Smt K.Saradamba

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE –CUM- II

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS: KOVVUR

Present : Smt. K. Saradamba,

II Addl. Junior Civil Judge – cum - II Addl. Judl. Magistrate of I Class, Kovvur Monday, this the 17th day of April, 2023.

C.C.No.228/2021

Between:

State represented by Sub Inspector of Police, Gopalapuram Ps. …Complainant.

And

Kukkala Subrahmanyam @ Subba Rao, S/o Rama Rao, aged 40 years, Vellachintalagudem village of Gopalapuram mandal

...Accused

This case coming on 13.04.2023 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of

Sri M.P.R.R, Advocate for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Gopalapuram PS filed charge sheet against the accused for the offence punishable under section 7(b) R/w 8

(b) of A.P. Prohibition (Amd) Act 2020 in Crime No.178/2020.

That on 08.11.2020 about 6.30 PM, having received the credible information, Lw.6 SI of police along with his staff and mediators proceeded to Vellachintalagudem village and reached to outskirts of the village leading to Gollagudem road and noticed the accused while coming on Honda Shine Motor cycle bearing registration No. AP 37 BT 7850 having a bag on the petrol tank, on seeing the police he tried to escape from there, then the police detained him and on examination of bag, it contain 10 liters of ID arrack in 2 plastic packets, each containing 5 liters capacity. On questioning the accused confessed that he purchased the said ID arrack from unknown person at Lakshmipuram village with a view to sell the same at higher price. Then LW.6 seized the ID arrack and lifted sample towards chemical examination purpose under cover of mediator report and brought the seized material along with accused to the police station. Later he registered a case in Cr.No.178/2020 under section 7(b)

R/w 8 (b) of APP (amendment) Act basing on the mediator report and sent the accused for judicial remand. Later, LW.6 forwarded the samples for chemical examination Kakinada through proper channel and obtained analysis report vide C.E.No.2743/2020, dated 18.11.2020, wherein the chemical examiner opined that the samples are illicitly distilled liquor and unfit for human consumption and injuries to health. After completion of investigation, LW.6 filed charge sheet against the accused.

2. This case was taken on file Under Section 7(b) R/w 8 (b) of A.P.

Prohibition (Amendment) Act 2020 and numbered as CC 228/2021

3. On appearance of accused copies of documents were furnished to him as contemplated under section 207 of Cr.P.C.

4. The Accused was examined Under Section 239 Cr.P.C, the charge

Under Section 7(b) R/w 8 (b) A.P. Prohibition (Amendment) Act 2020 was framed, read over explained to him in Telugu and the same was denied by

Accused and claimed to be tried.

5. To prove the case of the prosecution, the prosecution examined

Pw.1 and 2, out of 6 witnesses and marked Ex. P1 to P3 and MO.1 through them. The evidence of the Lws 1 to 3 and 5 was given up by the prosecution.

6. After closure of the Prosecution evidence, accused was examined

U/Sec.313 Cr.P.C., explaining to him about the incriminating material evidence available in the Prosecution evidence, for which, he denied as being false and pleaded not guilty and reported no defence evidence.

7. Heard both sides.

8. The learned Assistant Public Prosecutor argued that the evidence of Pws 1 and 2 clearly establishes the guilt of the accused and hence the accused are liable for convection.

9. The learned counsel for accused contended that, since there are no independent witnesses for arrest and seizure of I.D liquor from the accused, the evidence of P.W.1 and 2 are not believable and not trustworthy. Hence the prosecution failed to prove the guilt of the accused and as such the accused is entitled for acquittal.

Now the points for consideration are:

i) Whether accused was found in possession of 10 liters of I.D.Liquor in a 2 packets and thereby committed the offence under Sec. 7(b) R/w 8 (b) of A.P. Prohibition.Act?

iii) Whether the prosecution ablelly proved guilty of the accused beyond all reasonable doubts or not?

10. Point no.1:

PW.1, B.Kanaka Durga Rao, VRO deposed that on 08.11.2020 the police called him to act as mediator and accordingly he along with his VRA proceeded to road leading to Gollagudem in Vellachintalagudem village and there the police found the accused with the possession of 10 liters of

ID arrack in 2 packets. On questioning the accused confessed that he purchased the above said ID liquor from unknown person of

Lakshmipuram village with a view to sell the same at higher price. Then the police seized the ID arrack and lifted sample. He prepared the mediatot report. During cross examination he stated that the mediator report not contains its boundaries and scribe name to show that he prepared the mediator report. He further stated that the accused put his signature on the seizure slip affixed to the sample bottle.

12. PW.2 is the investigation Officer, he deposed that 08.11.2020 at about 6.30 PM, having received the credible information, he along with staff members as well as mediators proceeded to Vellachintalagudem village and reached to the outskirts of the village and found the accused having possession of 10 liters of ID arrack in 2 packets each containing 5 liters of ID liquor while coming on Honda Shine motor cycle and on questioning the accused confessed that he purchased the ID arrack from unknown person at Lakshmipuram village with a view to sell the same at higher prices. Then he seized the said arrack and lifted the sample towards chemical examination purpose, sealed affixed under the cover of mediator report. Later he returned to the station along with accused and seized material and registered a case in Cr.No.178/2020 under section 7(b) R/w 8 (b) of APP Act and sent the accused for judicial remand. Later he sent the sample for laboratory for analysis purpose and obtained analysis report and after completion of investigation, he filed charge sheet. Ex. P2 to P3 are marked through him.

13. Basing on the evidence available on record, the accused confessed before the police. The accused confessed before the police in presence of the mediators. Basing on the confessional statement, they found the liquor with the possession of the accused and lifted the sample into a separate bottle for chemical analysis report. The chemical analysis report got marked as Ex. P3. The SI of police received analysis report, wherein chemical analyst opined that it is unfit for human consumption and injuries to health. The prosecution did not chosen the examine the chemical analyst in this case. Only the prosecution examined the one of the mediator in whose presence the police seized the case property from the possession of the accused. Said mediator got examined as PW.1 and he stated during his cross examination at request of the police, he went to the scene of offence. On the other hand the PW.2 who is investigation officer stated that he along with mediators went to the scene of offence.

So there is no corroboration in between the prosecution witnesses with regard to how they reached to the scene of offence.

