Sri K.sri Hari

C.C.No.122 of 2021 1 JMFC Court, Kaikaluru

IN THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAIKALURU

Present:Kantipudi Srihari

Judicial Magistrate of the First Class

Monday, this the 27thday of February, 2023

C.C.No.122 of 2021

Between:

State, represented by the Sub Inspector, Special Enforcement Bureau, Kaikaluru

... Complainant

Vs

Neelapala Adinarayana, S/o Suryanarayana, aged about 48 years, R/o Iva Rudravaram village,

Mandavalli Mandal... Accused

This case come up on 07.02.2023 before me for hearing in the presence of learned A.P.P. for the State and of Sri P.Pavan, Advocate for 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

The State represented by the Inspector, Special Enforcement Bureau,

Kaikaluru filed a charge sheet against the accused in Cr.No.78 of 2020 alleging the offence punishable under Section 34(a) of the Andhra Pradesh Excise Act, 1968 (for short, ‘the Act’).

2.The facts, in brief, as pleaded by the prosecution, are as follows:

On 20.06.2020 at about 6.00 A.M., L.W.1/G.V.Lakshmi, S.E.B., Inspector,

Kaikaluru along with L.W.2/V.Jyothsna Devi, S.E.B., Head Constable, Kaikaluru and other staff while patrolling for detection of Prohibition and Excise offences at

Kaikaluru village, found the accused standing with mica bag in his right hand and on seeing them, the accused perturbed and tried to escape from that place.

LW.1 caught hold the accused and on enquiry, the accused stated that the bag contain IML bottles. Then LW.1 sent LW.2 to secure mediators, after 30 minutes

LW.2 returned and stated that nobody came forward to act as mediators. Then

C.C.No.122 of 2021 2 JMFC Court, Kaikaluru

LW.1 opened the bag and found 1) Good Friends Deluxe whisky 180 ml 3, 2) 9

Sea Horses whisky 180 ml 04 bottles. Then examined and found that the EALs on the bottles were scratched. The accused further stated that he purchased IML bottles from wine shops in Kaikaluru Mandal and brought the same for selling higher price he has no bills and permit for purchase the IML bottles. L.W.1 seized the 7 liquor bottles under the cover of special report and taken one bottle for sample purpose. L.W.1 registered special report as FIR in Crime No.78 of 2020 under Section 34(a) of the Act and took up investigation.

During the course of investigation, LW.1 arrested the accused and produced him before this court for judicial remand, sent the sample of seized liquour bottle to the Government Chemical Examiner, Kakinada for chemical analysis report and the same was received, remaining seized property has been destroyed by the Prohibition & Excise Superintendent in the presence of mediators as for the orders of produced Dy.Commissioner of Prohibition and Excise, Vijayawada.

After completion of investigation filed charge sheet against the accused.

3.On perusal of the record, when prima facie case is made out, this court took cognizance of the offence under section 34(a) of the Act against the accused and issued summons to him.

4.After appearance of the accused, copies of case document were supplied to him as provided under Section 207 of Code of Criminal Procedure (for short,

Cr.PC).

5.Accused was examined under Section 239 of the Code, he denied the accusation made against him. A charge under Section 34(a) of the Act has been framed against the accused and the contents of the said charge were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

C.C.No.122 of 2021 3 JMFC Court, Kaikaluru

6.In order to establish the guilt of accused, prosecution examined P.W.1 and got marked Exs.P1 to P4 and M.O.1.

7.After closure of prosecution side evidence, accused was examined under sec.313 Cr.P.C by explaining the incriminating material appearing from the evidence of prosecution witnesses, he denied and reported no evidence to be adduced on his behalf.

8.Heard the learned Assistant Public Prosecutor and the learned counsel for the accused.

9.Now, the point for consideration is:

Whether the prosecution established the guilt of

accused for the offence punishable under section 34(a) of

the Act against accused beyond all reasonable doubt?

