Smt. G.swarna

1 C.C.1578/19 JFCM/CDM

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE(JUNIOR DIVISION) – CUM-

JUDICIAL FIRST CLASS MAGISTRATE:: CHODAVARAM

Present: Smt. G.Swarna,

Principal Civil Judge(Junior Division) – Cum –

Judicial First Class Magistrate, Chodavaram

Wednesday, this the 29th day of April, 2026

C.C.No.1578/2019

Between:

State, rep. By the Inspector of Police, Chodavaram Police Station, Chodavaram. … Complainant And:

Nagappagari Srinivasulu Reddy @ Pala Srinu, S/o. Krishna Reddi, Aged about 43 years, Reddi by Caste, R/at Ajantha Talkies, Thilak Street, Peeleru Village and Mandal, Chittur District, N/o. Ramireddigaripalli Village, Agraharam Panchayath, Peeleru Mandal, Chittur District. … Accused

This case came before me on 23.04.2026 for final hearing in the presence of Learned A.P.P for Complainant-State and Sri.V.Venkata Rao learned Counsel for accused and the matter having stood over for consideration till this day and upon hearing arguments on both sides, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Chodavaram Police Station laid charge sheet against the accused in Cr.No.195/2019 for the offence Under Sections 457, 380 of

IPC.

2.The brief averments of the prosecution are that on 21.03.2019 at 11:00 hrs.,

LW1/Jami Ramesh lodged a report to LW8/T.Divya at Chodavaram P.S stating that on 20.03.2019 evening they locked up the ZPH School and went to their houses. On 21.03.2019 as usual he come to school in the morning at 07.30 hrs and noticed that un-known offenders gained entry into the Visual & Digital Class Rooms by broke open the doors and committed theft of electronic goods 1) Vivitek Projector (Model No 2 C.C.1578/19 JFCM/CDM

DW88252ST) and SI.No.WOW882518160366). (2) Webcam (1805LZOMFYJ9) (3) Pen & Pad (SI.No 7CCP001895) (4) Projector Remote (Vivitek Dx881ST) (5) Laptop (Dell UN3481) from the Visual Class Room and 1) Projector (RICHO), and

2) Remote from the Digital Class Room and escaped with the booty. Hence, he requested for necessary action.

3.Basing on the report of the LW1/Jami Ramesh, LW8/T.Divya registered the same as a case in Cr.No.195/20119, U/Sec.457, 380 of IPC.

4.During the course of investigation, LW.8/T.Divya inspected the crime scene and prepared rough sketch of the scene of offence, examined LWs1 to 3 and made efforts to detect the case. During the course of investigation, LW1 came to police station and informed that he mentioned in the report given by him in this case that one of the stolen projector company is Vivitek instead of EPSON Projector (EB S11) and second projector as RICHO instead of GLOBUS Multi Media Projector and the Pen & Pad and

Webcam are too stolen away by the miscreants by mistakenly in a hesitation without knowledge on property in the school as he is in-charge Head Master of ZPH School,

Govada. Later, on verification of the office room, he found the Pen & Pad and

Webcam in the office and requested to treat the property lost in this case as such.

During the course of investigation, on 16.10.2019 while LW8 was engaged in bandobust duty at Vizianagaram. LW9/S.A.Munaf arrested the accused at 18.00 hrs and recorded his confessional statement in the presence of LW 4 & 5 and recovered

1) Epson Company EB-S11 projector with remote. 2) Dell company Laptop from LW6 to whom the accused sold LW9 also recovered 1) Globus Multi Media Projector with remote from LW7/Senapathi Venkata Ramana to whom the accused sold.

LW9/S.A.Munaf produced the accused before the Hon'ble court for judicial custody.

3 C.C.1578/19 JFCM/CDM

After completion of investigation. LW9/S.A.Munaf filed Charge Sheet. Hence, the charge.

5. This court took cognizance of the offence under sections 457, 380 of IPC against accused.

6.On appearance of accused, copies of documents were supplied to the accused as required U/sec. 207 Cr.P.C. Accused is examined U/sec 239 Cr.PC and Charge

U/sec.457, 380 of IPC is framed, read over and explained to the accused in to which the accused denied the contents of charges framed, pleaded not guilty and claimed to be tried.

7.To bring home the guilt of the accused, the prosecution cited nine witnesses, but examined eight witnesses as PW1 to PW8 and got marked Ex. P1 to P12 and

MO1 to MO3. The learned A.PP given up the evidence of LW2/Koda Ganapathi Rao.

8.After closure of prosecution evidence, accused is examined U/Sec.313 Cr.P.C and the incriminating material available in the evidence of prosecution witnesses is put forth to the accused, for which he deposed all false and reported no defence evidence.

9.Heard arguments of both sides.

10.Now the point for consideration is:

“Whether the prosecution is able to establish the guilt of the accused for

the offences under sections 457, 380 of I.P.C?”

11.In order to substantiate the case of the prosecution, it can be seen whether the evidence of PW1 to PW8 coupled with Ex.P1 to Ex.P12, is sufficient for the base conviction for the offences charged against the accused U/Sec.457, 380 of IPC after scrutinizing their evidence with due care and caution.

4 C.C.1578/19 JFCM/CDM

12.Before discussing the evidence and documents, it is better to understand that what offences were charged against the accused and definition U/Sec.457, 380 of

Indian Penal Code, 1860 is extracted for better appreciation.

U/Sec.457 of IPC:

Lurking house-trespass or house-breaking by night in order to commit offence

punishable with imprisonment: “Whoever commits lurking house-trespass by night, or house-breaking by night in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.”

U/Sec.380 of IPC:

Theft in dwelling house, etc.:

"whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".

13.It is the evidence of PW1 that on 19.03.2019 while he was acting as incharge of

Z.PH.School, Govada, Chodavaram, after school hours and after finishing his work on 20.03.2019 in between 8.45 to 9.00 A.M. when he reached to the school he noticed

1) Two projectors 2) one web cam 3)Pen and pad 4) Projector Remote 5) Laptop were missing from Digital Class Room. Then, he informed to the incharge of Digital head.

On their advised, he lodged a report to Chodavaram PS. On the same day Police examined him and recorded his statement. Police visited school premises. Ex.P1 is 5 C.C.1578/19 JFCM/CDM the report. Witness deposed that he cannot identify the accused. During cross examination, he admitted that he saw MO1 to MO3 only after receiving them for interim custody and also police did not identified MO 1 to MO3 in his presence.

14.PW2 deposing that on 19.03.2019 after locking the school and again when they came to school on 20.03.2019 they found ICT room/Computer lab door was opened and they found Dell laptop. Two projectors, web cam, remote of projector, pen and pad were missing from the computer lab. Then, they informed the same to PW1. Then,

PW1 lodged report to Chodavaram PS. SI of police examined him and recorded his statement. Witness deposed that he cannot identify the accused. During cross examination, PW2 admitted that MO1 to MO3 were not identified by the police in his presence and police did not conducted identification parade in his presence.

15.PW3 deposed that he do not know PW1, PW2, LW2. He know LW5 who is Co-

Correspondent of Sri Surya English Medium School, Thondangi Mandal. He do not know LW6 and LW7 and he do not know the accused and he cannot identify the accused. He is resident of Thondangi Village and Mandal and he is working as

Principal at Raviteja English Medium School, Thondangi Village and Mandal, East

Godavari District. In the year, 2019 in the month of March, one person who claim to be resident of Chittor District came to their school and introduced himself as that he will show the Children Movies to be played on a projector connecting with the Laptop and played the movie and enquired about the surrounding schools to play the same in those schools. PW3 enquired the said person whether he is having any second hand equipments to play the children movies in their school. Then, the said person handed over one white colour Epson Projector and also one remote, one Black Colour Dell

Laptop and offered price for Rs.30,000/- but PW1 gave only Rs.23,000/-. On 6 C.C.1578/19 JFCM/CDM 16.10.2019 PW7 came to their school at 08.30 PM and Informed him that the said

Laptop and Projectors were stolen property and enquired about the same. Then, he had shown the same to PW7 and it was check by her and confirmed that they were the stolen property. Then, immediately he handed over the equipments which are stolen property to PW7. He signed on mediator’s report and witness identified the signature on mediator’s report.

16.During cross examination, PW3 stated that he had no identity proof to show that he is working as Principal of Raviteja English Medium School at Thondangi

Village and Mandal. He admitted that he was briefed by the police before adducing evidence as such he remembered the date of alleged offence and other dates in relation to the offence. He stated that he did not remembered the names and designations of the persons who approached him in relation to the offence.

17.PW4 deposed in his evidence that he used to work as Correspondent at

Sri Surya English Medium School, Yerrayyapeta, Thondangi Mandal from the year 2016 to 2020. While so, in the month of March, 2019 one person came to their school and represented that the Government issued a G.O. to play cartoon movies to the school children and that he was sent by the Government and played the movies for two days in their school. During the said time, PW4 asked the said person whether there are any second-hand projectors for sale for the use of their school. After one month, the said person again came to the school and offered to sell a second-hand projector as he was in need of money. He bargained the projector for Rs.7000/- and purchased Globus projector with remote from him. Few months later, PW4 was approached by the S.I of police, Chodavaram PS along with two mediators and they enquired him and informed him that the projector is a stolen one and seized the said 7 C.C.1578/19 JFCM/CDM projector from his custody. The police reduced the entire transaction into writing and obtained his signature in mediators report, dt.16.10.2019 which was marked as Ex.P2 is a signature of witness on mediator’s report, dt.16.10.2019.

18.During cross examination, PW4 admitted that he cannot say the exact date and time when the police approached him. He stated that he is in the habit of affixing his designation stamps whenever he sign but he admitted that mediators report dt.16.10.2019 no designation stamp was affixed after his signature.

19.PW5 and PW6 who are the mediators stated in similar lines and did not support the case of the prosecution.