14. According to PW.1, on confession of the accused, the police prepared the mediator report. The confession statement before the police is not valid as per Section 25 and 27 of Indian Evidence Act. The confession before the police in the presence of mediator to recover the property is valid upto extent to recover the property. Usually, the punch witnesses are necessary to seizure. The police herein this case followed 100(4) Cr.P.C. provision. But, the mediator PW.1 who available to the police is stored or kept in for the future use as a stock witness. Here the mediator acted as mediator in several cases and he considered as just stock witness and he remained at back foot of the police and he come in front as per the directions of the police. PW.1 during his cross examination stated that the accused put his signature on the seizure slips and on pursuance of the seizure slip, there is no signature of the accused.

So, the testimony of PW.1 is not very reliable and the court not to rely on his testimony as a stock witness. Further the accused previously involved in similar crimes for twice and in those cases he was acquitted, but the police not mentioned those crimes in the present case and conducted simple investigation.

15. After scrutinizing the evidence available on record, the material which is seized from the possession of the accused as in casual manner and prepared the mediator report as a stereo typed manner. Further Pws 1 and 2 admitted that the scene of offence is busy locality and not examined any local inhabitants from that locality and PW.2 did not take any pains to examine the local witnesses, though the scene of offence is busy locality. So there is nothing acceptable from the evidences of Pws 1 and 2. The evidences of both witnesses did not corroborate with each other. PW.1 stated that he acted as mediator in so many excise cases on request of the police. So the evidences of Pws 1 and 2 are not believable and not trustworthy.

16. Further our Hon’ble High Court S. BABU SAHEB ALIAS

BABU Vs. STATE OF A.P. reported in 2010 (1) ALT(Cri) 32 it was held as follows:- “the evidence of a witness, who accompanied the police cannot be always believed nor it can be discarded only on the ground that he accompanied the excise or police officials. But where, in a case, the excise officials having an opportunity to take respectable mediators, did not make any effort to take such mediators certainly it casts a doubt about the prosecution version”.

17. At this juncture, this court has also relied on the decision reported by Hon'ble Supreme Court in State Vs Arun 2003 2 SCC 202 where in it was held that “where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts”.

Further this court relied on the decision reported by Hon'ble

Supreme Court in State Vs Savitha and Ritesh Chakravarthy Vs

State 2006 Vol4 (Crl) 480.

where in it was held that “No effort was made to join an independent witness despite availability. The names of the persons from the public who were present and asked to join investigation, were not recorded in any document.

Under these circumstances the Hon’ble Supreme Court held that the case of the prosecution is doubtful”.

18. Therefore in the absence of specific evidence in that record, It is bound to come to conclusion that the provisions unde section 100(4)

Cr.P.C are not followed by the Police Officials while seizing the ID liquor in from the possession of the accused. In the said circumstances, the entire seizure becomes doubtful. It is settled law that when there is a doubt in the prosecution case, then benefit of doubt should be given to the accused. If it is so, the prosecution has no case at all. Hence, this court is of the opinion that prosecution failed to prove that the accused are found in possession of ID liquor. Accordingly, this point is answered against the prosecution.

19. POINT No.(ii) : In view of my findings in point No.(i), the evidence of prosecution is not free from doubtful circumstances as such,

Accused is entitled for benefit of doubt. Hence, this court is of the considered opinion that the prosecution failed to prove that accused committed the offence punishable U/Sec. 7(b) R/w 8 (b) of A.P.

Prohibition (Amendment)Act. Accordingly, the points are answered in favour of the accused and against the prosecution.

20. In the result, Accused is found not guilty for the offence punishable U/Sec. 7(b) R/w 8 (b) of A.P. Prohibition (Amendment)nAct.

Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected, signed and

pronounced by me in the open Court, this the 17 rd day of April, 2023.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution: PW1: B.Kanaka Durga Rao, VRO PW2: V. Subrahmanyam, IO

For Defence: -None-

DOCUMENTS MARKED

For Prosecution:-

Ex.P1 Mediator report Ex.P2 FIR in Cr. No.178/2020 Ex.P3Chemical analysis report

For Defence: Nil.

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle of I.D.Liquor;

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum –

II Addl. Judl. I Class Magistrate,

Kovvur.

CALENDAR AND JUDGMENT

Calendar cases tried by the II Addl. Junior Civil Judge – cum – II Addl.

Judicial Magistrate of I Class, Kovvur.

Date of Offense : 08.11.2020

Date of report or Complaint : 08.11.2020

Date of apprehension of accused : 08.11.2020

Date release on bail, if any : 17.11.2020

Date of commencement of trail : 10.01.2023

Close of trial : 13.04.2023

Date of sentence or other order : 17.04.2023

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.228/2021 on the file of II Addl. Junior Civil Judge – cum - II Addl. Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Sub-Inspector of Police, Gopalapuram PS in Crime No.178/2020, U/s. 7(b) r/w 8 (b) of A.P. Prohibition.Act.

Name of the accused, Father name, Age, calling, Religion, Village and Mandal. Kukkala Subrahmanyam @ Subba Rao, S/o Rama Rao, aged 40 years, Vellachintalagudem village of Gopalapuram mandal =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Offence : U/s 7(b) r/w 8 (b) ( of A.P. Prohibition (Amendment)Act.

Finding : Not guilty.

Sentence : In the result, Accused is found not guilty for the offence punishable U/Sec. 7(b) r/w 8 (b) of A.P. Prohibition (Amendment) Act.

Accordingly, they are acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time..

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

Copy submitted to

The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE –CUM- II

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS: KOVVUR

Present : Smt. K. Saradamba,

II Addl. Junior Civil Judge – cum - II Addl. Judl. Magistrate of I Class, Kovvur Monday, this the 17th day of April, 2023.

C.C.No.167/2022

Between:

State represented by Sub Inspector of Police, Gopalapuram Ps. …Complainant.

And

1.Pandi Venkateshulu @ Srinu, S/o Veerabhadram, aged 32 years, LND peta village of Polavaram mandal

2.Kattava Gangaraju, S/o Srinivas, aged 24 years, LND peta village of Polavaram mandal

3.Avuri Rajasekhar @ Ayyappa, S/o Srinu, aged 22 years, LND peta village of Polavaram mandal.

4.Meka Venkateswarlu @ Venkanna, S/o Pentaiah @ Gangarao, aged 45 years, Kovvurupadu village of Gopalapuram mandal

...Accused

This case coming on 13.04.2023 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of

Sri YPR Advocate for accused and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Gopalapuram PS filed charge sheet against the accused for the offence punishable under section 7(b) r/w 8

(a) (b) (c) of A.P. Prohibition (Amd) Act 2020 in Crime No.335/2021.

