Sri G. Vikram Sinha

- 1 - CC No. 313 of 2023

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)

KAVALI

Present: Sri G. Vikram Sinha,

Additional Judicial Magistrate First Class, Kavali.

Friday, this the 28th (Twenty Eighth) day of February 2025

CALENDAR CASE No. 313 OF 2023

State: Enforcement Inspector Special Enforcement Bureau

Kavali .. Complainant.

Vs

Garika Dhebora w/o. Sreenu age: 31 years, r/o. ST Colony, Bogole Village

and Mandal, SPSR Nellore Dist. .. Accused

This case has come up before me for final hearing in the presence of the learned Assistant Public Prosecutor for the state and Sri S.X.Kennedy, Advocate for accused, and the matter having heard on 28.02.2025 and stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

The Enforcement Inspector Special Enforcement Bureau Police

Station has filed charge sheet in Cr.No. 36/2022 against the above noted accused for the offences under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020.

The case of prosecution in nutshell are as follows:

2) That on 18.01.2021 at about 12.30PM, on the instructions of Joint

Director, Lw.1 to Lw.4 i.e., P. Padmaja, V. Venkaiah, K. Ramesh and K.

Srinivasarao while conducting raids in search of Special Enforcement offences had reached near the house of the accused in Bogole Mandal.

(ii) They saw accused having a white plastic can in her hand. Lw.4 stopped the alleged accused and on seeing the uniformed officials she became afraid and threw the plastic can and escaped. The neighbours have - 2 - CC No. 313 of 2023 intimated them that the name of the person who ran away was Garika

Dhebora. On that he has sent B. Venkateshwarulu to secure mediators from the village and since no one was ready to act as mediator, Lw.4 has determined the contents of the can through Special Report. The can contained 4Lts of ID Liquor. From that one bottle was taken as sample and other remaining liquor was seized.

(iii) And on 17.02.2022 at about 10.45AM, Lw.1 to 3 proceeded to

Bogole Mandal for detection of SEB Offences, and when they reached

Ibrahimpeta, they saw one person standing on the left side of the road margin. On seeing unformed officials she tried to flee away. On suspicion

Lw.3 detained her and enquired her. On that she revealed her identity particulars and stated that she purchased ID liquor from an unknown person and on fear she tied to run away. On that Lw.3 arrested the accused and produced before the Hon’ble Court. On the report FIR was registered in

Cr. No. 36/2022 u./s Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020.

(iv) During the course of investigation, the samples that were taken at the scene of offence, were sent to RFSL Guntur for analysis. The chemical examiner analyzed the sample in SL No. 2396 as Illicit Distilled Liquor, unfit for human consumption and injurious to public health and in extreme cases it may lead to death. And after completion of investigation, charge sheet was filed.

3. Cognizance was taken for the offence under Section Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 and summons were issued to the Accused.

- 3 - CC No. 313 of 2023

4. After appearance of Accused before the Court, copies of all documents were furnished to him as contemplated under Section 207

Criminal procedure Code.

5. On consideration of entire material on record, accused was examined under section 239 of Criminal Procedure Code, a charge under

Section Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 is framed against her, explained the substance of accusation to the accused in Telugu, for which, she pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, listed witnesses, two of them were examined, i.e., P.W.1 to P.W.2 and got exhibited Exs.P.1 to P.3 and marked material object Mo.1. As the Ld. APP has given up the evidence of Lw.2 and 3, the prosecution evidence was closed.

7. On closure of prosecution evidence, accused is examined under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, he denied the same and reported no defence evidence on his behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against accused that accused is entitled for acquittal.

- 4 - CC No. 313 of 2023

11. Now the point that arise for determination is :

“Whether the prosecution is able to prove the guilt of accused

for the offence under Section Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020

beyond all reasonable doubts?”

POINT:

12. To prove the offence under Section Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 the prosecution has to establish that the accused herein was manufacturing, transporting, setting, 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. Prohibition Act.

13. According to the evidence of P.W.1 & P.W.2, on 18.01.2021 at about 12.30PM, on the instructions of Joint Director, Lw.1 to Lw.4 i.e., P.

Padmaja, V. Venkaiah, K. Ramesh and K. Srinivasarao while conducting raids in search of Special Enforcement offences had reached near the house of the accused in Bogole Mandal.

(ii) They saw accused having a white plastic can in her hand. Pw.2 stopped the alleged accused and on seeing the uniformed officials she became afraid and threw the plastic can and escaped. The neighbours have intimated them that the name of the person who ran away was Garika

Dhebora. On that he has sent B. Venkateshwarulu to secure mediators from the village and since no one was ready to act as mediator, Pw.2 has determined the contents of the can through Special Report. Ex. P1 is the

Special Report. The can contained 4Lts of ID Liquor. From that one bottle was taken as sample and other remaining liquor was seized. MO. 1 is the

Sample.

- 5 - CC No. 313 of 2023

(iii) And on 17.02.2022 at about 10.45AM, Pw.1, Lw.2 and 3 proceeded to Bogole Mandal for detection of SEB Offences, and when they reached Ibrahimpeta, they saw one person standing on the left side of the road margin. On seeing unformed officials she tried to flee away. On suspicion Lw.3 detained her and enquired her. On that she revealed her identity particulars and stated that she was the accused who they plastic can on the previous occasion and on fear se tied to run away. On that Lw.3 arrested the accused and produced before the Hon’ble Court. On the report

FIR was registered in Cr. No. 36/2022 u./s Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020. Ex. P2 is

FIR.

(iv) During the course of investigation, the samples that were taken at the scene of offence, were sent to RFSL Guntur for analysis. The chemical examiner analysed the sample in SL No. 2396 as Illicit Distilled Liquor, unfit for human consumption and injurious to public health and in extreme cases it may lead to death. Ex. P3 is the RFSL Report. And after completion of investigation, charge sheet was filed.

15. In the cross-examination Pw.1/Padmaja has deposed no mediators were taken by them. She admitted that alleged contraband is not seized from the physical possession of accused. She also deposed that she doesn’t remember who told the name of the accused. She admitted that there is a distance of 100mts from the scene of offence to Bogole village.

She also deposed that Pw.2 asked Venkateshwarulu to call mediators, but their names and the reasons as to why they did not come is not mentioned in Ex. P1. She also deposed that there is free ingress and aggress to the scene of offence.

