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IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,
PROHIBITION AND EXCISE, CHITTOOR
Monday, the 24th day of April, 2023.
Present: Sri K.RAVI, B.Com.,M.L., Spl. Judl. Magistrate of I Class for Excise, Chittoor * * *
C.C.NO. 860 of 2022
Between: The SubInspector of Police, Thavanampalle PS. Cr.No.37/2022.
...Complainant
Vs.
Mogarala Purnachandra Reddy, age 40 years, S/o M.Jagadeeswar Reddy, Kotha Gonepalle Village, Thavanampalle Mandal, Chittoor District.
...Accused.
This case coming before me in the presence of the learned Assistant Public Prosecutor for complainant and of Sri V.Govindarajulu, Advocate for the accused, upon hearing both sides, upon perusing the record and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The SubInspector of Police, Thavanampalli P.S. filed charge sheet in
Cr.No.37/2022 of his station alleging as follows: On 19.03.2022 at 03.00 PM on information LW4/B.Prasad, SI of Police along with LW1/K.Sudhakar and
LW2/P.Jayakrishna, Police Constables reached near Chigurakulapalli Junction,
Thavanampalli Mandal, Chittoor District and found one car coming opposite to them. On seeing the police vehicle, the driver of the said vehicle stopped his car at some distance and attempted to escape by reversing his car. On suspicion,
LW4/B.Prasad, SI of Police along with his staff stopped the said car and caught hold him and questioned him. He confessed that he is transporting liquor packets. On verification of the car, they found 4 boxes and they further found 48 tetra packets 2 of Original Choice Deluxe Whisky of 180 ml each in two boxes ie., 96 packets and 48 tetra packets of Original Choice Deluxe Whisky of 90 ml each in two boxes ie., 96 packets total 192 packets. Hence the accused was arrested and the property was seized under the cover of Police Proceedings after drawing one packet from each brand as samples. A case in Cr.No.37/2022 was registered under Section 34(a) r/w 34(1) of the A.P. Excise Act and investigated into. The accused was sent to the
Court for remand. On 08.04.2022 the samples were sent for chemical analysis.
LW3/K.Ramadevi, Chemical Examiner, Regional Prohibition and Excise Laboratory,
Chittoor issued report opining that the samples are Indian Made Liquor. Hence, the charge.
2.The case was taken on file for the offence under Section 34(a) r/w 34(1) of the A.P. Excise Act against the accused and registered as C.C.No.860/2022.
On appearance of accused, copies of documents furnished to him as required under
Section 207 Cr.P.C.
3.The accused was examined under Section 239 Cr.P.C. He denied the offence. A charge under Section 34(a) r/w 34(1) of the A.P. Excise Act was framed against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
4.On behalf of the prosecution, PWs.1 and 2 are examined and Exs.P1 to
P4 and MO.1 and MO.2 are marked.
5.After the closure of evidence on the side of the prosecution, the accused was examined under Section 313 Cr.P.C., explaining the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, 3 for which, he denied the same. No witnesses were examined and no documents marked on behalf of the accused.
6.Heard the learned Assistant Public Prosecutor and the learned counsel
for the accused. Perused the record.
7.Now the point that arises for determination is:
Whether the prosecution could prove the guilt of the accused for the charge under Section 34(a) r/w 34(1) of the A.P. Excise Act beyond reasonable doubt?
8.POINT:
It is the case of the prosecution that the accused was found in possession of 96 tetra packets of Original Choice Deluxe Whisky of 180 ml each and 96 tetra packets of Original Choice Deluxe Whisky of 90 ml each and thereby committed an offence under Section 34(a) r/w 34(1) of the A.P. Excise Act.
9.To prove its case, the prosecution examined PWs.1 and 2 and got marked Exs.P1 to P4 and MO.1 and MO.2. P.W.1 and PW.2 are the police officials.
Ex.P.1 is the Police Proceedings, Ex.P.2 is the F.I.R., Ex.P.3 is the Chemical
Examiner's Report and Ex.P4 is the letter addressed to the Superintendent of Police,
Chittoor for issuing destruction orders. MO.1 and MO.2 are the sample packets.
10.It is the evidence of PW.1 Police Constable that on 19.03.2022 at about 3.00pm, on information received by PW2, they along with LW.1 proceeded at
Chigurakulapalli Village. At Chigurakulapalli Cross they found a car coming and on suspicion they searched the said car. They found four cardboard boxes of liquor in the dicky of the car. In two boxes they found 96 liquor bottles of 180ml each. In another two boxes they found 196 liquor bottles of 90ml each. Explaining the 4 grounds of arrest, the accused was arrested and the property was seized under the cover of police proceedings.
