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CC. No. 511 of 2019
IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE ::
VIKARABAD:: RANGA REDDY DISTRICT
Present: Smt. Kavitha Kamalapuram, Judicial First Class Magistrate, Vikarabad, R.R. District.
Dated, this the 28 th day of September, 2021
C.C. No. 511 OF 2019
Between: The State of Telangana through SHO, Police Station, Nawabpet. … Complainant A N D
Anthappaguda Badrappa, S/o: Shivarajappa, aged about 50 years, Occ: Kirana Business, R/o: Gangyada Village of Nawabpet Mandal. … Accused
This case is coming before me for final hearing in the presence of APP for the State and of Sri. M. Gopal Reddy, Advocate
for the Accused, upon perusing the material papers on record, on
hearing both sides and having stood over for consideration till this day, this Court delivered the following:
::J U D G M E N T::
1. The Sub-Inspector of Police, P.S. Nawabpet, filed a charge sheet against the Accused in Crime No. 70 of 2019 for the offence punishable
U/Sec. 34 (a) of A.P. Excise Act, 1968.
2. The brief facts of the case are that :
On 19.06.2019 during evening hours, LW6/K. Krishna, S.I. of Police
P.S. Nawabpet received credible information from Gangyada Village of
Nawabpet Mandal that some persons are selling liquor without having any valid license from the Government Authorities. On receipt of the information, while raiding the Kirana Shop of the Accused he was illegally selling the liquor without having any permission from the concerned authority. They found 1) King Fisher Beers 650 ml. (18) bottles, 2)
Aristocrat Premium 360 ml. (6) bottles, 3) Aristocrat Premium 180 ml. (11) bottles, 4) MC Dowell's 750 ml. (1) bottle, 5) MC Dowell's 360 ml. (3) bottles, 6) MC Dowell's 180 ml. (8) bottles, 7) Imperial Blue 180 ml. (4) bottles, 8) Officer Choice 180 ml. (30) bottles and 9) Officer Choice 90 ml.
(8) bottles and conducted scene -cum- seizure panchanama in the presence of two mediators. Basing on the panchanama, LW6/K. Krishna,
S.I. of Police registered a case in Crime No. 70/2019, U/Sec. 34 (a) of A.P.
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Excise Act, 1968. During the course of investigation, he examined and recorded the statements of LW1/G. Chandraiah, HC 125, LW2/C.
Srishailam, PC 4679 & LW3/P. Dharma Reddy, PC 5569. On 19.06.2019 he effected the arrest of the Accused and produced him before the Hon'ble
Court for judicial remand. After completing the investigation, he filed charge sheet against the Accused.
3. Cognizance was taken for the offence punishable U/Sec. 34 (a) of
A.P. Excise Act, 1968 against the Accused.
4. On appearance of the Accused, copies of documents were furnished to him as required U/s 207 of Cr.P.C. The Accused was examined U/Sec.
239 of Cr.P.C. He denied the allegations. Charge U/Sec. 34 (a) of A.P.
Excise Act, 1968 was framed against the Accused, read over and explained to him. He pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution has examined PWs. 1 to 6 and got marked Exs. P1 to P4. PWs. 1 to 3 are the Police Officials who assisted the Investigating Officer/PW6, PWs. 4 & 5 are the mediators for scene of offence -cum- seizure panchanama and PW6 is the Investigating
Officer.
6.After closure of the prosecution evidence, the Accused was examined U/Sec. 313 Cr.P.C. and he denied the incriminating material against him. No defence evidence is adduced. The plea of the Accused is total denial.
7.Heard both sides and perused the record.
8. Now the point for consideration is:-
Whether the prosecution has proved the guilt of the
Accused beyond all reasonable doubt for the offence U/Sec. 34 (a)
of A.P. Excise Act, 1968?