20.PW7 who is the Investigation Officer, deposed in her evidence that on 16.10.2019 at about 4.00 PM she registered a case in Cr.No.195/2019. She received information about the offence. She along with PW5 and PW6 proceeded to the

Venkannapalem Junction, Chodavaram and they found one unknown person tried to escape from them then they caught hold him and enquired his details in the presence of mediators. When questioned for his escape he confessed his name I.e.,

Nagaappagari Srinivasulu Reddy @ Pala Srinu, Chitturu District, Pileru mandal and further confessed that previously he used to do milk business as it is insufficient for maintenance of his family he was engaged in occupation of playing cartoon movies at schools. On 03.09.2016, a case was registered against him in Cr.No.119/2016, u/sec 457, 380 and 430 of IPC Krishna District, Mudinepalli police station. On 20.03.2019, at

Govada Z P High School committed theft of EPSON projector and remote and Globus projector and remote and Dell company laptop and sold for Rs.23,000/- the items

EPSON Projector with remote and Dell Company laptop to Ravi Teja English Medium

School(PW3), Thondangi Village, East Godavari District and further confessed that 8 C.C.1578/19 JFCM/CDM

Globus projector and remote was sold for Rs.7,000/- to Surya English Medium School (PW4), Thondangi Village, East Godavari District. He also confessed that he was in possession of Globus projector in his bag and carrying the same for sale which was stolen by him from Kasimkota ZP High School, on 15.10.2019. Immediately, they informed to Kasimkota PS, and cross checked and informed that a Cr.No.412/2019 was registered against accused in their police station. On 16.10.2019 at about 6.00

PM, they arrested the accused and along with mediators/PW5 and PW6 they proceeded to the Thondangi Village, Ravi Teja English Medium School, E.G District and recovered the stolen property on the confession made by the accused and also they went to Surya English Medium School, Thondangi Village, East Godavari recovered the stolen property on the confession made by the accused. The marked portion of confession statement dt.16.10.2019, was marked as Ex.P9, Mediators

Report, dt.16.10.2019, at about .08.30 PM was marked as Ex.P10, Mediator Report, dt.16.10.2019 at about 09.15 PM was marked as Ex.P11.

21.During cross examination, PW7 admitted that she had not seen the accused prior to 16.10.2015. She admitted that she had not mentioned names of the mediators in Ex.P9 i.e., Confession Statement of Accused and also not issued any notice to act as mediators. She admitted that she had not filed any FIR regarding the

Cr.No.119/2016, which was registered in Mudunepalli P.S and Cr.No.412/2019 which was registered in Kasimkota P.S to show that accused was involved in previous offences and also not mentioned in Ex.P9 to Ex.P11 that it was scribed by her. She admitted that she had not received any photos relating to property seized by her in

Raviteja English Medium School and Sri Surya English Medium School and also admitted that she had not taken any endorsement from PW3 and PW4 that property 9 C.C.1578/19 JFCM/CDM was recovered by her. She further admitted that there are no stamps affixed on Ex.P9 to Ex.P11 relating to PW3 and PW4. She had not conducted any identification parade of the seized property and admitted that she had not mentioned anywhere that she accompanied PW5 and PW6 to the scene of offence.

22.PW8 who is another Investigating Officer, deposed in his evidence that basing on the report dated 21.03.2019 at about 11.00 AM. of PW1, he registered a case in

Cr.No.195/2019 U/Secs.457, 380 of IPC. After completion of investigation, he filed charge sheet. During his cross examination, he admitted that he had not taken any photographs during his investigation with regard to the stolen property and also no clues team was deputed for the said crime.

23.On perusal of the entire material on record and the evidence of prosecution witnesses with the combination of Ex.P1 to Ex.P12; MO1 to MO3, it is observed that the commission of the offence was not witnessed by any of the prosecution witnesses and solely basing on the confession statement of the accused recorded in the presence of mediators , this case was made out against accused. But, the said mediators who were examined as Pws 5 and 6 did not support the case of the prosecution. The confession made by the accused before police which is hit by

Sec.25 of the Indian Evidence Act is inadmissible. But relating to the aspect of recovery of property U/Sec.27 of Indian Evidence Act basing on the confession statement of the accused can be taken into consideration but as per the confession statement of accused, he stated that he sold MO1 to MO3 to PW3 and PW4 and the same was recovered from PW3 and PW4. But the said PW3 and PW4 did not identified the accused and admitted that they do not know the accused and whether he sold MO1 to MO3 to them. Coming to the evidence of PW7 who is the Investigating 10 C.C.1578/19 JFCM/CDM

Officer, she stated that she had not taken any endorsement from PW3 and PW4 that property was recovered by her and she had not filed FIRs in Cr.No.119/2016, 412/2019 which were registered in Mudunepalli P.S and Kasimkota P.S to show accused involvement in previous offences. She deposed in her evidence that on 15.10.2019 accused confessed that he was in possession of stolen property of Kasimkota Z.P.High School. But in her cross examination, she deposed that she had not seen accused prior to 16.10.2019 and also she did not mention the names of mediators in Ex.P9 and also not issued any notice to act as mediators. So, this makes the version of PW7 doubtful and PW8 did not depute any clues team to collect the fingerprints of the thief. So, this proves that the Investigating Officers did not conduct

Investigation properly. So, the non identification of accused by the prosecution witnesses and the mediators who did not support the case of the prosecution, the procedural defects from the investigating officers gives benefit of doubt to the accused to prove the incriminating materialagainst the accused to attract the ingredients of sections 457, 380 of IPC. Hence, this court is of opinion that the prosecution failed to prove the case against the accused beyond reasonable doubts for the offences punishable U/Sec.457, 380 of IPC.

24.In the result, the accused is found not guilty for the offence punishable

U/sec.457, 380 of IPC and accordingly, he is acquitted U/sec. 248 (1) of Cr.P.C. The bail bonds of accused if any, shall be in force for a period of six months from the date of this judgment U/Sec.437-A Cr.P.C. MO1 to MO3 which were returned to PW1 for his interim custody as per the orders of this court in Crl.M.P.74244/2020, dt.10.09.2020 11 C.C.1578/19 JFCM/CDM shall be retained with him and it shall be made absolute after the expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, on this the 29 th day of April, 2026.

Judicial First Class Magistrate, Chodavaram.

Appendix of Evidence

Witnesses Examined

For Prosecution:

PW1 :Jami Ramesh PW2:Gullepalli Srinivasa Rao PW3:P.Ramakoteswara Rao PW4:Musilikanti Venkat Naga Lakshman Teja PW5:Allam Rama Apparao PW6:Senapathi Venkata Ramana PW7:T.Divya PW8:S.A.Munaf

For Accused: NIL

EXHIBITS MARKED

For Prosecution:

Ex.P1 : Report Ex.P2 :Signature of witness on mediator’s report, dt. 16.10.2019 Ex.P3:Signature of witness on confession statement, dt.16.10.2019 Ex.P4:Signature of witness on mediators report, dt.16.10.2019 at 08.30 PM Ex.P.5:Signature of witness on mediators statement, dt.16.10.2019 at 09.15 PM Ex.P.6:Signature of witness on confession statement, dt.16.10.2019 Ex.P.7:Signature of witness on mediators report, dt.16.10.2019 at 08.30 PM Ex.P.8:Signature of witness on mediators report, dt.16.10.2019 at 09.15 PM Ex.P.9:Marked portion of confession statement, dt.16.10.2019 at about 04.00 PM 12 C.C.1578/19 JFCM/CDM

Ex.P.10:Mediators report, dt.16.10.2019 at about 08.30 PM Ex.P.11:Mediators report, dt.16.10.2019 at about 09.15 PM Ex.P.12:FIR

For accused: Nil

Material Objects marked

For Complainant:

MO1… EPSON Projector MO2…DELL Laptop MO3…EPSON Projector Remote

For Accused: NIL

PJCJ-CUM-JFCM-CDM

13 C.C.1578/19 JFCM/CDM

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE:: AT

CHODAVARAM

C.C.No. 1578/2019

Date of Offence::20.03.2019 Date of complaint/report::21.03.2019 Date of release on bail::24.10.2019 Date of taken on file:: -- Date of commencement of trial::05.02.2026 Date of closure of trial::23.04.2026 Date of sentence or order::29.04.2026 Reason for delay::Police failed to produce witnesses on time. Name of the Complainant::State rep. by Inspector of Police, Chodavaram Police Station

Particulars of the accused:

Accused Nagappagari Srinivasulu Reddy @ Pala Srinu, S/o. Krishna Reddi, Aged aboutn 43 years, Reddi by Caste, R/at Ajantha Talkies, Thilak Street, Peeleru Village and Mandal, Chittur District, N/o. Ramireddigaripalli Village, Agraharam Panchayath, Peeleru Mandal. Nature of offenceU/sec.457, 380 of IPC

Finding of the courtFound not guilty

Sentence of Order :In the result, the accused is found not guilty for the offence punishable U/sec.457, 380 of IPC and accordingly, he is acquitted U/sec. 248 (1) of Cr.P.C. The bail bonds of accused if any, shall be in force for a period of six months from the date of this judgment U/Sec.437-A Cr.P.C. MO1 to MO3 which were returned to PW1 for his interim custody as per the orders of this court in

Crl.M.P.74244/2020, dt.10.09.2020 shall be retained with him and it shall be made

absolute after the expiry of appeal time.

Judicial First Class Magistrate, Chodavaram.

C.C.No.848/2022 Page 1 of 12 AJFCM, CDM Dt.17.01.2024

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE

CHODAVARAM

Present : G.Swarna

Additional Junior Civil Judge,

-cum- Additional Judicial Magistrate of First Class, Chodavaram

Wednesday, this the 17 th day of January, 2024

CALENDAR CASE No. 848/2022

BETWEEN:

State represented by Station House Officer, Prohibition and Excise Station, V.Madugula.

... Complainant

AND:

Madhumanthi Nookaraju, S/o. Apparao, Aged 30 years, Resident of Dibbapalem Village, Butchiyyapeta Mandal.

