribution

System (Control) Order,2016, dt.19-8-2016.

16. Whether PW-1 & PW-2 are having authority to inspect any premises ?

U/Sec.2(X) Telangana State Public Distribution System (Control)

Order,2016, Disciplinary Authority means District Supply officer having jurisdiction over the area in respect of Hyderabad District,i.e., "Asst. Supply

Officer".

As per Sec.16 of Telangana State Public Distribution System (Control)

Order,2016, Dy.Tahsildar (Revenue), Dy.Tahsildar(CS) or Revenue Inspector are having authority to conduct inspection any of the premises, where scheduled commodities meant for Public Distribution System or possession or found in transit. For clear guidance, this court feels necessary to reproduce Sec.16

Telangana State Public Distribution System (Control) Order,2016,

Any officer or person authorized by the Government or by the Collector or by the appointing authority or any officer of the Revenue or Civil Supplies department not below the rank of Revenue Inspector/Checking Inspector/Enquiry inspector (Civil Supplies), Deputy Tahsildar (Civil Supplies/Grain purchasing Assistant/Deputy Tahsildar (Revnue) or any Gazetted officer of Vigilance and Enforcement Department, Telangana,

Page No.6 CC No.6/2018

Hyderabad or any officer authorized in the behalf by the State Government not below the rank of a Sub-Inspector of police or a team of not less than three members of the Mandal/Village (Gram Panchayat) level Vigilance Committee may enter the premises of the fair price shop/nominated retailer hawker or any private premises where scheduled commodities pertaining to public distribution system or other government schemes are positioned or found in transit and conduct inspection and seize any stocks of scheduled commodities, supply documents or books accounts or other related document for the purpose of such inspection/ seizure for contravention of the provisions of this order; Officers of Legal Metrology Department are also empowered to inspect the Fair Price Shop/nominated retailer/hawker premises, in regard to weights and measures. Provided that the members of Vigilance Committee at Mandal and Village Gram Panchayat not less than 3 members Amy conduct enquiry on the performance of the fair price shop/nominated retailer/hawker and furnish a detailed report to the disciplinary authority for initiating disciplinary action.

17.After going through the above provision, it is clear that PW-1 & PW-2, i.e., both the Assit.Civil Supply officer and Enforcement (CRO), Dy.Tahsildar were having authority to inspect the premises suspected to be used to store PDS rice.

On the other hand, though PW-1 & PW-2 were having authority as per Sec.16(v)

Telangana State Public Distribution System (Control) Order,2016, they did not collect any document or the extract of the register from Akber travels, at where, the alleged PDS rice was stored by A-1. As rightly pointed out by the Counsel for accused, both PW-1 & PW-2 failed to comply Sec.100 Cr.P.C, while conducting search and seizure proceedings.

18. No doubt, PW-3 panch witness supported the case of the prosecution with regard to the date, time, conducting panchanama and seizure of 16 tonnes of suspected PDS rice from Akber Travels. In his Chief-Examination, PW-3 deposed that A-1 has confessed in his presence as to the procurement of PDS rice from A- 2,A-3,A-5 & A-6 for the purpose of sale in general market. PW-3 also identified A- 3 in open court. In his cross-examination counsel for defence elicited that PW-3 identified A-1 before the court after three years with the assistance of police constable, who has shown out side of the court, on the date of evidence. Even,

PW-3 further stated non weighing of PDS rice in his presence.

Page No.7 CC No.6/2018

19. On perusal of evidence of PW-1 & PW-2, Civil Supply Officials, it is evident that both their evidence is corroborative with each other with regard to date,time, place of seizure of 16 tonnes of PDS and confession of A-1.

20. Whether the prosecution against A-1 to A-7 is valid in view of Sec.17(D)

of Telangana State Public Distribution System (Control) Order,2016?

At this juncture, it is strenuous argument of the counsel for the defence that

U/Sec.17(A) of Telangana State Public Distribution System (Control) Order,2016, sanction of District Collector is Essential to prosecute the accused who alleged to have contravened Provisions of PDS Order,2016. For better understanding, this court feels it necessary to go through Sec.17(D) of Telangana State Public

Distribution System (Control) Order,2016, which is reproduced hereunder:-

Sec.17(D) - "No authorized Fair price shop dealer/nominated retailer/hawker or any other person who interferes with the process of distribution shall be prosecuted, for contravention, attempt to contravene or abet the contravention of any of the provisions of this order or of the terms of the condition of authorization or the directions issued by the government, commissioner, appointing authority, except with the previous sanction of the District

Collector concerned."

21.After going through Sec.17(D) Telangana State Public Distribution System (Control) Order,2016, it is clear that no person shall be prosecuted under

Telangana State Public Distribution System (Control) Order,2016, except with the previous sanction of the District Collector concerned.

22. In the instant case on hand, admittedly neither PW-1 nor PW-2 or

Investigating Officer has obtained permission from the District Collect, to initiate prosecution against A-1 to A-7. No doubt, U/sec.17(e) Telangana State Public

Page No.8 CC No.6/2018

Distribution System (Control) Order,2016, any person if found to have purchased

PDS rice either from card holder or F.P.shop dealer or any other source, he shall be liable for criminal action. But, in view of Sec.17(D) of Telangana State Public

Distribution System (Control) Order,2016, without sanction of District Collector , no prosecution shall be initiated against the persons who contravened the provisions of this order.

23. Whether prosecution has established the seized rice as meant for Public

Distribution System?

Prosecution entirely relied upon the evidence of PW-1, PW-2, Civil Supply officials and Ex.P3 panchanama conducted by both PW-1 & PW-2 to establish this case. Evidence of both PW-1 & PW-2 reveals that they suspected the 16 tonnes of rice found at Akber travels, Bahadurpura as PDS rice. On such suspicion, they seized 16 tonnes of rice and handed over the same to Godown Incharge, Circle-

III, for safe custody.

24.U/Sec.7 of EC Act, once rice seized from accused is found to be meant for

PDS, then only it is punishable Under EC Act. In the instant case on hand, both

PW-1 & PW-2 suspected seized rice as meant for PDS and they did not left any sample and sent the rice to FSL for clarification or analysis. No doubt, PW-3 panch witness supported the case, but, he is not an expert and more over, he identified A-1 in open court with the assistance of constable. PW-3 is also not sure about the rice and he came to know through PW-1 & PW-2 that the seized 16 tonnes of rice was meant for PDS.

