L. Sarada Reddy PJCJ

O.S. 169/2012 1 A.J.C.J.COURT, HINDUPUR

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE AT

HINDUPUR

Present: Miss. L.SARADA REDDY,

Additional Junior Civil Judge.

Monday, the 13th day of November, 2017

ORIGINAL SUIT NUMBER 169/2012

Between: Smt.Anjinamma, W/o Anjinappa, Agriculturist, aged 55 years, Resident of Gollapalli Village, Parigi Mandal, Anantapuramu District. … Plaintif

And

M.Thimmaiah, S/o Late Kunti Narasimhappa, aged about 48 years, Working in S.S.mills, Kotnuru, Residing at Gollapalli Village, Parigi Mandal, Anantapuramu District. … Defendant.

This suit came on 02-11-2017 for hearing before me in the presence of Sri C.Ramachandra Reddy, Advocate for plaintiff and Sri.K.C.Krishna Reddy, Advocate for the defendant and the matter having stood over for consideration this day, this Court delivers the following:

J U D G M E N T

1.The plaintiff filed the suit for permanent injunction to restrain the defendant, his men and agents from anyway interfering with her possession and enjoyment over the suit schedule property.

2. The brief averments of the plaint are that:

Originally Kunti Narasimhappa purchased an extent of Ac.0.30 cents in

S.No.429-2 under a registered sale deed in the year 1979 from its rightful owners. After purchasing the same the said Kunti Narasimhappa father of the plaintiff herein gifted an extent of Ac.0.5 cents to the Plaintiff for the purpose of constructing the house. The plaintiff accepted the gift took possession of the same and also constructed the house in the said site leaving some place on the Eastern side for the purpose of the way to reach the plots of her brothers which are situated on the Southern side of the plaintiff’s property.

After the death of Kunti Narasimhappa the defendant and his three brothers divided the remaining extent in to four plots and the defendant and other

O.S. 169/2012 2 A.J.C.J.COURT, HINDUPUR

two brothers Anjinappa and Hanumanthappa constructed houses leaving vacant place for hayrick and other purposes. The another brother Narasappa who got the plot to the extreme South did not construct any house in his site and it is still vacant. The defendant is only educated and intelligent person among children of his father. The defendant taking advantage the poorness and innocence of the plaintiff making all kinds of efforts to grab the suit schedule property by hook or crook. The defendant undue advantage of the plaintiff’s poorness and helplessness and with a grudge that the plaintiff and her two other brothers Narasimhappa and Anjinappa got issued a legal notice in respect of creating false documents and causing troubles to the plaintiff for her peaceful possession and enjoyment of the suit schedule property. The suit schedule property is house and vacant site of the plaintiff. The defendant is openly proclaiming in the village that he will disposes the plaintiff from the suit schedule property. The plaintiff is not in a position to resist the high handed acts of the defendant. Hence the suit.

3. The brief averments of the written statement are that:

Originally the boundaries noted it the plaint schedule are totally in correct. It is true that the plaintiff and his three brothers divided the property in four parts (Ac.0.30 cents). This respondent is the last son of Kunti

Narasimhappa. Hence as per the caste custom this respondent is given

Ac.07.1/4th cent in S.No.429-2 on the Northern side and the three elder brothers have taken their respective shares from North to South adjoining the share of this respondent on the Southern side. Since the plaintiff is “Adabidda” of the family she has been given a site with house constructed by this defendant of about Ac.0.02 cents on the South-West corner of the defendants property. Except this small portion where in the plaintiff is in possession the plaintiff has no manner of right, title or possession over

Ac.0.30 cents referred above. The suit schedule property is not the property of the plaintiff and the same is the property of this defendant only.

O.S. 169/2012 3 A.J.C.J.COURT, HINDUPUR

There is no such gift at all, even otherwise if any said gift is there it is out come of fraud played by the plaintiff in collusion with her men. The door number of the property noted in the schedule is 3-124. The defendant alone paying taxes to Beechiganipalli panchayath. In fact the plaintiff has executed un-registered gift deed dated 20-03-1995 in respect of site measuring East-

West :15 feet, North to South : 20 feet in S.No.429-2 measuring Ac.0.30 cents out of Ac.4-04 cents which is out of Ac.6.13 cents. The said gift deed clearly proves the right, title and possession of the plaintiff and the same is valid to show the possession of the defendant.

Even during the life time of Kunti Narasimhappa the father of the defendant asked his four sons to divide Ac.0.30 cents purchased by him in

S.No.429-2 along with other family properties and he is not willing to take any share in the family properties. As per the wish of Kunti Narasimhappa his four sons i.e., the Defendant and his three brothers divided the family properties including S.No.429-2 measuring Ac.0.30 cents and in the said division the defendant got Ac.0.07 cents out of Ac.0.30 cents in S.No.429-2.