... Accused

This case is coming before me on 10-01-2024 for final hearing in the presence of Learned Assistant Public Prosecutor for the complainant and of Sri M.S. Naidu and Sri Ch.Babu Rao, Advocates for Accused and having stood over for consideration on this day and this Court delivered the following:-

J U D G M E N T

1.The Station House Officer, Prohibition and Excise Station,

V.Madugula filed this case in Crime No.49/2020 alleging that accused has committed the offence punishable under Section 34(a) of Andhra Pradesh

Excise Amendment Act, 2020.

2.The facts of the prosecution case in brief is that:

On 13-03-2020 at about 12:45 hrs, as per instructions of

Prohibition and Excise Superintendent, Anakapalli during the course of patrolling conducted by LW.3/A.Rajya Lakshmi, Prohibition and Excise Sub

Inspector along with LW.1/S.Venkata Rao, Prohibition and Excise Constable and LW.2/Prohibition and Excise Constable at Cheruku Khata,

C.C.No.848/2022 Page 2 of 12 AJFCM, CDM Dt.17.01.2024

Appalarajupuram Village, Cheedikada Mandal, found one two wheeler coming towards the party. On seeing the raid party at 50 meters distance, the person stopped the vehicle and the person took back turn and tried to escape. On suspicion LW.3 along with staff reached and surrounded the vehicle and detained one person along with one white plastic bag. There after LW.3 questioned the detained person about trying for escape and content of plastic bag, then he perturbed and stated that he contained IML bottles in plastic bag.

Then LW.3 sent LW.1 for securing mediators. Then LW.1 returned after sometime and stated that no mediators were available. There after LW.3 examined the two wheeler, found it as Blue colour TVS Star city bearing no.

AP31 CV 9652 and then verified the plastic bag and and found Eleven (11) bottles of Officers Choice Supreme whisky each with about 180 ml and Seven (07) bottles of Manjeera Classic Reserve Whisky each about 180 ml, with no

Excise Adhesive Label numbers, which were recognized as duty paid liquor in it. On further interrogation conducted by LW.3, the accused person revealed his identity as noted above and also stated that the said property was purchased from Government Outlet and for resale at his village and thereby earning his livelihood. Then LW.3 drawn one Officers Choice Supreme whisky and one Manjeera Classic Reserve Whisky each containing 180 ml from above property as sample for the purpose chemical analysis. Then Sealed and seized the samples and the remaining property, TVS Star city bearing no. AP31 CV 9652 were got seized and sealed and identification slips were affixed to them and arrested the accused person after informing grounds of arrest an undercover of an occurrence report drafted at the scene of offence. An

C.C.No.848/2022 Page 3 of 12 AJFCM, CDM Dt.17.01.2024

Occurrence report was drafted at the scene of offence, as there were no mediators despite efforts made. Thereafter at 15:10 hrs handed over the occurrence report and one accused and contraband property along with two wheeler to sentry of Prohibition and Excise Station, V.Madugula.

3.Basing on the above occurrence report, LW.4 has registered a case in Cr.No.49/2020, U/s 34(a) of A.P Excise Amendment Act No-17 of 2020 of V.Madugula Police Station and issued notice under the provisions of Section 41(a) Cr.P.C. and released on self bail.

4.During the course of investigation, LW.4 sent the seized sample bottle to the Chemical Examiner, Excise Laboratory, Visakhapatnam for analysis. The Chemical Examiner after due analysis of samples opined that the sample is diluted Indian liquor. On obtaining analysis report and after completion of investigation, LW.5/B.Jagadeeswara Rao, Prohibition and Excise

Inspector filed Charge Sheet against the accused.

5.This Court took cognizance of the offence under Section 34(a) of

Andhra Pradesh Excise Amendment Act, 2020 of V.Madugula Police Station against accused. On appearance of accused, copies of case papers as required under Section 207 of Cr.P.C. were furnished to accused.

6. Accused was examined under Section 239 of Cr.P.C., for which he denied the offence. Charge under Section 34(a) of Andhra Pradesh Excise

Amendment Act were framed against accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

C.C.No.848/2022 Page 4 of 12 AJFCM, CDM Dt.17.01.2024

7.In order to establish its case, prosecution has examined PW.1 to

PW.3 got marked Exs.P1 to P3 and MO.1 and MO.2. The Learned Assistant

Public Prosecutor has given up the evidence of S.Venkata Rao (LW.1) and

B.Jagadeeswara Rao (LW.5).

8. After closure of prosecution evidence, Accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which he denied, on enquiry reported no defence evidence.

9. Heard learned Assistant Public Prosecutor for complainant and learned counsel for accused and perused the material on record.

10.Now, the point that arise for determination is:-

Whether prosecution is able to establish the guilt

of Accused beyond all reasonable doubt for the

alleged offences punishable under Section 34(a)

of Andhra Pradesh Excise Amendment Act?

11.In order to bring home the guilt of accused of the offence under

Section 34(a) of Andhra Pradesh Excise Amendment Act as already noted, prosecution has examined PW.1 to PW.3 and got marked Exs.P1 to Ex.P3 and

MO.1 and MO.2. PW.1 is the Prohibition and Excise Constable, PW.2 and

PW.3 are the Prohibition and Excise Sub Inspector of Police.

12.PW.1 deposed in his evidence that on 13-03-2020 at about 12:45

PM as they were patrolling at Appalarajupuram Sugarcane Weigh Bridge in

Cheedikada Mandal. While Accused is coming in their opposite direction by 2

C.C.No.848/2022 Page 5 of 12 AJFCM, CDM Dt.17.01.2024 wheeler vehicle, on seeing them, he tried to run away. On suspicion they detained accused with the help of staff. On interrogation, Accused disclosed that there are some IML bottles in the said bag. On checking, they found the white gunny bag containing 11 bottles of Officer Choice Supreme Whisky 180 ml each, Manjeera Reserve Classic Whisky 7 bottles, total 18 bottles of 180 ml each. Accused informed that he purchased the same from Government Wine shop of Cheedikada Mandal and further informed that he does not contain any receipt or license. Then, they seized the vehicle bearing No.AP31 CV 9652 which is a TVS Star City Blue Colour vehicle and they lifted samples from each brand into one bottle in total 2 bottles. Then the same was seized under cover of Ex.P1 Occurrence report and later they brought the accused and property to station for further action.

13.The Prohibition and Excise Sub Inspector was examined as PW.2.

She deposed in her evidence on 13-03-2020 at about 12:45 PM as they were patrolling at Appalarajupuram Sugarcane Weigh Bridge in Cheedikada Mandal on instructions of Prohibition and Excise Superintendent, Anakapalli. While

Accused is coming in their opposite direction on TVS vehicle, on seeing them, he tried to run away. On suspicion they detained him with the help of staff.

They checked the white gunny bag, 11 bottles of Officer Choice Supreme

Whisky 180 ml each, Manjeera Reserve Classic Whisky 7 bottles, total 18 bottles of 180 ml each. Then he deputed LW.1 to secure mediators. He tried for mediators but in vain. Then he informed the same to him. They lifted one bottle from each brand as sample. Later they brought the accused and property to station for further action and handed over the Accused and property

C.C.No.848/2022 Page 6 of 12 AJFCM, CDM Dt.17.01.2024 to LW.4.

14.PW.3 deposed in her evidence that on 13-03-2020, after accused and property were brought to the Police Station by PW.1 and PW.2, she registered Ex.P2 FIR in Cr.No.49/2020, U/s.34(a) of A.P. Excise Amendment

Act 2020. Then she sent the accused for judicial remand and also forwarded the sample for chemical analysis. After receipt of chemical report on 12-06-2020, she handed over the case record to LW.5/B.Jagadeeswara Rao.

15.A careful perusal of the evidence of PW.1 to PW.3 coupled with

Exs.P1 to P3, no doubt, it appears that certain contraband was seized from the alleged possession of accused. But, it may be mentioned here that it is not the case of prosecution that the scene of offence area is an isolated place and far away from public view. In as much as the scene of offence area is located almost in the middle of village it is not known why PW.1 and PW.2 did not try to secure respectable inhabitants of the locality as mediators while seizing the contraband from the alleged possession of accused. The said circumstances throws an amount of doubt with regard to the very case of prosecution.

According to prosecution and as per the evidence of PW.1 and PW.2, the scene of offence is a busy locality and in the said village, shops and residential houses are located, President and members of panchayat were also available.

No doubt, they mentioned that they tried to secure mediators but none were available but Ex.P1 does not reflect the said fact.

16.Now coming to appreciation of evidence on hand, the case of the prosecution is that the Accused was found in possession of illicitly distilled

C.C.No.848/2022 Page 7 of 12 AJFCM, CDM Dt.17.01.2024 liquor which was seized by PW.1. LW.5 filed charge sheet for the offence under Section 34(a) of A.P. Excise Amendment Act, 2020.

34A. Confiscation or penalty not to interfere with

other punishments.—No confiscation made or

penalty imposed under the provisions of this Act or

of any rule made thereunder shall prevent the

infliction of any other punishment to which the

person affected thereby is liable under the

provisions of this Act or under any other law.

17.The Accused herein is charged for the offence of illegal possession of illicitly distilled liquor. PW.1 and PW.2 deposed that they found the Accused in possession of 11 bottles of Officer Choice Supreme Whisky 180 ml each, Manjeera Reserve Classic Whisky 7 bottles, total 18 bottles of 180 ml each and also deposed that the contraband wasseized at the scene of offence from the accused, under cover of Ex.P1 occurrence report. However, as this case was registered based on police proceedings, the entire case of the prosecution is based on the seizure of the contraband from the possession of accused.

18.As per Section 23 of A.P. Prohibition Act, 1995, PW.1 and PW.2 are bound to follow the procedure laid down under the Code of Criminal

Procedure relating to search. It shows that Section 100 of Cr.P.C has to be followed by PW.1 and PW.2 at the time of search and seizure of the contraband. As per Section 100 Cr.P.C, any Investigating Officer is bound to conduct the search in the presence of two respectable inhabitants of the locality.