25.Appreciation of other evidence on record:-

Evidence of PW-4 Investigating Officer is nothing but replica of contents of charge sheet. No further investigation was done by him, but he entirely relied upon the panchanama conducted by both PW-1 & PW-2 Civil Supplies officials. Except

Page No.9 CC No.6/2018 issuing Sec.41-A Cr PC notices on A-1 to A-7, no further investigation was added by PW-4. As per the story of the prosecution, PW-1 & PW-2 found A-1 in possession of 16 tonnes of PDS rice, at Akber Travels, Bahadurpura. The confession statement of A-1 discloses involvement of A-2 to A-7 in the alleged offence. No doubt, confession of A-1 reveals procurement of alleged PDS rice by him from A-2 to A-7, who purchased the PDS rice from ration card holder.

Except, confession of A-1, no other evidence is on record to establish the involvement of A-2 to A-7 in the alleged offence. Though confession of A-1 shows

A-6 as Fair Shop dealer. The Investigating Officer did not evince any interest to visit Fair Price Shop of A-6 bearing No.372, Circle-III, Tadbun.

26.As already noted, U/Sec.16 of Telangana State Public Distribution System (Control) Order,2016, PW-2- Dy.Tahasildar,(Civil Supplies), PW-1 checking inspector were having authority to summon and require production of any document who were suspected to have contravened the provisions of EC Act. But, both PW-1 & PW-2 remained silent after seizure of 16 tonnes of alleged PDS rice from A-1. Surprisingly, though both PW-1 & PW-2 corroboratively deposed that

A-1 have purchased PDS rice from A-2 to A-5 & A-7, no receipts were filed to establish the scene. More over, to establish A-6 as Fair price shop dealer No.372,

Circle-III, Tadbun, no documents were collected. None of the accounts of Fair

Price Shop No.372, Circle-III, Tadbun were seized and produced before the court.

Even, PW-4 Investigating Officer also kept quite and did not do any investigation in these lines.

27.It is argument of the counsel for defence that both PW-1 & PW-2 shall file their inspection report to disciplinary authority and shall obtain prior sanction order from District Collector under Sec.17(D) of Telangana State Public

Distribution System (Control) Order,2016, to initiate prosecution against accused. But, in the case on hand, as already noted both PW-1 & PW-2 did not

Page No.10 CC No.6/2018 submit any inspection report before their superiors/Revenue Division

Officer/Sub-Collector/District Collector, instead, they merely seized huge stock of 16 tonnes of rice from Akber Travels, Bahadurpura and deposited the same before the Godown incharge, Circle-III, for safe custody. U/Sec.20 of Telangana State

Public Distribution System (Control) Order,2016, the Disciplinary Authority viz.,

Tahasildar/Asst.Supply Officer may pass orders against any contravention of the rules under EC Act. Against the said order, the accused person may file an appeal to the Appointing Authority, within 7 days. In the instant case on hand, as rightly pointed out by the counsel or defence neither PW-1 nor PW-2 submitted any inspection report before their superiors to pass any order under 5(4) of

Telangana State Public Distribution System (Control) Order,2016. Even, they did not obtain any sanction for prosecution from the District Collector as prescribed under Sec.17(D) of Telangana State Public Distribution System (Control)

Order,2016.

28. After going through Sec.16, 17(D) & 20 of Telangana State Public

Distribution System (Control) Order,2016, this court is of the view that both

PW-1 & PW-2 did not follow the prescribed procedure and did not pass any order for illegal possession or transpiration of alleged PDS rice by A-1.

29.With the above discussion, this court comes to the conclusion that for failure of PW-1 & PW-2 in not summoning or not collecting any receipts or documents to show A-7 as owner of Akber Travles, at Bahadurpura; for not collecting any receipts from A-1 to establish purchase of PDS rice by A-1 from any of the accused; for not collecting any documents from A-6 to show him as dealer of Fair Price shop bearing No. 372, Circle-III, Tadbun or to establish sales of PDS rice by A-6 in favour of A-1; for not obtaining sanction proceedings from

District Collector for prosecution against A-1 to A-7; for failure of PW-1 & PW-2 in not following Sec.100 Cr.P.C. formalities while conducting search and for not

Page No.11 CC No.6/2018 serving search proceedings on A-1; for failure of the Investigating officer in not collecting any documents to establish involvement of A-2 to A-7 in the alleged offence, this court travel towards benefit of doubt in favour of A-1 to A-4,A-6 &

A-7.

30.In the result, Accused Nos.1 to 4,6 & 7 are found not guilty for the offences under Sec.420 of IPC and Sec. 7(c) of Essential Commodities Act, 1955.

Accordingly, they are acquitted under Sec. 248(1) of Cr.P.C. Bail bonds of

Accused Nos. 1 to 4,6 & 7 shall be in force for a period of 6 months from today, as prescribed under Sec.437-A of Cr.P.C.

Dictation to Stenographer Gr.II, typed by her, corrected and pronounced by me in open court on this the 12th day of January,2021.

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Appendix of Evidence Witnesses Examined For Prosecution:For Defence:

PW-1: Bal Raj, Asst.Civil Supplies OfficerNil. PW-2: Aslam Khan, Dy.Tahasildar (Enforcement) PW-3: C.Venkatesh, panch witness. PW-4: M.Shiva Krishna, Investigating Officer.

Documents Marked For ProsecutionFor Defence:

Ex.P1: Report lodged by PW-1.Nil Ex.P2: Sworn statement of A-1. Ex.P3: Panchanama conducted by PW-2 Ex.P4: Custodian Receipt. Ex.P5: FIR.

Material Objects Marked

Nil . Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Page No.12 CC No.6/2018

Page No.1CC No.113/2019

IN THE COURT OF THE SPL. JUDICIAL FIRST CLASS MAGISTRATE FOR

EXCISE CASES, HYDERABAD

Present: - Smt. G. Sabitha, Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Dated Friday this the 8th day of January, 2021

C.C. No. 113 of 2019

Between: State through, The Sub- Inspector of police, PS Shahinayathgunj Hyderabad. …Complainant AND

Vijay Kumar, S/o. Laxman Lal, Aged 32 years, Occ:Tiffin Center, R/o. H.No.14-9-482, Near Chudi Bazar Dargah, Chudi Bazar, Hyderabad.…Accused.