The defendant constructed house, shed with compound etc., in the said

Ac.0.07 cents.

The said Kunti Narasimhappa executed an un-registered gift deed in favour of the defendant on 31-01-1992. This document is valid legal and enforceable under law to the extent to show the possession right of the defendant to the extent of Ac.0.07 cents in S.No.429-2. The defendant has been registered as owner of D.No.3-124 of Beechiganipalli Panchayath in

Assessment No.804. Therefore prima-facie case and balance of convenience is in favour of the defendant only and prayed the Court to dismiss the suit with costs.

4.Basing on the pleadings of both parties this court framed the following issues.

O.S. 169/2012 4 A.J.C.J.COURT, HINDUPUR

ISSUES :

1. Whether the plaintif is in possession and enjoyment of the plaint schedule property by the time of filing of the suit?

2. Whether his possession is lawful one?

3. Whether there is cause of action to file the suit?

4. Whether the plaintif is entitled to decree for permanent injunction against the defendant as prayed for?

5. To what relief?

5.During the course of trial on behalf of the plaintiff, herself is examined as PW-1 and got exhibited Exs.A1 to A4. On behalf of the defendant no one was examined and No documents are marked.

6. Heard both sides.

7.The learned counsel for the plaintiff argued that the suit schedule property is in possession and enjoyment of the plaintiff and the Defendant being brother with an ill motive of encroaching the property are disturbing the plaintiff and with highhanded acts are encroaching upon the land of the plaintiff. All types of authorizations and permits are held in the name of

Plaintiff like tax receipt and Electricity Bill etc which shows clearly that the plaintiff is the owner and is in possession of the suit schedule property. The learned counsel for the plaintiff further argued that the defendants have no manner of right over the suit schedule property and they are causing obstructions to the plaintiffs to peaceful enjoyment in the suit schedule property. He further argued that there were no defences also produced

before the court to show that the defendant is holding the property, this said

fact is because the defendant really doesn't hold any title in his favour. This fact itself of non filing of documents is itself sufficient to say that the defendant is no way concerned with the suit schedule property and prayed to decree the suit.

8.On the other hand the learned counsel for the defendant argued that all the documents filed by the plaintiff are created documents and the plaintiff filed the suit by suppressing the true facts. The learned counsel for the defendant further argued that the contents of Exs.A1 to Ex.A4 are

O.S. 169/2012 5 A.J.C.J.COURT, HINDUPUR

created and tried to show that it is property of plaintiff, but they are false documents and prayed to dismiss the suit.

9.ISSUES NO.1 to 3 :

1. Whether the plaintif is in possession and enjoyment of the plaint schedule property by the time of filing of the suit?

2. Whether his possession is lawful one?

3. Whether there is cause of action to file the suit?

Issues 1 to 3 are taken up together to avoid the repetition of discussion.

This court has perused the oral and documentary evidence adduced by the both parties.

The main contention of the plaintiff is that the suit scheduled property is gifted to her by her father Kunti Narasimhappa. The plaintiff in her chief examination affidavit reiterated the contents of plaint. The plaintiff got marked Exs.A1 to A4. Ex.A1 is registered gift deed dated 18-04-1984. Ex.A2 is House tax receipts four in number in the name of plaintiff. Ex.A3 is electricity bill two in number standing in the name of plaintiff. Ex.A4 is office copy of legal notice,served acknowledgements and issued notices. A perusal of contents of Ex.A1 it is clear that father of the plaintiffs executed the gift deed in favour of the plaintiff in respect of suit schedule property. As per this document it is shown that the her father Kunti Narasimhappa has executed a registered gift deed in favour of plaintiff in survey number 429-2 on 18-04- 1984.

10. To prove that since the date of gift she is in possession of the suit schedule property she has filed before this court Exs.P.2 and Ex.P.3, House tax receipts four in number on the name of plaintiff and electricity bills two in number standing in the name of plaintiff respectively. Basing on this two exhibits it is clear that the plaintiff is in the possession of the suit schedule property. The documents filed by the plaintiff show that she is the owner of the suit schedule property.

O.S. 169/2012 6 A.J.C.J.COURT, HINDUPUR

11.The plaintiffs by exhibiting Exs.A1 to A4 and by examining herself as

P.W.1 established that she is in possession and enjoyment of the suit schedule property. On the other hand the defendant have not filed any documents to show that the suit schedule property is his property and have not examined any person in his behalf. When the plaintiff proved that she is in possession and enjoyment of the suit schedule property she is entitled to seek the permanent injunction. Admittedly the defendant is disputing the possession and enjoyment of the plaintiff over the suit schedule property.