POINT:
9. PW1/G. Chandraiah, H.C. 125, has deposed that on 19.06.2019
PW6/S.I of Police received credible information about illegal sale of liquor at Gangyada Village. On that information, he along with PWs. 2, 3 & 6 proceeded to the said Village to the Kirana Shop of the Accused. When they reached the said Shop, there were customers present who were purchasing the said liquor and the said Accused was also present in the 3 of 9
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Shop. On search, they found 18 bottles of Kingfisher beer, 02 Aristocratic full bottles, 13 liquor bottles of small quantity, 36 Officer Choice bottles, 01 full bottle of Imperial Blue and 4 bottles of MC Dowels. PW6 conducted panchanama in the presence of two mediators and seized the contraband and the Accused to the Police Station. PW1 identified the Accused present
in the Court hall as the same person who was present in the Kirana Shop
at the time of offence. In his cross-examination, PW1 has stated that there were only 5 Kirana Shops at Gangyada Village. He further stated that he cannot say the batch numbers and manufacturing company name of the said bottles. He further stated that he cannot say the house number, where the said Kirana Shop is situated. He agreed that he did not state in his 161 Cr.P.C. statement, how many customers were present at the Kirana Shop who purchased the liquor bottles from the said Shop and by the time, they reached the said Shop, the customers in the said
Kirana Shop left the place and they did not see. That the Kirana Shop was not having any name. He further stated that he cannot say the names of the neighbours or the boundaries of the said Kirana Shop. He further stated that the said contraband was recovered from the refrigerator and in carton boxes also and that there were two carton boxes, each carton has a capacity of 12 bottles and that the refrigerator was of Godrej company, but the refrigerator was not seized. He further denied all the suggestions put to him by the defence counsel.
10. PW2/C. Srisailam, P.C. 4679, has deposed that on 19.06.2019
Pw6/S.I. of Police received credible information about illegal sale of liquor at Gangyada village. On that information, he along with PW1, 3 & 6 proceeded to the said Village to the Kirana shop of the Accused. On seeing them, the said person who was conducting illegal sale tried to escape from the scene. Then, they caught hold of the Accused. When they reached the said shop, there were customers who were purchasing the said liquor and the said Accused was also present in the shop. On search, they found 18 bottles of King Fisher beer, 180 ml. (30) bottles, 18
Officer Choice bottles and 8 bottles of MC. PW6 conducted panchanama in the presence of two mediators and seized the contraband and the
Accused and went to the Police Station along with contraband, the
Accused and case papers. PW2 identified the Accused as the same person who was present in the Kirana Shop at the time of offence. In his cross- examination, PW2 stated that they reached the Shop of the Accused at about 03:00 P.M. and that their S.I. seized the contraband. He agreed that 4 of 9
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except the above mentioned contraband, he does not know if any other contraband was seized. He further agreed that what he stated in his 161
Cr.P.C. statement is same as the chief and that he does not know what quantity was written by PW6 in his 161 Cr.P.C. statement. He further stated that he cannot say the batch numbers and manufacturing company of the said contraband. He further stated that there were no general public present at the shop when they reached and that he did not enquire with the neighbours whether the Shop belongs to the Accused and that he cannot say the name of the said Kirana Shop. He further stated that he has seen the Accused after the date of the present offence as his Shop is present on the road. He further stated that he cannot say the house number of the said Shop. He further denied all the suggestions put to him by the defence counsel.
11. PW3/P.Dharma Reddy, P.C. 5569, has deposed that on 19.06.2019 he along with PWs. 1, 2 and their S.I. of Police/PW6 proceeded to
Gangyada as PW6 received credible information about illegal sale of ID liquor at Gangyada Village. One person was present in the Kirana Shop and on seeing them, the said person tried to flee away from the place and on search, they found 18 bottles of King fisher beers of 650 ml. each,
Aristocrat premium 6 bottles of each 360 each, Aristocrat premium 11 bottles of 180 ml. each, Mac Dowels of one bottle of 720 ml., 3 bottles of 360 ml. & 8 bottles of 180 ml. each, Imperial Blue (4) bottles of 180 ml.
each and Officer Choice (30) bottles of 180 ml. each & 36 bottles of 90 ml.
of each. PW6 called two mediators and seized the said contraband and drafted the panchanama and they returned back to the station along with the case papers, contraband and the Accused. PW3 identified the
Accused as the same person who was present in the shop and tried to run away, but was caught by the Police. In his cross-examination PW3 has stated that his statement was recorded at 09:30 P.M. by their S.I./PW6 and that there is no time mentioned as to when his 161 Cr.P.C. statement is recorded and that he did not state in his 161 Cr.P.C. statement, the time when they went to the Gangyada Village to the said Kirana Shop and that he did not state in his 161 Cr.P.C. statement that their S.I./PW6 called the mediators. He stated that he cannot say the house number, where the said Shop was being run and that he cannot say the manufacturing date or batch numbers of the above contraband. He further agreed that he cannot say the boundaries of the said Kirana Shop and that himself,
PWs.1 & 2 caught the Accused while he was trying to escape from the 5 of 9
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Shop and that he did not state the names of the Police personnels who caught hold of the Accused while he was trying to escape from Kirana
Shop in his 161 Cr.P.C. statement. He stated that he does not know the mediators called by PW6. PW3 adds that he can recognize them. He further stated that he did not state that he can recognize the mediators in his 161 Cr.P.C. statement and that he has no prior acquaintance with the
Accused and that he did not state about the physical features of the
Accused in his 161 Cr.P.C. statement. PW3 adds that as they apprehended the Accused, he did not state the same and that on the date of the present offence, they went only to one Kirana Shop and that he cannot say how many Kirana Shops are there in the said Village. He further stated that he cannot say the Sumo Registration number in which they went to the scene. He further denied all the suggestions put to him by the defence counsel.