10. P O I N T:

To prove the case of prosecution, prosecution examined P.W.1. P.W1 is

SubInspector,S.E.B.,Kaikaluru.Shedeposedthaton 20.06.2020 at about 6.00 A.M., she along with her staff proceeded to market yard at Bariyala ground, Kaikaluru, found the accused with mica cover in his hand and on seeing them the accused tried to escape. P.W.1 further deposed that they detained him and on questioning, the accused confessed that he is in possession of 07 IML bottles. Then she sent L.W.2 to secure mediators, but L.W.2 returned and informed that nobody came forward to act as mediators. P.W.1 got opened the bag in the possession of accused and found 1) VDH Gold Friends whisky 180 ml 03 bottles, 2) 9 Sea Horse whisky 180 ml 04 bottles, total 07 bottles and the accused informed that he has no license. PW.1 further deposed that she seized the property under the cover of Ex.P1 special report and registered the same as a case in Crime No.78 of 2020 for the offence under Section 34(a) of the Act.

Ex.P1 is Special report and Ex.P2 Original FIR. PW.1 further deposed that she arrested the accused and produced him before this court for judicial remand,

C.C.No.122 of 2021 4 JMFC Court, Kaikaluru secured one bottle for sample out of the seized bottles from the accused and sent the same for the chemical analysis. M.O.1 is the sample taken from and out of seized property. She further deposed that she sent Ex.P3 original letter of advice and received Ex.P4 chemical analysis report. After completion of investigation filed charge sheet against the accused.

During the course of cross-examination, P.W.1 admitted that the alleged scene of offence is a busy locality and the alleged seized property is readily available in open market for MRP. PW.1 further admitted that she did not produce any proof to show that she was on duty on the date of alleged offence.

11.As seen from the material on record, except the oral testimonies of P.W.1, there is no other independent witness available on record. As the scene of offence is a busy locality, what prevented the investigating agency to secure mediators at the vicinity of scene of offence. The evidence shows that he did not make any serious efforts for securing mediators at the scene of offence. If really, he made serious attempts for securing mediators, definitely he would has secure the mediators at the scene of offence as scene of offence is a busy locality.

Therefore, it is not safe to act upon the evidence of P.W.1.

12. Ex.P.4 chemical analysis report would establish that the sample contain

Indian made liquor. By marking the said document, the prosecution at best established the nature of the liquor that was sent to the chemical analysis but he failed to establish that it was seized from the conscious possession of the accused.

13.Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P. reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para No.5, it was held as follows:- “Once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the

C.C.No.122 of 2021 5 JMFC Court, Kaikaluru proceedings is inadmissible.”

It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non- examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.”

14.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 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) 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.”

15.In the case on hand, the prosecution failed to secure the independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of the accused and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the accused in commission of the offence.

The material produced by the prosecution is not sufficient to bring home the guilt of the accused beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

C.C.No.122 of 2021 6 JMFC Court, Kaikaluru

16.In the result, accused is found not guilty for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under

Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.Os.1 and 2 sample of IML bottle shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court on this the 27th day of February, 2023.

Sd/-K.Srihari,

Judicial Magistrate of I Class,

Kaikaluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Prosecution: Defence:

P.W1: G.V.LakshmiNone

EXHIBITS MARKED FOR

Prosecution: Defence:

Ex.P1: Original Special report Nil

Ex.P2: Original FIR

Ex.P3: Original Letter of Advice

Ex.P4: Original Chemical Analysis Report.

MOs MARKED FOR

M.O.1: Sample bottle of VDH Gold Friends whisky

M.O.2: Sample bottle of 9 Sea Horse Whisky

Sd/-K.Srihari,

JMFC, Kaikaluru.

C.C.No.122 of 2021 7 JMFC Court, Kaikaluru

CALENDAR AND JUDGMENT

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, KAIKALURU

C.C.No.122/2021 Date of Offence Complaint NoticeReleasedCommencemClose ofSentence served to theon bailent of trial trial or order accused u/s 41(A) Cr.P.C. 20.06.2020 20.06.2020----20.09.202207.02.202327.02.2023

Between: State, represented by the Sub Inspector, Special Enforcement Bureau, Kaikaluru

... Complainant

Vs

Neelapala Adinarayana, S/o Suryanarayana, aged about 48 years, R/o Iva Rudravaram village, Mandavalli Mandal

... Accused

Finding : ‘Not guilty’

Sentence: In the result, accused is found not guilty for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.Os.1 and 2 sample of IML bottle shall be destroyed after expiry of appeal time.