11.It is the evidence of PW.2 Head Constable that on 19.03.2022 at about 2.30pm, on information, he along with his staff proceeded to
Chigurakulapalli Junction and were conducting vehicle checking. At that time they found a Tata indica Car and on suspicion they searched the said car. When enquired
the driver of the car ie.. accused disclosed his identity particulars. They found four
cardboard boxes in the dicky of the car. They found 48 bottles of Original Choice
Deluxe Whisky in each box. Explaining the grounds of arrest, the accused was arrested and the property was seized under the cover of E.xP1 Police Proceedings after drawing two bottles as samples vide Mos.1 and 2. He registered Ex.P1 as a case in Cr.No.37 of 2022 under Section 34(a) r/w 34(1) of the A.P. Excise Act and issued Ex.P2 F.I.R. He sent M.O.1 and 2 to the Chemical Examiner, Chittoor who issued Ex.P3 report opining that the same are Indian made liquor. He addressed
Ex.P4 letter to the Superintendent of Police, Chittoor, for issuing destruction orders.
12.According to the prosecution, the accused was found at
Chigurakulapalli Junction, Thavanampalli Mandal, Chittoor District proceeding in a car with card board boxes in suspicious circumstances and on search, PW.2 found 96 tetra packets of Original Choice Deluxe Whisky of 180 ml each and 96 tetra packets of Original Choice Deluxe Whisky of 90 ml each in the said boxes. To prove its case, the prosecution is relying on the evidence of PWs.1 and 2 only who are the police officials. The prosecution did not cite any independent person as a witness.
Now the question is whether the evidence of PWs.1 and 2 who are the police officials can be relied on without there being any independent evidence. In this connection, it is necessary to refer to the decision of the Hon’ble High Court of A.P.
5 reported in T.RAMBABU BULLI AND ANR. V. THE STATE OF A.P., 2009(3) LS 340. It is a case wherein the accused therein committed the offence under Section 8(c) r/w 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act. The
Hon’ble High Court held at paragraph No.9 as follows:
There is no dispute about the proposition that a conviction can be based on the testimony of police witnesses even though no independent witnesses were examined on behalf of the prosecution. However, whether the evidence of police witnesses warrants conviction or not depends upon the facts and circumstances of each case. If really, the circumstances indicate that it was not possible for the arresting police officer to secure the mediators at a given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However, when there is ample opportunity for the police officer to secure the presence of mediators and he fails to do so, it can be considered as a lapse on the part of the Investigating agency. In the instant case, the appellants were arrested in a busy locality and on the Christmas Day. The evidence of PWs.1 to 3 clearly indicates that no effort was made by PW2 to secure any mediators. PW1, the Police Constable stated in his evidence that at the time of arrest of the appellants there were no mediators at all with them and they did not search for any mediators. Whereas PW2, the Inspector of police stated in his evidence that they tried to secure the mediators but nobody was available. The evidence of PW3, the SubInspector of Police also indicates that no attempt was made to secure the mediators and he specifically stated that he did not personally go to the bus stand to search for the mediators. Thus, even though there was ample opportunity for PW2 to secure mediators with the help of police personnel who followed him, he did not make any attempt to secure the presence of the mediators and under these circumstances, it is quite unsafe to place reliance on the evidence of PWs.1 to 3 who are the police witnesses and more particularly, when PW1 specifically stated in his chief examination itself that there were no mediators with them at all and they also did not search for any mediators.
So, as per the above decision, if the witnesses are police officials and if there is opportunity for them to secure mediators and if they did not make any attempt to secure the presence of the mediators, then it is not safe to place reliance on the evidence of such police officials.
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13.In the instant case, as already stated supra, the prosecution is relying only on the evidence of PWs.1 and 2 who are the police officials. Now it is to be seen whether PWs.1 and 2 have got any opportunity to secure mediators and if yes, whether they made any attempt to secure mediators. According to the prosecution, the search was alleged to have been done at Chigurakulapalli Junction,
Thavanampalli Mandal, Chittoor District. In the crossexamination PW1 admitted that Chigurakulapalli Village is near to the scene of offence. PW2 deposed in his crossexamination that there are villages surrounding Chigurakulapalli. When it is so, PW2 got every opportunity of securing the persons in Chigurakulapalli or the surrounding villages by deputing his staff to the said places. But PW2 did not made any such efforts. The same is evident from the crossexamination of PW1 and PW2 wherein they deposed that they did not made any efforts to secure mediators. When there is possibility to secure independent mediators at the scene of offence, PW.2 without securing them and without utilizing their services at the time of search of accused and seizure of property, continued the proceedings under the cover of
Police Proceedings. The above circumstances go to show that even though PW.2 got opportunity to secure mediators, he did not make any attempt to secure mediators. When it is so, in view of the above decision of the Hon’ble High Court of
A.P., no reliance can be placed on the evidence of PWs.1 and 2.
