K. Vasudeva Rao

1/12 O.S.No.96/2003

IN THE COURT OF THE JUNIOR CIVIL JUDGE:: URAVAKONDA

Present: Sri K.VASUDEVA RAO

Junior Civil Judge, Guntakal

FAC Junior Civil Judge, Uravakonda

Friday this the 17th day of November, 2017

Original Suit No.96/2003

Between:-

1. T.Narayana Swamy

2. B.Mallikarjuna

3. Boya Vijay

4. Boya Veeranna

5. Boya Pulikonda ….Plaintiffs

And

1. District Collector, Anantapuram

2. Mandal Revenue Officer, Vajrakarur

3. Panchayat Secretary, Gram Panchayat, Konakondla

4. K.Samauelappa S/o Yesudas

5. G.C.Obulesappa

6. D.Chandra Sekhar

7. K.Chiranjeevi ...Defendants

(defendant 4 is added as per the orders in I.A.No.148/2008 and I.A.No.149/2008 in O.S.No.96/2003 dt.1.8.2008)

This suit gas came coming for final hearing before me in the presence of Sri M.Rajasekhar Prasad, advocate for the plaintiff and of Assistant Government pleader and Sri K.Bhemanna, advocate for the defendants and having the matter stood over for consideration, this Court delivered the following:-

J U D G M E N T

1.This suit is filed by the plaintiffs against the defendants for grant of permanent injunction restraining the defendants, their men and agents from removing the bunks situate in the plaint schedule property till the plaintiffs paying necessary taxes as per the Rules of A.P.Gram Panchayat Act.

2.Case of the plaintiffs in brief is that they are residents of

Konakondla village of Vajrakarur mandal and for the past five years they are doing business in small bunks by putting them in the road margin leading from Bus stand to Konakondla village, and except the said income they do not have any other source of income. They have also taken loan from 2/12 O.S.No.96/2003

Syndicate Bank, Konakondla and recently 3rd defendant laid C.C.Road, from

Bus stand into the Village and at that time their bunks were temporarily removed and subsequently, plaintiffs have put up their bunks and doing their business. The Surpanch of Konakondla has also granted permission for them and Gram panchayat has also passed a resolution on 16.6.2003 granting permission to them to put the bunks. To the South of the C.C.Road, and their bunks a Harijana colony situated and due to the installation of their bunks there is no obstruction for the people of the said colony for their ingress and egress, but due to misunderstandings of the colony people they raised objection for continuing the business of the plaintiffs in their bunks and on 16.7.2003 second defendant visited the colony and conducted an enquiry and a news was also published in Eenadu News Paper and second defendant has sent a report to the District Collector, Anantapuram stating that 3rd defendant has no objection for running the business of the plaintiffs in their bunks. Defendants 1 and 2 have no right to interfere with the affairs of 3rd defendant and as they are powerful and influential in their official capacity and entire government machinery is under their control, they may influence the third defendant to remove the bunks of plaintiffs due to which plaintiffs may suffer serious irreparable loss and caused damage to their livelihood.

On 04.7.2003 they have got issued notice to defendants 1 and 2 but they did not gave any reply. Hence, the plaintiffs were constrained to filed the suit and prayed the court to grant permanent injunction restraining the defendants, their men and agents from removing the bunks situate in plaint schedule property till they pay the necessary taxes according to law.

3.Second defendant filed written statement and defendants 1 and 3 filed memo adopting the written statement of second defendant. They contended that the plaintiffs encroached the road margin and doing business in the petty bunks due to which they are causing obstruction for the free 3/12 O.S.No.96/2003 movement of public and vehicles and also causing traffic jams. They further contended that they have a laid a C.C.Road, and the petty bunks of plaintiffs situate by encroaching the road margin and hence they prayed the court to dismiss the suit.

4.Defendant No.6 filed written statement and defendants 4, 5 and 7 filed memo adopting written statement of 6th defendant. They admitted that plaintiffs are residents of Konakondla village and they set up bunks on the road margin. They denied the allegation that the bunks were set up five years prior to filing of the suit. They contended that they were set up just

before filing the suit. They denied the allegation that due to the petty bunks

there is no obstruction for the ingress and egress of the people of Harijana colony. They contended that people of Harijana colony are enjoying open place even before independence and they are using the said place for performance of marriage functions, communal functions and for common purposes and so they got every right of access at every point adjoining to the C.C.Road. They admitted second defendant visited their village and conducted enquiry and they came to know that Mandal Revenue Officer,

Vajrakarur submitted a report to the District Collector, stating that the delegation powers vested with D.P.O., and cancel the resolution passed by the panchayat as it is not valid under law. They contended that in the said colony nearly seven hundred families situate and they reside on a small hillock at about 35 feet height and the bunks of the plaintiffs are at a height of 10 to 15 feet and they are causing obstruction to the people of the colony to reach the road. They further contended that there are three drinking water taps where the plaintiffs have laid their bunks. They further contended that due to the said bunks it is difficult for them to unload from carts for the agriculturists. They further contended that the colony people formed an association in the name of “Dalita Welfare and Development Society” and 4/12 O.S.No.96/2003 the same was registered and 4th defendant presided the society and gave representation to the District Collector several times and on 26.5.2003 the