This case is coming on dt.05-01-2021 before me for final hearing in the presence of Assistant Public Prosecutor,for the complainant and of Sri.H.Sudesh Kumar, advocate for the accused and upon perusing the material on record, the Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, PS Shahinayathgunj filed this case against the accused in Cr. No.44/2016 alleging that Accused had committed the offence punishable U/Sec. 34(a) of AP Excise Act

2.The case of prosecution, in brief, is that, on dt.02-02-2016, at about 12.00 hours, PW-1 received credible information about conducting of sales of liquor near Chudi Bazar Dargah, Hyderabad. Immediately, PW-1 alongwith LW-2 G.Venkateshwarlu, PC and LW-3 Raj Kumar GOud, PC proceeded to the suspected place, at H.No.14-9-482, Near Chudi Bazar

Dargah, Hyderabad. At about 12.20pm, they found the Accused in possession of a bag consisting of 21 liquor bottles of three different brands. On enquiry,

Accused revealed his particulars as Vijay Kumar, S/o. Laxman Raj. On further enquiry, Accused confessed about the sales of IMFL bottles in addition to tiffins. PW-1 recorded the confession statement of accused in the presence

Page No.2CC No.113/2019 of LW-4 Yadagiri and LW-5 Srinath, mediators and seized 4 bottles of MC

Donald, 6 bottles of Director's special, 11 bottles of Officer's Choice, total to the tune of 21 bottles, under cover of panchanama. PW-1 had drawn 5 samples each brand and sealed them under cover of panchanama, by pasting sign chits. PW-1 apprehended the accused and produced him before PS

Shahinayathgunj alongwith seized material. PW-1 lodged report seeking necessary action against him. Basing on which, LW-7- HC-2671 registered a case vide Cr.No.44/2016, U/Sec.34(A) of AP Excise Act and handed over the case file to PW-4, for further investigation. During the course of investigation,

PW-4 examined PW-1 , LW-2- Venakteshwarulu - PC-7565 and LW-3 Raj

Kumar Goud, PC-4540 and recorded their statements. PW-4 issued notice under 41-A CrPC on the accused and he comply the same. PW-4 forwarded the samples of contra to FSL and received the report vide No.NAR/914/2016, dt.9-5-2016, which denotes the time Nos.1 to 6 as Indian Made Foreign liquor consisting of Ethyl alcohol. PW-4 deposited the remaining contraband before the Dy.Commissioner, P&E, Hyderabad. After completion of investigation,

PW-4 laid charge sheet against the accused, for the offence punishable under

Sec. 34(a) of AP Excise Act.

3. The Hon' ble XVI Addl. CMM Court, Hyderabad took cognizance of the offence U/Sec. 34(a) of AP Excise Act. against Accused on dt.19-05-2016.

The case file was transferred from Hon' ble XVI Addl. CMM Court, Hyderabad and received by this court on 04.02.2019. On appearance of accused, copies of documents as contemplated U/Sec.207 Cr.P.C. were furnished to them.

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

Page No.3CC No.113/2019

5.In order to establish its case, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 to Ex.P6. Learned APP had given-up the evidence of

LW-2, LW-3, and LW-7.

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 the Accused for the offence punishable U/Sec. 34(a) of AP Excise 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 to Ex.P6. PW-1 is the SI of police, who apprehended Accused. PW-2 & PW-3 are the panch witnesses.

PW-4 is the Investigating Officer.

10Documentary evidence, Ex.P1 report lodged by PW-1. Ex.P2 is confession-cum-seizure panchanama, Ex.P3 is the signature of PW-3 on confession-cum-seizure panchanama. Ex.P4 is FIR. Ex.P5 is the FSL report.

Ex.P6 is the correspondence letter showing deposit of remaining contraband

before Dy.Commissioner, P&E, Hyderabad.

11.It is the case of the prosecution that on dt.02-02-2016, at about 12.00noon, PW-1 had lodged the report before LW-6-HC-2671, about illegal sales of IMFL bottles, by Accused, near Chudi Bazar Dargah, Hyderabad.

PW-1, LW-2 and LW-3 were performing patrolling duty, at the scene of offence premises. During which, they found Accused in possession of 21 bottles of

Page No.4CC No.113/2019 different brands of IMFL.

12 Basing upon the report lodged by PW-1- SI of Police , the law was set into motion. It is the evidence of PW-1 that on dt.02-02-2016, at about 12.00Noon, PW-1 , alongwith LW2 G.Venkateshwarlu, PC and LW-3 Raj

Kumar Goud, PC were performing patrolling duty within the limits of

Shahinayathgunj and noticed Accused conducting the sales of IMFL bottles, at Chud Bazar Dargah. According to him, they found 21 bottles of different brands in the possession of Accused. From his cross examination, it was elicited that no extract of GD entry was filed to establish his patrolling duty, at the scene of offence.

11 PW-2 and PW-3 panch witnesses for scene of offence-cum-seizure panchanama totally turned hostile and deposed that police obtained their signatures on white papers, without conducting panchanama. The learned

APP cross-examined both the panch witnesses, but, PW-2 and PW-3 corroboratively deposed that the alleged contraband was not found at Police

Station or in the possession of accused at the time of confession. As such,

Ex.P2 confession-cum-seizure panchanama remains doubtful.

12Evidence of PW-4 Investigating officer is almost reiteration of the contents of charge sheet. Ex.P4 FIR, Ex.P5 FSL Report were marked on behalf of PW-4. But, as rightly pointed out by the defence, PW-4 did not file any documents or GD entry to establish patrolling duty of PW-1, at the scene of offence premises. No independent witnesses were examined by PW-1 either to establish the sales or possession of ID liquor by the accused.

14. After going through the evidence, it is apparent that the prosecution entirely relied upon the evidence of PW-1 & PW-4 police officials, to establish its case. After noticing the lacunae on the part of Investigating Officers, this

Page No.5CC No.113/2019 court wanders for any other corroborative evidence.

15 It is the prime argument of Counsel for defence that PW-4 is not the proper person to do investigation under AP Excise Act. The counsel for defence relied upon the ratio's laid down by the APEX court in:-

i) K.Muhammed V/s K. Sukumaran reported in 2001 Crl.L.J 1664 ii) Varkey V/s State of Kerla 1993 (I) KLT 72 “A division bench of Kerala High Court held the trial held by the

Sessions court on a compliant filed by an incompetent person must

be treated as non-est as it was done without jurisdiction. Hence, the charge laid by CI of police who was incompetent to investigation and filed the charge sheet under the provisions of the Act has only to be treated as non-est”.

In State of M.P V/s Sriram Singh reported in 2000 Crl.LJ 1401 the APEX court held at page 1404 of Crl. L.J. that “Procedural delays and technologies of law should not be permitted to defeat the object sort to be achieved by the Act ….......... As the charge sheet had been laid by an incompetent person, it is liable to be quashed”.

16. Learned Counsel for accused filed the following rations:

Muthineni Chander and others Vs.State of Andhra Pradesh

reported in 2011(a) ALD (Crl.) 877(AP) •“ Police officer muchless Inspector of police and Sub-Inspector of police have no jurisdiction to investigate into offence punishable

U/Sec.36 and to file charge sheet before Magistrate - Under

Sec.56 and 57 of act, it is only Prohibition and Excise officer, who is competent to make investigation and to file report/charge sheet

before Magistrate.