14.Further the said act of PWs.1 and 2 in not securing independent mediators at the scene of offence makes the search illegal for noncompliance of
Section 100(4) Cr.P.C. The same was laid down in a decision reported in
GAJAMKER NARAYANA V. STATE OF A.P., 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 PW.1, the Excise Sub Inspector, discloses that there are residential houses at a distance of 25 yards from the 7 scene of offence. There are hotels also near the scene of offence. As per the evidence of PW.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 PW.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 PW.1 nor that of PW.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. 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 excise officials while seizing the plastic can containing I.D. Liquor. Therefore, the seizure made in this case is illegal.
In the above decision, the seizure was made at Bypass Road, Rangadampalli near
Siddipet which is a public place and on account of the failure of the Excise Officials in securing independent respectable inhabitants of the locality, the Hon’ble High
Court held that the provisions of Section 100(4) Cr.P.C are not followed and therefore, the search is illegal. In the instant case also, the seizure was made at
Chigurakulapalli Junction, Thavanampalli Mandal, Chittoor District without making any efforts for securing independent mediators of the locality. Hence the seizure made in this case is illegal in view of the above decision of our Hon’ble High
Court. The only basis for the prosecution for its case against the accused is his confession before PW2, but the same is hit by Sections 25 and 26 of the Indian
Evidence Act and hence, it cannot be taken into consideration.
15.According to the prosecution, the accused was alleged to have been found in possession of 96 tetra packets of Original Choice Deluxe Whisky of 180 ml each and 96 tetra packets of Original Choice Deluxe Whisky of 90 ml each. But, according to the prosecution, only one packet from each brand were drawn as samples and the same were sent to the Chemical Examiner, Chittoor who opined 8 that the same are Indian Made Liquor. When the Chemical Examiner gave opinion about two packets, it applies to those packets only and it cannot be applied to the remaining packets as well. Further the prosecution did not produce the remaining packets before the Court. The prosecution has to produce all the packets and also has to prove that the remaining packets also contain liquor. The same was laid down in a decision reported in MUDAVATH MOTHIA V. STATE OF A.P., 2002(1)
ALT (CRL.) 437 (A.P.) wherein it was held at paragraph No.5 as follows:
5.……… Moreover, only one sample of sachet was produced before the Court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I.D. liquor and it is not proved.
In the instant case also, as already stated supra, the prosecution neither produced all the packets nor proved that all the packets contain liquor.
16.Further, the prosecution failed to comply Section 55 of the A.P. Excise
Act, 1968 which reads as follows: “55. POWERS OF ENTRY WITHOUT SEARCH WARRANT:
Whenever, a Commissioner or a Collector or any Police Officer, not below the rank of an officerincharge of a Police Station or any [Prohibition and Excise Officer] not below the rank of a [Prohibition and Excise SubInspector] has reason to believe that an offence under
Section 34, Section 35, Section 36 or [Section 37 or Section 37A] has been, is being or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or concealing evidence of the offence, he may, after recording the grounds of his belief:
(a)at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation 9 under this Act; and
(b)detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
17.Nothing has been produced on record that the searching officials conducted search after having recorded the grounds that an offence under Sections 34A of the A.P. Excise Act, 1968 has been, is being or likely to be committed by the accused and that the search warrant cannot be obtained without affording the offender of an opportunity of escape or concealing the evidence of the offence.
18.Hon’ble Supreme Court in circumstance as in this case in
K.L.SUBHAYYA V. STATE OF KARNATAKA, 1979 AIR 711 while dealing with the case arose under Sec.54 of the Mysore Excise Act where the Inspector who searched the car of the appellant had not made any record of any grounds on the basis of which he had a reasonable belief that an offence under the Act was being committed before proceeding to search the car held that the provisions of Section 54 were not at all complied with.
19.Hon’ble Supreme Court in that decision has further observed that the nonrecording the grounds on the basis of which he had a reasonable belief that an offence under the Act was being committed before proceeding to search the car renders the entire search without jurisdiction and as a logical corollary vitiates the conviction.