- 6 - CC No. 313 of 2023

16. Pw.2/K. Srinivasa Rao has deposed in his cross-examination that have not seized the alleged contraband from the possession of accused. He admitted that no mediators were taken by them and the names of persons who refused to act as mediators and the reason for doing so is not mentioned in special report. He admitted that scene of offence is 1 furlong from the village. He admitted that he did not measure the contraband. He also admitted that there are a number of Govt. Offices near to the scene of offence. He also admitted that signature of the accused is not present on the sample bottles. He also admitted that the staff who came with him are not present in Ex. P1.

17. In view of the charge sheet, at the time of filing of the charge sheet that destruction orders were received from concerned authority. And destruction was done to the case property.

18. The main issue involved in this case is whether the seizure as effected by the police officials is legal and is it in consonance with the provision of 100 (4) Cr.P.C. Section 100 (4) Cr.P.C lays down that before making a search, the officer or other person who is about to make it shall call upon two or more independent and respectable inhabitant of the locality in which place the search is conducted or of any other locality if no such inhabitants of the said locality are available or is willing to be a witness to the search to attend as witness to the search and may issue an order in writing to them or any of them to do so. Here in the present case in hand the evidence of P.W.1 or 2 does not disclose whether they tried to secure the independent respectable inhabitant of the locality by issuing written notice.

19. On perusal of entire evidence of P.W.1 to P.W.2, admitted that either Pw.1 or P.W.2 was not even able to mention the names of those - 7 - CC No. 313 of 2023 persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by either Pw.1 or P.W.2. At this juncture, it is relevant to note a decision made in S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held:

‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High Court when there is seizure of contraband’.

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T (Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of Excise officials is interested, artificial and routine.

In this case on hand also, P.W.1 did not depose the convincing reasons for non-securing of the independent mediators from the locality. In this regard this court relied the decision in Botcha Raju v. State Rep. by

the Inspector of Police, Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.)

69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police Officers without the corroboration of the disinterested witnesses...”.

- 8 - CC No. 313 of 2023

20. There is no sufficient material placed by the prosecution to that the accused possessed contraband. Therefore, the prosecution miserably failed to establish the guilt against the accused for the under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020. In the light of above discussion, and the evidence of P.W.1 and PW.2 being the police official and their evidence pertaining to Ex.P.1 above referred citations, accused is entitled for benefit of doubt.

21. For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

22. IN THE RESULT, the Accused is found not guilty for the offence punishable under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 and accordingly, he is acquitted

Under Sec.248(1) Criminal Procedure Code. The bail bonds of the accused, if any, shall stand cancelled after expiry of appeal time. MO.1 sample bottle shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer grade-III, corrected and

pronounced by me in the open court on this the 28th day of February 2025.

Additional Civil Judge

(Junior Division),Kavali.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution: - For Defence:-

Pw.1:P Padmaja, the then Constable, -None- Special Enforcement Bureau

Pw.2:K Srinivasarao, the then SI of Special Enforcement Bureau - 9 - CC No. 313 of 2023

Exhibits marked

For Prosecution:-

Ex. P-1: Special Report dt.17-02-2022

Ex. P-2:First Information Report

Ex. P-3:RFSL report.

For Defence :- NIL

Material objects:

For Prosecution:-

MO.1: Sample Bottle sent to RFSL for analysis.

Additional Civil Judge(Junior Division),

Kavali.

- 1 - CC No. 634 of 2022

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE FIRST CLASS

KAVALI

Present: Sri G. Vikram Sinha,

Additional Judicial Magistrate First Class, Kavali.

Friday, this the 28th (Twenty Eighth) day of February 2025

CALENDAR CASE No. 634 OF 2022

State: Enforcement Inspector Special Enforcement Bureau

Kavali .. Complainant.

Vs

Gutthi Balakotamma w/o. Srinivasulu age: 46 years, r/o. Mungamur Village,

Bogole Mandal, SPSR Nellore Dist. .. Accused

This case has come up before me for final hearing in the presence of the learned Assistant Public Prosecutor for the state and Sri SX Kennedy, Advocate for accused, and the matter having heard on 27.02.2025 and stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

The Enforcement Inspector Special Enforcement Bureau Police

Station has filed charge sheet in Cr.No. 18/2022 against the above noted accused for the offences under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020.

The case of prosecution in nutshell are as follows:

2) That on 11.01.2022 at about 09.20AM, on the instructions of Joint

Director, Lw.1 to Lw.4 i.e., V. Thulasidas, K.V.R. Anjaneyulu, S.K. Mahaboob

Basha and K. Ramesh while conducting raids in search of Special

Enforcement offences had reached Mungamuru Village, Bogole Mandal,

SPSR Nellore Dist.

(ii) They saw accused having a white plastic can in his hand. Lw.4 stopped the alleged accused and on seeing the uniformed officials she tried - 2 - CC No. 634 of 2022 to escape from the alleged scene of offence. Lw.4 on suspicion stopped the alleged accused and detained her with assistance of Lw.1. After detaining the alleged accused, the Lw.2 enquired about the contents of the can, for which the alleged accused has admitted that the bag contained Liquor.

(iii) Lw.4 deputed Lw.1 to secure mediators, but since no one came forward to act as mediators, he examined the contents of the bag under the cover of Special Report. The plastic can contained 10 Lts of ID Liquor. On enquiry by Lw.4, the accused revealed her identity particulars. And after that 1 sample was taken duly sealed and labeled. After disclosing the grounds of arrest, the accused was arrested and the property was seized under the cover of Special Report by Lw.4. After that Lw.4 went to the Police Station and registered the case in Cr. No. 341/2021 u./s Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020.

(iv) During the course of investigation, the samples that were taken at the scene of offence, were sent to RFSL Guntur for analysis. The chemical examiner analysed the sample in SL No. 2383 as Illicit Distilled Liquor, unfit for human consumption and injurious to public health and in extreme cases it may lead to death. And after completion of investigation, charge sheet was filed.

3. Cognizance was taken for the offence under Section Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 and summons were issued to the Accused.

4. After appearance of Accused before the Court, copies of all documents were furnished to her as contemplated under Section 207

Criminal procedure Code.