District Collector ordered panchayat Officers, to remove the bunks and on 28.5.2003 they visited schedule property and after enquiry on 29.5.2003 they removed the bunks with the help of police in the presence of secretary and same is communicated to the District Collector vide letter dt.30.5.2003 and later one Dasari Govindu, President of panchayat colluded with the plaintiffs under the political influence and plaintiffs have created documents of tax receipts and also resolutions without having any power for the president and hence, they prayed the court to dismiss the suit and direct the plaintiffs to remove the bunks from the suit schedule property with costs.

5.In view of the rival contentions of both parties the following issues were settled for trial:

1)Whether the plaintiffs shops encroached on road margin and shops business activities causing traffic jam?

2)Whether the plaintiffs are entitled for permanent injunction as prayed for?

3)To what relief?

6.In the course of trial plaintiffs examined First plaintiff Y.Narayana

Swamy as P.W.1, 6th plaintiff B.Pulikonda as P.W.2 and got marked Exs.A.1 to

A.14. Defendants 1 to 3 examined M.Premalatha Tahsildar, as D.W.1 and

A.Anand (3rd defendant) as D.W.2 and got marked no documents. Defendants 4 to 7 examined 4th defendant K.Samuelappa as D.W.3 and 7th defendant

K.Chiranjeevi as D.W.4 and got marked Ex.B.1 and B.2. Learned advocate commissioner was examined as C.W.1 and got marked Ex.C.1.

7.Heard learned counsel for the plaintiffs and learned counsel for the defendants. Perused record.

ISSUE NO.1 5/12 O.S.No.96/2003

8. Learned counsel for the plaintiffs argued that plaintiffs have put up their bunks about five years before filing of the suit and permission was also granted by the Surpanch stating that they have no objection under

EX.A.6 and a resolution was also passed by the gram panchayat under Ex.A.7 stating after removing their bunks for laying the C.C.Road, they have no objection for again putting up their bunks and they have also paid taxes to the Gram Panchayat under Ex.A.8 and none of the public have raised any objection stating that due to the bunks laid by the plaintiffs, there is a traffic jam and putting bunks by the plaintiff is even admitted by the defendants 1 to 7 in their written statement and plaintiffs have established their case through the oral evidence of P.Ws.1 and 2 coupled with Exs.A.1 to A.14 and they prayed the court to pass a decree of permanent injunction in their favour and against the defendants.

9.Learned Assistant Government Pleader for defendants 1 to 3 argued that the bunks laid by the plaintiffs is creating traffic jam and they were put up by encroaching the road and the said fact is established through the oral evidence of D.Ws.1 and 2 and prayed the court to dismiss the suit.

10.Learned counsel for defendants 4 to 7 argued that the residents of Harijana Colony are facing several difficulties due to the bunks put up by the plaintiffs by encroaching the road margin and their rights to access the road is being effected. It was further argued that even before independence the colony people are using the plaint schedule property for celebration of caste functions and festivals by using the schedule property. It was further argued that on the representation given by the people of Harijana Colony, the then Honourable District Collector directed to remove the bunks and the same were removed and by influencing the Surpanch, the plaintiffs again put up the bunks in the plaint schedule property and fabricated the 6/12 O.S.No.96/2003 panchayat resolution and the Gram Panchayat has no authority to pass such resolution permitting the plaintiffs to put the bunks causing inconvenience to the people of Harijana Colony and hence, he prayed the court to dismiss the suit by removing the bunks from the plaint schedule property.

11.Chief Examination affidavit of first plaintiff which was received as chief examination of P.W.1, is nothing but reiteration all the material averments made in the plaint. Chief Examination Affidavit of sixth plaintiff which was received as Chief examination of P.W.2 is in corroboration of P.W.1 and material averments of the plaint.

12.In the cross examination of P.W.1, nothing was suggested to

P.W.1 and 2 that due to putting up bunks by the plaintiffs 1 to 6 there is a traffic jam to the public in the vicinity. Similarly, oral evidence of D.Ws.1 to 4 is also silent that there is a traffic jam due to the bunks laid down by plaintiffs No.1 to 6 in the suit schedule property. Hence, it can be safely held that due to the bunks laid down by plaintiffs 1 to 6 there was no traffic jam.