That on 28.09.2021 at about 5.00 AM., having received the credible information, Lw.5 SI of Police, Gopalapuram PS along with his staff and proceeded Peddagudem village and reached to outskirts of village, near polavaram kalavagattu and noticed the accused while manufacturing the

ID arrack and on seeing the police the accused were tried to escape from there, then the police caught hold the A1 to A3 and A4 was escaped from that place and on examination they found with the possession of 80 liters of ID arrack in 16 packets, each containing 5 liters capacity; 200 liters of

FJ wash; Gas stove, Cylinder and aluminum vessels - 2 and on questioning the accused confessed that they manufactured the ID liquor with a view to sell the same at higher price for their livelihood. In pursuance of confession, LW.5 seized the ID arrack and lifted sample of

ID liquor, sealed, affixed identity slips under cover of occurrence report and destroyed the FJ wash and aluminum vessels on the spot and brought the seized material along with accused 1 to 3 to the police station. Later he registered a case in Cr.No.335/2021 under section 7(b) r/w 8 (a) (b)

(c) A.P. Prohibition (Amd) Act 2020 basing on the occurrence report and forwarded the arrested accused 1 to 3 for judicial remand. Later, he forwarded the samples for chemical examination Kakinada through proper channel and obtained analysis report vide C.E.No.2676/2021, dated 25.10.2021, wherein the chemical examiner opined that the samples are illicitly distilled liquor and unfit for human consumption and injuries to health. Later on 20.11.2021 arrested the A4 and forwarded him for judicial remand. After completion of investigation, he filed charge sheet against the accused.

2. This case was taken on file Under section 7(b) r/w 8 (a) (b) (c) of A.P. Prohibition (Amd) Act 2020 and numbered as CC 167/2022

3. On appearance of accused copies of documents was furnished to them as contemplated under section 207 of Cr.P.C.

4. The Accused were examined Under Section 239 Cr.P.C, the charges Under Section 7(b) r/w 8 (a) (b) (c) A.P. Prohibition (Amd) Act 2020 was framed, read over explained to them in Telugu and the same was denied by Accused and claimed to be tried.

5. To prove the case of the prosecution, the prosecution examined

Pw.1, out of 5 witnesses and marked Ex. P1 to P3 and MO.1 through him.

The evidence of the Lws 1 to 4 was given up by the prosecution.

6. After closure of the Prosecution evidence, accused were examined U/Sec.313 Cr.P.C., explaining to them about the incriminating evidence available in the Prosecution evidence, for which, they denied as being false and pleaded not guilty and reported no defence evidence.

7. Heard both sides.

8. The learned Assistant Public Prosecutor argued that the evidence of Pws 1 clearly establishes the guilt of the accused and hence the accused are liable for conviction.

9. The learned counsel for accused contended that, since there are no independent witnesses for arrest and seizure of I.D liquor from the accused, the evidence of P.W.1 is not believable and not trustworthy.

Hence the prosecution failed to prove the guilt of the accused and as such the accused are entitled for acquittal.

Now the points for consideration are:

i) Whether Accused 1 to 6 are found in possession of 80 (Eighty) liters of I.D.Liquor in 16 plastic packets; 200 liters of FJ wash, Gas stove and cylinder and 2 aluminum vessels and thereby committed the offence under Sec. 7(b) r/w 8 (a) (b)

(c) of A.P. Prohibition.Act ii) Whether the prosecution ablelly proved guilty of the accused beyond all reasonable doubts or not?

10. Point No.1:

PW.1 is the investigation Officer, he deposed that on 28.09.2021 at about 5.00 AM having received the credible information he along with his staff proceeded to Peddagudem village and reached to outskirts of village near Polavaram Kalavagattu and noticed the accused while manufacturing the ID arrack and on seeing the police they tried to escape, then he detained them with the help of his staff and found 80 liters of ID arrack in 16 plastic packets, each containing 5 liters capacity; 200 liters of FJ wash, Gas stove, cylinder and 2 aluminum vessels. Then he seized the ID arrack, lifted sample of ID arrack and destroyed the FJ wash and vessels on the spot under cover of occurrence report. Later he returned to the police station along with seized material and accused. Basing on the strengthening of the occurrence report, he registered a case in

Cr.No.335/2021 under section 7(b) r/w 8 (a) (b) (c) of APP Act and sent the accused 1 to 3 for judicial remand. Later he sent the samples to the chemical examiner and obtained analysis report. Later on 20.11.2021 arrested the A4 and sent him for judicial remand. After completion of investigation, he filed charge sheet against the accused. Ex. P1 to P3 and

MO.1 are marked through him.

11. Basing on the evidence available on record, the accused confessed before the police. Basing on the confessional statement, they found the liquor with the possession of the accused and lifted the sample of ID liquor into a separate bottle for chemical analysis report. Except police officials none were present at the time of seizure of the ID liquor from the possession of the accused. The chemical analysis report got marked as Ex. P3. The SI of police received analysis report, wherein chemical analyst opined that it is unfit for human consumption and injuries to health. The prosecution did not choose to examine the chemical analyst in this case.

12. According to PW.1, on confession of the accused, he seized the

ID liquor and lifted the samples under cover of occurrence report, since no mediators were available at the scene of offence. The confession statement before the police is not valid as per Section 25 and 27 of Indian

Evidence Act. So the sole testimony of the PW.1 cannot be believable and considerable.

13. At this juncture, this court has also relied on the decision reported by Hon'ble Supreme Court in State Vs Arun 2003 2 SCC 202 where in it was held that “where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts”.

14. Further this court relied on the decision reported by Hon'ble

Supreme Court in State Vs Savitha and Ritesh Chakravarthy Vs

State 2006 Vol4 (Crl) 480.

where in it was held that “No effort was made to join an independent witness despite availability. The names of the persons from the public who were present and asked to join investigation, were not recorded in any document.

Under these circumstances the Hon’ble Supreme Court held that the case of the prosecution is doubtful”.

15. Therefore in the absence of specific evidence in that record, It is bound to come to conclusion that the provisions unde section 100(4)

Cr.P.C are not followed by the Police Officials while seizing the ID liquor in from the possession of the accused. In the said circumstances, the entire seizure becomes doubtful. It is settled law that when there is a doubt in the prosecution case, then benefit of doubt should be given to the accused. If it is so, the prosecution has no case at all. Hence, this court is of the opinion that prosecution failed to prove that the accused are found in possession of ID liquor. Accordingly, the point is answered against the prosecution.