Explanation for delay:

This case was taken on file on 16.02.2021. On appearance of accused, he was furnished with the copies of case documents as contemplated U/s. 207 Cr.P.C. On 11.07.2022 accused was examinedunder Section 239 of Cr.P.C., the accusation is read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried. On 20.09.2022 L.W.1 is examined as P.W.1 and Exs.P1 to P4 and M.Os.1 and 2 are marked. Prosecution evidence is closed. On 07.02.2022 accused was examined U/s 313 of Cr.P.C, he denied and reported no defence evidence. Heard both sides. On 27.02.2023 judgment is pronounced. Hence, the delay.

Sd/-K.Srihari,

Judl. Magistrate of the First Class, Kaikaluru. Submitted to the:

Honble I Addl.Sessions Judge,

Krishna, Machilipatnam. Copy to: The Hon’ble Chief Judicial Magistrate, Krishna, Machilipatnam.

The Superintendent of Police. Machilipatnam.

C.C.No.73 of 2021 1 JMFC Court, Kaikaluru

IN THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAIKALURU

Present:Kantipudi Srihari

Judicial Magistrate of the First Class

Friday, this the 24th day of February, 2023

C.C.No.73 of 2021

Between State, represented by The Sub Inspector of Police, Kaikaluru Rural Police Station

... Complainant

Vs

1. Ghantasala Nagaraju, S/o Antharvedi, aged ab out 34 years, \R/o Gummallapadu village, Kaikaluru Mandal

2. Mungara Rambabu, S/o Krishna Murthi, aged about 52 years, R/o Vadlakutitippa village, H/o Penchikalamarru village, Kaikaluru Mandal

... Accused

This case come up on 31.01.2023 before me for hearing in the presence of learned A.P.P. for the State and of Sri Moru Srinivasa Rao, 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

The State represented by the Sub Inspector of Police, Kaikaluru Rural

Police Station, filed a charge sheet against the accused in Cr.No.185 of 2020 alleging the offence punishable under Section 7(A) r/w 8(e) of the Andhra

Pradesh Prohibition Act, 1968 (for short, ‘the Act’).

2.The facts, in brief, as pleaded by the prosecution, are as follows:

On 04.08.2020 at ab out 8.00 hours, on receipt of credible information,

P.W.2/S.I along with his staff and mediators proceeded to the house of A1 situated at Gummallapadu village of Kaikaluru Mandal and found A1 and A2 were standing at that place, A1 having plastic tin in his hands and on seeing them, they tried to skulk away from that place. They detained them and on enquiry, A1 confessed that they manufacturing ID arrack in Kolleru lanka and sell the same for higher price. A2 came to him and purchased 5 liters of arrack and sell the

C.C.No.73 of 2021 2 JMFC Court, Kaikaluru same for higher price. Then LW.6/S.I opened the plastic tin from the possession of the accused and found 5 liters of ID arrack and also found 3 tins in the bathroom of the accused No.1, then seized the same and drawn 250 ml liquid for chemical examination and drafted mediators report. He registered the mediator report as a case in Crime No.185 of 2020 under Section 7(A) r/w 8(e) of A.P.

Prohibition Act and took up investigation.

During the course of investigation, L.W.6/S.I examined the listed witnesses and recorded their statements, arrested A1 and A2 and sent them for judicial remand, sent the seized the ID arrack samples to the Government

Chemical Examiner of A.P. Prohibition & Excise Laboratory, Kakinada through the

Sub Divisional Police Officer, Gudivada. After completion of investigation LW.6/S.I filed charge sheet against the accused.

3.On perusal of the record, when prima facie case is made out, this court took cognizance of the offence under section 7(A) r/w 8(e) of A.P. Prohibition Act against A1 and A2 and issued summons to them.

4.After appearance of A1 and A2, copies of case document were supplied to them as provided under Section 207 of Code of Criminal Procedure (for short,

Cr.PC).

5.A1 and A2 were examined under Section 239 of Cr.P.C., they denied the accusation made against them. Charges under Section 7(A) r/w 8(e) of A.P.

Prohibition Act has been framed against A1 and A2 and the contents of the said charge were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6.In order to establish the guilt of A1 and A2, prosecution examined P.Ws.1 and 2 and got marked Exs.P1 to P4 and M.O.1.

The case against A2 abated as DIED and the Death Certificate of A2 filed on 21.01.2023.

C.C.No.73 of 2021 3 JMFC Court, Kaikaluru

7.After closure of prosecution side evidence, A1 was examined under sec.313 Cr.P.C by explaining the incriminating material appearing from the evidence of prosecution witnesses, he denied and reported no evidence to be adduced on his behalf.