13.The next contention is that the plaintiffs have encroached in the plaint schedule property and put up their bunks. In the cross examination of

P.W.1 he denied suggestions that Gram Panchayat did not pass any resolution under Ex.A.7 and granted permission to the plaintiffs under

Ex.A.9. Ex.A.7 is a resolution passed by the Gram Panchayat, Konakondla in which it was mentioned that for laying the C.C.road, the bunks situate near the Bus Stand on the main Road have to be removed and after laying the road they are permitted to put up their bunks. It also disclose the names of owners of the bunks viz., plaintiffs No.1 to 6. It contains the signatures of members of panchayat and also the Surpanch. If at all the bunks are situated by encroaching the road margin, 3rd defendant ought not to have passed such resolution. Even in the evidence of D.Ws.1 and 2 they did not deny 7/12 O.S.No.96/2003 about passing of such resolution under Ex.A.7. It is pertinent to observe that the only contention raised by the defendants 1 to 3 is that 3rd defendant has no such power to pass Ex.A.7 resolution. For the best reasons known to the defendants they have not examined any of the members of Gram Panchayat and Surpanch, who are competent persons to speak about Ex.A.7. Hence, the contention of defendants that plaintiffs encroached into the road margin and causing lot of inconvenience and traffic jams to the people of Harijana

Colony cannot sustain.

14.Ex.A.8 tax receipts (six) filed on behalf of plaintiffs for collection of fee by the third defendant for running the business in the petty bunks situate at the suit schedule property also establish the consent of 3rd defendant to the plaintiffs to run their business in the suit schedule property.

It is pertinent to observe that nothing was specifically suggested to P.W.1 disputing the genuineness of Ex.A.8 receipts issued by third defendant. Even

D.W.2 in his evidence did not deny collection of fee by the gram panchayat from the plaintiffs. It is pertinent to observe that even before filing of the suit no notice was issued to the plaintiffs by defendants No.1 to 3 directing them to remove the bunks from the suit schedule property. If at all plaintiffs have encroached into the suit schedule property, third defendant has every right to issue such notice demanding for removing bujnks. Hence, on this aspect also the contention of the defendants that plaintiffs encroached into the road margin and set up the bunks cannot sustain.

15.Ex.C.1 commissioner report disclose that nine wooden bunks of the plaintiffs situate on the southern side of road margin. He also specifically mentioned that three bunks are erected on the foundation and the remaining bunks are without any basement. He specifically mentioned that he observed that there is access to the Harijana Colony residents to the road across the drainage canal. He specifically stated that the bunks are put up on road 8/12 O.S.No.96/2003 margin. Noting was elicited from C.W.1 disputing Ex.C.1 report. Exs.A.1 to

A.5, A.10 and A.11 photos also disclose that there is sufficient space to the public to pass on the road. Hence, the contention of the defendants cannot sustain.

16.Oral evidence of D.Ws.No.3 and 4 do not disclose any fact that plaintiffs have encroached and set up the bunks in the plant schedule property. Their only objection is Executive Officer of 3rd defendant did not gave any permission to put up bunks by the plaintiffs in the plaint schedule property. In this aspect, this court in the above paragraphs of judgment has held that failure on the part of 3rd defendant to issue notice to the plaintiffs for removing the bunks establish that the bunks set up by the plaintiffs are not without permission of the panchayat. Hence, the oral evidence of

D.Ws.No.3 and 4 cannot be accepted. For the best reasons known to the defendants No.4 to 7 they did not choose to examine any official of 3rd defendant to establish their contention. Though defendant has filed Ex.B.1 it do not disclose that the gram panchayat has passed a resolution against

Ex.A.7 to remove the bunks. Hence, the contention of the defendants cannot sustain.

17. In view of the aforementioned discussion, this court finds that the bunks put up by the plaintiffs were not by encroaching into the road margin and due to the bunks there is no traffic jam as contended by the defendants. Accordingly, issue No.1 is answered.

ISSUE No.2:

18. It is well settled law, in a suit for permanent injunction it is the duty of plaintiff to establish that the plaintiff have been in lawful possession and enjoyment of plaint schedule property and defendants are trying to interfere with their possession.

9/12 O.S.No.96/2003

19. It is the case of plaintiff that five years prior to filing of the suit, they have put up petty bunks in the road margin of the suit schedule property and obtained permission from 3rd defendant and also a resolution was passed permitting the plaintiffs to again put up bunks after laying

C.C.Road. P.W.1 in his evidence specifically deposed the said facts, and in the cross examination nothing was suggested denying the existence of petty bunks put up by the plaintiffs in the plaint schedule property. In the written statement filed by the defendants 1 to 7 they have also admitted that the plaintiffs have put up the bunks in the suit schedule property. The only objection raised by the defendants is due to the said bunks, lot of inconvenience is caused to the people of Harijana colony, and traffic jams are created. This court, while answering issue No.1 held negative with regard to the said objection raised by the defendants. Since defendants also did not deny presence of the petty bunks situate in suit schedule property and they admitted the same in their pleadings, it can be safely held that plaintiffs have established existence of petty bunks in the suit schedule property.