16. POINT No.(iii) : In view of my findings in point No.(i), the evidence of prosecution is not free from doubtful circumstances as such,

Accused is entitled for benefit of doubt. Hence, this court is of the considered opinion that the prosecution failed to prove that accused committed the offence punishable U/Sec. 7(b) r/w 8 (a) (b) (c) of APP

Act. Accordingly, the points are answered in favour of the accused and against the prosecution.

17. In the result, Accused 1 to 4 are found not guilty for the offence under section of 7(b) r/w 8 (a) (b) (c) A.P. Prohibition (Amendment) Act. Accordingly, they are acquitted U/Sec.248(1) Cr.P.C.

The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected, signed and pronounced by me in the open Court, this the 17 th day of April, 2023.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution: PW1: V. Subrahmanyam, SI of police

For Defence: -None-

DOCUMENTS MARKED

For Prosecution:- Ex.P1Occurrence report Ex.P2FIR in Cr. No.335/2021 Ex.P3Chemical analyst report

For Defence: Nil.

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle of I.D.Liquor;

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum –

II Addl. Judl. I Class Magistrate,

Kovvur.

CALENDAR AND JUDGMENT

Calendar cases tried by the II Addl. Junior Civil Judge – cum – II Addl.

Judicial Magistrate of I Class, Kovvur.

Date of Offense : 28.09.2021 Date of report or Complaint : 28.09.2021 Date of apprehension of accused : 28.09.2021 (a1 to a3) 20.11.2021 (A4) Date release on bail, if any : 05.10.2021 (A1 to A3) 24.11.2021 (A4) Date of commencement of trail : 10.04.2023 Close of trial : 13.04.2023 Date of sentence or other order : 17.04.2023 Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.167/2022 on the file of II Addl. Junior Civil Judge – cum - II Addl. Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Sub-Inspector of Police, Gopalapuram PS in Crime No.335/2021, U/sec. 7(b) r/w 8 (a) (b) (c) of A.P. Prohibition.Act.

Name of the accused, Father name, Age, calling, Religion, Village and Mandal.

1.Pandi Venkateshulu @ Srinu, S/o Veerabhadram, aged 32 years, LND peta village of Polavaram mandal

2.Kattava Gangaraju, S/o Srinivas, aged 24 years, LND peta village of Polavaram mandal

3.Avuri Rajasekhar @ Ayyappa, S/o Srinu, aged 22 years, LND peta village of Polavaram mandal.

4.Meka Venkateswarlu @ Venkanna, S/o Pentaiah @ Gangarao, aged 45 years, Kovvurupadu village of Gopalapuram mandal =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Offence : U/s 7(b) r/w 8 (a) (b) (c) of A.P. Prohibition (Amendment) Act.

Finding : Not guilty.

Sentence : In the result, Accused 1 to 4 are found not guilty for the offence under section of 7(b) r/w 8 (a) (b) (c) A.P. Prohibition (Amendment) Act. Accordingly, they are acquitted U/Sec.248(1) Cr.P.C.

The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

Copy submitted to

The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE –CUM- II

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS: KOVVUR

Present : Smt. K. Saradamba,

II Addl. Junior Civil Judge – cum - II Addl. Judl. Magistrate of I Class, Kovvur Monday, this the 17th day of April, 2023.

C.C.No.208/2021

Between:

State represented by Sub Inspector of Police, Gopalapuram Ps. …Complainant.

And

1.Shek Rahim @ Easu, S/o Sheelar, aged 38 years, R/o Kummarikunta village of Gopalapuram mandal.

2.Meka Venkatesu @ Venkanna, S/o Ganga Rao, aged 39 yers, R/o Kovvurupadu village of Gopalapuram mandal

...Accused

This case coming on 13.04.2023 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of

Sri MPRR, Advocate for accused and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Gopalapuram PS filed charge sheet against the accused for the offence punishable under section 188, 269, 271 r/w 34 of IPC and section 51 (b) of Disaster Management Act, 2005 and section 7(a) r/w 8 (e) of A.P. Prohibition (Amd) Act 2020 in Crime

No.119/2020.

That on 13.06.2020 at about 5.00 AM., having received the credible information, Lw.4 SI of Police, Gopalapuram PS along with his staff proceeded to Kummarikunta village and reached to near closed buddy shop at the village and noticed the accused in suspicious manner and on seeing the police, the accused tried to escape from that place, then the

LW.4 detained the accused and on examination he found 7 liters of ID arrack in a plastic packet of 5 liters capacity and 100 ML packets – 20 Nos and on questioning the A1 confessed that he purchased the said ID liquor from A2/Meka Venkatesu of Kovvurpadu village with a view to sell the same at higher price. In pursuance of confession, LW.4 seized the ID arrack and lifted sample of ID liquor, sealed, affixed identity slips under cover of occurrence report and brought the seized material along with accused to the police station. Later he registered a case in

Cr.No.119/2020 under section 188, 269, 271 r/w 34 of IPC and section 51

(b) of Disaster Management Act, 2005 and section 7(a) r/w 8 (e) of A.P.

Prohibition (Amd) Act 2020 basing on the occurrence report and forwarded the arrested A1 for judicial remand. Later, he forwarded the samples for chemical examination Kakinada through proper channel and obtained analysis report vide C.E.No.1295/2020, dated 09.07.2020, wherein the chemical examiner opined that the samples are illicitly distilled liquor and unfit for human consumption and injuries to health.

Later on 15.06.2020 he got served 41-A Cr.P.C notice against A2. After completion of investigation, he filed charge sheet against the accused.

2. This case was taken on file Under section 271 r/w 34 of IPC and 7(a) r/w 8 (e) A.P. Prohibition (Amd) Act 2020 and numbered as CC 208/2021

3. On appearance of accused copies of documents was furnished to them as contemplated under section 207 of Cr.P.C.

4. The Accused were examined Under Section 239 Cr.P.C, the charges Under Section 271 r/w 34 of IPC and 7(a) r/w 8 (e) A.P.

Prohibition (Amd) Act 2020 was framed, read over explained to them in

Telugu and the same was denied by Accused and claimed to be tried.

5. To prove the case of the prosecution, the prosecution examined

Pw.1, out of 4 witnesses and marked Ex. P1 to P4 and MO.1 through him.

The evidence of the Lws 1 to 3 was given up by the prosecution.

6. After closure of the Prosecution evidence, accused were examined U/Sec.313 Cr.P.C., explaining to them about the incriminating evidence available in the Prosecution evidence, for which, they denied as being false and pleaded not guilty and reported no defence evidence.