- 3 - CC No. 634 of 2022

5. On consideration of entire material on record, accused was examined under section 239 of Criminal Procedure Code, a charge under

Section Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 is framed against her, explained the substance of accusation to the accused in Telugu, for which, she pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, listed witnesses, two of them were examined, i.e., P.W.1 to P.W.2 and got exhibited Exs.P.1 to P.3 and marked material objects Mo.1. The prosecution evidence was closed.

7. On closure of prosecution evidence, accused is examined under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, she denied the same and reported no defence evidence on her behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against accused that accused is entitled for acquittal.

11. Now the point that arise for determination is :

“Whether the prosecution is able to prove the guilt of accused

for the offence under Section Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020

beyond all reasonable doubts?” - 4 - CC No. 634 of 2022

POINT:

12. To prove the offence under Section Section 7(A) r/w 8 (e) of AP

Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 the prosecution has to establish that the accused herein was manufacturing, transporting, setting, 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. Prohibition Act.

13. According to the evidence of P.W.1 & P.W.2, on 11.01.2022 at about 09.20AM, on the instructions of Joint Director, Lw.1 to Lw.4 i.e., V.

Thulasidas, K.V.R. Anjaneyulu, S.K. Mahaboob Basha and K. Ramesh while conducting raids in search of Special Enforcement offences had reached

Mungamuru Village, Bogole Mandal, SPSR Nellore Dist.

(ii) They saw accused having a white plastic can in his hand. Pw.2 stopped the alleged accused and on seeing the uniformed officials he tried to escape from the alleged scene of offence. Pw.2 on suspicion stopped the alleged accused and detained him with assistance of Pw.1 After detaining the alleged accused, the Pw.2 enquired about the contents of the can, for which the alleged accused has admitted that the bag contained Liquor.

(iii) Pw.2 deputed Pw.1 to secure mediators, but since no one came forward to act as mediators, he examined the contents of the bag under the cover of Special Report. The plastic can contained 10 Lts of ID Liquor. On enquiry by Pw.2, the accused revealed his identity particulars. And after that 1 sample was taken duly sealed and labeled. MO.1 is the sample. After disclosing the grounds of arrest, the accused was arrested and the property was seized under the cover of Special Report by Pw.2. Ex. P1 is the Special - 5 - CC No. 634 of 2022

Report. After that Pw.2 went to the Police Station and registered the case in

Cr. No. 341/2021 u./s Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020. Ex. P2 is FIR.

(iv) During the course of investigation, the samples that were taken at the scene of offence, were sent to RFSL Guntur for analysis. The chemical examiner analysed the sample in SL No. 2383 as Illicit Distilled Liquor, unfit for human consumption and injurious to public health and in extreme cases it may lead to death. Ex. P3 is RFSL Report. And after completion of investigation, charge sheet was filed.

15. In the cross-examination Pw.1/Tulasidass has deposed that they did not secure mediators from the police station. He also deposed that there is a distance of ½ furlong from the scene of offence to Mungamuru Village.

He also deposed that there was a distance of ½ feet from the alleged can to the accused. He also deposed that they did not mention the names and particulars of persons who were requested to act as mediators and the reason why they did not come is not stated in the report.

16. Pw.2/K. Ramesh has deposed in cross examination that he reached the scene of offence at 09.10hrs. he also admitted that the scene of offence is 1 furlong away from the village. He also admitted that the names of person who were requested to act as mediators were not mentioned in

Ex. P1. He also admitted that the alleged contraband was not measured by any measuring device.

17. In view of the charge sheet, at the time of filing of the charge sheet that destruction orders were received from concerned authority. And destruction was done to the case property.

- 6 - CC No. 634 of 2022

18. The main issue involved in this case is whether the seizure as effected by the police officials is legal and is it in consonance with the provision of 100 (4) Cr.P.C. Section 100 (4) Cr.P.C lays down that before making a search, the officer or other person who is about to make it shall call upon two or more independent and respectable inhabitant of the locality in which place the search is conducted or of any other locality if no such inhabitants of the said locality are available or is willing to be a witness to the search to attend as witness to the search and may issue an order in writing to them or any of them to do so. Here in the present case in hand the evidence of P.W.1 or 2 does not disclose whether they tried to secure the independent respectable inhabitant of the locality by issuing written notice.

19. On perusal of entire evidence of P.W.1 to P.W.2, admitted that either Pw.1 or P.W.2 was not even able to mention the names of those persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by either Pw.1 or P.W.2. At this juncture, it is relevant to note a decision made in S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held:

‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the

Hon’ble High Court when there is seizure of

contraband’.

- 7 - CC No. 634 of 2022

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T (Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of Excise officials is interested, artificial and routine.

In this case on hand also, P.W.1 did not depose the convincing reasons for non-securing of the independent mediators from the locality. In this regard this court relied the decision in Botcha Raju v. State Rep. by

the Inspector of Police, Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.)

69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police Officers without the corroboration of the disinterested witnesses...”.

20. There is no sufficient material placed by the prosecution to that the accused possessed contraband. Therefore, the prosecution miserably failed to establish the guilt against the accused for the under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020. In the light of above discussion, and the evidence of P.W.1 and PW.2 being the police official and their evidence pertaining to Ex.P.1 above referred citations, accused is entitled for benefit of doubt.

- 8 - CC No. 634 of 2022

21. For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

22. IN THE RESULT, the Accused is found not guilty for the offence punishable under Section 7(A) r/w 8 (e) of AP Prohibition Act, 1995 amended 7(B) r/w 8(B) of act 18 of 2020 and accordingly, she is acquitted

Under Sec.248(1) Criminal Procedure Code. The bail bonds of the accused, if any, shall stand cancelled after expiry of appeal time. M.O.1 sample bottle shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer grade-III, corrected and

pronounced by me in the open court on this the 28th day of February 2025.

Additional Civil Judge,

(Junior Division), Kavali.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution: - For Defence:-

Pw.1:Tulasidas, the then Constable, Special -None- Enforcement Bureau

Pw.2:K.Ramesh, the then Inspector, Special Enforcement Bureau, Kavali

Exhibits marked

For Prosecution:-

Ex. P-1: Special Report dt.11/01/2022

Ex. P-2:First Information Report

Ex. P-3:RFSL report. For Defence :- NIL

Material objects:

For Prosecution:-

MO.1: Sample Bottle sent to RFSL for analysis.