It is further observed that both Sections 53 and 54 of Mysore Excise Act contain 10 valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment.
20.The Hon’ble High Court in Y.SREENIVASUL REDDY V. STATE OF
A.P., 2002(1) ALD (CRL.) 347 (AP) while referring to K.L.SUBHAYYA V. STATE
OF KARNATAKA (supra) held that the Supreme Court approved the ground which was rejected by the High Court and held that there was a direct noncompliance of the provisions of Section 54 which renders the search completely without jurisdiction and thus conviction and sentence were set aside and the appeal was allowed.
21.In the absence of any record produced on record that Section 55 of the
A.P. Excise Act, 1968 has been followed, it is required to notice that the searching officials have not made any record of any grounds on the basis of which, they had a reasonable belief that an offence under the A.P. Excise Act, 1968 was being committed before proceeding to the search of the alleged car of the accused and thus, the provisions of Section 55 of the A.P. Excise Act, 1968 were not complied with.
22.According to the prosecution the seizure of the samples was made on 19.03.2022. But Ex.P3 Chemical Examiner’s Report reveal that the samples were sent to the Chemical Examiner on 10.04.2022. It means, there is delay in sending the samples to the Chemical Examiner. No explanation is coming forth from the prosecution for the said delay. This is another lacuna in the case of the prosecution.
23.In view of the above discussion, this Court is of the opinion that the prosecution failed to prove the guilt of the accused for the charge under Section 34(a) r/w 34(1) of the A.P. Excise Act and he is to be acquitted.
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24.In the result, the accused is found not guilty for the charge under
Section 34(a) r/w 34(1) of the A.P. Excise Act and he is acquitted under Section 248(1) Cr.P.C for the said charge. The bail bonds of the accused on record shall be treated as bail bonds executed under Sec.437A Cr.P.C to secure the appearance of the accused before the Higher Court in case of any appeal against the judgment of this court and the same shall be in force for six months. MO.1 and MO.2 – Sample packets which were deposited in C.P.R.No.283/2022 shall be destroyed after expiry of appeal time.
Typed to my dictation by Stenographer Grade III, corrected and
pronounced by me in the Open Court, this the 24th day of April, 2023.
SPL. JUDL. MAGISTRATE OF I CLASS FOR EXCISE,
CHITTOOR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:FOR DEFENCE: NONE P.W.1: P.Jayakrishna, Police Constable P.W.2: B.Prasad, SI of Police
DOCUMENTS MARKED
FOR PROSECUTION:FOR DEFENCE: NIL
Ex.P1/19.03.2022 : Police Proceedings Ex.P2/19.03.2022 : First Information Report Ex.P3/22.04.2022: Chemical Examiner's Report Ex.P4/ : Letter addressed to the Superintendent of Police, Chittoor
MATERIAL OBJECTS MARKED
MO.1 and MO.2 : Sample Packets.
Spl. J.M.F.C., 12
IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,
PROHIBITION AND EXCISE, CHITTOOR
CALENDER CASE NO. 860/2022
Date of offence:19.03.2022 Date of complaint:19.03.2022 Date of taken on file:28.05.2022 Date of apprehension of accused:25.08.2022 Date of commencement of trial:14.03.2023 Date of close of trial:21.03.2023 Date of sentence of order:24.04.2023 Complainant:The SubInspector of Police, Thavanampalle PS. Cr.No.37/2022.
Accused:
Mogarala Purnachandra Reddy, age 40 years, S/o M.Jagadeeswar Reddy, Kotha Gonepalle Village, Thavanampalle Mandal, Chittoor District.
Nature of offenceunder Section 34(a) r/w 34(1) of the A.P. Excise Act
Plea of the accusedPleaded not guilty.
Finding of the courtFound not guilty
Sentence of Order : In the result, the accused is found not guilty for the charge under Section 34(a) r/w 34(1) of the A.P. Excise Act and he is acquitted under Section 248(1) Cr.P.C for the said charge. The bail bonds of the accused on record shall be treated as bail bonds executed under Sec.437A Cr.P.C to secure the appearance of the accused before the Higher Court in case of any appeal against the judgment of this court and the same shall be in force for six months. MO.1 and MO.2 – Sample packets which were deposited in C.P.R.No.283/2022 shall be destroyed after expiry of appeal time.
Sd/K.Ravi Spl. Judl. Magistrate of I Class for Excise, Chittoor.