8.Heard the learned APP and the learned counsel for the accused.

9.Now, the point for consideration is:

Whether the prosecution established the guilt of A1 for

the offence punishable under section 7(A) r/w 8(e) of A.P.

Prohibition Act beyond all reasonable doubt?

10. P O I N T:

To prove the case of prosecution, prosecution examined P.Ws.1 and 2.

P.W.1 is mediator. P.W.2 is Sub Inspector of Police, Kaikaluru Rural P.S.

11.P.W.1 VRO deposed that on 04.08.2020 at about 8.00 A.M., at request of

LW.6/S.I, he acted as one of the mediators, when they reached near the house of

A1 situated at Gummallapadu village of Kaikaluru Mandal, A1 and A2 standing and A2 holding a plastic tin in his hands and on seeing the police, they tried to escape. He further deposed that police detained them and on inquiry, accused confessed that he is manufacturing ID arrack in Kolleru lake since 20 days and storing 50 liters at his house and used to sell the same for higher price. He further deposed that A2 came to A1 and purchased five liters of ID arrack. On their confession, LW.6/S.I got opened the plastic tin and found five liters of ID arrack and also found 3 tins in the bathroom of the A1, 20 liters in one tin and 25 liters in another tin and 5 liters in another tin, total 50 liters from the bathroom of

A1. He further deposed that LW.6/S.I got separated 250 ml from seized ID arrack for sending the same to the chemical examination. LW.6/S.I obtained their signatures in the sample bottle and seized the ID arrack from the possession of accused under the cover of mediators report. Ex.P1 is the mediator report. He along with LW.5/Vinod Kumar signed on it.

C.C.No.73 of 2021 4 JMFC Court, Kaikaluru

In the cross-examination PW.1 admitted that by the time of alleged offence entire country is under lock down and nobody come out without prior permission.

PW.1 further admitted that no written summons were issued and they do not weigh or measure the quantity of alleged liquor. PW.1 further admitted that he cannot test the liquor whether it is ID arrack and he do not know whether the same is ID arrack and was seized from the possession of the accused. He further admitted that the scene of offence is busy locality.

12.P.W.2 deposed that on 04.08.2020 at about 8.00 A.M., on receipt of credible information, he along with his staff with mediators proceeded to the house of the accused Gummallapadu village, found two persons, one person at the bathroom of the house and another person near by the house along with a plastic can, on seeing them, they tried to escape, then they detained them. He further deposed that on enquiry, they confessed that they are manufacturing ID arrack and sell the same for higher price, then he inspected the bathroom and found two plastic cans and 20 liters of ID arrack in one plastic can and 25 liters of

ID arrack in another plastic can, total 45 liters, he also found 5 liters of ID arrack in a plastic can carried by A2, who is near by the house of A1. He further deposed that he seized the same and separated 250 Ml of ID arrack for chemical examination and pasted slips and drafted mediators report. Ex.P1 is mediator report. He registered the mediator report as a case in Crime No.185 of 2020 under Section 7(A) r/w 8(e) of A.P.Prohibition Act. Ex.P2 is FIR. PW.2 further deposed that he visited the scene of offence and prepared rough sketch of the scene. Ex.P3 is rough sketch of the scene of offence. PW.2 further deposed that addressed a letter of advise for chemical examination of M.O.1., received the report. Ex.P4 Chemical analysis report. PW.2 further deposed after completion of investigation filed charge sheet against the accused.

C.C.No.73 of 2021 5 JMFC Court, Kaikaluru

12.In the cross-examination P.W.2 admitted that the alleged offence took place during Covid-19 lock down period and nobody shall come out without prior permission. He further admitted that he did not issue any summons to mediators. He further admitted that the scene of offence is a residential busy locality and he did not produce any proof to show that he was on duty on the date of alleged offence.

13. Ex.P.4 Chemical analysis report would establish that the M.O.1 contain

I.D.liquor. By marking the said document, the prosecution at best established the nature of the liquor that was sent to the chemical analysis but they failed to establish that it was seized from the conscious possession of the accused. If really M.O.1 is seized from the possession, the prosecution could establish link between M.O.1 and the accused. But the prosecution failed to establish M.O.1 is seized from the possession of the accused. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the accused in commission of the offence.