7. Heard both sides.

8. The learned Assistant Public Prosecutor argued that the evidence of Pws 1 clearly establishes the guilt of the accused and hence the accused is liable for conviction.

9. The learned counsel for accused contended that, since there are no independent witnesses for arrest and seizure of I.D liquor from the accused, the evidence of P.W.1 is not believable and not trustworthy.

Hence the prosecution failed to prove the guilt of the accused and as such the accused is entitled for acquittal.

Now the points for consideration are:

i) Whether A1 is found in possession of 7 (Sever) liters of I.D.Liquor in a plastic packets which was purchased from the A2 and thereby committed the offence under section 271 r/w 34 of IPC and 7(a) r/w 8 (e) A.P. Prohibition (Amd) Act 2020 ii) Whether the prosecution ablelly proved guilty of the accused beyond all reasonable doubts or not?

10. Point No.1:

PW.1 is the investigation Officer, he deposed that on 13.06.2020 at about 8.00 AM having received the credible information he along with his staff proceeded to Kummarikunta village and reached to closed buddy shop and there he found the A1 having possession of 7 liters of ID arrack in a plastic packet of 5 liters capacity and 100ML packets – 20 Nos. On questioning, the A1 confessed that he purchased the ID liquor from A2.

Then he seized the ID liquor and lifted the samples under cover of occurrence report since no mediators were available there and returned to the station along with case property and accused and registered a case in

Cr.No.119/2020 under section 188, 269, 271 r/w 34 of IPC and section 51

(b) of Disaster Management Act, 2005 and section 7(a) r/w 8 (e) of A.P.

Prohibition (Amd) Act 2020. Later he produced the arrested accused for judicial remand. Later he sent the sample to chemical examiner and obtained analysis report and on 15.06.2020 got served the 41-A Cr.P.C notice against the A2. after completion of investigation he filed charge sheet against the accused. Ex. P1 to P4 and MO.1 are marked through him.

11. Basing on the evidence available on record, the accused confessed before the police. Basing on the confessional statement, they found the liquor with the possession of the accused and lifted the sample of ID liquor into a separate bottle for chemical analysis report. Except police officials none were present at the time of seizure of the ID liquor from the possession of the accused. The chemical analysis report got marked as Ex. P4. The SI of police received analysis report, wherein chemical analyst opined that it is unfit for human consumption and injuries to health. The prosecution did not chose the examine the chemical analyst in this case.

12. According to PW.1, on confession of the A1, he seized the ID liquor and lifted the samples under cover of occurrence report, since no mediators were available at the scene of offence and also registered the case against A2. The confession statement before the police is not valid as per Section 25 and 27 of Indian Evidence Act. So the sole testimony of the PW.1 cannot be believable and considerable.

13. At this juncture, this court has also relied on the decision reported by Hon'ble Supreme Court in State Vs Arun 2003 2 SCC 202 where in it was held that “where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts”.

14. Further this court relied on the decision reported by Hon'ble

Supreme Court in State Vs Savitha and Ritesh Chakravarthy Vs

State 2006 Vol4 (Crl) 480.

where in it was held that “No effort was made to join an independent witness despite availability. The names of the persons from the public who were present and asked to join investigation, were not recorded in any document.

Under these circumstances the Hon’ble Supreme Court held that the case of the prosecution is doubtful”.

15. Therefore in the absence of specific evidence in that record, It is bound to come to conclusion that the provisions unde section 100(4)

Cr.P.C are not followed by the Police Officials while seizing the ID liquor in from the possession of the accused. In the said circumstances, the entire seizure becomes doubtful. It is settled law that when there is a doubt in the prosecution case, then benefit of doubt should be given to the accused. If it is so, the prosecution has no case at all. Hence, this court is of the opinion that prosecution failed to prove that the accused are found in possession of ID liquor. Accordingly, the point is answered against the prosecution.

16. POINT No.(iii) : In view of my findings in point No.(i), the evidence of prosecution is not free from doubtful circumstances as such,

Accused is entitled for benefit of doubt. Hence, this court is of the considered opinion that the prosecution failed to prove that accused committed the offence punishable U/Sec.271 r/w 34 of IPC and section 7(a) r/w 8 (e) of APP Act. Accordingly, the points are answered in favour of the accused and against the prosecution.

17. In the result, Accused are found not guilty for the offence under section of 271 r/w 34 of IPC and section 7(a) r/w 8 (e) A.P.

Prohibition (Amendment) Act. Accordingly, they are acquitted

U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected, signed and pronounced by me in the open Court, this the 17 th day of April, 2023.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution: PW1: V. Subrahmanyam, SI of police

For Defence: -None-

DOCUMENTS MARKED

For Prosecution:- Ex.P1Occurrence report Ex.P2FIR in Cr. No.119/2021 Ex.P3Rough sketch Ex.P4 Chemical analysis report

For Defence: Nil.

MATERIAL OBJECTS MARKED

M.O.1: 2 Sample bottles of I.D.Liquor;

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum –

II Addl. Judl. I Class Magistrate,

Kovvur.

CALENDAR AND JUDGMENT

Calendar cases tried by the II Addl. Junior Civil Judge – cum – II Addl.

Judicial Magistrate of I Class, Kovvur.

Date of Offense : 13.06.2020

Date of report or Complaint : 13.06.2020

Date of apprehension of accused : 13.06.2020 (A1) 15.06.2020(A2 – 41-A notice)

Date release on bail, if any : 16.06.2020 (A1)

Date of commencement of trail : 10.04.2023

Close of trial : 13.04.2023

Date of sentence or other order : 17.04.2023

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.208/2021 on the file of II Addl. Junior Civil Judge – cum - II Addl. Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Sub-Inspector of Police, Gopalapuram PS in Crime No.119/2020, U/sec. 271 r/w 34 of IPC and section 7(a) r/w 8 (e) of A.P. Prohibition.Act.

Name of the accused, Father name, Age, calling, Religion, Village and Mandal.

1.Shek Rahim @ Easu, S/o Sheelar, aged 38 years, R/o Kummarikunta village of Gopalapuram mandal.

2.Meka Venkatesu @ Venkanna, S/o Ganga Rao, aged 39 yers, R/o Kovvurupadu village of Gopalapuram mandal =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Offence : U/s. 271/ r/w 34 of IPC and section 7(a) r/w 8 (e) of A.P.

Prohibition (Amendment) Act.