20. Now, it is the duty of plaintiffs to prove that they are threatened for eviction of petty bunks in the suit schedule property. To establish the said fact, plaintiffs relied on oral evidence of P.W.1. It is the case of the plaintiffs that a report was published in Eenadu that the petty bunks of the plaintiffs are going to be removed from the plaint schedule property. D.W.3 in his evidence also deposed that a representation was given to the District

Collector for removing the bunks of the plaintiffs on 12.5.2003 and where the

D.L.P.O, Anantapuram ordered for the removal of bunks on 28.5.2003 and he visited the suit schedule property with the police to remove the bunks and the same is intimated to the Collector. The evidence of D.W.3 also goes to show that there is a threat to the plaintiffs for removing the petty bunks situate in the plaint schedule property. On the other hand, defendants No.4 10/12 O.S.No.96/2003 to 7 even in their pleadings prayed this court to evict plaintiffs from plaint schedule property. In the present suit such prayer by defendants cannot sustain. They can get such relief independently by filing separate suit.

Hence, it can be safely held that the plaintiffs have established that defendants are making attempts to remove the petty bunks situate in the plaint schedule property.

21. It is well settled law, even a trespasser who is in possession of property has to be evicted only according to procedure established under law. It is admitted fact that the suit schedule property belong to the defendants 1 to 3. It is also admitted that plaintiffs are in possession of suit schedule property by putting bunks in it. Till date defendants 1 to 3 did not file any documents to show that the possession of schedule property by the plaintiffs is unlawful. On the other hand plaintiffs establish that their possession of the suit schedule property is according to the resolution passed by Gram Panchayat under Ex.A.7. It is pertinent to observe that in the present suit, plaintiffs sought relief for grant of permanent injunction against the defendants from removing the bunks in the plaint schedule till they pay taxes to the government. If such relief is granted, the defendants 1 to 3 who are absolute landlords of plaint schedule property rights are affected. Hence, this court finds, that the plaintiffs are entitled for grant of permanent injunction only till they are evicted by the defendants according to law.

Accordingly, issue No.2 is answered.

ISSUE No.3:

22.In the result, suit is decreed with costs, granting permanent injunction restraining the defendants not to remove the bunks in the suit schedule property except following due process of law.

11/12 O.S.No.96/2003

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open court on this the 17th day of November, 2017.

Junior Civil Judge Guntakal FAC Junior Civil Judge Uravakonda

APPENDIX OF EVIDENCE

Witnesses examined for

Plaintiffs Defendants

P.W.1: Y.Narayana SwamyD.W.1: M.Premalatha P.W.2 :B.PulikondaD.W.2: A.Anand D.W.3:K.Samuelappa D.W.4:K.Chiranjeevi Exhibits marked for the plaintiffs

Exs.A.1 to A.5Photos with negatives Ex.A.6:Copy of letter dt.16.6.2003 Ex.A.7:Resolution by Gram Panchayat dt.16.6.2003 Ex.A.8:Receipts issued by Grampanchyat dt.29.5.2003 Ex.A.9:Requisition by the plaintiff Exs.A.10 & 11:Photos Ex.A.12:Notice under section 80 of C.P.C. Ex.A.13:Endorsement of Gram panchayat dt.4.6.2003 Ex.A.14:Copy of section 80 C.P.C.notice

Exhibits marked for the defendants

Ex.B.1:Explanation of G.Palakondaiah, panchayat Secretary, Konakondla issued in favour of SDOT, BSNL, Uravakonda

Ex.B.2:Mandal Revenue Officer Vajrakaruru letter to the District Collector, Anantapuram in R.C.No.287 of 2003 dt.21.7.2003( only two pages)

Exhibits marked through the advocate commissioner

Ex.C.1:Commissioner report

Jr.C.J./GTL FAC/Jr.C.J./UKD

1/10 C.C.No.21 of 2017

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

URAVAK0NDA

Present: Sri K.VASUDEVA RAO

Judicial Magistrate of First Class, Guntakal

FAC Judicial Magistrate of First Class, Uravakonda

Friday this the 24th day of November, 2017

Calendar Case No.21/2017

Between:

The State represented by Station House Officer, Prohibition and Excise Police Station Uravakonda. (Crime No.364/2015-16 of Prohibition & Excise Police Station) …Complainant

And

1.Gajula Mani, Age 25 years, S/o G.Uligappa, Resident of D.No.9-2- 84/7, Teru Bazar, Uravakonda village and Mandal

2.H.Kishore Aged 23 years, S/o H.Pampanna Gowd, Resident of Devi Nagar, 2nd cross, S.P.Circle, Bellary village and Mandal,

3.G.Raju, Age 40 years, (owner of Pavan restaurant) S/o G.Ganganna, ResidentofUravakondavillageandMandal …accused

(Case against A.2 is abated as died)

This case is coming for final hearing before me in the presence of the Assistant Public Prosecutor for prosecution and of Sri M.Raja Sekhara Prasad, advocate for the accused and the matter having stood for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. Prohibition and Excise Sub Inspector, Uravakonda filed charge sheet against A.1 to A.3 in Cr.No.364/2015-2016 for the offence under section 34 (a) of A.P.Excise Act, 1968 of Uravakonda Prohibition and Excise Police Station.