17After going through the observation of Hon'ble High court, this court is of the view that PW-4 being the SI of police was having responsibility to transfer the case file to Excise authorities, who are competent persons to do investigation of the case under AP Excise Act. Whereas, in the case on hand,

PW-4 did not choose to transfer the case file and continued the investigation.

With the above ratios, this court holds that, when a special investigating

Page No.6CC No.113/2019 agency, i.e, Excise Department is having exclusive authority to do investigation as per AP Excise Act, the charge sheet filed by the SI of police, PS

Shahinayathgunj is totally invalid and beyond his authority. As such, the charge sheet laid by PW-4 SI of police is considered as non-est. In addition,

Ex.P2 confession-cum-seizure panchanama remains uncorroborated for turning of hostile by the panch witnesses. More over, confession to the police officer is totally inadmissible, as per Section 25 of Indian Evidence Act. Apart from the said confession, prosecution absolutely have no other evidence to show that the accused was in possession of IML bottle and no documents were brought on record to establish the ownership or possession of accused over the scene of offence. As none of the panch witnesses examined, confession- cum-seizure panchanama of accused.

18.For the above said reasons, this court comes to the conclusion that

PW-4SI of police is not a proper authority to file charge sheet and the same was considered as non-est. For the lacunae on the part of investigation and as the seizure of the contraband was not established by the prosecution, this court travels towards benefit of doubt to the accused persons.

19.In the result, Accused is found not guilty of the offence under section 34(a) of A.P. Excise Act and he is accordingly 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.

Typed to dictation, corrected and pronounced by me, in the open court, on this the 8th day of January, 2021.

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Page No.7CC No.113/2019

APPENDIX OF EVIDENCE: WITENSSES EXAMINED FOR:

PROSECUTION DEFENCE

P.W.1: C.Ramudu,SI of police/defacto complainant.- Nil – P.W.2: Yadagiri, panch witness. P.W.3: Srikanth, panch witness. P.W.4: Mattam Raju, IO/SI of police.

1.EXHIBITS MARKED :

Ex.P.1 : Report lodged by PW-1. Ex.P.2: Confession cum seizure panchanama. Ex.P.3 : Signature of PW-3 on confession-cum-seizure panchanama. Ex.P.4 : FIR. Ex.P.5 : FSL Report Ex.P.6 :.Correspondence letter showing deposit of remaining contraband before Dy.Commissioner, P&E, Hyderabad.

MATERIAL OBJECTS MARKED

Nil.

SPECIAL JUDICIAL FIRST CLASS MAGISTRATE

FOR EXCISE CASES: HYDERABAD.

Page No.8CC No.113/2019

1

IN THE COURT OF SPL JUDICIAL MAGISTRATE OF I CLASS

(EXCISE),HYDERABAD

Present: - Smt. G. Sabitha,

Judicial Magistrate of First Class(Excise),

Hyderabad

Dated Monday, this the 4th day of October, 2021

C.C.No. 415 of 2019

Between: The State through the The Sub-Inspector of Police, PS Kalapathar. …Complainant. AND

A-1 Shaik Ahmd s/o. Shaik Omer Age: 27 years, Occ: Pvt. Employee, R/o. H.No.18-2-45/A/26/6, Ghazi-e-Millat Colony, Chandrayangutta, Hyderabad.

A-3 Shaik Omer S/o.Shaik Imam, Age: 45 years, Occ: Pvt employee, R/o. H.No.18-2-45/A/26/6, Ghazi-e-Millat Colony, Chandrayangutta, Hyderabad.

A-4 Ameena Begum W/o. Mohd. Khaja Pasha, Age: 24 years, Occ: Teacher, R/o. H.No.18-2-45/A/26/6, Ghazi-e-Millat Colony, Chandrayangutta, Hyderabad. …Accused Noes. 1, 3 & 4.

This case is coming up for hearing on dt. 04-10-2021 before me for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Sri Abdul Khadar advocate for the Accused Nos. 1, 3 & 4 and upon perusing the material on record, the Court delivered the following:-

JUDGEMENT

1.The Sub Inspector of Police, Kalapathar Police Station filed this case in

Crime No.167 of 2019 of his station alleging that the accused Nos. 1 to 4 has committed the offences punishable under Sec.324, 354, 448 r/w. 34 of IPC.

2.Brief facts of the case are that the defacto complainant has moved a private complaint before this court and on referral under Sec. 156 (3) Cr.P.C.,

Police, Kalapathar investigated the matter and filed charge sheet before this

Court.

2

3.The defacto complainant and all the accused are relatives to each other.

PW-1 is the defacto complainant. PW-2 is the brother of PW-1. A-4 is the wife of PW-2 and sister-in-law of PW-1. A-1 and A-2 are brothers of A-4 and brothers-in-law of PW-1 and PW-2. A-3 is father-in-law of PW-2.

4.On dt. 7-10-2019, at about 11.50 pm, all the four accused with other persons came to the house of PW-1 and started arguing unnecessarily stating that PW-2 shall provide a sum of Rs.10,00,000/- to them, then only they will allow PW-1 and 2 to lead their life peacefully. A-1 to A-4 started beating PW-1, on interference by PW-2, the other persons who accompanied A-1 to A-4 entered inside of the house and started beating PW-2, threatened with dire consequences to settle the matrimonial disputes among PW-2 and A-1 to A-4.

In the said incident, A-1 and A-2 caught hold the hair of PW-1 and hit her on neck, beat her mercilessly outraging her modesty. The allegation of PW-1 in her private complaint is that all the accused trespassed into their house with an ill intention to attack PW-1 and 2. When the neighbours of PW-1 intervened, all the accused fled away from the scene.

5.On referral of Pvt. Complaint, PW-3 SI of Police registered the case vide

Cr. No. 167 of 2019 under Sec. 324, 354, 448 r/w. 34 of IPC. During investigation, PW-3 examined and recorded the statements of PW-1 and 2. He further visited the scene of offene, enquired about the alleged offence, recorded the statements of LW-3 Mohd. Khader Khan, LW-4 Mohd. Qaviuddin. He has also secured the presence of LW-5 Mohd. Fazil Hussain, LW-6 Mohd.

Faheemuddin, mediators and conducted scene of offence panchanama, by drawing rough sketch of the scene. Basing on the statements of LW-1 to 4, it was elicited that A-1 to A-4 has committed the offence, but, not others.