C.C.No.848/2022 Page 8 of 12 AJFCM, CDM Dt.17.01.2024

19.During cross examination, PW.1 admitted that the seized contraband is available in all the government liquor shops but they did not enquire about the wine shop from which the Accused has purchased and that they did not identify any other person who purchased from the Accused and they did not secure any mediators. During cross examination, PW.2 admitted that Appalarajupuram is a busy locality and villagers are available in the said village. Sachivalayam officials and also Sugarcane staff are also available in the said village but they did not secure them as mediators and same is not mentioned in Ex.P1.

20.The very own admissions of the prosecution witnesses, leads to the inference that there was ample scope for the Investigating Officer to secure the revenue officials or the villagers or the public to act as mediators, so it is the duty of PW.1 and PW.2 to prove such efforts made by them. Ex.P1 also does not disclose the efforts made by them. So, this Court finds that the prosecution did not prove the efforts made by the investigation officer to comply the provisions of Section 100(4) of Cr.P.C. moreover, no property seized from the possession of the accused.

21.This Court further relies on the decision reported in Gajamker

Narayana Vs. State of A.P., reported in 2005 (3) ALT (CRL.) 1 (A.P) wherein it was held at paragraph No.5 as follows:

Here in the case on hand, the accused was found in possession of I.D liquor at Bypass Road, Rangadampally, near Siddipet. The evidence of P.W.1, the excise Sub-Inspector, discloses that there are residential houses at a distance of 25yards from the

C.C.No.848/2022 Page 9 of 12 AJFCM, CDM Dt.17.01.2024 scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W.1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of P.W.3, the then excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the excise officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W.1 nor that of P.W.3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, panchanama, also does not disclose that any effort was made by excise officials to secure independent respectable inhabitants of the locality.

22.Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C.

are not followed by the police officials while seizing the bottle containing ID liquor. Therefore, the seizure made in this case is illegal.

23. The entire case of the prosecution is based on Ex.P1 and the evidence of PW.1 to PW.3 are police officials. However, Ex.P1 contains the confession of Accused hit under Section 25 Evidence Act, 1872.

24.It was also argued by learned defence counsel that the report is not proved through expert. Ex.P3 was marked through the investigating officer and infact the expert is also not cited as a witness in this case. The Ex.P3 is the crucial document to prove the nature of the contraband and to prove the charges against the accused, but it was argued that the accused lost his

C.C.No.848/2022 Page 10 of 12 AJFCM, CDM Dt.17.01.2024 opportunity to cross-examine the expert. These aspects pertaining to Ex.P3 affect the credibility of the report.

25.Further, the contents of Ex.P1 Occurrence report goes to show that the contraband was seized from the alleged possession of accused on 13-03-2020 whereas analyst report go to show that analyst received Indian made liquor sample bottles on 26-05-2020. From this, it is clear that the sample bottles were sent to the analyst nearly 74 days after the alleged seizure of contraband. In fact, prosecution has not explained the said inordinate delay in sending the sample bottles to the analyst. Therefore, the said delay in sending the sample bottles to the analyst is definitely fatal to the case of prosecution.

The fact remains, except the interested and inconsistent testimony of PW.1 and PW.2, prosecution has not placed any reliable evidence on record to connect accused of the offence with which he is charged.

26. As per version of prosecution, the accused was selling whisky without having license. Therefore, based on the inconsistent testimony of

PW.1, it cannot be said that accused is guilty of the offence with which he is charged. In that view of the matter, this Court is of the view that prosecution has miserably failed to bring home guilt of accused of the offence with which they are charged and they are accordingly entitled to benefit of doubt.

27. In the result, the Accused is found not guilty for the offence under

Section 34(a) of A.P.Excise Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section 248(1) Cr.P.C. No bail bonds

C.C.No.848/2022 Page 11 of 12 AJFCM, CDM Dt.17.01.2024 since the Accused is served with Section 41(A) Cr.P.C. notice. The property i.e., MO.1 and MO.2 sample bottles are ordered to be destroyed after expiry of appeal time.

Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 17 th day of January, 2024.

Sd/- G.Swarna

A.J.F.C. Magistrate, Chodavaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 S.Santhosh

PW.2A.Rajya Lakshmi

PW.3K.Sravani

FOR ACCUSED:NIL

EXHIBITS MARKED

FOR COMPLAINANT:

Ex. P1: Occurrence Report

Ex. P2: Original First Information Report

Ex. P3: REL Report

FOR ACCUSED:NIL

MATERIAL OBJECTS MARKED

FOR COMPLAINANT:

MO.1 : Sample Bottle

MO.2 : Sample Bottle

FOR ACCUSED: NIL

Sd/- G.Swarna

A.J.F.C.Magistrate, Chodavaram

C.C.No.848/2022 Page 12 of 12 AJFCM, CDM Dt.17.01.2024

CALENDAR & JUDGMENT

CALENDAR CASE TRIED BY THE COURT OF A.J.F.C. MAGISTRATE AT

CHODAVARAM

Date of Offence: 13-03-2020

Date of Report or Complaint: 13-03-2020

Date of apprehension of Accused: 13-03-2020 : Nil (Since Accused served with Section Date of accused released on bail 41(A) Cr.P.C. notice)

Date of Commencement of Trial: 05-09-2023

Date of Closure of trial: 05-10-2023

Date of sentence or order of Court: 17-01-2024

Explanation for Delay & Remarks: No such delay

Calendar Case No.: C.C.No.848/2022

State represented by Station House Name & Address of complainant:Officer, Prohibition and Excise Station, V.Madugula.

Madhumanthi Nookaraju, S/o. Apparao, Name and address of accused:Aged 30 years, Resident of Dibbapalem Village, Butchiyyapeta Mandal.

: Section 34(a) of Andhra Pradesh Section of law Excise Act

Finding of Court: Accused is found not guilty

In the result, the Accused is found not guilty for the offence under Section 34(a) of A.P.Excise Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section Sentence or Order of the Court:248(1) Cr.P.C. No bail bonds since the Accused is served with Section 41(A) Cr.P.C. notice. The property i.e., MO.1 and MO.2 sample bottles are ordered to be destroyed after expiry of appeal time.

Sd/- G.Swarna

A.J.F.C. MAGISTRATE,

CHODAVARAM

C.C.No.761/2022 Page 1 of 11 AJFCM, CDM Dt.17.01.2024

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE

CHODAVARAM

Present : Smt.G.Swarna

Additional Judicial Magistrate of First Class,

Chodavaram

Wednesday, this the 17 th day of January, 2024

CALENDAR CASE No.761/2022

BETWEEN:

State represented by Sub-Inspector of Police, Kothakota Police Station.

... Complainant

AND:

Ulli Yarrayya, S/o. Late Somayya, aged 39 years, Cultivation coolie, Rocchupanukula village, Cheemalapadu Panchayat, Ravikamatham Mandal.

... Accused

This case is coming before me on 11-01-2024for final hearing in the presence of Learned Assistant Public Prosecutor for the complainant and of Sri U.Govindu, Advocate for the accused and having stood over for consideration on this day and this Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Kothakota Police Station filed this case in Crime No.156/2021 alleging that accused has committed the offence punishable under Section 7(B) r/w. 8(B) of A.P.Prohibition and Amendment

Act, 2020.

2.The facts of the prosecution case in brief is that:

On 21-09-2021 morning, LW.2/K.Murali Krishna, Head Constable along with LW.1/K.Kondanna Dora, Police Constable, performing village visiting towards Rocchupanukula Village side about the illegal transportation of arrack, at about 10:00 hrs, when LW.4/A.Thrinadha Rao, Assistant Sub-

Inspector of Police and staff reached outskirts of Rocchupanukula Village;

C.C.No.761/2022 Page 2 of 11 AJFCM, CDM Dt.17.01.2024 meanwhile accused found with white colour plastic tin, on seeing them, the accused is tried to escape with plastic tin with suspicious circumstances.

LW.2 chased him with the assistance of his staff and caught him. On being questioned the accused disclosed his identity. On further Interrogation, the accused disclosed that he leads his life by cultivation. As earning through cultivation cooli works are not sufficient for his livelihood, he frequently visited hillock area of hillocks of Kalyanapulova and purchased illicit arrack from unknown person and sell the same in his village. Accordingly, on 21-09-2021, the accused visited hillocks of Kalyanapulova Village and purchased 05 Liters arrack from unknown person each liter is an amount of Rs.300/- and filled the same in plastic tin, today i.e., on 21-09-2021, while taking the same for selling and caught by LW.2. Then LW.2 verified tin, it is in white colour plastic tin and found five liters arrack in the tin. Then LW.2 opened the plastic tin and found with smelling arrack. LW.2 seized one 250 M.L arrack sample bottle for chemical analysis. LW.2 explained the provision U/s 7(B) R/W 8 (B) of A.P.

Prohibition Amendment Act, 2020 and arrested the accused on 21-09-2021 at 10:00 hrs and seized 5 Liters of Illicit arrack and 250 M.L arrack sample bottle under the cover an occurrence report. LW.2 drafted an occurrence report.

LW.2 rushed to Kothakota P.S. and handed over the accused and the seized contraband to LW.4 on 21-09-2021 at 11:30 hrs to take action.

3.LW.4 registered the above occurrence report as a Case in

Cr.No.156/2021 under Section 7(B) r/w. 8(B) of Prohibition (Amendment) Act 2020 of Kothakota Police Station and investigated into it.

4.During the course of investigation, LW.4 examined LW.1 and

C.C.No.761/2022 Page 3 of 11 AJFCM, CDM Dt.17.01.2024

LW.2, recorded their statements and sent the Accused for remand. Further,

LW.5/B.Appalanaidu, Sub-Inspector of Police, forwarded the material objects to

LW.3/A.Muneeswari, Government Chemical Examiner for Prohibition and

Excise, Regional Prohibitory Excise Laboratory, Visakhapatnam for chemical analysis and LW.3 issued Chemical Analysis report opining that the sample is illicitly distilled liquor, unfit for human consumption and injurious to health. On obtaining the report, LW.5 filed chargesheet against the Accused.

5.This Court took cognizance of the offence under Section 7(B) r/w.

8(B) of A.P.Prohibition and Amendment Act, 2020 against Accused.

On appearance of accused, copies of case papers as required under Section 207 of Cr.P.C. were furnished to accused.