When the defendant is disputing the possession and enjoyment of the plaintiff over the suit schedule property unless he is restrained by way of permanent injunction it is not possible to the plaintiff to enjoy the property. In view of above discussion this issue is answered in favour of the plaintiff and against the defendant.

12.ISSUE NO.4 :

Whether the plaintif is entitled to decree for permanent

injunction against the defendant as prayed for?

The documents filed by the plaintiff show that she is in possession owner of the suit schedule property. Further the defendant has not challenged the documents filed by the plaintiff. The plaintiff by marking

Exs.A1 to A4 primafacie proved the case. The evidence of PW-1 is remained un-challenged. The plaintiff in her plaint pleaded that the defendant is unnecessarily interfering with her possession and the said fact was not challenged by the defendant. When the plaintiff proved that she got primafacie case and balance of convenience is in her favour she is entitled to seek the permanent injunction against the defendant

13.In view of finding on issue No.1 holding the plaintiff is in possession and enjoyment of the suit schedule property, the plaintiff is entitled to seek permanent injunction against the defendant from anyway interfering with the possession and enjoyment of the plaintiff over the suit schedule property.

O.S. 169/2012 7 A.J.C.J.COURT, HINDUPUR

Accordingly this issue is answered in favour of the plaintiff and against the defendant.

14.ISSUE NO.5 :

To what relief ?

In the result, suit is decreed with costs by granting permanent injunction restraining the defendant, his men and agents from any way interfering with the possession and enjoyment of the plaintiffs over the suit schedule property.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court, this the 13th day of November, 2017.

ADDL.JUNIOR CIVIL JUDGE,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

PW-1: Anjinamma-Nil-

DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF

Ex.A1:- Registered gift deed dated 18-04-1984. Ex.A2:- House tax receipts four in number. Ex.A3 :- Electricity bills two in number. Ex.A4 :- Office copy of the legal notice Dt.18-06-2012.

DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT

- NIL -

ADDL.JUNIOR CIVIL JUDGE,

HINDUPUR.

O.S. 169/2012 1 A.J.C.J.COURT, HINDUPUR

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE AT

HINDUPUR

Present: Miss. L.SARADA REDDY,

Additional Junior Civil Judge.

Monday, the 13th day of November, 2017

ORIGINAL SUIT NUMBER 169/2012

Between: Smt.Anjinamma, W/o Anjinappa, Agriculturist, aged 55 years, Resident of Gollapalli Village, Parigi Mandal, Anantapuramu District. … Plaintif

And

M.Thimmaiah, S/o Late Kunti Narasimhappa, aged about 48 years, Working in S.S.mills, Kotnuru, Residing at Gollapalli Village, Parigi Mandal, Anantapuramu District. … Defendant.

This suit came on 02-11-2017 for hearing before me in the presence of Sri C.Ramachandra Reddy, Advocate for plaintiff and Sri.K.C.Krishna Reddy, Advocate for the defendant and the matter having stood over for consideration this day, this Court delivers the following:

J U D G M E N T

1.The plaintiff filed the suit for permanent injunction to restrain the defendant, his men and agents from anyway interfering with her possession and enjoyment over the suit schedule property.

2. The brief averments of the plaint are that:

Originally Kunti Narasimhappa purchased an extent of Ac.0.30 cents in

S.No.429-2 under a registered sale deed in the year 1979 from its rightful owners. After purchasing the same the said Kunti Narasimhappa father of the plaintiff herein gifted an extent of Ac.0.5 cents to the Plaintiff for the purpose of constructing the house. The plaintiff accepted the gift took possession of the same and also constructed the house in the said site leaving some place on the Eastern side for the purpose of the way to reach the plots of her brothers which are situated on the Southern side of the plaintiff’s property.

After the death of Kunti Narasimhappa the defendant and his three brothers divided the remaining extent in to four plots and the defendant and other

O.S. 169/2012 2 A.J.C.J.COURT, HINDUPUR

two brothers Anjinappa and Hanumanthappa constructed houses leaving vacant place for hayrick and other purposes. The another brother Narasappa who got the plot to the extreme South did not construct any house in his site and it is still vacant. The defendant is only educated and intelligent person among children of his father. The defendant taking advantage the poorness and innocence of the plaintiff making all kinds of efforts to grab the suit schedule property by hook or crook. The defendant undue advantage of the plaintiff’s poorness and helplessness and with a grudge that the plaintiff and her two other brothers Narasimhappa and Anjinappa got issued a legal notice in respect of creating false documents and causing troubles to the plaintiff for her peaceful possession and enjoyment of the suit schedule property. The suit schedule property is house and vacant site of the plaintiff. The defendant is openly proclaiming in the village that he will disposes the plaintiff from the suit schedule property. The plaintiff is not in a position to resist the high handed acts of the defendant. Hence the suit.