12. PW4/K. Raghavendar who is the mediator for scene of offence -cum- seizure panchanama under Ex.P1, has deposed that on 19.06.2019 he went to Police Station on his personal work. At that time, Pw6 received credible information about illegal sale of liquor at Gangyada Village and he asked him and PW5 to accompany them to the said Village as mediators. They went to the Shop of one Bhadrappa/Accused and on seeing them, one person tried to escape from the Shop, but he was apprehended by the Police. On search of the Shop, they found liquor bottles i.e. Kingfisher 18 beer bottles, Officer Choice 30 bottles, Officer
Choice of 180 ml. (30) bottles, MC Diet one bottle and other liquor bottles were seized from the said shop in their presence. The said person confessed that he previously sold liquor bottles and there are cases against him. PW4 identified the Accused as the said person who was in the Kirana Shop at the time of the offence. In his cross-examination, PW4 has stated that Lingampally Village is situated one stop before Gangyada
Village. He agreed that he does not know the villagers of Gangyada
Village. He further stated that he does not know the Accused. He further agreed that he frequently goes to the Police Station. He further stated that he cannot say the house number or the Shop number of said Kirana
Shop and that he cannot say the boundaries of the said Shop. He further agreed that he stated in his chief-examination as told by the Police and that he does not know the contents on Ex.P1 and no panchanama was conducted in his presence. He further stated that he put his signature on
Ex.P1 at the Police Station and that he does not know whether they 6 of 9
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obtained his signature on written papers or white papers as he did not observe the same. He further agreed that he did not see the Accused at the scene and that no property was seized in his presence and that the
Accused did not confess before him. He further stated that he identified the Accused at the instance of Police and that he does not know the facts of the case. As PW4 himself stated that he put his signature on Ex.P1 at
Police Station and no panchanama was conducted in his presence and no property was seized, his evidence cannot be consider.
13. PW5/B. Bal Reddy who is the mediator for scene of offence -cum- seizure panchanama under Ex.P1, turned hostile and has stated that he does not know any facts of the case and no panchanama was conducted in his presence. Around 3 years back when he was at his Village, Police
Officials obtained his signatures under Ex.P2 on some white papers.
Though, PW5 was cross-examined by the learned APPO, no useful material could be elicited to support the prosecution case.
14. PW6/K. Krishna, Investigating Officer, has deposed that on 19-06- 2019 during evening hours, he received credible information about illegal sale of Liquor at Gangyada Village and on that information, he along with his staff PWs. 1 to 3 proceeded to the said Village. There, he secured
PWs.4 & 5 and proceeded to the shop of the Accused. By the time, they reached the Accused was present in the shop. On search of the shop, they found 1). Kingfisher beers 650 ml. (18) bottles, 2). Aristocrat premium 360 ml. (6) bottles, 3). Aristocrat premium 180 ml. (11) bottles, 4). MC Dowell's 750 ml. (1) bottle, 5). MC Dowell's 360 ml. (93) bottles, 6).
MC Dowell's 180 ml (8) bottles, 7). Imperial blue 180 ml. (4) bottles, 8).
Officer Choices 180 ml. (30) bottles, and 9). Officer Choice 90 ml. (36) bottles and seized them under cover of panchanama under Ex.P3. Basing on Ex.P3, he registered a case in COR No. 70/2019, U/Sec.34 (a) of A.P.