Additional Civil Judge(Junior Division),

Kavali.

- 1 - CC No. 541 of 2019

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),

KAVALI.

Present: Sri G. Vikram Sinha,

Additional Civil Judge (Junior Division), Kavali

Friday, this the 28st (Twenty Eighth) day of February 2025

CALENDAR CASE No. 541 OF 2019

State: Sub-Inspector of Police,

Kavali II Town Police Station .. Complainant.

Vs

Muvvala Seshagiri Rao s/o Tirupalu age: 35 years

r/o. Thufan Nagar, Kavali Town .. Accused

This case has come up before me for final hearing in the presence of the learned Assistant Public Prosecutor for the state and Sri SX Kennedy, Advocate for accused, and the matter having heard on 21-02-2025 and stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

The Sub-Inspector of Police, II Town Police Station has filed charge sheet in Cr.No.36/2019 against the above noted accused for the offence under Section 304-A of Indian Penal Code, 1860 (herein after referred to as 'IPC') and Section 181 and 196 of Motor Vehicles Act.

The case of prosecution in nutshell are as follows:

2)On 21.03.2019 at about 20.45hours the deceased/Shaik Khaja

Mahaboob told Lw.1/Shaik Sharmila that he was going to bazar and left the home along with the accused on bike as pillion rider. Later at about 21.30hrs, while Lw.1 was at her house, the sister of the deceased Beebijan called Lw.1 over the phone and informed that the deceased met with an accident and was admitted in area Hospital, Kavali.

(ii) Then Lw.1 immediately rushed to the hospital and found he husband with severe blood injury to the head and in unconscious state. On - 2 - CC No. 541 of 2019 enquiring she came to know that the accused was riding his bike they met with an accident when they reached near church on the fly over bridge due to negligent and high speed riding of bike, the accused dashed the bike to the pavement in the result both fell down and her husband has received severe bleeding head injury to back side of his head and went in unconscious state and immediately her husband was shifted to area hospital kavali, and was shifted to Bollineni Hospital, Nellore. As the doctors examined him, he was declared brought dead. Later, Lw.1 went to PS on 22.03.2019 at 08.30 hours and filed a report.

(iii) On the report lodged by the Lw.1, Lw.13 registered a case in Cr.

No. 36/2019 under Section 304-A of Indian Penal Code, 1860 (herein after referred to as 'IPC') and Section 181 and 196 of Motor Vehicles Act.

4) On appearance of the accused, copies of documents relied upon by the prosecution were furnished to him as contemplated under Sec.207 of

Criminal Procedure Code, 1973, (herein after referred to as 'Cr.P.C.').

5) The accused was examined under Sec.251 of Cr.P.C. and substance of charge sheet contents for offence U/s.304-A of IPC and

Section 181 and 196 of Motor Vehicles Act were read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6) In order to prove the guilt of the accused, the prosecution has examined Pws.1 to 5 and got Exs.P-1 to P-5 marked. As PW 3 was only a witness for the inquest, and P.Ws.1,2,4 and 5 did not support the prosecution case, the learned Assistant Public Prosecutor given up the rest of the witnesses and closed the prosecution evidence.

- 3 - CC No. 541 of 2019

7) As there is no incriminating circumstances found in the evidence of the prosecution witnesses, examination of accused U/Sec. 313 of Cr.P.C., is dispensed with.

8) Heard arguments of the learned Assistant Public Prosecutor for the

State and the learned counsel for the accused.

9) Now the question that germane for consideration is:

Whether the prosecution is able to prove the offence

punishable under Sec. 304-A IPC and Section 181 and 196 of

Motor Vehicles Act against the accused beyond all

reasonable doubt?

10) POINT:

The case of the prosecution as per the charge sheet is that due to negligent act of the accused, who drove the TVS Apache bike having number AP 26 BB 1381 in rash and negligent manner and while driving the same caused the death of deceased/Shaik Khaja Mahaboob and thereby he committed the offence.

11) To prove the offence under Section 304-A IPC, the prosecution has to establish the following ingredients:

1. Whether the accused was the driver of the crime vehicle on the date of accident?

2. Whether the accident occurred due to the negligent act of the accused?

3. Whether the deceased died due to the negligent act of the accused?

12) As per the maxim EI INCUMBIT PROBATIO QUI DICIT NON QUI

NEGAT, it is principle that that the burden of proof is upon the party who substantially asserts the affirmative of the issue but not on the party who - 4 - CC No. 541 of 2019 denies. And moreover, in the case of Sarwan Singh Vs. State of Punjab,

AIR 1957 SC 637, Hon’ble Supreme Court has stated that in Criminal cases an accused is presumed to be innocent throughout the trial and burden of proof as to guilt of the accused beyond reasonable doubt will rest on the prosecution.

13) Therefore, the initial burden lies on the prosecution to establish its case beyond all reasonable doubt but not on preponderance of probabilities. To prove the case of prosecution, the prosecution examined the defacto complainant i.e., LW.1/Shaik Sharmila as PW.1 and marked Ex.

P1. Ex. P1 is the complaint/report of PW.1. PW. 1 is the wife of deceased and hearsay witness in the instant case, she deposed that on 21.03.2019 while she was at her house, the sister of the deceased Beebijan called Pw.1 over the phone and informed that the deceased met with an accident and was admitted in area Hospital, Kavali. Then she took her husband for better treatment as he was in a serious condition, as they were on the way her husband has passed away. She deposed that before the incident took place the accused came to the house and took the deceased with him. On that she went to the police station and gave a report. Ex. P1 is the report. She has deposed in her cross examination that the bike on which accident took place is her husbands bike. And she also deposed that she did not witness the accident.

14) Lw.5/Yellanti Sudhakar is eye witnesses in the instance case was examined as Pw.2 and he deposed that he do not know anything about the facts of the case and also deposed that police did not examine him. At that juncture, the learned APP requested the Hon’ble Court to permit her to put questions to witness in the nature of cross-examination and to declare him - 5 - CC No. 541 of 2019 as unfavourable witness as he resiled from his previous statement recorded under Section 161 Cr.P.C., and the same has been accorded. Even in the cross-examination, nothing was elicited by the learned A.P.P, except marking of one exhibit. Ex. P2 is the 161 statement of Pw.2.

