K.Ravi

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, BAPATLA

Monday, the 22nd day of June, 2020

Present:- Sri K.RAVI, B.Com.,M.L., Addl. Judl. Magistrate of I Class, Bapatla

C.C.NO. 116/2020

Between:

State Proh. & Excise Inspector, Bapatla ...Complainant

Vs.

Angadi Ramana...Accused

This case coming before me in the presence of the learned Assistant Public Prosecutor for complainant and of Sri S.Kusalav, 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 Prohibition & Excise Inspector, Bapatla filed charge sheet in C.R.No.234/2019 of her station alleging as follows: On 5.9.2019, as per the orders of the Assistant Commissioner, Prohibition & Excise, Guntur, LWs.1 to 4 K.Wilson Babu, Proh. & Excise Constable, K.Srinivasa Reddy, Proh. & Excise Constable, A.Bhavani, Proh. & Excise Inspector and P.S.Maruthi, Proh. & Excise Sub Inspector of ESTF, Tenali and Enforcement, Guntur along with other staff, while conducting patrolling for prohibition and excise offences, they reached the place which is situated near 1st Gang, Viveka Vidyasramam, Stuvartpuram Village at 6.30 a.m. There, they found the accused sitting by holding a white plastic can in her right hand and on seeing the excise officials in uniform, she got perturbed and tried to run away. Hence, the accused was detained and on enquiry, she admitted that she was in possession of I.D. Arrack in the can held by her. LW.4 Prohibition & Excise Sub Inspector sent LW.1 Constable to bring mediators who after some time returned and reported that none came forward to act as mediators. On verification of the can, they found it to be 10 liters capacity can containing full of I.D. Liquor. 180 ml of I.D. Liquor was drawn as sample from the can and kept the remaining I.D. Liquor in the same can, tied the same, sealed and affixed identity slips to the sample bottle and the plastic can. The accused was arrested and the property was seized under the cover of Special Report. The Sub-Inspector of Police (LW.4) returned to Prohibition and Excise Station, Bapatla and handed over the accused and case property to LW.5 Md.Y.Sharif, Proh. & Excise Sub Inspector. LW.5 Md.Y.Sharif, Proh. & Excise Sub Inspector registered the Special Report as a case in CR.No.234/2019 under Section 7(a) r/w. 8(e) of the A.P. Prohibition Act, 1995. The sample bottle was sent to the Analyst for analysis who gave report opining that the same is Illicit Distilled Liquor, unfit for human consumption. The Deputy Commissioner, Prohibition & Excise, Guntur was addressed for issuing confiscation orders with regard to the remaining property. Hence the charge.

2.The case was taken on file for the offence under Section 7-A r/w. 8(e) of the A.P. Prohibition Act, 1995 against the accused and registered as C.C.No.116/2020. On appearance of accused copies of documents furnished to her as required under Section 207 Cr.P.C.

3.The accused was examined under Section 239 Cr.P.C. She denied the offence. A charge under Section 7-A r/w. 8(e) of the A.P. Prohibition Act, 1995 was framed against the accused, read over and explained to her in Telugu, for which she pleaded not guilty and claimed to be tried.

4.On behalf of the prosecution, PW.1 to PW.3 were examined and Exs.P1 to

P4 and MO.1 were 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 her in the evidence of the prosecution witnesses, for which, she 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 7-A r/w. 8(e) of the A.P. Prohibition Act, 1995 beyond reasonable doubt?

8.POINT:- It is the case of the prosecution that the accused was found in possession of 10 liters of I.D. Arrack without any license or permit and thereby committed an offence under Section 7-A r/w. 8(e) of the A.P. Prohibition Act, 1995.

9.To prove its case, the prosecution examined PW.1 to PW.3 and got marked Exs.P1 to P4 and M.O.1. P.W.1 to PW.3 are the excise officials. Ex.P.1 is the Special Report, Ex.P.2 is the F.I.R., Ex.P.3 is the Chemical Examiner's Report and Ex.P.4 is the proceedings issued by the Deputy Commissioner, Guntur. M.O.1 is the sample bottle.