2.Case of the prosecution as per the averments of charge sheet in brief is that on 10.3.2016 on credible information P.W.4

Y.V.Pavan Kumar, Prohibition and Excise Inspector along with his staff, mediators P.W.1 S.V.Vikram, P.W.2 B.Rajgopal and P.W.3 V.Sai Prasad conducted raid at 4.15 p.m., at Pavan restaurant situate near Gavi matam, and issued search warrant to them and seized 7 kingfisher 2/10 C.C.No.21 of 2017

Beer bottles, 5 Budweiser, 3 Knockout Beer Bottles (total 15 beer bottles each of 650 ml ) and they confessed that A.3 is the owner of their restaurant and above property was seized after drawing sample, under the cover of panchanama and they were arrested in the presence of mediators and they were brought to the station and case in crime

No.364/2015-16 was registered and A.1 and A.2 were sent to judicial remand. On the same day, after completion of the case, P.W.3 V.Sai

Prasad, gave a complaint about illegal sale of liquor at Pavan

Restaurant. Later, the samples were sent to Chemical Examiner, Chittor and the Analyst opined that the samples are beer. Subsequently, as per the order of Deputy Commissioner, Prohibition and Excise in RC

No.151/2015/B1 dt.8.7.2016 remaining property was confiscated to the state. During the course of investigation, A.3 confessed that he kept the beer bottles for self consumption and not for sale and as the quantity is in excess as per the G.O.No.274 Revenue (Excise) Dept, dt.21.7.2014.

After completion of investigation P.W.5 Mallika Prohibition and Excise

Sub-Inspector filed charge sheet against A.1 to A.3.

3.On 10.2.2017 cognizance of offence under section 34(a) of

A.P. Excise Act, 1968 taken against A.1 to A.3.

4.After appearance of A.1 to A.3, copies of documents were furnished to them under section 207 Criminal Procedure Code and they were examined under section 239 Criminal Procedure Code for the substance of accusation made against them in the charge sheet for which A.1 to A.3 denied as false. Charge under section 34(a) of A.P.

Excise Act 1968, is framed against A.1 to A.3, read over and explained to them in telugu, for which they pleaded not guilty and claimed to be 3/10 C.C.No.21 of 2017 tried.

5.In the course of trial, prosecution examined S.V.Vikram,

B.Rajagopal, mediators V.Saiprasad, complainant T.Narasimhulu and

V.Mallika, Prohibition and Sub Excise Inspector as P.Ws.1 to 5 respectively and got marked Signature of P.W.1 on panchanama,

Signature of P.W.2 on panchanama, Written report submitted by P.W.3,

Panchanama dt.10.3.2016, FIR in Cr.No.364/2015-16 and Analyst report as Exs.P.1 to P.6respectively besides Knockout Sample Beer Bottle,

Butwisers Beer Sample Bottle and Kingfisher Beer Sample Bottle as

M.Os.1 to 3 respectively.On 25.4.2017 case against A.2 was abated on the memo filed by learned Assistant Public Prosecutor along with his death certificate. The evidence of L.W.4 Y.V.Pavan Kumar was given up by the learned Assistant Public Prosecutor.

6.After closing the prosecution evidence, A.1 and A.3 were examined under section 313 Criminal Procedure Code by granting opportunity to offer their explanation on the incriminating material evidence available against them, for which they denied as false and reported no defence evidence on their behalf.

7.Heard learned Assistant Public Prosecutor and learned counsel for the defence. Perused the record.

8.Now the point for determination is:

Whether the prosecution was able to establish the offence under section 34(a) of A.P.Excise Act 1968

against A.1 and A.3 beyond reasonable doubt ?

POINT:

9.Learned Assistant Public Prosecutor argued that the oral testimonies of P.Ws.1 to 5 coupled with Exs.P.1 to P.6 and M.Os.1 to 3 establish the case of prosecution and hence accused are to be punished 4/10 C.C.No.21 of 2017 according to law.

10.Learned defence counsel argued that P.Ws.1 and 2 mediators, did not supported the case of prosecution, alleged search proceedings were not filed before this court, no document was filed to prove that Pavan Restaurant belong to A.3 and A.1 is working under him, case was not registered by the Excise Police immediately after receiving Ex.P.3 report and there was a delay in sending M.Os.1 to 3 to the Chemical Examiner and none of the neighbours of the scene of offence were called as mediators and hence oral evidence of P.Ws.3 to 5 cannot be believed and accused are entitled for acquittal.

11.P.W.1 S.V.Vikram, in his evidence deposed that about one year ago, on one day during evening while he was waiting near Kavitha

Hotel for a bus, one Excise constable came to him and obtained his signature on written paper and he does not know name of the constable and contents of the written paper. Though P.W.1 identified his signature on the panchanama under Ex.P.1, he failed to support the case of prosecution. Inspite of his cross examination by the learned Assistant

Public Prosecutor, he did not depose anything against the accused.