15) The another eye witness ie., LW.4 was examined as PW.3 and he deposed that he do not know anything about the facts of the case and also deposed that police did not examine him. At that juncture, the learned APP requested the Hon’ble Court to permit her to put questions to witness in the nature of cross-examination and to declare him as unfavourable witness as he resiled from his previous statement recorded under Section 161 Cr.P.C., and the same has been accorded. Even in the cross-examination, nothing was elicited by the learned A.P.P, except marking of one exhibit. Ex. P3 is the 161 statement of Pw.3.

16) LW.7/Sanam Hari, who is the mediator for scene observation report was examined as Pw.4. He deposed that about 4 years ago, he went to scene of offence to act as mediator at the request of the police along with

Lw.6 and in their presence the police have observed the scene and prepared scene observation report and he has signed on it. Ex. P4 is the

Scene observation report. He deposed in his cross examination that he is the 18th ward TDP In charge and the said scene of offence comes under his ward.

17) Lw.10/Radhakrishna, who is the mediator for inquest over the dead body was examined as PW.5, who deposed that in the year 2019, on the request of the police he went to area hospital Kavali to act as Inquest

Mediator along with Lw.8 and 9. And in their presence inquest was conducted by the police and inquest report was prepared. He also deposed - 6 - CC No. 541 of 2019 that he has signed the inquest report. He has deposed in his cross examination that deceased is his colleague.

18) P.Ws.2 and 3 were declared hostile by the learned Assistant

Public Prosecutor with the permission of the Court and they were cross examined by her but they deposed nothing in favour of the prosecution. But, during their cross-examination also, nothing was elicited in support of this case, and moreover, Pws.1 and 4 denied their 161 Cr.P.C. statements under

Exs.P2 and P3 respectively.

19) Considering the evidence available on hand, this court finds that the defacto complainant, who is wife of deceased examined as PW.1 and other witnesses are examined as Pws.2 to 5 did not support the prosecution case and did not depose anything against the accused.

20) Although there is no dispute about the fact that the deceased died due to accident which is deposed by P.W.1 to 5, but the prosecution failed to establish as to how the accident has occurred.

21) Though the prosecution examined P.W.1, who is the wife of deceased and Pws.2 to 5, who are eye witnesses of the accident, mediators for inquest and scene observation, they have categorically stated that they do not know as to how the accident took place. In their depositions they have failed to prove any allegations which are present in the FIR or Charge sheet against the accused.

22) Further, the prosecution examined mediator for Inquest and scene observation and inquest as PWs4 and 5. The examination of PW.5 has only led to the evidence that accident took place and inquest of the deceased was performed in the presence of the PW. 5, but no substantial - 7 - CC No. 541 of 2019 piece of evidence has been given by the PW. 4 as to who drove the crime vehicle, and whether the crime vehicle was driven in a rash and negligent manner which caused the death of deceased. Moreover Pws.2 and 3 turned hostile and did not support the case of the prosecution, the prosecution has given up the rest of the witnesses including official witnesses as no purpose will be served.

23) In view of the foregoing discussion, there is no iota of evidence to connect the accused to the offence. The prosecution did not establish as to how the accused is involved in the said crime. It can be stated that ingredients of Sections 304-A IPC and Section 181 and 196 of Motor

Vehicles Act which is charged against the accused cannot be proved from the evidence available on hand, as all of the material witness turned hostile in the instant case. Therefore, this Court finds that the prosecution has failed to prove the case against the accused with which he is charged.

Hence, the accused is entitled to acquittal.

24) In the result, the accused is found not guilty for the offence punishable under Section 304-A IPC and Section 181 and 196 of Motor

Vehicles Act and accordingly he is acquitted under Section 255 (1) Cr.P.C., for the offence punishable under Sections 304-A IPC and Section 181 and 196 of Motor Vehicles Act. The bail bonds of the accused shall stand cancelled after the expiry of Six months. No need to pass a property order as no property is deposited in this case.

Typed to my dictation by the Stenographer grade-III, corrected and

pronounced by me in the open court on this the 28th day of February 2025.

Addl. Civil Judge (Junior Division) Kavali - 8 - CC No. 541 of 2019

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution: - For Defence:-

Pw.1:Shaik Sharmila -None-

Pw.2:Yellanti Sudhakar

Pw.3:Danyasi Melangi John

Pw.4:Sanam Hari

Pw.5:Radhakrishna

Exhibits marked

For Prosecution:-

Ex. P-1:Report of PW.1

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

Ex. P-3:Sec.161 Cr.P.C statement of Pw.3

Ex.P-4:Scene observation Report

For Defence :- NIL

Material objects:

Nil

Addl. Civil Judge (Junior Division) Kavali

- 1 - CC No. 516 of 2020

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),

KAVALI. Present: Sri G. Vikram Sinha,

Additional Civil Judge (Junior Division), Kavali

Friday, this the 28 st (Twenty Eighth) day of February 2025

CALENDAR CASE No.516 OF 2020

State: Sub-Inspector of Police,

Kavali II Town Police Station .. Complainant.

Vs

1. Sk.Akbar son of Babu, Aged about 38 years, Caste by Muslim

2. Muvvala Durga Rao son of Malakondaiah, Hindu, Aged about 30 years,

A1 and A2 are residents of Vengalarao Nagar,

Kavali Town, SPSR Nellore District. .. Accused

This case has come up before me for final hearing in the presence of the learned Assistant Public Prosecutor for the state and Sri A.Chandra Sekhar Rao, Advocate for accused, and the matter having heard on 19-02- 2025 and stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

The Sub-Inspector of Police, Kavali II Town Police Station has filed charge sheet in Cr.No.189/2020 against the above noted accused for the offences under Sections 337, 338 and 304-A of Indian Penal Code, 1860 (herein after referred to as 'IPC') and Sections 180 and 181 of MV Act

The case of prosecution in nutshell are as follows:

2)On 31.08.2020 in the morning hours the Lw.1/J. Ramanamma and the deceased/J. Singaiah went to Budamagunta colony for coolie works and after completion of the coolie work they boarded an auto rickshaw bearing number AP 39 TF 1402 at about 17.15hours to proceed to kavali. That at about 17.25hrs, at the entrance of kavali town, i.e., near DR Plots on - 2 - CC No. 516 of 2020

Udayagiri-Kavali rod, the driver Sk. Akbar, drove the said vehicle in a rash and negligent manner and tried to overtake a lorry and dashed Mahindra

SUV 500 car bearing number AP 04 UB 0495 of the Joint Collector, Kadapa coming from the opposite direction towards kaligiri. On that the auto turned turtle and all the passengers of the auto fell down and received injuries. On the said incident the neighbours have shifted them to area hospital kavali for treatment where the doctors declared the deceased has brought dead.