10.It is the evidence of P.W.1 and PW.3 that while conducting raids on 5.9.2019 at about 6.30 a.m., they proceeded to the place situated near 1st Gang, Viveka Vidyashramam, Stuvartpuram. There they found the accused holding a white plastic can in her right hand. On seeing them in uniform, the accused tried to escape and hence, she was detained. When enquired the accused disclosed her identity particulars and further confessed that the can contains I.D. Arrack. PW.1 deputed PW.3 to secure mediators who after sometime returned and informed that none came forward to act as mediators. PW.1 verified the can and found it to contain 10 liters of I.D. Arrack. 180 ml of I.D. arrack was drawn as sample for chemical analysis and got both sealed and affixed identity slips to them. Explaining the grounds of arrest, the accused was arrested and the property was seized under the cover of Ex.P.1 Special Report. The accused, case property and case record were handed over to PW.2. It is the evidence of PW.2 that he registered Ex.P.1 as a case in CR.No.234/2019 under Section 7-A r/w. 8(e) of the A.P. Prohibition Act and issued Ex.P.2 F.I.R. He sent MO.1 sample bottle to the Chemical Examiner, Guntur who issued Ex.P.3 report to the effect that the sample is Illicit distilled liquor, unfit for human consumption. He sent proposals to the Deputy Commissioner for confiscation orders and he issued Ex.P.4 proceedings.

11.To prove its case, the prosecution is relying on the evidence of PW.1 to PW.3 who are the excise officials. The prosecution did not cite any independent person as a witness. Further, the alleged search was not done in the presence of two or more independent and respectable inhabitants of the locality. In this connection it is necessary to refer to Section 100(4) Cr.P.C which reads as follows:- “... PERSONS IN CHARGE OF CLOSED PLACE AT ALLOW SEARCH: (1).......................... (2)........................ (3).......................

(4)before making a search under this chapter, the officer or 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 situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.........”.

So as per Section 100(4) Cr.P.C., the search is to be done in the presence of two or more independent or respectable inhabitants of the locality, in which the place to be searched is situate. In this case, the search was alleged to have been done near 1st Gang, Viveka Vidyashramam, Stuvartpuram Village. It is not the case of the prosecution that there is no possibility of securing any person at that place to act as mediator. According to PW.1 and PW.3, they made efforts to secure mediators in the vicinity, but none came forward to act as mediators. But, they did not state the names of the persons who were asked to act as mediators. When the local inhabitants refused to act as mediators, nothing prevented PW.1 to secure the presence of the Government Officials to act as mediators. It is not the case of the prosecution that there are no Government Officials near the scene of offence. At first, PW.1 should try to secure the presence of the persons of that locality and if they refused to act as mediators, then notices in writing to be given to them and even if they did not respond, then they should made efforts to secure the presence of the officials to act as mediators and when they are also not available, then only as a last resort, the proceedings to be continued under the cover of Special Report. But, PW.1 did not issue any notice in writing to any of the persons to act as mediators and did not make any efforts to secure the government officials as mediators. Without issuing any notice and without making any efforts to secure the government officials as mediators, PW.1 continued the proceedings under the cover of Special Report. The above circumstances go to show that PW.1 did not make any efforts to secure the presence of the witnesses of that locality at the time of search and arrest of the accused. Since the search is not conducted in the presence of two or more independent and respectable inhabitants of the locality, the entire search conducted by the prosecution is vitiated. The only basis for the prosecution to base its case against the accused is her confession before PW.1. But the same is hit by Sections 25 and 26 of the Indian Evidence Act and hence, it cannot be taken into consideration.