Finding : Not guilty.

Sentence : In the result, Accused are found not guilty for the offence under section of 271 r/w 34 of IPC and section 7(a) r/w 8 (e) A.P.

Prohibition (Amendment) Act. Accordingly, they are acquitted

U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

Copy submitted to

The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

CALENDAR AND JUDGMENT

Calendar cases tried by the I Additional Junior Civil Judge – cum – I Addl. Judicial Magistrate of I Class, Kovvur.

Date of Offence : 16.10.2020

Date of report or Complaint : 16.10.2020

Date of apprehension of accused : 17.10.2020

Date release on bail, if any: 20.10.2020

Date of commencement of trial : 31.05.2022

Close of trial : 15.09.2022

Date of sentence or other order : 26.09.2022

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.257/2022 on the file of I Additional Junior Civil Judge – cum – I Addl. Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Inspector, Special Enforcement Bureau, Polavaram in Crime No.416/2020, U/s.7(b) r/w 8(c) of A.P. Prohibition.Act. Name of the accused, Father name, Age, calling, Religion, Village and Mandal. A1. Lingamkunta Syam Babu, S/o. Dadu, Age 33 years, Caste by SC Madiga, R/o. Regulakunta, Gopalapuram Mandal. A2. Lingamkunta Chenchayya, S/o. Dadu, Age 41 years, Caste by SC Madiga, R/o. Regulakunta, Gopalapuram Mandal. A3. Challa Venkata Ratnam, S/o. Durgarao, Age 34 years, Caste by Athirasulu, R/o. Regulakunta, Gopalapuram Mandal. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Offence : U/Sec. 7(b) r/w 8(c) of A.P. Prohibition.Act.

Finding : Not guilty.

Sentence : the Accused 1 to 3 are found not guilty for the offence under section 7(b) R/w 8(c) of A.P. Prohibition (Amd) Act 2020 and acquitted them under section 248 (1)of Cr.P.C., The bail bonds of the accused shall remain in force for a period of 6 months from the date of Judgment as per section 437 (a) of Cr.P.C., the M.Os.1 to 3 shall be destroyed after expiry of appeal time.

Sd/- Smt. K. Saradamba,

II Addl. Judl. Magistrate of I Class, FAC/ I Addl. Judl. Magistrate of I Class Kovvur.

Copy submitted to The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

1

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE –CUM-

I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS: KOVVUR

Present : Smt. K. Saradamba, II Addl. Junior Civil Judge-Cum- II Addl. Judicial Magistrate of I Class, FAC/ I Addl. Junior Civil Judge-Cum- I Addl. Judl. Magistrate of I Class, Kovvur

Monday, this the 26 th day of September, 2022.

C.C.No.257/2022

Between:

State represented by Inspector, Special Enforcement Bureau, Polavaram …Complainant.

And

A1. Lingamkunta Syam Babu, S/o. Dadu, Age 33 years, Caste by SC Madiga, R/o. Regulakunta, Gopalapuram Mandal.

A2. Lingamkunta Chenchayya, S/o. Dadu, Age 41 years, Caste by SC Madiga, R/o. Regulakunta, Gopalapuram Mandal.

A3. Challa Venkata Ratnam, S/o. Durgarao, Age 34 years, Caste by Athirasulu, R/o. Regulakunta, Gopalapuram Mandal.

...Accused

This case coming on 20.09.2022 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of

Sri T. Rabhindar, learned Advocate for the Accused and the matter 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, S.E.B. Polavaram filed charge sheet // 2 // against the accused for the offence punishable under section 7(b) R/w 8(c) of A.P. Prohibition (Amd) Act 2020 in Crime No. 416/2020 alleging that on 16.10.2020 at about 05.00 p.m., the LW3 along with his staff and mediators while proceeded to Regulagunta Village limits of Gopalapuram

Mandal and conducted vehicle check at above place, we found the accused A1 and A2 coming by one bike Hero HF Deluxe Red and Black

Colour AP 39 DF 9962 with gunny bag between and for having been possession of one gunny bag with 5 polythene covers each cover containing 5 liters of ID liquor and 400 liters of FJ wash and destroyed at the place of offence in the presence of mediators which was prohibited by the Law. On enquiry the accused confessed that they themselves self manufacturing the ID liquor. The LW3 informed that possession transportation and selling of ID liquor is an offence, seized the same duly drawn 300 ml of ID liquor as sample from it into a bottles and sealed duly affixing Identity slips duly signed by excise officials, mediators and the accused. Then, the excise police arrested the accused under the cover of mediators report drafted at the scene of ofence. Later he seized the contraband, collected the samples and affixed identity slips under the cover of mediators report. Based on the special report her registered

Cr. No. 416/2020, U/Sec. 7 (b) r/w 8 (c) of A.P.P. Act. The accused was produced before the Court for judicial remand. After completion of the investigation, he filed charge sheet against the accused.

2. This case was taken on file Under Section 7(b) R/w 8(c) of A.P.

Prohibition (Amd) Act 2020.

3. On appearance of accused copies of documents were furnished to him as contemplated under section 207 of Cr.P.C.

// 3 //

4. The Accused was examined Under Section 239 Cr.P.C, the charge

Under Section 7(b) R/w 8(c) A.P. Prohibition (Amd) Act 2020 was framed, read over explained to them in Telugu and the same is denied by the

Accused 1 to 3 and claimed to be tried.

5. To prove the case the prosecution, the prosecution examined Pw1 and Exhibited documents P1 to P5 and MO.1 is marked. The evidence of the Lws1 and 4 was given up by the prosecution.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C. and he denied the incriminating material in prosecution evidence. The accused reported no defense evidence on his behalf.

7. Heard both sides.

8. The learned Assistant Public Prosecution argued that the testimony of Pws 1 and 2 and Ex.P1 to Ex.P5 and M.O. 1 is clearly established and proved guilt of accused hence the accused is liable for convection.

9. The learned counsel for the accused argued that the accused never involved in the alleged offence. The accused was falsely implicated in this case. Hence the prosecution has failed to establish the guilt of the accused. Hence the accused are entitled for acquittal.

10. Point for determination is:

Whether the prosecution has proved the guilt of the accused for the offence punishable under section 7(b) R/w 8(c) of A.P. Prohibition (Amd)

Act 2020 beyond all reasonable doubts?