The material produced by the prosecution is not sufficient to bring home the guilt of the accused beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

16.In the result, A1 is found not guilty for the offence punishable under

Sec.7(A) r/w 8(e) of A.P. Prohibition Act and accordingly, he is acquitted under

Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.O.1 sample bottle shall be destroyed after expiry of appeal time. The case against A2 abated as died.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court on this the 24th day of February, 2023.

Sd/-K.Srihari,

Judicial Magistrate of I Class,

Kaikaluru.

C.C.No.73 of 2021 6 JMFC Court, Kaikaluru

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Prosecution: Defence:

P.W1: T.Raja RatnamNone

P.W.2: T.Rama Krishna

EXHIBITS MARKED FOR

Prosecution: Defence:

Ex.P1: Mediator report

Ex.P2: Original First Information report

Ex.P3: Original Rough Sketch of the scene of offence

Ex.P4: Original Chemical analysis report

MOs MARKED FOR

M.O.1: Sample bottle of I.D. liquor

Sd/-K.Srihari,

JMFC, Kaikaluru.

C.C.No.73 of 2021 7 JMFC Court, Kaikaluru

CALENDAR AND JUDGMENT

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, KAIKALURU

C.C.No.73/2021

Date of Offence Complaint Notice to theReleasedCommencemenClose ofSentence accusedon bailt of trial trial or order 04.08.202004.08.2020--13.10.202231.01.202324.02.2023

Between: State, represented by The Sub Inspector of Police, Kaikaluru Rural Police Station

... Complainant

Vs

1. Ghantasala Nagaraju, S/o Antharvedi, aged ab out 34 years, \R/o Gummallapadu village, Kaikaluru Mandal

2. Mungara Rambabu, S/o Krishna Murthi, aged about 52 years, R/o Vadlakutitippa village, H/o Penchikalamarru village, Kaikaluru Mandal

... Accused

Finding : ‘Not guilty’ Sentence: In the result, A1 is found not guilty for the offence punishable under Sec.7(A) r/w 8(e) of A.P. Prohibition Act and accordingly, he is acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.O.1 sample bottle shall be destroyed after expiry of appeal time. The case against A2 abated as died.

Explanation for delay:

This case was taken on file on 29.01.2021. On appearance of A1 and A2, they were furnished with the copies of documents as contemplated U/s. 207 Cr.P.C. On 21.07.2022 accused weres examined under Section 239 of Cr.P.C., the accusation is read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried. On 13.10.2022 LW.4 is examined as PW.1. On 24.11.2022 LW.6 is examined as PW.2 and marked Exs.P2 to P4 and M.O.1. Prosecution evidence is closed. On 31.01.2023 Death certificate of A2 filed and the case against A2 abated. A1 is examined under Section 313 Cr.P.C. Heard. On 24.02.2023 Judgment pronounced. Hence, the delay.

Sd/-K.Srihari,

Judl. Magistrate of the First Class, Kaikaluru. Submitted to the:

Honble I Addl.Sessions Judge,

Krishna, Machilipatnam.

Copy to:

The Hon’ble Chief Judicial Magistrate, Krishna, Machilipatnam. The Superintendent of Police. Machilipatnam.

C.C.No.58 of 2022 1 JMFC Court, Kaikaluru

IN THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAIKALURU

Present:Kantipudi Srihari

Judicial Magistrate of the First Class

Monday, this the 27th day of February, 2023

C.C.No.58 of 2022

Between:

State, represented by Sub Inspector of Police, Kaikaluru Rural Police Station

... Complainant

Vs

Bale Venkatesh, S/o Nagaraju, aged about 35 years, R/o Srungavarapadu village, Kaikaluru Mandal

... Accused

This case come up on 03.02.2023 before me for hearing in the presence of learned A.P.P. for the State and of Sri Moru Srinivasa Rao, Advocate for 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

The State represented by the Sub-Inspector of Police, Kaikaluru Rural

P.S., filed a charge sheet against the accused in Cr.No.228 of 2021 alleging the offence punishable under Section 34(a) of the Andhra Pradesh Excise Act, 1968 (for short, ‘the Act’).