12.According to the prosecution, the accused was alleged to have been found in possession of 10 liters of I.D. Arrack. But, as per the evidence of PW.2, only 180 ml of I.D Arrack each was sent to the Chemical Examiner, Guntur who opined that the same is Illicit Distilled Liquor, unfit for human consumption. But, the prosecution did not produce the remaining I.D. Arrack and according to it, they addressed letter to the Deputy Commissioner, Proh. & Excise, Guntur for issuing destruction orders and he issued Ex.P.4 proceedings. But, no document is filed to show that the remaining I.D. Arrack was destroyed. Hence, the non-production of the remaining I.D. Arrack is also another lacuna in the case of the prosecution.

13.In view of the above discussion and since the mandatory provisions of Section 100(4) Cr.P.C. are not followed, this Court is of the opinion that the prosecution failed to prove the guilt of the accused for the charge under Section 7-A r/w. 8(e) of the A.P. Prohibition Act and he is to be acquitted.

14.In the result, the accused is found not guilty for the charge under Section 7-A r/w. 8(e) of the A.P. Prohibition Act and he is acquitted under Section 248(1) Cr.P.C for the said charge. The bail bonds of the accused shall remain in force for a period of six months. MO.1 Sample Bottle which was deposited in C.P.R.No.241/2019 shall be destroyed after expiry of appeal time. Typed to my dictation, correct and pronounced by me in the Open Court, this the 22nd day of June, 2020.

Sd/-K.Ravi

ADDL. JUDL. MAGISTRATE OF I CLASS,

BAPATLA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: NONE

P.W.1: P.S.Maruthi, P&E Sub-Inspector

P.W.2: Md.Y.Sharif, P&E Sub-Inspector

P.W.3: K.Wilson, P&E Constable

DOCUMENTS MARKED

FOR PROSECUTION:FOR DEFENCE: NIL

Ex.P1/5.9.2019: Special Report

Ex.P2/5.9.2019: F.I.R

Ex.P3/: Chemical Examiner's Report

Ex.P4/ : Proceedings issued by the Deputy Commissioner, Guntur

MATERIAL OBJECTS MARKED

MO.1 : Sample Bottle ild/-K.Ravi

A.J.M.F.C.,

IN THE COURT OF THE ADDL.JUDL.MAGISTRATE OF I CLASS, BAPATLA

CALENDAR AND JUDGMENT

CC NO.116/2020

DISTRICT: GUNTUR

DATE OF

OffenceFilingApprehenReleasedCommenceClosure of Sentence sionon bailment of trialtrialor order 5.9.201920.12.1910.3.2020---10.6.202012.6.202022.6.2020 Explanation for the delay:- This case was taken on file on 20.12.2019. Copies were furnished to the accused and he was examined u.s.239 Cr.P.C on 10.3.2020. On 10.6.2020 P.Ws 1 and 2 were examined and Exs.P1 to P4 and M.O.s 1 and 2 marked. On 12.6.2020 P.W.3 was examined. APP given up the evidence of other witnesses. Prosecution evidence is closed. On 19.6.2020 accused was examined u.s.313 Cr.P.C. on 22.6.2020 Judgment

pronounced. Hence, no delay.

Name of the complainant: State: Proh &Excise Inspector, Bapatla in CR No.234/2019 Names of the accusedFather's name CallingReligion Age village Angadi Ramana w/o.Ramulu, aged about 49 years, R/o.1st gang, Stuvartpuram village, Bapatla mandal. Nature of offence: 7-A r/w.8(e) of A.P Prohibition Act Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, the accused is found not guilty for the charge under Section 7-A r/w. 8(e) of the A.P. Prohibition Act and he is acquitted under Section 248(1) Cr.P.C for the said charge. The bail bonds of the accused shall remain in force for a period of six months. MO.1 Sample Bottle which was deposited in C.P.R.No.241/2019 shall be destroyed after expiry of appeal time.

Sd/-K.Ravi

ADDL.JUDICIAL MAGISTRATE OF I CLASS,

BAPATLA

Copy Submitted to: 1.The Chief Judl. Magistrate, Guntur. 2.The Superintendent of Police, (Rural) Guntur.