// 4 //

Point no.1:

11. The PW1 is the Investigating Officer, S.E.B. Polavaram, deposed that on 24.11.2020 at about 0300 a.m. himself along with staff proceeded to Bhimole village of Gopalapuram mandal for detection of prohibition and excise offence. While conducing route watch at babu jagajjievan Rao statue on Bhimole village along with mediators, he noticed one person coming on motor cycle bearing regd. no. AP 37 EH 0788 with gunny bag on the petrol tank in suspicious manner and he stopped him and enquired him about the contents of the gunny bag in the presence of mediators.

On examination of bag, it contain 30 liters of ID liquor in 6 polythene covers, each containing 5 liters capacity. Immediately he seized the liquor bottles and lifted sample of 300 ml liquor towards chemical analysis purpose, sealed and affixed identity slips under the cover of special report. Later he brought the accused along with seized material to the police station and registered the case in Cr. No. 468/2020 for the offence

U/Sec. 7 (b) r/w 8 (c) of APP (Amnd.) Act 2020, basing on the special report. The FIR submitted to this Hon’ble Court and copies to all the concerned. Later he produced the accused for Judicial remand. He send the sample to chemical examiner. The chemical analysis report received by him. After completion of investigation, LW5 filed charge sheet against the accused.

12. As seen from the evidence, whereas the occurrence/special report

Ex. P1 shows that the accused was coming on TVS Star City Regd. No. AP 37 EH 0788 the motor cycle belongs to accused, they using the above motor cycle for transporting ID liquor. But PW1 did not stated his examination that the above said vehicle is belongs to accused and he used the above said vehicle for transporting of ID liquor. The PW1 stated simply in his examination that, the accused was coming on AP 37 // 5 //

EH 0788 the motor cycle. The PW1 did not stated in his examination that he enquired the accused that to whom the ID liquor bottle was purchased and name and whereabouts of the unknown person. Therefore the evidence of PW1 is differed with the special report Ex. P1. As per the prosecution the scene of offence is located in residential locality. But no reasons are assigned by the prosecution why did not the investigating officer secure the independent witness at the scene of offence. When the scene of offence is situated in residential locality, the question of not sending his staff for securing mediators is doubtful. Therefore in these circumstances the evidence of PW1 is not believable and doubtful.

13. Further our Hon’ble High Court S. BABU SAHEB ALIAS BABU Vs.

STATE OF A.P. reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “ When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.” // 6 //

14.In the case, the prosecution failed to secure the mediators and failed to examined independent witness and also failed to follow the procedure contemplated under section 100 of Cr.P.C. hence viewed from any angle there is no credibility in the prosecution witness to establish the guilt of the accused. Therefore the material produced by the prosecution is not sufficient to bring home guilt of the accused beyond reasonable doubt. Hence the accused is entitled for acquittal.

15. In the result the A 1 to A3 are found not guilty for the offence under section 7(b) R/w 8(c) of A.P. Prohibition (Amd) Act 2020 and acquitted him under section 248 (1)of Cr.P.C., The bail bonds of the accused shall remain in force for a period of 6 months from the date of

Judgment as per section 437 (a) of Cr.P.C., the M.O.1 shall be destroyed after expiry of appeal time.

Typed to my dictation to Typist, corrected, signed and pronounced by me in the open Court, this the 26th day of September, 2022.

Sd/- Smt. K. Saradamba,

II Addl. Judl. Magistrate of I Class, FAC/ I Addl. Judl. Magistrate of I Class Kovvur.

// 7 //

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution:

Pw1: Ch. Venkateswara Rao.

Pw2: G. Venkateswara Rao, S.E.B. Inspector, Polavaram.

For Defence: -None-

DOCUMENTS MARKED

For Prosecution:- Ex.P1 Signature on Report Ex.P2 Special Report Ex.P3 F.I.R. Ex. P4 Analysis Report. Ex. P5 Attested copy of destruction proceedings dt. 04.12.2020 issued by Deputy Commissioner, P & E, Kovvur.

For Defence: Nil.

MATERIAL OBJECTS MARKED

M.O.1 is the two Sample bottles.

Sd/- Smt. K. Saradamba,

II Addl. Judl. Magistrate of I Class, FAC/ I Addl. Judl. Magistrate of I Class Kovvur.

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE –CUM- II

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS: KOVVUR

Present : Smt. K. Saradamba,

II Addl. Junior Civil Judge – cum - II Addl. Judl. Magistrate of I Class, Kovvur Wednesday, this the 19th day of April, 2023.

C.C.No.37/2022

Between:

State represented by Sub Inspector of Police, Gopalapuram Ps. …Complainant.

And

Katta Venkanna Babu @ Srinu, S/o Durga Rao, aged 32 years, Dondapudi

village of Gopalapuram mandal ...Accused

This case coming on 19.04.2023 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of

Sri K.S.R.V, Advocate for accused and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Gopalapuram PS filed charge sheet against the accused for the offence punishable under section 7(b) r/w 8

(b) of A.P. Prohibition (Amd) Act 2020 in Crime No.372/2021.

That on 20.11.2021 at about 4.00 AM., having received the credible information, Lw.4 SI of Police, Gopalapuram PS along with his staff proceeded to Dondapudi village and reached to vacant site situated back side to the house of the accused and noticed the accused in suspicious manner and on seeing the police, the accused tried to escape from that place, then Lw.4 caught hold him with the help of his staff and on examination the accused found with the possession of 5 liters of ID arrack in a plastic packet of 5 liters capacity. On questioning the accused confessed that he purchased the above said ID liquor from unknown person at agency area with a view to sell the same at higher price. Later

LW.4 seized the ID arrack and lifted sample of ID liquor, sealed, affixed identity slips under cover of occurrence report and brought the seized material and accused to the police station and registered a case in

Cr.No.372/2021 under section 7(b) r/w 8 (b) A.P. Prohibition (Amd) Act 2020 basing on the occurrence report and sent the accused for judicial remand. Later, he forwarded the samples for chemical examination

Kakinada through proper channel and obtained analysis report vide

C.E.No.3119/2021, dated 04.12.2021, wherein the chemical examiner opined that the samples are illicitly distilled liquor and unfit for human consumption and injuries to health. After completion of investigation, he filed charge sheet against the accused.

2. This case was taken on file Under section 7(b) r/w 8 (b) A.P.

Prohibition (Amd) Act 2020 and numbered as CC 37/2022

3. On appearance of accused copies of documents was furnished to her as contemplated under section 207 of Cr.P.C.

4. The Accused was examined Under Section 239 Cr.P.C, the charges Under Section 7(b) r/w 8 (b) A.P. Prohibition (Amd) Act 2020 was framed, read over explained to him in Telugu and the same was denied by

Accused and claimed to be tried.