6. Accused was examined under Section 239 of Cr.P.C., for which he denied the offence. Charge under Section 7(B) r/w. 8(B) of A.P.Prohibition and Amendment Act, 2020 was framed against accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

7.In order to establish its case, prosecution has examined PW.1 to

PW.4 and got marked Exs.P1 to P3 and MO1. Learned Assistant Public

Prosecutor has given up the evidence of A.Muneeswari (LW.3).

8. After closure of prosecution evidence, Accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which he denied and on enquiry, reported no defence evidence.

C.C.No.761/2022 Page 4 of 11 AJFCM, CDM Dt.17.01.2024

9. Heard learned Assistant Public Prosecutor for complainant and learned counsel for Accused and perused the material on record.

10.Now, the point that arise for determination is:-

Whether prosecution is able to establish the guilt

of Accused beyond all reasonable doubt for the

alleged offences punishable U/sec. 7(B) r/w. 8(B)

of A.P.Prohibition and Amendment Act, 2020 ?

11.POINT :

To prove the case of prosecution, P.W.1 to PW.4 were examined and Exs.P1 to P3 and MO.1 were marked. P.W.1 is the Police Constable,

PW.2 is the Head Constable, PW.3 is the Assistant Sub Inspector and PW.4 is the Sub Inspector of Police/Investigating Officers.

12.The learned Assistant Public Prosecutor argued that four witnesses were examined by the prosecution, the prosecution witnesses corroborated with each other and proved the seizure of contraband from the possession of Accused. He argued that the sample is tested and proved to be

ID liquor, the Accused is proved to be in possession of ID liquor and so, the prosecution proved the case against the Accused and he prays to convict the accused.

13.Prosecution Per contra, the learned defence counsel argued that prosecution did not examine any independent witnesses, the Investigation

Officer did not secure any mediators at the scene of offence though the scene of offence is a busy locality. He argued that the Investigation Officer failed to follow the procedure under Section 100(4) Cr.P.C. for search and seizure and

C.C.No.761/2022 Page 5 of 11 AJFCM, CDM Dt.17.01.2024

Ex.P3 is Chemical Analysis Report which was marked through Investigating

Officer, Chemical Analyst was not examined. He argued that the prosecution failed to prove the case against Accused and he prays to acquit the accused.

14.The Police Constable was examined as PW.1. PW.1 deposed in his evidence that on 21-09-2021 at about 10.00 AM on credible information received by their Sub Inspector of Police, himself, LW.2/K.Murali Krishna and

LW.4/A.Trinadha Rao went to Rochhupanukula village of Ravikamatam

Mandal. There at the outskirts of the village they found the accused coming in our opposite direction by holding a plastic can. They checked the can and arrack smell was come out. Immediately they took the accused into custody.

Then LW.4 deputed him to secure mediators. He tried for mediators but in vain.

Then he informed the same to LW.4. On verification, the can containing 5 liters of I.D. liquor. On questioning accused confessed that he purchased the said ID liquor from Kalyanapulova village for selling the same for higher price. Then

LW.4 drew 250 ml of I.D. liquor into a bottle as a sample for analysis, sealed and labeled and seized the same under cover of Ex.P1 occurrence report after effecting the arrest of accused. LW.2 drafted an occurrence report. Later they brought the accused and property to station for further action. PW.2/K.Murali

Krishna, Head Constable deposed in similar lines as that of PW.1.

15.PW.3/A.Thrinadha Rao, Assistant Sub Inspector, deposed that on 21-09-2021 at about 11.30 AM while he was present in Police Station as SHO,

PW.1 and 2 came to police station along with accused, Ex P1 and seized contraband of 5 Liters of ID Liquor and handed over to him. Basing on Ex.P1 occurrence report, he registered a case Cr.No.156/2021 u/s 7(B) r/w 8(B) of

C.C.No.761/2022 Page 6 of 11 AJFCM, CDM Dt.17.01.2024

A.P. Prohibition (Amendment) Act, 2020 and issued Ex.P2 FIR and he sent the accused to Hon’ble Court for judicial custody. Later he handed over the the case file to LW.5/Sub Inspector of Police for further investigation.

16.PW.4/B.Appalanaidu, Sub Inspector of Police, deposed that on 21-09-2021 at about 11.30 hours he received case file from PW.3. He sent the contraband of 250 M.L. for chemical analysis. He received Ex.P3 Chemical

Analysis Report on 07-01-2022. Then he filed charge sheet against the accused.

17.Now coming to appreciation of evidence on hand, the case of the prosecution is that the Accused was found in possession of illicitly distilled liquor which was seized by PW.2. PW.4 filed charge sheet for the offence under Section 7(B) r/w 8 (B) of A.P. Prohibition Amendment Act, 2020.

Sec.7B defines the offence of Prohibition of Boot

Legging Activities: The manufacturing, transporting,

settling, buying, importing, exporting or storing of

any alcoholic liquor and supplying or transporting

of any raw materials for the manufacture of

alcoholic liquor illegally or clandestinely, otherwise

than in accordance with the provisions of the

A.P.Excise Act, 1968 is hereby prohibited.

18.The Accused herein is charged for the offence of illegal possession of illicitly distilled liquor. PW.1 to PW.3 deposed that they found the

Accused in possession of 5 liters of ID liquor and also deposed that the contraband wasseized at the scene of offence from the Accused, under cover of an Ex.P1 occurrence report, prima facie shows that the sample of contraband is illicitly distilled liquor, unfit for human consumption and injurious to health, thereby the contraband is prohibited under Section 7(B) of A.P.

C.C.No.761/2022 Page 7 of 11 AJFCM, CDM Dt.17.01.2024

Prohibition Amendment Act. However, as this case was registered based on police proceedings, the entire case of the prosecution is based on the seizure of the contraband from the possession of accused.

19.As per Section 23 of A.P. Prohibition Act, 1995 PW.1 to PW.3 are bound to follow the procedure laid down under the Code of Criminal Procedure relating to search. It follows that Section 100 of Cr.P.C has to be followed by

PW.1 to PW.3 at the time of search and seizure of the contraband. As per

Section 100 Cr.P.C. any Investigating Officer is bound to conduct the search in the presence of two respectable inhabitants of the locality.

20.During cross examination, PW.1 and PW.2 admitted that

Rochhupanukula is a panchayat village. In the said village Panchayat

Secretaries, VRO will be available and nearly 100 residential houses located in the said village, they did not secure them as mediators and also did not try to to secure local persons as mediators.

21.The very own admissions of the prosecution witnesses, leads to the inference that there was ample scope for the Investigating Officer to secure the revenue officials or the villagers or the public to act as mediators, so it is the duty of PW.1 and PW.2 to prove such efforts made by them. Ex.P1 also does not disclose the efforts made by them. So, this Court finds that the prosecution did not prove the efforts made by the Investigation Officer to comply the provisions of Section 100(4) of Cr.P.C. moreover, no property seized from the possession of the accused.

C.C.No.761/2022 Page 8 of 11 AJFCM, CDM Dt.17.01.2024

22.This Court further relies on the decision reported in Gajamker

Narayana Vs. State of A.P., reported in 2005 (3) ALT (CRL.) 1 (A.P) wherein it was held at paragraph No.5 as follows:

Here in the case on hand, the accused was found in possession of I.D liquor at Bypass Road, Rangadampally, near Siddipet. The evidence of P.W.1, the excise Sub- Inspector, discloses that there are residential houses at a distance of 25yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W.1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of P.W.3, the then excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the excise officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W.1 nor that of P.W.3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, panchanama, also does not disclose that any effort was made by excise officials to secure independent respectable inhabitants of the locality.

23.Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C.

are not followed by the police officials while seizing the bottle containing ID liquor. Therefore, the seizure made in this case is illegal.

24. The entire case of the prosecution is based on Ex.P1 and the evidence of PW.1 to PW.4 are police officials. However, Ex.P1 contains the confession of Accused hit under Section 25 of Indian Evidence Act, 1872.

C.C.No.761/2022 Page 9 of 11 AJFCM, CDM Dt.17.01.2024

25.It was also argued by the learned defence counsel that the report is not proved through expert. Ex.P3 was marked through the Investigating

Officer and infact though the expert is cited as a witness in this case, the prosecution failed to examine them. The Ex.P3 is the crucial document to prove the nature of the contraband and to prove the charges against the

Accused, but it was argued that the Accused lost his opportunity to cross- examine the expert. These aspects pertaining to Ex.P3 affect the credibility of the report.

26.Hence in view of foregoing discussion, this Court finds that though the prosecution got marked the documents, it failed to prove the possession of the contraband by Accused, which forms the very basis for the case of the prosecution. So, this Court finds the charges against the Accused are not proved beyond reasonable doubt and the Accused is entitled for acquittal.

27.In the result, the Accused is found not guilty for the offence under

Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section 248(1) Cr.P.C. and the bail bonds of the Accused shall be in force for a period of six months under

Section 437(A) of Cr.P.C, The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 17 th day of January, 2024.

Sd/- G.Swarna

A.J.F.C. Magistrate, Chodavaram

C.C.No.761/2022 Page 10 of 11 AJFCM, CDM Dt.17.01.2024

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 K.Kondanna Dora

PW.2K.Murali Krishna

PW.3A.Thrinadha Rao

PW.4B.Appala Naidu

FOR ACCUSED:NIL

EXHIBITS MARKED

FOR COMPLAINANT:

Ex. P1: Occurrence Report

Ex. P2: First Information Report

Ex. P3: Chemical Analysis Report

FOR ACCUSED:NIL

MATERIAL OBJECTS MARKED

FOR COMPLAINANT:

MO1 : Sample Bottle

FOR ACCUSED: NIL

Sd/- G.Swarna

A.J.F.C.Magistrate, Chodavaram

C.C.No.761/2022 Page 11 of 11 AJFCM, CDM Dt.17.01.2024

CALENDAR & JUDGMENT

CALENDAR CASE TRIED BY THE COURT OF A.J.F.C. MAGISTRATE AT

CHODAVARAM

Date of Offence: 21-09-2021

Date of Report or Complaint: 21-09-2021

Date of apprehension of Accused: 21-09-2021

Date of accused released on bail: 01-10-2021

Date of Commencement of Trial: 14-06-2023

Date of Closure of trial: 14-11-2023

Date of sentence or order of Court: 17-01-2024

Explanation for Delay & Remarks: No such Delay

Calendar Case No.: C.C.No.761/2022 : State represented by Sub-Inspector of Name & Address of complainant Police, Kothakota Police Station.