(ii) On the hospital admission intimation and statement of Lw.1 a case in Cr. No. 189/2020 was registered u/s 304A, 337 of IPC by Lw.17. during the course of investigation Lw.17 visited the scene of offence and recorded the statements of the witnesses and prepared rough sketch and held inquest of the dead body in presence of mediators and handed over the dead body to the relatives. The Lw.17 continued the investigation and has given 41-A

Cr.P.C notice to the accused. As the accused did not possess any valid driving license section 181 of MV Act was added. And the owner of the auto rickshaw Muvvala Durga Rao knowingly gave auto to an unlicensed person, so offence accused no. 2 was added for section 180 of MV Act.

(iii) On 15.09.2020, Lw.17 obtained postmortem certificate from Lw.14 and the cause of death was written as due to “Hypovolemia and Cardiogenic

Shock”. On 19.09.2020, Lw.17 has obtained would certificate from Lw.13 who rendered treatment to Lw.1 and opined that injuries were simple and

Grievous in nature. As the injuries were Grievous in nature, Lw.17 has added section 338 of IPC. On 28.09.2020, Lw.17 obtained accident report from

Lw.15, who inspected crime vehicle and opined that “Accident occurred not due to any Mechanical defect of the crime vehicle”.Hence chargesheet was filed against the A1 and A2.

- 3 - CC No. 516 of 2020

3) After perusal of the record, the case was taken cognizance for the offences U/Sec.304-A, 337 and 338 IPC and Section 181 of MV Act against

A1 and Section 180 of MV Act against A2 by my learned predecessor.

4) On appearance of the accused, copies of documents relied upon by the prosecution were furnished to them as contemplated under Sec.207 of

Criminal Procedure Code, 1973, (herein after referred to as 'Cr.P.C.').

5) The accused were examined under Sec.251 of Cr.P.C. and substance of charge sheet contents for offences U/Sec. 337, 338 and 304-A

IPC and Section 181 of MV Act against A1 and Section 180 of MV Act against A2 were read over and explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried.

6) In order to prove the guilt of the accused, the prosecution has examined Pws.1 to 3 and got Exs.P-1 to P-3 marked. The learned Assistant

Public Prosecutor given up the rest of the witnesses and closed the prosecution evidence.

7) As there is no incriminating circumstances found in the evidence of the prosecution witnesses, examination of accused U/Sec. 313 of Cr.P.C., is dispensed with.

8) Heard arguments of the learned Assistant Public Prosecutor for the

State and the learned counsel for the accused.

9) Now the question that germane for consideration is:

Whether the prosecution is able to prove the offence punishable under Sections 337, 338 and 304-A IPC and Section 181 of MV Act against A1 and Section 180 of MV Act against A2 respectively beyond all reasonable doubt?

- 4 - CC No. 516 of 2020

10) POINT:

The case of the prosecution as per the charge sheet is that due to negligent act of A1, who drove the auto which belonged to A2(owner) in rash and negligent manner and caused the death of deceased/J. Singaiah and thereby he committed the offence.

11) To prove the offence U/Sec. 337,338 and 304-A IPC and Section 181 of MV Act against A1 and Section 180 of MV Act against A2, the prosecution has to establish the following ingredients:

1. Whether A1 was the driver of the crime vehicle on the date of accident?

2. Whether the accident occurred due to the negligent act of c A1?

3. Whether the deceased died due to the negligent act of A1?

4. Whether A2 knowingly gave the crime vehicle to A1, who is unlicenced person?

5. Whether A3 , failed to insure the crime vehicle as original owner of the crime vehicle

12) As per the maxim EI INCUMBIT PROBATIO QUI DICIT NON QUI

NEGAT, it is principle that that the burden of proof is upon the party who substantially asserts the affirmative of the issue but not on the party who denies. And moreover, in the case of Sarwan Singh Vs. State of Punjab,

AIR 1957 SC 637, Hon’ble Supreme Court has stated that in Criminal cases an accused is presumed to be innocent throughout the trial and burden of proof as to guilt of the accused beyond reasonable doubt will rest on the prosecution.

- 5 - CC No. 516 of 2020

13) Therefore, the initial burden lies on the prosecution to establish its case beyond all reasonable doubt but not on preponderance of probabilities.

To prove the case of prosecution, the prosecution examined the defacto complainant i.e., LW.1 as PW1, she deposed that about 4 years ag, herself and the deceased travelled in an auto and met with an accident. On that herself and her husband fell down and sustained injuries. She sustained fracture to her left hand and after that she lost consciousness and after gaining consciousness, she was in hospital. She noticed that her husband has received bleeding injury and he did on spot. She also deposed that she doesn’t know who drove the car which hit the auto. She also deposed that police recorded her statement and examined her. Ex. P1 is the statement.

She also deposed that she doesn’t know the accused.

14) Pw.2/J. Srinu who is the witness have deposed that he doesn’t know anything about the facts of the case and also deposed that police did not examine him. At that juncture, the learned APP requested the Hon’ble

Court to permit her to put questions to witness in the nature of cross- examination and to declare him as unfavourable witness as he resiled from his previous statement recorded under Section 161 Cr.P.C., and the same has been accorded. Even in the cross-examination, nothing was elicited by the learned A.P.P, except marking of one exhibit. Ex. P2 is the 161 statement of Pw.2.

15) Pw.3/K. Vasantharao has deposed that on 01.09.2020, he went to

Govt Hospital, Kavali to se the deceased. Police requested him along with

Lw.11 and Lw.12 t act as inquest mediators. On that inquest was conducted in their presence and report was filed. He signed the said report. Ex. P3 is the Inquest Report.