Hence, oral testimony of P.W.1 mediator is not useful to prove the case on hand against accused.

12.P.W.2 B.Rajagopal another mediator also deposed that on one day at about 3-00 p.m., while he was taking tea at Rajasthan Hotel, two constables requested him to sign on some written papers and he does not know the contents of said papers. Though he identified his signature on the panchanama under Ex.P.2, he failed to support the case of prosecution. Inspite of his cross examination by the learned 5/10 C.C.No.21 of 2017

Assistant Public Prosecutor, he did not depose anything against the accused. Hence, oral testimony of P.W.2 mediator is also not useful to prove the case on hand against accused.

13. P.W.3 V.Sai Prasad, in his evidence deposed that on 10.3.2016 after conducting interview of Executive Officer, Gavimatam, at 12.30 p.m., he reached Pavan Restaurant and found people sitting in the restaurant are consuming liquor and eating Biryani and immediately he directed his camera man Kamal Basha to shoot the restaurant and while he was shooting, one person questioned and abused him in filthy language and tried to break their camera and immediately he called

Deputy Commissioner Prohibition and Excise, Anantapuram by phone and came to know the name of the said person is Raju/A.3, and he is the owner of Restaurant and within fifteen minutes Prohibition and

Excise Sub Inspector, reached to Restaurant and they searched and seized two cases of beer bottles of different companies from a refrigerator in the kitchen of Restaurant and he gave report to

Uravakonda Police and another report under Ex.P.3 to the Excise Police.

14.P.W.5 V.Mallika, Prohibition and Excise Sub-Inspector deposed that on the information received by Y.B.Pavan Kumar

Prohibition and Excise Inspector, she followed him to Pavan Restaurant and they found A.1 and A.2 in the restaurant and served search proceedings and seized 15 beer bottles and also drawn one bottle as sample from each brand under M.Os.1 to 3 and obtained signatures of accused and mediators and Ex.P.4 panchanama was drafted by P.W.4

T.Narasimhulu, and thereafter she registered case under Ex.P.5 and released A.1 and A.2 on bail after obtaining sureties. P.W.4 6/10 C.C.No.21 of 2017

T.Narasimhulu, corroborated the evidence of P.W.5 about drafting Ex.P.4 panchanama, seizure of liquor bottles under it.

15.P.W.3 deposed that he do not know whether A.3 is owner of

Pavan Restaurant. He admitted that by the time Excise Sub Inspector came to Pavan Restaurant, A.1 to A.3 were not present. Further he deposed that he did not sign on any document prepared by Excise

Police. He specifically admitted that in Ex.P.3 report, he noted that staff informed that 15 beer bottles were seized. The said admission of P.W.3 goes to show that he did not witness seizure of any contraband from

Pavan Restaurant. P.Ws.4 and 5 in their evidence failed to testify that

P.W.3 was present when they reached scene of offence. I have perused

Ex.P.4 panchanama, it does not contain the signature of P.W.3 and presence of P.W.3. It is pertinent to observe that even on Ex.P.3 the signature of any Excise Official was not found. If really P.W.3 presented

Ex.P.3, a duty cast upon Excise Official to register case basing on it.

Admission of P.W.3 that A.1 to A.3 were not present when excise official reached scene of offence shall be considered as fatal to the case of prosecution.

16. Though P.W.4 and 5 testify that search proceedings were served on A.1 and A.2. For the best reasons known to prosecution, it did not filed before this court and got marked through P.W.5. Admittedly

P.Ws.1 and 2 mediators did not supported the case of prosecution. In the absence of any documentary evidence, to show that Pavan

Restaurant belong to A.3 and A.1 and A.2 were working under him and non-examination of any public found in the restaurant and non production of video recording taken by Camera Man Kamal Basha, and his oral testimony raises a strong suspicion over the case of 7/10 C.C.No.21 of 2017 prosecution. Hence, oral testimony of P.Ws.4 and 5 cannot be believed as cogent and trustworthy.

17As per the case of prosecution, M.Os.1 to 3 were lifted as samples on 10.3.2016 from the possession of accused and Ex.P.6

Analyst report disclosed that they were received on 12.3.2016. There was a delay of two days in sending M.Os.1 to 3. Prosecution failed to explain the said delay. P.W.3 admitted that Excise Police did not obtain his signature on any document. P.W.4 deposed that signatures of A.2 and A.3, mediators were obtained on the mediators’ slips and affixed on the sample bottles and other property. P.W.5 also deposed on the same lines. On perusing Ex.P.4 panchanama, signatures of A.1 and A.2 were found. Presence of A.3 is silent. Inconsistency between oral evidence of

P.Ws.4 and 5 with that of Ex.P.4 raises a strong suspicion over seizure of

M.Os.1 to 3 under Ex.P.4.

18.In S. Babu Saheb v. State of A.P. reported in 2010(1)

ALT (Crl) 32 (AP) the Honourable High Court of Andhra Pradesh at para

Nos. 16 and 17 held as follows:- “16. Admittedly PW1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are 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 sub-section(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 8/10 C.C.No.21 of 2017 sometimes destroy the prosecution case.