Ulli Yarrayya, S/o. Late Somayya, aged 39years,Cultivationcoolie, Name and address of accused:Rocchupanukulavillage, CheemalapaduPanchayat, Ravikamatham Mandal.

: Section 7(B) r/w. 8(B) of A.P.Prohibition Section of law Amendment Act.

Finding of Court: Accused is found not guilty

In the result, the Accused is found not guilty for the offence under Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section 248(1) Cr.P.C. and the Sentence or Order of the Court: bail bonds of the Accused shall be in force for a period of six months under Section 437(A) of Cr.P.C, The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Sd/- G.Swarna

A.J.F.C. MAGISTRATE,

CHODAVARAM

C.C.No.978/2022 Page 1 of 11 AJFCM, CDM Dt.18.01.2024

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE

CHODAVARAM

Present : Smt.G.Swarna

Additional Judicial Magistrate of First Class,

Chodavaram

Thursday, this the 18 th day of January, 2024

CALENDAR CASE No.978/2022

BETWEEN:

State represented by Sub-Inspector of Police, Butchiyyapeta Police Station.

... Complainant

AND:

Yeduvaka Lakshmi, W/o. Maalinaidu, aged 39 years, Cultivation, Rajam Village, Butchiyyapeta Mandal.

... Accused

This case is coming before me on 17-01-2024for final hearing in the presence of Learned Assistant Public Prosecutor for the complainant and of Sri Ch.Babu Rao, Advocate for the accused and having stood over for consideration on this day and this Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Butchiyyapeta Police Station filed this case in Crime No.368/2020 alleging that accused has committed the offence punishable under Section 7(B) r/w. 8(B) of A.P.Prohibition and

Amendment Act, 2020.

2.The facts of the prosecution case in brief is that:

On 07-07-2020 LW.5/D.Venkanna, Sub-Inspector of Police, received credible information of selling the illicit Arrack without any license of the Government, he deployed his staff LW.1 to LW.3 (LW.1/K.Satya Rao, Head

Constable, LW.2/D.Sankari, Woman Police Constable, LW.3/K.Veeralakshmi,

Woman Police Constable) to Rajam Village, Butchiyyapeta Mandal. Meanwhile

C.C.No.978/2022 Page 2 of 11 AJFCM, CDM Dt.18.01.2024 the LW.1 along with his staff conducted raid at Accused house at about 10:00 hrs, while that time the one accused selling the illicit arrack in front of her house. While seeing police party she escaped from the offence place and then

LW.2 and LW.3 caught the accused and when questioned, she disclosed her identity and confessed that she purchased illicit arrack from unknown persons and selling the same in high cost. Later LW.1, seized containing two liters of ID arrack worth Rs.200/- from the procession of the accused while she was possessing and selling the illicit Arrack without any license of the Government.

Later drafted the Occurrence report and arrested accused. Then LW.1 brought the accused and seized arrack to Butchiyyapeta Police Station on 07-07-2020 at 11.00hrs and handed over to LW.5.

3.LW.5 registered the above occurrence report as a Case in

Cr.No.368/2020 under Section 7(B) r/w. 8(B) of Prohibition (Amendment) Act 2020 of Butchiyyapeta Police Station and investigated into it.

4.During the course of investigation, LW.5 examined the witnesses, recorded their statements in Case Diary Part-II and sent the Accused for remand. Further, LW.5 forwarded the material objects to LW.3/G.Srinivasulu,

Government Chemical Examiner for Prohibition and Excise, Regional

Prohibitory Excise Laboratory, Visakhapatnam for chemical analysis and LW.3 issued Chemical Analysis report opining that the sample is illicitly distilled liquor, unfit for human consumption and injurious to health. On obtaining the report, LW.5 filed chargesheet against the Accused.

5.This Court took cognizance of the offence under Section 7(B) r/w.

8(B) of A.P.Prohibition and Amendment Act, 2020 against Accused.

C.C.No.978/2022 Page 3 of 11 AJFCM, CDM Dt.18.01.2024

On appearance of accused, copies of case papers as required under Section 207 of Cr.P.C. were furnished to accused.

6. Accused was examined under Section 239 of Cr.P.C., for which she denied the offence. Charge under Section 7(B) r/w. 8(B) of A.P.Prohibition and Amendment Act, 2020 was framed against accused, read over and explained to her in Telugu, for which she pleaded not guilty and claimed to be tried.

7.In order to establish its case, prosecution has examined PW.1 to

PW.4 and got marked Exs.P1 to P3 and MO.1. Learned Assistant Public

Prosecutor has given up the evidence of G.Srinivasulu (LW.4).

8. After closure of prosecution evidence, Accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which she denied and on enquiry, reported no defence evidence.

9. Heard learned Assistant Public Prosecutor for complainant and learned counsel for Accused and perused the material on record.

10.Now, the point that arise for determination is:-

Whether prosecution is able to establish the guilt

of Accused beyond all reasonable doubt for the

alleged offence punishable U/sec. 7(B) r/w. 8(B) of

A.P.Prohibition and Amendment Act, 2020 ?

11.POINT :

To prove the case of prosecution, P.W.1 to PW.4 were examined and Exs.P1 to P3 and MO.1 were marked. P.W.1 and PW.2 are the Woman

C.C.No.978/2022 Page 4 of 11 AJFCM, CDM Dt.18.01.2024

Police Constable, PW.3 is the Head Constable and PW.4 is the Sub Inspector of Police/Investigating Officer.

12.The learned Assistant Public Prosecutor argued that four witnesses were examined by the prosecution, the prosecution witnesses corroborated with each other and proved the seizure of contraband from the possession of Accused. He argued that the sample is tested and proved to be

ID liquor, the Accused is proved to be in possession of ID liquor and so, the prosecution proved the case against the Accused and he prays to convict the accused.

13.Prosecution Per contra, the learned defence counsel argued that prosecution did not examine any independent witnesses, the Investigation

Officer did not secure any mediators at the scene of offence though the scene of offence is a busy locality. He argued that the Investigation Officer failed to follow the procedure under Section 100(4) Cr.P.C. for search and seizure and

Ex.P3 is Chemical Analysis Report which was marked through Investigating

Officer, Chemical Analyst was not examined. He argued that the prosecution failed to prove the case against Accused and he prays to acquit the accused.

14.The Woman Police Constable was examined as PW.1. PW.1 deposed in her evidence that on 07-07-2020 at about 10:00 AM, LW.5 received credible information of selling of illicit arrack then LW.5 deployed staff HC 1275, herself and WPC 2608 to the scene of offence. At the advice of Sub

Inspector, she along with others reached the Rajam Village at 10:00 AM, then they noticed Accused selling illicit arrack placed on a table in front of her house. The accused confessed that she purchased arrack from unknown

C.C.No.978/2022 Page 5 of 11 AJFCM, CDM Dt.18.01.2024 person and selling the same for higher price for her livelihood. They have seized 2 liters of ID arrack worth Rs.200/- from the possession of Accused.

They have drafted the Occurrence report and arrested the Accused and brought the Accused and property to the Police Station and handed over to the

Sub Inspector of Police, Butchiyyapeta Police Station. WPC 384 confessed that the occurrence report was written by WPC 2608 and same was signed by her. WPC 384 also confessed that the averments in the occurrence report were known to her.

15.PW.2/K.Veeralakshmi, Woman Police Constable, deposed that on 07-07-2020 at about 10:00 AM, LW.5 received credible information of selling of illicit arrack then LW.5 deployed staff HC 1275, PW.1 and herself to the scene of offence. At the advice of Sub Inspector, she along with others reached the

Rajam Village at 10:00 AM, then they noticed accused selling illicit arrack placed on a table in front of her house. The accused confessed that she purchased arrack from unknown person and selling the same for higher price for her livelihood. They have seized 2 liters of ID arrack worth Rs.200/- from the possession of Accused. They have drafted the Occurrence report and arrested the Accused and brought the Accused and property to the Police

Station and handed over to the Sub Inspector of Police, Butchiyyapeta Police

Station. PW.3/K.Satya Rao, Head Constable, deposed in similar lines as that of PW.1 and PW.2.

16.PW.4/D.Venkanna, Sub-Inspector of Police, deposed that he received the property and accused on 19-08-2020. Then he registered Ex.P2

FIR in Cr.No.368/2020 under Section 7(B) r/w. 8(B) of A.P.Prohibition

C.C.No.978/2022 Page 6 of 11 AJFCM, CDM Dt.18.01.2024

Amendment Act 2020. He sent the accused for judicial remand. He recorded statements of LW.1 to LW.3. He sent the sample for chemical analysis. He received the Ex.P3 Chemical Analysis Report on 25-08-2020. After receipt of chemical analysis report I filed charge sheet against the accused.

17.Now coming to appreciation of evidence on hand, the case of the prosecution is that the Accused was found in possession of illicitly distilled liquor which was seized by PW.1. PW.4 filed charge sheet for the offence under Section 7(B) r/w 8 (B) of A.P. Prohibition Amendment Act, 2020.

Sec.7B defines the offence of Prohibition of Boot

Legging Activities: The manufacturing, transporting,

settling, buying, importing, exporting or storing of

any alcoholic liquor and supplying or transporting

of any raw materials for the manufacture of

alcoholic liquor illegally or clandestinely, otherwise

than in accordance with the provisions of the

A.P.Excise Act, 1968 is hereby prohibited.

18.The Accused herein is charged for the offence of illegal possession of illicitly distilled liquor. PW.1 to PW.3 deposed that they found the

Accused in possession of 2 liters of ID liquor and also deposed that the contraband wasseized at the scene of offence from the Accused, under cover of an Ex.P1 occurrence report, prima facie shows that the sample of contraband is illicitly distilled liquor, unfit for human consumption and injurious to health, thereby the contraband is prohibited under Section 7(B) of A.P.