Excise Act and issued FIR under Ex.P4. He examined and recorded the statements of PWs. 1 to 3 and after completion of investigation, he filed charge sheet against the Accused U/Sec. 34(a) of A.P. Excise Act. In his cross-examination, PW6 has agreed that in Ex.P4 column No.3(b) the time is mentioned as 21:00 hours i.e. 09:00 P.M. He stated that they returned back to the station from the scene at 21:00 hours and that he registered a case at 09:00 P.M. and that Ex.P3 was conducted at 07:30 P.M. He further stated that he cannot say how many Kirana Shops are in Gangyada
Village and that he secured the panchas at the Police Station and that 7 of 9
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there were no customers present at the Shop of the Accused when they reached there and that there was no specific mention as to who caught hold of the Accused. He further agreed that he did not mention the name of the Shop or Shop number as there was no name or number and that he did not enquire with the Kavalkar or Sarpanch with regard to the ownership of the Shop and did not file any record before the Court pertaining to the ownership of the Shop and that he did not mention in
Ex.P3 the manufacturing numbers or batch numbers of the seized contraband. He stated that he did not mention in Ex.P3 the exact places where the contraband was seized from the Shop. He further stated that
PW1 did not state before him as to how many customers were present at the Shop when they reached the shop. He further agreed that the time when they reached the scene is not stated in the statements of PWs. 1 to 3 and that he did not examine the neighbours at the scene. He further denied all the suggestions put to him by the defence counsel.
15.From the above evidence and record, it is clear that the Police did not examine the neighbors at the scene, Sarpanch or Kavalkar of
Gangyada Village to prove the occupancy of the Accused over the said
Kirana Shop. Admittedly, the Police did not secure any document to show that the Accused is the occupant of said Kirana Shop. As the Police did not secure any document to show the occupancy of the Accused over the said premises, this court holds that the prosecution failed to connect the
Accused with the premises, where the alleged contraband is said to have been recovered. The Hon’ble High Court at Hyderabad in the decision reported in 2003(1) ALD Criminal 805 (A.P) between T. Subbanna
V/s. State of Andhra Pradesh held, “that where the ownership or possession of the Accused is not established over the place of offence and where the independent mediators i.e. PW4 did not support the prosecution case and PW5 turned hostile, no conviction can be recorded for the offence U/Sec. 34(a) of A.P. Excise Act, 1968 on the version of official witnesses”.
16.Further, the case of the prosecution is rested upon the versions of
PWs. 1 to 3 and 6 who are the Police officials. Since, the independent mediators examined as PWs. 4 and 5 did not support the prosecution case, the Scene -cum- Seizure Panchanama under Ex.P1 is not proved in accordance with law. When the independent witnesses did not support the case, it is highly unsafe to rely upon the versions of PWs.1 to 3 and 6 8 of 9
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who are the Police officials interested in the outcome of the prosecution of the Accused.
17.The prosecution failed to prove the scene -cum- seizure panchanama under Ex.P1 recorded in the presence of PWs. 4 and 5. From the evidence on record, it is clear that the Police did not examine the neighbours at the scene or any eye witnesses that the Accused was selling the contraband illegally. Hence, the prosecution failed to connect the Accused with the alleged offence. It is a settled law that where the mediators i.e. PW4 did not support the prosecution case and PW5 turned hostile, and recovery of any contraband from the possession of the
Accused is not proved, no conviction can be recorded for the offence on the version of official witnesses. In the light of the above discussion, it is held that the prosecution failed to prove the guilt of the Accused for the offence U/Sec. 34 (a) of A.P. Excise Act, 1968 beyond all reasonable doubt and thus, the Accused is entitled for an acquittal.
18.IN THE RESULT, the Accused is found NOT GUILTY for the offence
U/Sec. 34 (a) of A.P. Excise Act, 1968 and he is acquitted of the same
Under Section 248 (1) of Cr.P.C. The property, deposited into this court
Vide C.P.R. No. 257/2019 i.e., samples of (9) liquor bottles shall be destroyed after expiry of appeal time.The bail bonds of the Accused shall stand discharged after expiry of six months as under section 437-A Cr.P.C.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in open Court on this the, 28th Day of September,
2021.
JUDL. FIRST CLASS MAGISTRATE
VIKARABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PROSECUTION DEFENCE
PW1:- G. Chandraiah -None- PW2:- C. Srisailam PW3:- P. Dharma Reddy PW4:- K. Raghavendar PW5:- B. Bal Reddy PW6:- K. Krishna 9 of 9
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EXHIBITS MARKED FOR
PROSECUTION DEFENCE
Ex.P1: Signature of Pw4 on scene -cum- seizure -NIL- -cum- confession panchanama Ex.P2: Signature of Pw5 on on scene -cum- seizure -cum- confession panchanama Ex.P3: Scene -cum- seizure -cum- confession panchanama Ex.P4: First Information Report
MATERIAL OBJECTS MARKED
-NIL-
JUDL. FIRST CLASS MAGISTRATE
VIKARABAD.