5. To prove the case of the prosecution, the prosecution examined

Pw.1, out of 4 witnesses and marked Ex. P1 to P3 and MO.1 through him.

The evidence of the Lws 1 to 3 was given up by the prosecution.

6. After closure of the Prosecution evidence, accused was examined

U/Sec.313 Cr.P.C., explaining to him about the incriminating evidence available in the Prosecution evidence, for which, he denied as being false and pleaded not guilty and reported no defence evidence.

7. Heard both sides.

8. The learned Assistant Public Prosecutor argued that the evidence of Pws 1 clearly establishes the guilt of the accused and hence the accused is liable for conviction.

9. The learned counsel for accused contended that, since there are no independent witnesses for arrest and seizure of I.D liquor from the accused, the evidence of P.W.1 is not believable and not trustworthy.

Hence the prosecution failed to prove the guilt of the accused and as such the accused is entitled for acquittal.

Now the points for consideration are:

i) Whether Accused is found in possession of 5 (Five) liters of I.D.Liquor in a plastic packet and thereby committed the offence under Sec. 7(b) r/w 8 (b) of A.P. Prohibition.Act ii) Whether the prosecution ablelly proved guilty of the accused beyond all reasonable doubts or not?

10. Point No.1:

PW.1 is the investigation Officer, he deposed that on 20.11.2021 at about 4.00 AM having received the credible information he along with his staff proceeded to Dondapudi village and reached to vacant site situated back side to the house of the accused and there he found the accused having possession of 5 liters of ID arrack in a plastic bag of 5 liters capacity. Then he seized the ID liquor and lifted the samples under cover of occurrence report since no mediators were available there and returned to the station along with case property and accused and registered a case in Cr.No.372/2021 under section 7(b) r/w 8 (b) of APP Act. Later he sent the sample to chemical examiner and obtained analysis report and after completion of investigation he filed charge sheet against the accused. Ex.

P1 to P3 and MO.1 are marked through him.

11. Basing on the evidence available on record, the accused confessed before the police. Basing on the confessional statement, they found the liquor with the possession of the accused and lifted the sample of ID liquor into a separate bottle for chemical analysis report. Except police officials none were present at the time of seizure of the ID liquor from the possession of the accused. The chemical analysis report got marked as Ex. P3. The SI of police received analysis report, wherein chemical analyst opined that it is unfit for human consumption and injuries to health. The prosecution did not chosen the examine the chemical analyst in this case.

12. According to PW.1, on confession of the accused, he seized the

ID liquor and lifted the samples under cover of occurrence report, since no mediators were available at the scene of offence. The confession statement before the police is not valid as per Section 25 and 27 of Indian

Evidence Act. So the sole testimony of the PW.1 cannot be believable and considerable.

13. At this juncture, this court has also relied on the decision reported by Hon'ble Supreme Court in State Vs Arun 2003 2 SCC 202 where in it was held that “where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts”.

15. Further this court relied on the decision reported by Hon'ble

Supreme Court in State Vs Savitha and Ritesh Chakravarthy Vs

State 2006 Vol4 (Crl) 480.

where in it was held that “No effort was made to join an independent witness despite availability. The names of the persons from the public who were present and asked to join investigation, were not recorded in any document.

Under these circumstances the Hon’ble Supreme Court held that the case of the prosecution is doubtful”.

16. Therefore in the absence of specific evidence in that record, It is bound to come to conclusion that the provisions unde section 100(4)

Cr.P.C are not followed by the Police Officials while seizing the ID liquor in from the possession of the accused. In the said circumstances, the entire seizure becomes doubtful. It is settled law that when there is a doubt in the prosecution case, then benefit of doubt should be given to the accused. If it is so, the prosecution has no case at all. Hence, this court is of the opinion that prosecution failed to prove that the accused are found in possession of ID liquor. Accordingly, the point is answered against the prosecution.

17. POINT No.(iii) : In view of my findings in point No.(i), the evidence of prosecution is not free from doubtful circumstances as such,

Accused is entitled for benefit of doubt. Hence, this court is of the considered opinion that the prosecution failed to prove that accused committed the offence punishable U/Sec.7(b) r/w 8 (b) of APP Act.

Accordingly, the points are answered in favour of the accused and against the prosecution.

18. In the result, Accused is found not guilty for the offence under section of 7(b) r/w 8 (b) A.P. Prohibition (Amendment) Act. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of

Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected, signed and pronounced by me in the open Court, this the 19 th day of April, 2023.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution: PW1: V. Subrahmanyam, SI of police

For Defence: -None-

DOCUMENTS MARKED

For Prosecution:- Ex.P1Occurrence report Ex.P2FIR in Cr. No.372/2021 Ex.P3Chemical analyst report

For Defence: Nil.

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle of I.D.Liquor;

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum –

II Addl. Judl. I Class Magistrate,

Kovvur.

CALENDAR AND JUDGMENT

Calendar cases tried by the II Addl. Junior Civil Judge – cum – II Addl.

Judicial Magistrate of I Class, Kovvur.

Date of Offense : 20.11.2021

Date of report or Complaint : 20.11.2021

Date of apprehension of accused : 20.11.2021

Date release on bail, if any : 24.11.2021

Date of commencement of trail : 10.04.2023

Close of trial : 13.04.2023

Date of sentence or other order : 19.04.2023

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.37/2022 on the file of II Addl. Junior

Civil Judge – cum - II Addl. Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Sub-Inspector of Police, Gopalapuram PS in Crime No.372/2021, U/sec. 7(b) r/w 8 (b) of A.P. Prohibition.Act.

Name of the accused, Father name, Age, calling, Religion, Village and Mandal. Katta Venkanna Babu @ Srinu, S/o Durga Rao, aged 32 years, Dondapudi village of Gopalapuram mandal =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Offence : U/s 7(b) r/w 8 (b) of A.P. Prohibition (Amendment) Act.

Finding : Not guilty.

Sentence : In the result, Accused is found not guilty for the offence under section of 7(b) r/w 8 (b) A.P. Prohibition (Amendment) Act.

Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after Six months from today in view of section 437-A of Cr.P.C. M.O.1 case property shall be destroyed after expiry of appeal time.

Sd/- K. Saradamba

II Addl. Junior Civil Judge – cum – II Addl. Judl. I Class Magistrate,

Kovvur.

Copy submitted to

The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.