Prohibition Amendment Act. However, as this case was registered based on police proceedings, the entire case of the prosecution is based on the seizure of the contraband from the possession of accused.

C.C.No.978/2022 Page 7 of 11 AJFCM, CDM Dt.18.01.2024

19.As per Section 23 of A.P. Prohibition Act, 1995 PW.1 to PW.3 are bound to follow the procedure laid down under the Code of Criminal Procedure relating to search. It follows that Section 100 of Cr.P.C has to be followed by

PW.1 to PW.3 at the time of search and seizure of the contraband. As per

Section 100 Cr.P.C. any Investigating Officer is bound to conduct the search in the presence of two respectable inhabitants of the locality.

20.During cross examination, PW.1 to PW.3 admitted that they have not approached any Sachivalayam Police and also the Secretary Sarpanch of the concerned village even though they are available in the said village.

21.The very own admissions of the prosecution witnesses, leads to the inference that there was ample scope for the Investigating Officer to secure the revenue officials or the villagers or the public to act as mediators, so it is the duty of PW.1 to PW.3 to prove such efforts made by them. Ex.P1 also does not disclose the efforts made by them. So, this Court finds that the prosecution did not prove the efforts made by the Investigation Officer to comply the provisions of Section 100(4) of Cr.P.C. moreover, no property seized from the possession of the accused.

22.This Court further relies on the decision reported in Gajamker

Narayana Vs. State of A.P., reported in 2005 (3) ALT (CRL.) 1 (A.P) wherein it was held at paragraph No.5 as follows:

Here in the case on hand, the accused was found in possession of I.D liquor at Bypass Road, Rangadampally, near Siddipet. The evidence of P.W.1, the excise Sub- Inspector, discloses that there are residential houses at a

C.C.No.978/2022 Page 8 of 11 AJFCM, CDM Dt.18.01.2024 distance of 25yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W.1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of P.W.3, the then excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the excise officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W.1 nor that of P.W.3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, panchanama, also does not disclose that any effort was made by excise officials to secure independent respectable inhabitants of the locality.

23.Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C.

are not followed by the police officials while seizing the bottle containing ID liquor. Therefore, the seizure made in this case is illegal.

24. The entire case of the prosecution is based on Ex.P1 and the evidence of PW.1 to PW.4 are police officials. However, Ex.P1 contains the confession of Accused hit under Section 25 of Indian Evidence Act, 1872.

25.It was also argued by the learned defence counsel that the report is not proved through expert. Ex.P3 was marked through the Investigating

Officer and infact though the expert is cited as a witness in this case, the prosecution failed to examine them. The Ex.P3 is the crucial document to prove the nature of the contraband and to prove the charges against the

Accused, but it was argued that the Accused lost his opportunity to cross-

C.C.No.978/2022 Page 9 of 11 AJFCM, CDM Dt.18.01.2024 examine the expert. These aspects pertaining to Ex.P3 affect the credibility of the report.

26.Hence in view of foregoing discussion, this Court finds that though the prosecution got marked the documents, it failed to prove the possession of the contraband by Accused, which forms the very basis for the case of the prosecution. So, this Court finds the charges against the Accused are not proved beyond reasonable doubt and the Accused is entitled for acquittal.

27.In the result, the Accused is found not guilty for the offence under

Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, she is acquitted for the above offence under Section 248(1) Cr.P.C. and the bail bonds of the Accused shall be in force for a period of six months under

Section 437(A) of Cr.P.C. The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 18 th day of January, 2024.

Sd/-G.Swarna

A.J.F.C. Magistrate, Chodavaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 D.Sankari

PW.2K.Veera Lakshmi

PW.3K.Satya Rao

PW.4D.Venkanna

FOR ACCUSED:NIL

C.C.No.978/2022 Page 10 of 11 AJFCM, CDM Dt.18.01.2024

EXHIBITS MARKED

FOR COMPLAINANT:

Ex. P1: Occurrence Report

Ex. P2: Original First Information Report

Ex. P3: Chemical Analysis Report

FOR ACCUSED:NIL

MATERIAL OBJECTS MARKED

FOR COMPLAINANT:

MO.1 : Sample Bottle

FOR ACCUSED: NIL

Sd/- G.Swarna

A.J.F.C.Magistrate, Chodavaram

C.C.No.978/2022 Page 11 of 11 AJFCM, CDM Dt.18.01.2024

CALENDAR & JUDGMENT

CALENDAR CASE TRIED BY THE COURT OF A.J.F.C. MAGISTRATE AT

CHODAVARAM

Date of Offence: 07-07-2020

Date of Report or Complaint: 07-07-2020

Date of apprehension of Accused: 07-07-2020

Date of accused released on bail: 16-07-2020

Date of Commencement of Trial: 12-06-2023

Date of Closure of trial: 24-11-2023

Date of sentence or order of Court: 18-01-2024

Explanation for Delay & Remarks: No such Delay

Calendar Case No.: C.C.No.978/2022 : State represented by Sub-Inspector of Name & Address of complainant Police, Butchiyyapeta Police Station.

Yeduvaka Lakshmi, W/o. Maalinaidu, Name and address of accused:aged 39 years, Cultivation, Rajam Village, Butchiyyapeta Mandal.

: Section 7(B) r/w. 8(B) of A.P.Prohibition Section of law Amendment Act.

Finding of Court: Accused is found not guilty

In the result, the Accused is found not guilty for the offence under Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, she is acquitted for the above offence under Section 248(1) Cr.P.C. and the Sentence or Order of the Court: bail bonds of the Accused shall be in force for a period of six months under Section 437(A) of Cr.P.C. The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Sd/- G.Swarna

A.J.F.C. MAGISTRATE,

CHODAVARAM

C.C.No.1083/2022 Page 1 of 11 AJFCM, CDM Dt.18.01.2024

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE

CHODAVARAM

Present : Smt.G.Swarna

Additional Judicial Magistrate of First Class,

Chodavaram

Thursday, this the 18 th day of January, 2024

CALENDAR CASE No.1083/2022

BETWEEN:

State represented by Sub-Inspector of Police, Ravikamatham Police Station.

... Complainant

AND:

Sasubilli Srinu, S/o. Nagaraju, aged 36 years, Chinapachila Village, Ravikamatham mandal.

... Accused

This case is coming before me on 17-01-2024for final hearing in the presence of Learned Assistant Public Prosecutor for the complainant and of Sri V.Raju, Advocate for the accused and having stood over for consideration on this day and this Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Ravikamatham Police Station filed this case in Crime No.46/2021 alleging that accused has committed the offence punishable under Section 7(B) r/w. 8(B) of A.P.Prohibition and Amendment

Act, 2020.

2.The facts of the prosecution case in brief is that:

On 06-02-2021 at 08:00 hrs on receipt of reliable information

LW.4/A.Suryanarayana, Sub-Inspector of Police along with his staff

LW.1/P.Eswara Rao, Home Guard and LW.2/B.Chinababu, Home Guard were rushed out skirts of Chinapachila village of Ravikamatham mandal and caught the accused and seized one water bottle containing 1 liter of I.D Arrack, worth

C.C.No.1083/2022 Page 2 of 11 AJFCM, CDM Dt.18.01.2024 of Rs.400/- from his possession under cover of occurrence report dated 06-02-2021 at 08:00 hrs to 08:30 hrs while he was selling the country made arrack without any authorized permission or license of the Government. LW.4 brought the Accused and seized case property to the Police Station.

3.LW.4 registered the above occurrence report as a Case in

Cr.No.46/2021 under Section 7(B) r/w. 8(B) of Prohibition (Amendment) Act 2020 of Ravikamatham Police Station and investigated into it.

4.During the course of investigation, LW.4 examined the witnesses

LW.1 and LW.2 and recorded their detailed statements in Case Diary Part-II under Section 161 (3) of Cr.P.C. and arrested the accused on 06-02-2021 and sent him for judicial remand. LW.4 also sent the material objects to LW.3,

G.Srinivas, Government Chemical Examiner for Prohibition and Excise,

Regional Prohibitory Excise Laboratory, Visakhapatnam for chemical analysis and LW.3 issued Chemical Analysis report opining that the sample is illicitly distilled liquor, unfit for human consumption and injurious to health and after obtaining the analysis report, LW.4 filed charge sheet against the Accused.

5.This Court took cognizance of the offence under Section 7(B) r/w.

8(B) of A.P.Prohibition and Amendment Act, 2020 against Accused.

On appearance of accused, copies of case papers as required under

Section 207 of Cr.P.C. were furnished to accused.

6. Accused was examined under Section 239 of Cr.P.C., for which he denied the offence. Charge under Section 7(B) r/w. 8(B) of A.P.Prohibition and

Amendment Act, 2020 was framed against accused, read over and explained

C.C.No.1083/2022 Page 3 of 11 AJFCM, CDM Dt.18.01.2024 to him in Telugu, for which he pleaded not guilty and claimed to be tried.

7.In order to establish its case, prosecution has examined PW.1 and

PW.2 and got marked Exs.P1 to P3 and MO.1. Learned Assistant Public

Prosecutor has given up the evidence of B.Chinababu (LW.2) and G.Srinivas (LW.3).

8. After closure of prosecution evidence, Accused was examined under Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which he denied and on enquiry, reported no defense evidence.

9. Heard learned Assistant Public Prosecutor for complainant and learned counsel for Accused and perused the material on record.

10.Now, the point that arise for determination is:-

Whether prosecution is able to establish the guilt

of Accused beyond all reasonable doubt for the

alleged offence punishable U/sec. 7(B) r/w. 8(B) of

A.P.Prohibition and Amendment Act, 2020 ?

11.POINT:

To prove the case of prosecution, P.W.1 and PW.2 were examined and Exs.P1 to P3 and MO.1 were marked. P.W.1 is the Home Guard, PW.2 is the Sub-Inspector of Police/Investigating Officer.