3

6.On dt. 16.11.2019, PW-7 I.O. has summoned A-1, A-3 and A-4, issued

Sec. 41-A Cr.P.C. notices and they complied the same. Even after best efforts, where abouts of A-2 were not traced and as such, on completion of investigation, PW-7 Investigating Officer has laid charge sheet against A-1, A-3 and A-4 for the offences punishable under Sec. 324, 354, 448 r/w. 34 of IPC.

He further submitted through charge sheet that supplementary charge sheet will be filed against A-2, on tracing out his where abouts.

7.This court has taken cognizance of the offences under Sec. 324, 354, 448 r/w. 34 of IPC against A-1, A-3 and A-4. On appearance of A-1, A-3 and A-4, copies of documents as contemplated under Section 207 of the Code of

Criminal Procedure, 1973 were furnished on them.

8.The Accused Nos.1, 3 and 4 were examined under Section 239 of Cr.P.C.

explaining the charges framed against them for the offences under Sec. 324, 354, 448 r/w. 34 of IPC, in their vernacular language, for which, they denied, pleaded not guilty and claimed to be tried.

9.In order to establish its case, the prosecution has examined PWs.1 to 3 and got marked Exs.P1 to 6.

10.After closure of the prosecution evidence, the accused Nos. 1, 3 and 4 were examined under Section 313 of Cr.P.C., with regard to the incriminating evidence against them, for which, they pleaded all such evidence is false and reported no defense.

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

12.Now the point that arises for determination is___

Whether the prosecution has brought home the guilt of accused Nos. 1 and 2 for the offences under Sec. 324, 354, 448 r/w. 34 of IPC. beyond all reasonable doubt?

4

13.Point: The essence of accusation levelled against the accused Nos 1, 3 and 4 is that on dt. 7.10.2019, at about 11.50 p.m., A-1 to A-4 trespassed into the house of PW-1 and 2, started unnecessary argument demanding PW- 2 to pay Rs. 10,00,000/- to A-4 (wife of PW-2). All the accused attacked, beat

PW-1. When PW-2 intervened, he was also beat by the accused. A-1 and A-2 caught hold the hair of PW-1, beat her mercilessly, outraged her modesty.

Hence, the complaint.

14.In order to establish the case, as already stated, the prosecution has examined PWs.1 to 3 and got marked Exs.P1 to P6. PW-1 is the defacto complainant. PW-2 is the brother of PW-1 and one of the injured. PW-3 is an investigating officer of the case. As the defacto complainant and injured turned hostile, prosecution has given-up the evidence of LW-3 Mohd. Khader Khan,

Circumstantial witness, LW-4 Mohd. Qaviuddin, Eye witness, LW-5 Mohd. Fazil

Hussain and LW-6 Mohd. Faheemuddin, panch witnesses for scene of offence panchanama.

15.Coming to the documentary evidence, Ex.P1 is 6 Nos. of signatures of

PW-1 on Pvt. Complaint. Ex.P2 is Sec. 161 Cr.P.C. statement of PW-1. Ex.P3 is Pvt. Complaint lodged by PW-1. Ex.P4 is Sec. 161 Cr.P.C. statement of PW-2.

Ex.P5 is FIR and Ex.P6 is Crime Detailed Form.

16.On mere perusal of prosecution evidence, it is apparent that the defacto complainant and injured (PW-1 and PW-2) totally turned hostile. Except the evidence of PW-3 Investigating Officer, no other evidence is on record against both the accused.

17.The substratum of prosecution case is that A-4 and PW-2 are wife and husband. They have matrimonial disputes between them. A-1 to A-3 who are 5 the brothers of A-4 altogether trespassed into the house of PW-1 and 2, argued and attacked PW-1 and 2. It was the specific allegation of PW-1 that A-1 and

A-2 outraged her modesty by caught holding her hair and beating her mercilessly.

18.To the utter surprise, PW-1-defacto complainant totally turned hostile.

According to PW-1, all the accused are her relatives and they never misbehaved with her, but, due to misunderstanding, she lodged Pvt. Complaint before the

Court. She pleaded total ignorance of the contents of pvt. Complaint. Except admitting her 6 nos. of her signatures marked as Ex.P1, PW-1 did not say anything against any of the accused.

19.At this stage, learned APP sought permission of the Court to pose the questions as of Cross-examination. Even after cross-examination by the learned APP, PW-1 did not support the case of prosecution. Instead, PW-1 denied to have stated the police as in Ex.P2 Sec. 161 Cr.P.C. statement. She further denied to have lodged Ex.P3 pvt. Complaint after knowing the contents of it.

20.PW-2 is one of the injured, brother of PW-1 and husband of A-4. He totally pleaded ignorance as to the facts of the case. He denied Ex.P4 Sec. 161

Cr.P.C. statement of him to police.

21.Now, the only evidence remained on record is of PW-3 Investigating

Officer. The testimony of PW-3 Investigating Officer is nothing but replica of contents of charge sheet. Ex.P5 FIR and Ex.P6 Crime Detailed Form were marked on his behalf. In his cross-examination, counsel for accused posed one suggestion that a false case has been lodged basing on the complaint of PW-1 and the said suggestion was denied by PW-3.

6

22.After going through the prosecution evidence, this Court is of the view that once the defacto complainant/victim totally turned hostile; and the injured pleaded total ignorance as to the facts of the case; A-1, A-2 and A-4 can not be connected to the present set of facts. As the crucial witnesses and victims did not support the case and did not say single word against any of the accused, this Court weigh towards the accused. In the absence of any supporting evidence and for failure of prosecution to establish the charges farmed against

Accused, this Court is forced to travel towards benefit of doubt to A-1, A-3 and

A-4.

23.In the result, the accused Nos. 1, 3 and 4 are found not guilty of the offences under Sec. 324, 354, 448 r/w. 34 of IPC and they are accordingly acquitted under Section 248(1) of Cr.P.C. The bail bonds of the accused Nos. 1, 3 and 4 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Typed by me, corrected and pronounced by me in open Court, this the 4 th day of October, 2021.

SPECIAL JUDICIAL FIRST CLASS MAGISTRATE

FOR EXCISE CASES: HYDERABAD.

7

APPENDIX OF EVIDENCE: WITENSSES EXAMINED FOR:

PROSECUTION DEFENCE

P.W.1: Smt. Yasmeen, Complainant. - Nil – P.W.2: Sri.Mohd. Khaja Pasha P.W.3: Sri. Y.Uppendar, SI of Police, PS Kalapathar.

EXHIBITS MARKED:

Ex.P.1 : 6 Nos. of signatures of PW-1 on Pvt. Complaint

Ex.P.2 : Sec. 161 Cr.P.C. statement of PW-1.

Ex.P.3 : Pvt. Complaint lodged by PW-1.