17.Of course if cannot be said that 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. In this case admittedly no efforts were made to secure the presence of the local mediators.”

19.In the case on hand also prosecution failed to explain the delay of two days in sending M.Os.1 to 3 to the Chemical Examiner.

Inconsistency between oral evidence of P.Ws.3 to 5, with that of Ex.P.4 and failure to take steps under section 43 of A.P.Excise Act, and produce any document to establish the steps taken for confiscation of remaining contraband and upon relying the above judgment this court finds that prosecution has miserably failed to prove the offence under section 34

(a) of A.P.Excise Act 1968 against A.1 and A.3 beyond all reasonable doubt. Accordingly, point is answered against the prosecution.

20.In the result, A.1 and A.3 are found not guilty for offence under section 34(a) of A.P. Excise Act 1968 and hence they are acquitted under section 248 (1) Criminal Procedure Code. The bail bonds of A.1 and A.3 shall be in force for a period of six months. M.Os.1 to 3 sample bottles shall be destroyed after appeal time is over. Case against A.2 is abated.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in open Court this the 24th day of November, 2017.

Judl.Magistrate of First Class, Guntakal FAC Judl.Magistrate of First Class, Uravakonda

Appendix of Evidence

9/10 C.C.No.21 of 2017

Witnesses examined for

Prosecution Defence

P.W.1: S.V.Vikram None

P.W.2: B.Rajagopal

P.W.3: V.Saiprasad

P.W.4: T.Narasimha Murthy

P.W.5: Mallika

Exhibits marked for

Prosecution Defence

Ex.P.1: Signature of P.W.1 on panchanama NIL

Ex.P.2: Signature of P.W.2 on panchanama

Ex.P.3: Written report submitted by P.W.3

Ex.P.4: Panchanama dt.10.3.2016

Ex.P.5: FIR in Cr.No.364/2015-16

Ex.P.6: Analyst report

Material Objects marked for prosecution

M.O.1: Knockout Sample Beer Bottle

M.O.2: Butwisers Beer Sample Bottle

M.O.3: Kingfisher Beer Sample Bottle

Material Objects marked for defence

NIL

JMFC/GTL FAC/JMFC/UKD

Copy submitted to the Honourable First Additional District and Sessions

Judge, Anantapuram.

1 /4 O.S.No.97/2016

IN THE COURT OF THE JUNIOR CIVIL JUDGE

URAVAK0NDA

Present: Sri K.VASUDEVA RAO

Junior Civil Judge, Guntakal

FAC Junior Civil Judge, Uravakonda

Tuesday this the 17th day of November, 2017

Original Suit No.97 of 2016

Between:-

Nettem Rajeswari….Plaintiff

And

1.Gadekanti Shivaralu (died by his L.Rs)

2. Gadekanti Seshamma …Defendants

This suit is coming for final hearing before me in the presence of Sri P.Venkata Naidu, advocate for the plaintiff and the defendant called absent and set ex parte and this Court delivered the following:-

J U D G M E N T

1.This suit is filed by the plaintiff against the defendants for recovery of Rs.1,21,025/- being the principal and with costs, due on a promissory note dated 04.11.2013 for Rs.71,000/- executed by the husband of the 2nd defendant namely Gadekanti Shivaralu in favor of the plaintiff.

2.The brief averments of the plaint are that the husband of the 2nd defendant namely Gadekanti Shivaralu had borrowed a sum of

Rs.71,000/- in cash for his family necessities from the plaintiff on 04.11.2013 at Janardhanpalli village of Vidapanakal and executed suit promissory note agreeing to repay the same with interest at the rate of 24 per cent per annum. In spite of repeated demands made by the plaintiff and inspite of issuing legal notice dt.04.7.2016, 1st defendant did not choose to pay any amount and he died intestate leaving behind the 2nd defendant as his legal heir and the 1st defendant is not an agriculturist and so the defendants are not entitled for the provisions of A.P.Act 45/1987 and A.P.Act 2/1990.With the said averments he 2 /4 O.S.No.97/2016 prayed the court to pass a decree for the suit claim with future interest and costs.

3. The 2nd defendant after service of summons on 15.9.2017 failed to appear in person or through her counsel and as there was no representation on her behalf, this court passed order setting defendant exparte. Till date she did not take any steps to set aside the order dt.15.9.2017 passed by this court.

4.After 2nd defendant was set exparte suit was adjourned for plaintiff’s exparte evidence. Plaintiff, N.Rajeswari, filed chief affidavit in lieu of her chief examination as P.W.1 and got marked Exs.A.1 to A.3.