2.The facts, in brief, as pleaded by the prosecution, are as follows:

On 14.12.2021 at about 10.00 hours, on receipt of credible information

P.W.1/Challi Krishna, S.I., Mandavalli P.S. along with his staff proceeded to the

Srungavarapadu village of Kaikaluru Mandal and when they reached near the house of accused, found the accused with hand bag and on seeing them, he tried to skulk away from that place, they detained him and on questioning the accused confessed that he used to purchase liquor bottles from unknown person and sell the same for higher price. Then PW.1 verified the bag and found 1) AC

Black 180 ml 07 bottles, 2) Royal palace 180 ml 18 bottles, total 25 bottles. On

C.C.No.58 of 2022 2 JMFC Court, Kaikaluru enquiry, the accused confessed that he purchased liquor bottles from various wine shops with lowest cost and sell the same for higher price. Then PW.1 seized the said property and separated one bottle for chemical analysis under the cover of occurrence report and registered the occurrence report as a case in

Crime No.228 of 2021 under Section 34(A) of A.P.Excise Act and took up investigation.

During the course of investigation, PW.1 visited the scene of offence, prepared rough sketch of the scene, arrested the accused and sent him for judicial remand, sent the samples for chemical examination and obtained

Laboratory analysis report. After completion of investigation filed charge sheet against the accused.

3.On perusal of the record, when prima facie case is made out, this court took cognizance of the offence under section 34(a) of A.P. Excise Act against the accused and issued summons to him.

4.After appearance of the accused, copies of case document were supplied to him as provided under Section 207 of Code of Criminal Procedure (for short,

Cr.PC).

5.Accused was examined under Section 239 of the Code, he denied the accusation made against him. A charge under Section 34(a) of A.P. Excise Act has been framed against the accused and the contents of the said charge were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6.In order to establish the guilt of accused, prosecution examined P.W.1 and marked Exs.P1 to P5 and M.Os.1 and 2.

7.After closure of prosecution side evidence, accused was examined under sec.313 Cr.P.C by explaining the incriminating material appearing from the

C.C.No.58 of 2022 3 JMFC Court, Kaikaluru evidence of prosecution witnesses, he denied and reported no evidence to be adduced on his behalf.

8.Heard the learned APP and the learned counsel for the accused.

9.Now, the point for consideration is:

Whether the prosecution established the guilt of

accused for the offence punishable under section 34(a) of

A.P. Excise Act against accused beyond all reasonable

doubt?

10. P O I N T:

To prove the case of prosecution, prosecution examined P.W.1. P.W.1 is

S.I of police, Kaikaluru Rural P.S.

11.P.W.1 deposed that on 14.12.2021 at about 10.00 A.M., on receipt of credible information, he along with his staff proceeded to Srungavarapadu village, at the house of accused, found the accused with a bag in his hand and on seeing them, the accused tried to escape, they detained him and on questioning the accused confessed that he is having 25 IML bottles and shown 1)

Royal Palace 180 ml whisky 18 bottles, 2) AC black whisky 180 ml 07 bottles, total 25 bottles. Then PW.1 seized the same under the cover of occurrence report and separated one bottle from the each brand for chemical analysis examination. M.Os.1 and 2 are the sample bottles. He registered the occurrence report as a case in Crime No.228 of 2021 for the offence under

Section 34(A) of A.P.Excise Act. Ex.P2 is the original First Information Report.

He arrested the accused and produced him before this court for judicial remand.

He visited the scene of offence, prepared rough sketch of the scene of offence.

Ex.P3 is the original rough sketch of the scene of offence. He addressed a letter of advise for chemical examination and he received the chemical examination report. Ex.P4 is the letter of advice. Ex.P5 is the Laboratory analysis report. After completion of investigation he filed charge sheet against the accused.

C.C.No.58 of 2022 4 JMFC Court, Kaikaluru

During cross-examination, PW.1 admitted that the alleged scene of offence is a busy locality and M.Os.1 and 2 are available in open market. P.W.1 further admitted that in the said village there are Revenue officials and the alleged date of offence is working day.

14. As seen from the material on record, except the oral testimonies of P.W.1 there is no other independent witness supports the prosecution case. As the scene of offence is a busy locality, what prevented the investigating agency to secure mediators at the vicinity of scene of offence. The evidence shows that they did not make any serious efforts for securing mediators at the scene of offence. If really, they made serious attempts for securing mediators, definitely they would have secure the mediators at the scene of offence as scene of offence is busy locality. Therefore, it is not safe to act upon the evidence of

P.W.1.