- 6 - CC No. 516 of 2020

16) The Pw.1 had elicited noting in the chief examination as she did not disclose a mere fact that the accused drove the alleged vehicle, but deposed that she met with an accident and due to the said accident, her husband received injuries and died on spot. She also deposed that she doesn’t know who the accused was. P.Ws.2 was declared hostile by the learned Assistant Public Prosecutor with the permission of the Court and they were cross examined by her but they deposed nothing in favour of the prosecution. But, during their cross-examination also, nothing was elicited in support of this case, and moreover, they denied the 161 Cr.P.C. statements under Exs.P2.

17) Considering the evidence available on hand, this court finds that the defacto complainant as PW.1. Pws.2 to 3 are the independent witnesses of the scene of occurrence did not support the prosecution case and did not depose anything against the accused.

18) Although there is no dispute about the fact that the deceased died due to accident which is deposed by P.Ws.1 to 3, but the prosecution failed to establish as to how the accident has occurred.

19) Though the prosecution examined P.Ws.1 to 3, who are defacto complainant and independent eye witnesses of the accident, they have categorically stated that they do not know as to how the accident took place.

In their depositions they have failed to prove any allegations which are present in the FIR or Charge sheet against the accused.

20) Further, the prosecution examined mediator for inquest as PW.3.

The examination of PW. 3 has only led to the evidence that accident took place and inquest of the deceased was performed in the presence of the - 7 - CC No. 516 of 2020

PW. 3, but no substantial piece of evidence has been given by the PW.3 as to who drove the crime vehicle, and whether the said vehicle was driven in a rash and negligent manner which caused the death of deceased. Moreover

Pws.1 to 3 turned hostile and did not support the case of the prosecution, the prosecution has given up the rest of the witnesses including official witnesses as no purpose will be served.

21) In view of the foregoing discussion, there is no iota of evidence to connect the accused to the offence. The prosecution did not establish as to how the accused is involved in the said crime. It can be stated that ingredients of Section 304-A, 337 and 338 IPC and Section 181 of MV Act against A1 and Section 180 of MV Act against A2, which are charged against the accused cannot be proved from the evidence available on hand, as all of the material witness turned hostile in the instant case. Therefore, this Court finds that the prosecution has failed to prove the case against the accused with which he is charged. Hence, the accused is entitled to acquittal.

22) In the result, A1 is not found guilty for Sections 337, 338 and 304-A

IPC and Section 181 of MV Act and A2 is not found guilty for Section 180 of

MV Act and accordingly they are acquitted under Section 255 (1) Cr.P.C., for the offence punishable under Sections 337,338 and 304-A IPC and Section 181 of MV Act against A1 and Section 180 of MV Act against A2. The bail bonds of the accused shall stand cancelled after the expiry of Six months.

No need to pass a property order as no property is deposited in this case.

Typed to my dictation by the Stenographer grade-III, corrected and

pronounced by me in the open court on this the 28th day of February 2025.

Additional Civil Judge (Junior Division),

Kavali.

- 8 - CC No. 516 of 2020

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution: - For Defence:-

Pw.1:J.Ramanamma -None-

Pw.2:J.Srinu

Pw.3:Kavali Vasantha Rao

Exhibits marked

For Prosecution:-

Ex. P-1:Statement of PW.1

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

Ex. P-3:Inquest Report

For Defence :- NIL

Material objects:

Nil

Additional Civil Judge (Junior Division),

Kavali.

- 1 - CC No. 85 of 2023

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE FIRST CLASS

KAVALI

Present: Sri G. Vikram Sinha,

Additional Judicial Magistrate First Class, Kavali.

Friday, this the 28th (Twenty Eight) day of February 2025

CALENDAR CASE No. 85 OF 2023

State: Sub-Inspector of Police,

Bitragunta Police Station .. Complainant.

Vs

Morla Seenaiah s/o. Venkaiah age: 55 years, r/o. Pathabitragunta village, Bogole Mandal,

SPSR Nellore Dist. .. Accused

This case has come up before me for final hearing in the presence of the learned Assistant Public Prosecutor for the state and Sri N Rishi Kumar, Advocate for accused, and the matter having heard on 28.02.2025 and stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

The Sub-Inspector of Police, Bitragunta Police Station has filed charge sheet in Cr. No. 133/2019 against the above noted accused for the offences under Section 34(A) of AP Excise Act.

The case of prosecution in nutshell are as follows:

2) That on 14.03.2019 at about 09.30AM, Lw.4/T. Aruna Kumari has conducted raid along with Lw.1 to Lw.3 i.e., P. Venkateshwarulu D.

Ramanaiah and Ch. Sudhakar Reddy at Pathabitragunta village of Bogole

Mandal.

- 2 - CC No. 85 of 2023

(ii) They saw the accused was having plastic bag in his right hand. On seeing uniformed officials, he tried to flee away but they caught hold of the alleged accused. The accused confessed that he is having liquor bottles.

Since no one was willing to act as mediators, Lw.4 enquired about the contents of the bag, and it contained 10 – Old Tavern Gold Whisky 180ml bottles. And from the aforementioned 1 sample was drawn and after disclosing grounds of arrest, the accused was given 41-A Cr.P.C notice and remaining liquor bottles were sealed as per police proceedings.

(iii) After that Lw.4 went to the Police Station and registered the case in Cr. No. 133/2019 u./s 34(A) of AP Excise Act. On the same day Lw.4 went to the scene of offence and prepared a Rough Sketch. And after receiving chemical analysis report by Lw.6 at Sl. No. 48388 as Indian Liquor, and after completion of investigation Lw.6 has filed chargesheet in the instant case.

3. Cognizance was taken for the offence under Section 34(A) of AP

Excise Act and summons were issued to the Accused.

4. After appearance of Accused before the Court, copies of all documents were furnished to him as contemplated under Section 207

Criminal procedure Code.

5. On consideration of entire material on record, accused was examined under section 239 of Criminal Procedure Code, a charge under Section 34(A) of AP Excise Act is framed against him, explained the substance of accusation to the accused in Telugu, for which, he pleaded not guilty and claimed to be tried.