Ex.P.4 : Sec. 161 Cr.P.C. statement of PW-2.

Ex.P.5 : FIR

Ex.P.6 : Crime Detailed Form.

SPECIAL JUDICIAL FIRST CLASS MAGISTRATE

FOR EXCISE CASES: HYDERABAD.

Page No.1 CC No.708/2018

IN THE COURT OF THE SPL. JUDICIAL FIRST CLASS MAGISTRATE FOR

EXCISE CASES, HYDERABAD

Present: - Smt. G. Sabitha, Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Dated Friday, this the 29th day of January,2021

C.C. No.708 of 2018

Between:

State through, The Sub- Inspector of police, PS Kulsumpura, Hyderabad. …Complainant AND

D.Anil Singh, S/o.late Raju Singh, Aged 28 years, Occ:Business, R/o. H.No.13-3-506/38/24, Keshava Swamy Nagar, Jiyaguda, Hyderabad.…Accused.

This case is coming on dt.25-01-2021 before me for final hearing in the presence of Assistant Public Prosecutor, for the complainant and of Sri. – Advocate for Accused and upon perusing the material on record, the Court delivered the following:-

J U D G M E N T

1.The Sub-Inspector, PS Kulsumpura, filed this case against Accused in Cr. No.

28/2016 alleging that Accused had committed the offence punishable U/Sec. 7(A) r/w 8(e) of A.P. P. Act.

2.The case of prosecution, in brief, is that, on dt.10-2-2016, at about 2010 hours, PW-1 - PC-5741 of PS Kulsumpura lodged report before PW-4 - SI of police for seeking necessary action. According to PW-1/defacto complainant, on dt.10- 2-2016, at about 2.00PM, while he was conducting patrolling duty alongwith LW- 2 Nagaraju, PC-5446, in the limits of MCH Colony, Jiyaguda, , noticed one person running with a gunny bag near MCH COlony, at Jiyaguda. By noticing the police, he tried to escape from scene, but, was caught hold by PW-1. On enquiry, accused revealed his identity particulars as D.Anil Singh, S/o. Late Raju Singh, aged 28 years and voluntarily admitted he used to purchase the ID liquor packets from

Page No.2 CC No.708/2018 unknown person and selling the same to needy customers. On that, they took the accused into custody and brought him to PS alongwith gunny bag containing 106 ID

Liquro sachets and produced him before SHO, PS Kulsumpura, for further necessary action.

3.Basing the report of PW-1, a case vide Cr.No.28/2016, for the offence punishable U/Sec.7(A) r/w 8(e) of APP Act was registered. During investigation,

PW-4 examined and recorded the statement of PW-1 and LW-2 -5446. PW-4 apprehended the accused and recorded confession statement in the presence of PW- 2 & PW-3 mediators and seized 106 of ID liquor sachets under cover of panchanama. PW-4 issued Sec.41A Cr.P.C notice on accused and he complied the same. PW-4 lifted three samples and marked them as S1 to S3. He further sent S- 1 to S3 for Chemical analysis. After affecting the arrest, Accused was produced

before the court, for judicial remand. The seized material was produced before the

Dy.Commissioner, P&E ,Hyderabad, for confiscation. After collecting CE report vide

No.NAR/988/2016, dt.28-4-2016 and on completion of investigation, PW-4 laid charge sheet against Accused, for the offence punishable U/sec. 7(A) r/w 8(e) of AP

Prohibition Act.

4. The Hon'ble XVI Addl. CMM Court, Hyderabad took cognizance of the offence U/Sec. 7(A) r/w 8(e) of A.P Prohibition Act against Accused, on dt.30- 05-2016. The case file was transferred from Hon'ble XVI Addl. CMM Court,

Hyderabad and received by this court on Dt: 21-06-2018. On appearance of

Accused, copies of documents as contemplated U/Sec.207 Cr.P.C. were furnished to him.

5.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 vernacular language, for which, he pleaded not guilty and claimed to be tried.

Page No.3 CC No.708/2018

6. In order to establish its case, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 to Ex.P7. Evidence of LW-2 - Naga Raju, PC-5446 was given- up by the learned APP.

7.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.

8.Heard learned counsel for the parties.

9.The point for determination is:-_ “Whether prosecution has brought home the guilt of Accused for the offence punishable U/Sec.7(A) r/w 8(e) of AP Prohibition Act beyond all reasonable doubt?”

10.Point:- In order to establish its case, as already noted, prosecution has examined PW-1 to PW-4, got marked Ex.P1 to Ex.P7. PW-1 is the police constable/defacto complainant, who apprehended the accused. PW-2 & PW-3 are the panch witness for confession-cum-seizure panchanama of Accused. PW-4 is the

Investigating Officer of the case.

11.Coming to the documentary evidence, Ex. P1 is the report lodged by PW-1.

Ex.P2 is the signature of PW-2 on confession-cum-seizure panchanama.Ex.P3 is the signature of PW-3 on confession-cum-seizure panchanama. Ex.P4 is FIR. Ex.P5 is confession-cum-seizure panchanama. Ex.P6 is FSL report and Ex.P7 is correspondence letter showing deposit of contraband before Dy.Commissioner, P&E,

Hyderabad, for confiscation.

12.It is the case of the prosecution that on dt.10-2-2016, at about 20.10hours, PW-1 had lodged the report before PW-4, about illegal sales of ID liquor sachets, by Accused, near MCH Colony, Jiyaguda, Hyderabad. PW-1 and LW-2 were performing patrolling duty, at the scene of offence premises. During which, they found Accused in possession of 106 ID liquor sachets.

Page No.4 CC No.708/2018

12. Basing upon the report lodged by PW-1- PC-5741, the law was set into motion. It is the evidence of PW-1 that on dt.10-2-2016, at about 20.10hours,

PW-1, alongwith LW2 Nagaraju -PC-5446 were performing patrolling duty at

Jiayaguda. According to him, they found 106 ID liquor sachets in the possession of

Accused. During his evidence, he partly resiled from his earlier version. Learned

APP sought permission to cross-examine. During cross-examination he admitted that PW-4 enquired him and recorded his statement.

11 PW-2 and PW-3 panch witnesses for scene of offence-cum-seizure panchanama totally turned hostile and deposed that police obtained their signatures on white papers, without conducting panchanama. The learned APP cross- examined both the panch witnesses, but, PW-2 and PW-3 corroboratively deposed that the alleged contraband was not found at Police Station or in the possession of accused at the time of confession. As such, Ex.P5 confession-cum-seizure panchanama remains doubtful.