15.Ex.P.5 Laboratory analysis report would establish that M.Os.1 and 2 contain Indian made liquor. By marking the said document, the prosecution at best established the nature of the liquor that was sent to the chemical analysis but they failed to establish that it was seized from the conscious possession of the accused.

16.In the case on hand, the prosecution failed to secure the strong independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of the accused and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the accused in commission of the offence. The material produced by the prosecution is not sufficient to bring home the guilt of the accused beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

C.C.No.58 of 2022 5 JMFC Court, Kaikaluru

17.In the result, accused is found not guilty for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under

Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.Os.1 and 2 sample bottles shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court on this the 27th day of February, 2023.

Sd/-K.Srihari,

Judicial Magistrate of I Class,

Kaikaluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Prosecution: Defence:

P.W1: Ch.KrishnaNone

EXHIBITS MARKED FOR

Prosecution: Defence:

Ex.P1: Original Occurrence reportNil

Ex.P2: Original First Information Report

Ex.P3: Original rough sketch of the scene of offence

Ex.P4: Original letter of advise.

Ex.P5: Original Laboratory analysis report

MOs MARKED FOR

M.O.1: Sample bottle of Royal Palace M.O.2: Sample bottle of AC Black whisky

Sd/-K.Srihari,

JMFC, Kaikaluru.

C.C.No.58 of 2022 6 JMFC Court, Kaikaluru

CALENDAR AND JUDGMENT

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, KAIKALURU

C.C.No.58/2022 Date of Offence Complaint NoticeReleasedCommencemClose ofSentence served to theon bailent of trial trial or order accused u/s 41(A) Cr.P.C. 14.12.2021 14.12.2021---01.12.202201.12.202227.02.2023

Between: State, represented by Sub Inspector of Police, Kaikaluru Rural Police Station

... Complainant

Vs

Bale Venkatesh, S/o Nagaraju, aged about 35 years, R/o Srungavarapadu village, Kaikaluru Mandal

... Accused

Finding : ‘Not guilty’

Sentence: In the result, accused is found not guilty for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.Os.1 and 2 sample bottles shall be destroyed after expiry of appeal time.

Explanation for delay:

This case was taken on file on 19.02.2021. On appearance of accused, he was furnished with the copies of documents as contemplated U/s. 207 Cr.P.C. On 11.08.2022 accused was examinedunder Section 239 of Cr.P.C., the accusation is read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried. On 01.12.2022 L.W.5 is examined as PW.1 and marked Exs.P1 to P4 and M.O.1. Prosecution evidence is closed. On 03.02.2023 accused was examined U/s 313 of Cr.P.C, he denied and reported no defence evidence. Heard both sides. On 27.02.2023 judgment is pronounced. Hence, the delay.

Sd/-K.Srihari,

Judl. Magistrate of First Class, Kaikaluru. Submitted to the:

Hon’ble I Addl.Sessions Judge,

Krishna, Machilipatnam.

Copy to: The Hon’ble Chief Judicial Magistrate, Krishna, Machilipatnam. The Superintendent of Police. Machilipatnam.

1

O.S.No.209 of 2020

IN THE COURT OF THE JUNIOR CIVIL JUDGE, KAIKALURU

Present: Kantipudi Srihari Junior Civil Judge

Friday, this the 24th day of February, 2023

O.S.No. 209 of 2020

Between:

Kotturu Satish … Plaintiff

And

Kandula Nagaraju … Defendant

This suit is coming on 06.02.2023 before me for final hearing in the presence of Sri G.U.Sankar, Advocate for plaintiff and defendant having remained ex parte on 19.01.2023; and upon perusing the material on record, the Court delivered the following:

J U D G M E N T

This is a suit filed for recovery of Rs.1,71,600/- being the principal and interest due on a promissory note dated 12.12.2017 executed by defendant in favour of plaintiff for Rs.1,00,000/- repayable with interest at 24% per annum and for costs.

2.The averments mentioned in the plaint, in brief, are:

Defendant borrowed an amount of Rs.1,00,000/- from plaintiff on 12.12.2017 for his business purpose and on the same day, he executed a promissory note in favour of plaintiff agreeing to repay the same with interest at 24% per annum either to him or to his order on demand. Subsequently, in spite of repeated demands made by plaintiff, defendant has been shelving to repay the same on some pretext or the other. Hence, the suit.