- 3 - CC No. 85 of 2023

6. The prosecution, in order to prove its case, listed witnesses, two of them were examined, i.e., P.W.1 and P.W.2 and got exhibited Exs.P.1 to P.4 and marked material object Mo.1. As the Learned Assistant Public

Prosecutor has given up the evidence of Lw.2, Lw.3, Lw.5 and Lw.6, the prosecution evidence was closed.

7. On closure of prosecution evidence, accused is examined under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, he denied the same and reported no defence evidence on his behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against accused that accused is entitled for acquittal.

11. Now the point that arise for determination is :

“Whether the prosecution is able to prove the guilt of accused

for the offence under Section 34(A) of AP Excise Act beyond all

reasonable doubts?”

POINT:

12. To prove the offence under Section 34(A) of AP Excise Act the prosecution has to establish that the accused herein was transporting, exporting, importing, manufacturing, collecting or possessing any intoxicants in contravention of A.P. Excise Act.

- 4 - CC No. 85 of 2023

13. According to the evidence of P.W.1 & P.W.2, on 14.12.2019 at about 09.30AM, Pw.2/T. Aruna Kumari has conducted raid along with Pw.1,

Lw.2 to Lw.3 i.e., P. Venkateshwarulu D. Ramanaiah and Ch. Sudhakar

Reddy at Pathabitragunta village of Bogole Mandal.

(ii) They saw the accused was having plastic bag in his right hand. On seeing uniformed officials, he tried to flee away but they caught hold of the alleged accused. The accused confessed that he is having liquor bottles.

Since no one was willing to act as mediators, Pw.2 enquired about the contents of the bag, and it contained 10 – Old Tavern Gold Whisky 180ml bottles. And from the aforementioned 1 sample was drawn and after disclosing grounds of arrest, the accused was given 41-A Cr.P.C notice and remaining liquor bottles were sealed as per police proceedings. Ex. P1 is the Police Proceedings. MO. 1 is the sample bottle.

(iii) After that Pw.2 went to the Police Station and registered the case in Cr. No. 133/2019 u./s 34(a) of AP Excise Act. Ex. P2 is FIR. On the same day Pw.2 went to the scene of offence and prepared a Rough Sketch. Ex.

P3 is the Rough Sketch. And after receiving chemical analysis report by

Lw.6 at Sl. No. 48388 as Indian Liquor, and after completion of investigation

Lw.6 has filed chargesheet in the instant case. Ex. P4 is the RFSL Report.

14. In the cross-examination Pw.1/P. Venkateshwarulu has deposed that they have received credible information but the same fact is not stated in Ex. P1. He deposed that there is a distance of 7 – 8 kms from the scene of offence to the police station and it takes 25 minutes to reach the scene of offence from the police station. He deposed that they went to scene of offence at 10.00hrs, per contra it is written in FIR that they have received information at 11.30hrs. He admitted that scene of offence is a residential - 5 - CC No. 85 of 2023 area. He also admitted that the have tried for mediators, but the said fact is not stated in the Ex. P1. He also admitted that there is no signature of accused on the Ex. P1 or MO.1.

15. Pw.2/T. Aruna Kumari has deposed in cross examination that they have not secured mediators. He admitted that scene of offence is a residential area. He admitted that the Manufacturing date and the Batch numbers is not written in Ex. P1. She also admitted that the signature of accused is not taken on Mo.1. She also admitted that she has not drawn samples from each bottle. She has also admitted that she has requested to act as mediator and the reason for refusal is not stated in Ex. P1.

16. In view of the charge sheet, at the time of filing of the charge sheet no destruction orders were received from concerned authority. And destruction was not done to the case property.

17. The main issue involved in this case is whether the seizure as effected by the police officials is legal and is it in consonance with the provision of 100 (4) Cr.P.C. Section 100 (4) Cr.P.C lays down that before making a search, the officer or other person who is about to make it shall call upon two or more independent and respectable inhabitant of the locality in which place the search is conducted or of any other locality if no such inhabitants of the said locality are available or is willing to be a witness to the search to attend as witness to the search and may issue an order in writing to them or any of them to do so. Here in the present case in hand the evidence of P.W.1 or 2 does not disclose whether they tried to secure the independent respectable inhabitant of the locality by issuing written notice.

- 6 - CC No. 85 of 2023

18. On perusal of entire evidence of P.W.1 to P.W.2, admitted that either Pw.1 or P.W.2 was not even able to mention the names of those persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by either Pw.1 or P.W.2. At this juncture, it is relevant to note a decision made in S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held:

‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the

Hon’ble High Court when there is seizure of

contraband’.

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T (Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of Excise officials is interested, artificial and routine.

- 7 - CC No. 85 of 2023

In this case on hand also, P.W.1 did not depose the convincing reasons for non-securing of the independent mediators from the locality. In this regard this court relied the decision in Botcha Raju v. State Rep. by

the Inspector of Police, Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.)

69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police Officers without the corroboration of the disinterested witnesses...”.

19. There is no sufficient material placed by the prosecution to that the accused possessed contraband. Therefore, the prosecution miserably failed to establish the guilt against the accused for the under Section 34(A) of AP Excise Act. In the light of above discussion, and the evidence of P.W.1 and PW.2 being the police official and their evidence pertaining to Ex.P.1 above referred citations, accused are entitled for benefit of doubt.

20. For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

21. IN THE RESULT, the Accused is found not guilty for the offence punishable Section 34(A) of AP Excise Act and accordingly, they are acquitted Under Sec.248(1) Criminal Procedure Code. The bail bonds of the accused, if any, shall stand cancelled after expiry of appeal time. Case property, if any, shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer grade-III, corrected and

pronounced by me in the open court on this the 28th day of February 2025.

Additional Civil Judge

(Junior Division), Kavali.

- 8 - CC No. 85 of 2023

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution: - For Defence:-

Pw.1:P.Venkateswarlu, the then Constable, -None- Bitragunta P.S.,

Pw.2:T.Aruna Kumari, the then Incharge SI of Bitragunta P.S.,

Exhibits marked

For Prosecution:-

Ex. P-1: Police proceedings dt.14.12.2019

Ex. P-2:First Information Report

Ex. P-3:Rough Sketch

Ex. P-4:RFSL report.

For Defence :- NIL

Material objects:

For Prosecution:-

MO.1: Sample Bottle sent to RFSL for analysis.

Additional Civil Judge

(Junior Division), Kavali.