12.The learned Assistant Public Prosecutor argued that two witnesses were examined by the prosecution, the prosecution witnesses corroborated with each other and proved the seizure of contraband from the possession of

C.C.No.1083/2022 Page 4 of 11 AJFCM, CDM Dt.18.01.2024

Accused. He argued that the sample is tested and proved to be ID liquor, the

Accused proved to be in possession of ID liquor and so, the prosecution proved the case against the Accused and he prays to convict the accused.

13.Prosecution Per contra, the learned defence counsel argued that prosecution did not examine any independent witnesses, the Investigation

Officer did not secure any mediators at the scene of offence though the scene of offence is a busy locality. He argued that the Investigation Officer failed to follow the procedure under Section 100(4) Cr.P.C. for search and seizure and

Ex.P3 is REL Report which was marked through Investigating Officer,

Chemical Analyst was not examined. He argued that the prosecution failed to prove the case against Accused and he prays to acquit the accused.

14.The Home Guard was examined as PW.1. PW.1 deposed in his evidence that on 06-02-2021 at about 8.00 AM, on credible information received by their Sub-Inspector (LW.4) about selling of ID Liquor. Then himself, LW.2, LW.4 went to the outskirts of Chinapachila Village they found the accused. On seeing them, he tried to escape. Then they apprehended him. On questioning the accused disclosed his identity and voluntarily confessed that he is in possession of ID Liquor and selling the same.

Immediately they took the accused into custody. They tried for mediators but in vain. On verification, they found 1 liter of I.D. liquor in a 1 Liter plastic bottle.

On questioning the accused confessed that he purchased the same from an unknown person for selling the same for higher price. Then LW.4 drew 250 ml of I.D. liquor into a bottle as a sample for analysis, sealed and labeled and seized the same under cover of Ex.P1 occurrence report after effecting the

C.C.No.1083/2022 Page 5 of 11 AJFCM, CDM Dt.18.01.2024 arrest of accused. Later they brought the accused and property to station for further action.

15.PW.2/A.Suryanarayana, Sub Inspector of Police deposed that on 06-02-2021 at about 8.00 AM, on credible information received by him about selling of ID Liquor. Then himself, PW.1, LW.2 went to the outskirts of

Chinapachila Village of Ravikamatham Mandal and there they found the accused. On seeing them, he tried to escape. Then they apprehended him. On questioning the accused disclosed his identity and voluntarily confessed that he is in possession of ID Liquor and selling the same. Immediately they took the accused into custody. They tried for mediators but in vain. On verification, they found 1 liter of I.D. liquor in a plastic bottle in the house of accused. On questioning the accused confessed that he purchased the same from an unknown person for selling the same for higher price. Then he drafted Ex.P1 and drew 250 ml of I.D. liquor into a bottle as a sample for analysis, sealed and labeled and seized the same under cover of occurrence report after effecting the arrest of accused. He registered Ex.P2 FIR in Cr.No.46/2021 U/Sec.7(B) r/w. 8(B) of A.P. Prohibition Amendment Act, 2020. He sent the accused for judicial remand. He sent sample bottle to REL on 07-02-2021 and he received

Ex.P3 REL Report on 05-03-2021. After completion of investigation and after receipt of REL Report, he filed charge sheet against the accused.

16.Now coming to appreciation of evidence on hand, the case of the prosecution is that the Accused was found in possession of illicitly distilled liquor which was seized by PW.2. PW.2 filed charge sheet for the offence under Section 7(B) r/w 8(B) of A.P. Prohibition Amendment Act, 2020.

C.C.No.1083/2022 Page 6 of 11 AJFCM, CDM Dt.18.01.2024

Sec.7B defines the offence of Prohibition of Boot

Legging Activities: The manufacturing, transporting,

settling, buying, importing, exporting or storing of

any alcoholic liquor and supplying or transporting

of any raw materials for the manufacture of

alcoholic liquor illegally or clandestinely, otherwise

than in accordance with the provisions of the

A.P.Excise Act, 1968 is hereby prohibited.

17.The Accused herein is charged for the offence of illegal possession of illicitly distilled liquor. PW.1 and 2 deposed that they found the

Accused in possession of illicitly distilled arrack of 1 liter and also deposed that the contraband wasseized at the scene of offence from the Accused, under cover of an Ex.P1 occurrence report, prima facie shows that the sample of contraband is illicitly distilled liquor, unfit for human consumption and injurious to health, thereby the contraband is prohibited under Section 7(B) of A.P.

Prohibition Amendment Act. However, as this case was registered based on police proceedings, the entire case of the prosecution is based on the seizure of the contraband from the possession of accused.

18.As per Section 23 of A.P. Prohibition Act, 1995, PW.1 is bound to follow the procedure laid down under the Code of Criminal Procedure relating to search. It follows that Section 100 of Cr.P.C has to be followed by PW.1 at the time of search and seizure of the contraband. As per Section 100 Cr.P.C.

any Investigating Officer is bound to conduct the search in the presence of two respectable inhabitants of the locality.

19.During cross examination, PW.1 and PW.2 admitted that

Chinapachila village consists of 2,000 to 4,000 population. China Pachila

C.C.No.1083/2022 Page 7 of 11 AJFCM, CDM Dt.18.01.2024 village is a major panchayat and Sachivalayam officials are also available in the said village but they did not secure them as mediators. They did not secure the local villagers to act as mediators. It is also admitted that they did not mention the names of persons to whom they requested them to act as mediators.

20.The very own admissions of the prosecution witnesses, leads to the inference that there was ample scope for the Investigating Officer to secure the village officials or the villagers or the public to act as mediators, so it is the duty of PW.1 to prove such efforts made by him. Ex.P1 also does not disclose the efforts made by PW.1. So, this Court finds that the prosecution did not prove the efforts made by the Investigation Officer to comply the provisions of

Section 100(4) of Cr.P.C. moreover, no property seized from the possession of the accused.

21.This Court further relies on the decision reported in Gajamker

Narayana Vs. State of A.P., reported in 2005 (3) ALT (CRL.) 1 (A.P) wherein it was held at paragraph No.5 as follows:

Here in the case on hand, the accused was found in possession of I.D liquor at Bypass Road, Rangadampally, near Siddipet. The evidence of P.W.1, the excise Sub- Inspector, discloses that there are residential houses at a distance of 25yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of P.W.1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of P.W.3, the then excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the

C.C.No.1083/2022 Page 8 of 11 AJFCM, CDM Dt.18.01.2024 excise officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W.1 nor that of P.W.3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, panchanama, also does not disclose that any effort was made by excise officials to secure independent respectable inhabitants of the locality.

22.Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C.

are not followed by the police officials while seizing the bottle containing ID liquor. Therefore, the seizure made in this case is illegal.

23. The entire case of the prosecution is based on Ex.P1 and the evidence of PW.1 and PW.2 are police officials. However, Ex.P1 contains the confession of Accused hit under Section 25 of Indian Evidence Act, 1872.

24.It was also argued by the learned defence counsel that the report is not proved through expert. Ex.P3 was marked through the Investigating

Officer and infact though the expert is cited as a witness in this case, the prosecution failed to examine them. The Ex.P3 is the crucial document to prove the nature of the contraband and to prove the charges against the

Accused, but it was argued that the Accused lost his opportunity to cross- examine the expert. These aspects pertaining to Ex.P3 affect the credibility of the report.

C.C.No.1083/2022 Page 9 of 11 AJFCM, CDM Dt.18.01.2024

25.Hence in view of foregoing discussion, this Court finds that though the prosecution got marked the documents, it failed to prove the possession of the contraband by Accused, which forms the very basis for the case of the prosecution. So, this Court finds the charges against the Accused are not proved beyond reasonable doubt and the Accused is entitled for acquittal.

26.In the result, the Accused is found not guilty for the offence under

Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section 248(1) Cr.P.C and the bail bonds of the Accused shall be in force for a period of six months under

Section 437(A) of Cr.P.C. The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 18 th day of January, 2024.

Sd/-G.Swarna

A.J.F.C.Magistrate, Chodavaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 P.Eswara Rao

PW.2A.Suryanarayana

FOR ACCUSED:NIL

EXHIBITS MARKED

FOR COMPLAINANT:

Ex. P1: Occurrence Report

Ex. P2: Original First Information Report

Ex. P3: REL Report

FOR ACCUSED:NIL

C.C.No.1083/2022 Page 10 of 11 AJFCM, CDM Dt.18.01.2024

MATERIAL OBJECTS MARKED

FOR COMPLAINANT:

MO.1 : Sample Bottle

FOR ACCUSED: NIL

Sd/-G.Swarna

A.J.F.C.Magistrate, Chodavaram

C.C.No.1083/2022 Page 11 of 11 AJFCM, CDM Dt.18.01.2024

CALENDAR & JUDGMENT

CALENDAR CASE TRIED BY THE COURT OF A.J.F.C. MAGISTRATE AT

CHODAVARAM

Date of Offence: 06-02-2021

Date of Report or Complaint: 06-02-2021

Date of apprehension of Accused: 06-02-2021

Date of accused released on bail: 08-02-2021

Date of Commencement of Trial: 03-11-2023

Date of Closure of trial: 24-11-2023

Date of sentence or order of Court: 18-01-2024

Explanation for Delay & Remarks: No such Delay

Calendar Case No.: C.C.No.1083/2022 : State represented by Sub-Inspector of Name & Address of complainant Police, Ravikamatham Police Station.

Sasubilli Srinu, S/o. Nagaraju, aged 36 Name and address of accused:years,ChinapachilaVillage, Ravikamatham mandal.

: Section 7(B) r/w. 8(B) of A.P.Prohibition Section of law Amendment Act.

Finding of Court: Accused is found not guilty

In the result, the Accused is found not guilty for the offence under Section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act, 2020 and accordingly, he is acquitted for the above offence under Section 248(1) Cr.P.C and the bail Sentence or Order of the Court: bonds of the Accused shall be in force for a period of six months under Section 437(A) of Cr.P.C. The property i.e., MO.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Sd/- G.Swarna

A.J.F.C. MAGISTRATE,

CHODAVARAM