5. Heard the learned counsel for plaintiff.

6. Now the point for consideration is;

Whether the suit is liable to be decreed as prayed for? POINT:

7.The learned counsel for the plaintiff argued that the husband of the 2nd defendant namely Gadekanti Shivaralu had borrowed a sum of Rs.71,000/- in cash for his family necessities from the plaintiff on 4.11.2013 at Janardhanpalli village of Vidapanakal

Mandal and executed Ex.A.1 suit promissory note in favour of the plaintiff, agreeing to repay the same with interest @ 24% p.a., in the presence of Scribe Andra Loknath and attestor R.Nettikallappa and inspite of several oral demands defendant and inspite of issuing legal noticed.4.7.2016 ExA.2, did not choose to pay Ex.A.1 debt and died leaving behind his wife as his legal heir and he is not an agriculturist and hence, the Provisions of A.P.Act 45/1987 and A.P.Act 2/1990 does not apply and hence, the oral evidence of P.W.1 coupled with Exs.A.1 to A.3, plaintiff established the suit claim and he prayed the court to decree the suit with costs.

3 /4 O.S.No.97/2016

8. Upon considering the unchallenged oral testimony of

P.W.1 coupled with Exs.A.1 to A.3, this court is left over with no other option except to believe the oral testimony of P.W.1 is cogent and trustworthy. On perusing Ex.A.1 date of filing the suit, this court finds that the suit is filed within limitation. Hence, this court finds that the plaintiff has established that husband of the 2nd defendant namely

G.Shivaralu borrowed Rs.71,000/- on 4.11.2013 and executed Ex.A.1 in favour of the plaintiff. Hence, plaintiff is entitled for a decree for the suit claim with future interest and costs. Accordingly, point is answered.

9. In the result, suit is decreed with costs in favor of the plaintiff and against the estate of the 1st defendant which is lying the hands of 2nd defendant for Rs.1,21,025/- (Rupees one lakh, twenty one thousand and twenty five only) with subsequent interest at the rate of 12 per cent per annum from the date of suit, till the date of decree and thereafter at the rate of 6 per cent per annum from the date of decree, till the date of realization on the principal sum of Rs.71,000/-.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in open Court on this the 17th day of November,

2017.

Junior Civil Judge Guntakal FAC Junior Civil Judge Uravakonda

Appendix of Evidence Witnesses examined for

Plaintiff Defendant

P.W.1:N.Rajesari -NIL-

Exhibits marked for plaintiff

Ex.A.1: Suit promissory note dated 4.11.2013 for Rs.71,000/- executed by the 1st defendant in favour of the plaintiff.

4 /4 O.S.No.97/2016

Ex.A.2: Office copy of legal notice dt.4.7.2016

Ex.A.3: Served Acknowledgment

Exhibits marked for defendant -NIL-

Jr.C.J./GTL FAC/Jr.C.J./UKD

Daily Status

In the Court of :JUNIOR CIVIL JUDGE

Case No. :CC/0000043/2018 SHO Excise PS, Guntakal Vs Vincent Arogyaraj

Date : 22-04-2018

Business: Accused 1 and 2 present. He submitted that they paid compounding fee of Rs.400-00. APP filed a memo that as per GO MS.No.280, Dt.20-4-2011 r.w.GO MS No.720, Revenue Ex.II 14th September, 2004 r.w. GO MS No.1084 Revenue Ex.II, Dt.21-12-2004, the offence under section 7-A r.w. 8-e of APP Act can be treated as 8 (b) (i) of APP Act, since the quantity seized from all the accused are below 101 liters of ID Arrack. Hence the offence is treated as 8 (b) (i) of APP Act which is compoundable in nature. Since accused 1 and 2 paid compounding fee the compromise effected. In the result, accused 1 and 2 are found not guilty for theoffence under section 8 (b) (i) of APP Act and acquitted under section 320 (8) of Criminal procedure code. The unmarked sample bottles shall be destroyed forthwith Nature of Disposal: ACQUITTAL Disposal Date: 22-04-2018

JUNIOR CIVIL JUDGE

Daily Status

In the Court of :JUNIOR CIVIL JUDGE

Case No. :PRC/0000002/2018 Sub Divisional Police Officer Vs Boya Raju

Date  : 23-04-2018

Business: Orders pronounced in the open court. vide separate orders. In the result, case is committed to the Court of Sessions, Anantapuram division under section 209(a) Criminal Procedure Code and A.1 and A.2 are to be enlarged on bail by the orders in Cr.M.P.No.7302017 dated 31.7.2017 by the

Honourable Special Judge for trial of cases under SCs STs

POA -cum-VIII Additional Sessions Judge, Anantapuram, FAC VI Additional Sessions Judge, Anantapuram at Gooty and they are ordered to be continued to be on bail, during and until the conclusion of trial, under section 209b Criminal Procedure Code. The case records and properties are to be submitted to the Court of Sessions, Anantapuram division under section 209c Criminal Procedure Code. The fact of committal of the case is notified to the Public Prosecutor under section 209d Criminal Procedure Code Nature of Disposal: COMMITTED TO SESSIONS Disposal Date: 23-04-2018

JUNIOR CIVIL JUDGE