3.Though summons was served personally, returned as ‘whereabouts are not known’. On 19.01.2022 summons issued by way of paper publication in Andhra 2

O.S.No.209 of 2020

Jyothi Telugu Daily News Paper, defendant failed to appear before the Court and remained ex parte.

4.In order to establish his claim, on behalf of plaintiff, he himself was examined as P.W.1 and Ex.A1 was marked.

5.Heard learned counsel for plaintiff and perused the material available on record.

6. Now the point that arises for determination is___

Whether plaintiff is entitled to recover the suit amount from

the defendant as prayed for ?

7.Point: According to plaintiff, defendant borrowed an amount of

Rs.1,00,000/- from him on 12.12.2017 for his business expenses and on the same day, executed Ex.A1 promissory note in his favour agreeing to repay the same with interest at 24% per annum either to him or to his order on demand. Further, according to him, in spite of repeated demands made by him, the defendant has been evading to repay the debt under the suit promissory note on some pretext or the other.

8.As already noted, in order to establish his claim, on behalf of plaintiff, he himself was examined as P.W.1 and got marked Ex.A1. In his evidence affidavit in lieu of chief-examination, plaintiff, as P.W.1, has reiterated the averments mentioned in the plaint and through him Ex.A1 was marked. Ex.A1 is the Original promissory note dated 12.12.2017 executed by defendant in favour of plaintiff for

Rs.1,00,000/-. As already noted, though summons was served, defendant failed to appear before the Court and remained ex parte, and thereby, the evidence of

P.W.1 remains unchallenged.

9.On a perusal of the unchallenged evidence of PW.1 coupled with Ex.A1, this court is of the view that plaintiff has established not only about the lending of 3

O.S.No.209 of 2020

Rs.1,00,000/- to defendant, but also established about the execution of Ex.A1 promissory note in his favour agreeing to repay the same with interest at 24% per annum. Since plaintiff has established the execution of Ex.A1 promissory note by defendant, this Court is of the view that plaintiff is entitled to recover the suit amount from the defendant as prayed for. Accordingly, the point is answered in favour of plaintiff.

10.In the result, the suit is decreed with costs for an amount of Rs.1,71,600/- with subsequent interest at 12% per annum on Rs.1,00,000/- from the date of suit till the date of decree and thereafter at 6% per annum till the date of realization.

Typed to my dictation by Personal Assistant, pronounced by me in open Court, on this the 24th day of February, 2023

Sd/-K.Srihari,

JUNIOR CIVIL JUDGE

KAIKALURU

Appendix of Evidence

Witnesses Examined

For Plaintiff: For Defendant: P.W.1: Kotturu SatishEx parte.

Documents Marked

For Plaintiff:

Ex.A1: 12.12.2017: Original promissory note executed by defendant in favour of plaintiff for Rs.1,00,000/-

For Defendant: Nil.

Sd/-K.Srihari,

JCJ, KKLR.

IN THE COURT OF JUDICIAL MAGISTRATE OF THE I CLASS, KAIKALURU

Present: Kantipudi Srihari

Judicial Magistrate of First Class

Monday, this the 27th day of February, 2023

C.C.No.1114 of 2021

Between: Sadhini Satyavathi, W/o Satyanarayana, aged about 50 years, R/o Lokumudi village, Mandavalli Mandal

...Complainant

AND

Kolikipogula Joji Babu, S/o Malleswara Rao, aged about 37 years, C/o Vennela Venkateswara Rao House, 9th ward, Canal road, R/o Lokumudi village, Mandavalli Mandal

...Accused

This case is coming on this day before me and having stood over till this day for examination of accused, this Court delivered the following:

JUDGMENT

Complainant present. Learned counsel on record identified the complainant. The complainant voluntarily agreed to withdraw the complaint and accordingly filed petition under Section 257 Cr.P.C.

Crl.M.P.No.122/2023 is allowed.

In the result, this complaint is dismissed as withdrawn.

Pronounced by me in open Court, this the 27th day of February, 2023

Sd/-K.Srihari,

J.F.C. Magistrate, Kaikaluru

APPENDIX OF EVIDENCE

- N I L -

Sd/-K.Srihari,

J.F.C.M., KKLR