12Evidence of PW-4 Investigating officer is almost reiteration of the contents of charge sheet. Ex.P4 FIR, Ex.P5 confession-cum-seizure panchanama and Ex.P6

FSL Report were marked on behalf of PW-4. But, as rightly pointed out by the defence, PW-4 did not file any documents or GD entry to establish patrolling duty of

PW-1, at the scene of offence premises. No independent witnesses were examined by PW-1 either to establish the sales or possession of ID liquor by the accused.

14. After going through the evidence, it is apparent that the prosecution entirely relied upon the evidence of PW-1 & PW-4 police officials, to establish its case. After noticing the lacunae on the part of Investigating Officers, this court wanders for any other corroborative evidence.

16 It is the prime argument of Counsel for defence that PW-4 is not the proper person to do investigation under AP Excise Act. The counsel for defence relied upon

Page No.5 CC No.708/2018 the ratio's laid down by the APEX court in:-

i) K.Muhammed V/s K. Sukumaran reported in 2001 Crl.L.J 1664 ii) Varkey V/s State of Kerla 1993 (I) KLT 72 “A division bench of Kerala High Court held the trial held by the Sessions court on a compliant filed by an incompetent person must be treated as non-est as it was done without jurisdiction. Hence, the charge laid by CI of police who was incompetent to investigation and filed the charge sheet under the provisions of the Act has only to be treated as non-est”.

In State of M.P V/s Sriram Singh reported in 2000 Crl.LJ 1401 the

APEX court held at page 1404 of Crl. L.J. that “Procedural delays and technologies of law should not be permitted to defeat the object sort to be achieved by the Act ….......... As the charge sheet had been laid by an incompetent person, it is liable to be quashed”.

17.After going through the observation of Hon'ble High court, this court is of the view that PW-4 being the SI of police was having responsibility to transfer the case file to Excise authorities, who are competent persons to do investigation of the case under AP Excise Act. Whereas, in the case on hand, PW-4 did not choose to transfer the case file and continued the investigation. With the above ratios, this court holds that, when a special investigating agency, i.e, Excise Department is having exclusive authority to do investigation as per AP Excise Act, the charge sheet filed by the SI of police, PS Kulsumpura is totally invalid and beyond his authority. As such, the charge sheet laid by PW-4 is considered as non-est.

18In addition, Ex.P5 confession-cum-seizure panchanama remains unestablished for turning hostile of PW-2 & PW-3 panch witnesses.

19. For the above said reasons, this court comes to the conclusion that PW-4 is not a proper authority to file charge sheet and the same was considered as non-est.

For the lacunae on the part of investigation and as the confession of Accused was not established by the prosecution, this court travels towards benefit of doubt to

Accused

Page No.6 CC No.708/2018

20.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.

Dictated to to the Stenographer Gr.II, corrected and pronounced by me, in the

open court, on this the 29th day of January,2021.

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Appendix of Evidence Witnesses Examined For Prosecution: For Defence:

PW-1 : Vijay Bhaskar, PC-5741. Nil PW-2 : D.Mahesh Singh, panch witness. PW-3 : Mahesh Singh, panch witness. PW-4 : Bharath Kumar, Investigating Officer.

Documents Marked For ProsecutionFor Defence:

Ex.P1: Report lodged by PW-1. Ex.P2: Signature of PW-2 on confession-cum-seizure panchanama.Nil Ex.P3: Signature of PW-3 on confession-cum-seizure panchanama. Ex.P4: FIR. Ex.P5: Confess-cum-seizure panchanama Ex.P6: FSL report, Ex.P7: Correspondence letter showing deposit of 103 ID liquor

before the Dy.Commissioner, P&E

Material Objects Marked

Nil

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Page No.7 CC No.708/2018

Page No.1 CC No.733/2018

IN THE COURT OF THE SPL. JUDICIAL FIRST CLASS MAGISTRATE FOR

EXCISE CASES, HYDERABAD.

Present: ­ Smt. G. Sabitha, Spl. Judicial First Class Magistrate

for Excise Cases, Hyderabad.

Dated Thursday, this the 1st day of November, 2018

C.C. No. 733 of 2018.

Between: State through, The Sub­Inspector of Police, P&E Mangalhat Police Station.…Complainant.

AND

Smt.Chandrakala Bai @ Kesar Bai, W/o. Dharam Singh, aged 47 years, Occ: Fish business, R/o. H.No.14­11­122/1, Jhinsi Chowrai, Mangalhat, Hyderabad. …Accused.

This case is coming on dt.29­10­2018 before me for final hearing in the presence of Assistant Public Prosecutor, for the complainant and of Sri.Gulab Singh ­ Advocate for the accused and upon perusing the material on record, the Court delivered the following—

J U D G M E N T

1.The Sub­Inspector, Mangalhat Police Station filed this case against the accused in FIR No.114/2017 alleging that the accused had committed the offence punishable U/Sec. 34(a) of A.P. Excise Act.

2.The case of the prosecution, in brief, is that, on dt.01­06­2017, PW­1 received reliable information about illegal sales of IML, at H.No.14­11­122/1, Jhinsi

Chowrai, Mangalhat, Hyderabad. Immediately, PW­1 appraised the information to his superior officers and obtained authorization memo from ACP,Goshamahal

Division, Hyderabad. PW­1 alongwith his staff members proceeded to the suspected place, by securing LW­1­ Mukesh Singh and Akshay, as panch witnesses. At about 20.30hou Police Officials found the accused at the while conducting sales of IML bottles at the scene. PW­1 served a copy of search proceedings on her. On search of

Page No.2 CC No.733/2018 the premises, they found 17 Nos of A­one fine whisky each of 180ml, 2 Nos.of Kncok out Strong beer each of 650ml, 3 bottles of King Fisher Strong beer each of 650ml and 4 bottles of Knockout mini beer each of 330ml. On demand, accused failed to produce any valid licence or permit. As mere possession of IML bottles is an offence,

PW­1 had drawn 2 samples from each brand and sealed them under cover of panchanama by pasting sign chits. PW­1 lodged report seeking necessary action against the accused before PS Mangalhat. Basing on the which, LW­7­

Sri.P.Venkat Reddy, SI of police registered a case against the accused vide Cr.

No.114/2017, for the offence punishable U/s. 34(a) of AP Excise Act. Thereafter,

PW­1 again received the case file, for investigation. The remaining contraband was deposited before the Dy.Commissioner of P&E, Hyderabad. The accused was arrested and produced before the court, for judicial remand. PW­1 had sent one of the samples for chemical analysis. The CE report No.NAR/1505/2017, Dt:18­08­ 2017 denotes the sample contains alcohol and is an Indian liquor. On completion of investigation, PW­1 laid charge sheet against the accused for the offence U/s. 34(A) of AP Excise Act.

3.The Hon' ble XVI Addl. CMM Court, Hyderabad took cognizance of the offence

U/Sec. 34(a) of A.P. Excise Act against the accused, on dt.16­10­2017. The case file was transferred from Hon' ble XVI Addl. CMM Court, Hyderabad and received by this court, on Dt:02­04­2018. On appearance of Accused, copies of documents as contemplated U/Sec.207 Cr.P.C. were furnished to her. 

4.Accused was examined U/Sec. 239 of Cr.P.C., for which, she denied the offence. A charge framed U/Sec. 34(a) of AP. Excise Act was read over and explained to her in vernacular language, for which, she pleaded not guilty and claimed to be tried.

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5.In order to establish its case, prosecution has examined PW­1 & PW­2 and got marked Ex.P1 to Ex.P7. Evidence of LW­1­ Mukesh Singh was closed basing upon the report filed by the SI of police, for non­availability of where abouts of them.

6.After closure of prosecution evidence, Accused was examined U/Sec. 313

Cr.P.C. explaining the incriminating evidence appearing against her, for which, she pleaded all such evidence is false and reported no defence. 

7.Heard learned counsel for the parties. Perused the record.

8.The point for determination is__ “Whether prosecution has brought home the guilt of Accused for the offence punishable U/Sec. 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 PW­1 and got marked Ex.P1 to Ex.P7. PW­1 is the Investigating Officer of the case. PW­2 is the panch witness for confession­cum­seizure panchanama.

Ex. P1 is the report. Ex.P2 is FIR. Ex.P3 is confession­cum­seizure panchanama.

Ex. P4 is CE report. Ex.P5 is search proceedings. Ex.P6 is authorization memo.

Ex.P7 is signature of PW­2 on confession­cum­seizure panchanama.

11.It is the case of prosecution that PW­1 received reliable information about the sales of IML bottles, at open place at H H.No.14­11­122/1, Jhinsi Chowrai,

Mangalhat, Hyderabad. But, PW­1 did not whisper the names of persons through whom he learned such information. According to PW­1, on search of the premises, he found 26 bottles of different types of Beer from the possession of accused.

12.Evidence of PW­1 Investigating Officer is replica of his charge sheet. From his cross­examination, learned counsel for defence elicited that he did not record the statement of local people even though the scene of offence is a residential locality.

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He also did not collect any document to show that the scene of offence belongs to the accused. Thus, this court goes in search of any other corroborative evidence for seizure of alleged contraband from the possession of accused. No neighbour of the scene was examined to support the case. In these circumstances, it is evident that except the evidence of PW­1 interested witness, prosecution does not have any other evidence on record.

14. PW­2 is a panch witnesses for Confession­cum­seizure panchanama, but, he totally turned hostile and deposed that police obtained their signatures on written papers, without conducting panchanama. Except, the signatures of PW­2 marked as Ex.P7. As such, confession­cum­seizure panchanama remains doubtful.

15.After going through the evidence, it is apparent that PW­2 panch witnesses for confession­cum­seizure panchanama totally turned hostile. The prosecution entirely relied upon the evidence of PW1 police official, to establish its case. After noticing the lacunae on the part of Investigating Officer and non­production of any document to establish the ownership or possession of accused over the scene of offence house, this court wanders for any other corroborative evidence.

15 It is the prime argument of Counsel for defence that PW­1 is not the proper person to do investigation under AP Excise Act. The counsel for defence relied upon the ratio's laid down by the APEX court in:­ 

i) K.Muhammed V/s K. Sukumaran reported in 2001 Crl.L.J 1664 ii) Varkey V/s State of Kerla 1993 (I) KLT 72  “A division bench of Kerala High Court held the trial held by the Sessions court on a compliant filed by an incompetent person must be treated as non­est as it was done without jurisdiction. Hence, the charge laid by CI of police who was incompetent to investigation and filed the charge sheet under the provisions of the Act has only to be treated as non­est”. 

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In State of M.P V/s Sriram Singh reported in 2000 Crl.LJ 1401 the

APEX court held at page 1404 of Crl. L.J. that  “Procedural delays and technologies of law should not be permitted to defeat the object sort to be achieved by the Act ….......... As the charge sheet had been laid by an incompetent person, it is liable to be quashed”.

16.After going through the observation of Hon'ble High court, this court is of the view that PW­1 being the SI of police was having responsibility to transfer the case file to Excise authorities, who are competent persons to do investigation of the case under AP Excise Act. Whereas, in the case on hand, PW­2 did not choose to transfer the case file and continued the investigation. With the above ratios, this court holds that, when a special investigating agency, i.e, Excise Department is having exclusive authority to do investigation as per AP Excise Act, the charge sheet filed by the SI of police, PS Mangalhat is totally invalid and beyond his authority. As such, the charge sheet laid by PW­1 is considered as non­est. In addition, Ex.P3 confession­cum­seizure panchanama remains unestablished for turning hostile of

PW­2 panch witness. More over, confession to the police officer is totally inadmissible, as per Section 25 of Indian Evidence Act. Apart from the said confession, prosecution absolutely have no other evidence to show that the accused was in possession of IML liquor and no documents were brought on record to establish the ownership or possession of accused over the scene of offence. As none of the panch witnesses examined, confess­cum­seizure panchanama of accused

17.For the above said reasons, this court comes to the conclusion that PW­1 is not a proper authority to file charge sheet and the same was considered as non­est.

For the lacunae on the part of investigation and as the seizure of the contraband was not established by the prosecution, this court travels towards benefit of doubt to the accused person.

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15.In the result, Accused is found not guilty of the offence under section 34(a) of

A.P. Excise Act and she is accordingly acquitted U/Sec. 248(1) of Cr.P.C.

Page No.7 CC No.733/2018 16 The bail bonds of Accused shall be in force for a period of six months from today, as prescribed U/Sec.437­A of Cr.P.C. 

Typed to my dictation by the Stenographer Gr.II, corrected and pronounced by me, in the open court, on this the 1st day of November, 2018.

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Appendix of Evidence Witnesses Examined For Prosecution:For Defence:

PW-1: Shivanandam, SI of police/IO.

PW2: Akshay, panch witness.Nil

Documents Marked For Prosecution:For Defence: .

Ex.P1 : Report lodged by PW­1. Ex.P2 : FIR. Ex.P3 : Confession­cum­seizure panchanama. Ex.P4 : CE report. Ex.P5 : search proceedings. Ex.P6 : Authorization memo. Ex.P7 : signature of PW­2 on confession­cum­seizure panchanama.

Material Objects Marked

Nil

Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

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