3. The brief averments of the written statement are that:

Originally the boundaries noted it the plaint schedule are totally in correct. It is true that the plaintiff and his three brothers divided the property in four parts (Ac.0.30 cents). This respondent is the last son of Kunti

Narasimhappa. Hence as per the caste custom this respondent is given

Ac.07.1/4th cent in S.No.429-2 on the Northern side and the three elder brothers have taken their respective shares from North to South adjoining the share of this respondent on the Southern side. Since the plaintiff is “Adabidda” of the family she has been given a site with house constructed by this defendant of about Ac.0.02 cents on the South-West corner of the defendants property. Except this small portion where in the plaintiff is in possession the plaintiff has no manner of right, title or possession over

Ac.0.30 cents referred above. The suit schedule property is not the property of the plaintiff and the same is the property of this defendant only.

O.S. 169/2012 3 A.J.C.J.COURT, HINDUPUR

There is no such gift at all, even otherwise if any said gift is there it is out come of fraud played by the plaintiff in collusion with her men. The door number of the property noted in the schedule is 3-124. The defendant alone paying taxes to Beechiganipalli panchayath. In fact the plaintiff has executed un-registered gift deed dated 20-03-1995 in respect of site measuring East-

West :15 feet, North to South : 20 feet in S.No.429-2 measuring Ac.0.30 cents out of Ac.4-04 cents which is out of Ac.6.13 cents. The said gift deed clearly proves the right, title and possession of the plaintiff and the same is valid to show the possession of the defendant.

Even during the life time of Kunti Narasimhappa the father of the defendant asked his four sons to divide Ac.0.30 cents purchased by him in

S.No.429-2 along with other family properties and he is not willing to take any share in the family properties. As per the wish of Kunti Narasimhappa his four sons i.e., the Defendant and his three brothers divided the family properties including S.No.429-2 measuring Ac.0.30 cents and in the said division the defendant got Ac.0.07 cents out of Ac.0.30 cents in S.No.429-2.

The defendant constructed house, shed with compound etc., in the said

Ac.0.07 cents.

The said Kunti Narasimhappa executed an un-registered gift deed in favour of the defendant on 31-01-1992. This document is valid legal and enforceable under law to the extent to show the possession right of the defendant to the extent of Ac.0.07 cents in S.No.429-2. The defendant has been registered as owner of D.No.3-124 of Beechiganipalli Panchayath in

Assessment No.804. Therefore prima-facie case and balance of convenience is in favour of the defendant only and prayed the Court to dismiss the suit with costs.

4.Basing on the pleadings of both parties this court framed the following issues.

O.S. 169/2012 4 A.J.C.J.COURT, HINDUPUR

ISSUES :

1. Whether the plaintif is in possession and enjoyment of the plaint schedule property by the time of filing of the suit?

2. Whether his possession is lawful one?

3. Whether there is cause of action to file the suit?

4. Whether the plaintif is entitled to decree for permanent injunction against the defendant as prayed for?

5. To what relief?

5.During the course of trial on behalf of the plaintiff, herself is examined as PW-1 and got exhibited Exs.A1 to A4. On behalf of the defendant no one was examined and No documents are marked.

6. Heard both sides.

7.The learned counsel for the plaintiff argued that the suit schedule property is in possession and enjoyment of the plaintiff and the Defendant being brother with an ill motive of encroaching the property are disturbing the plaintiff and with highhanded acts are encroaching upon the land of the plaintiff. All types of authorizations and permits are held in the name of

Plaintiff like tax receipt and Electricity Bill etc which shows clearly that the plaintiff is the owner and is in possession of the suit schedule property. The learned counsel for the plaintiff further argued that the defendants have no manner of right over the suit schedule property and they are causing obstructions to the plaintiffs to peaceful enjoyment in the suit schedule property. He further argued that there were no defences also produced

before the court to show that the defendant is holding the property, this said

fact is because the defendant really doesn't hold any title in his favour. This fact itself of non filing of documents is itself sufficient to say that the defendant is no way concerned with the suit schedule property and prayed to decree the suit.

8.On the other hand the learned counsel for the defendant argued that all the documents filed by the plaintiff are created documents and the plaintiff filed the suit by suppressing the true facts. The learned counsel for the defendant further argued that the contents of Exs.A1 to Ex.A4 are

O.S. 169/2012 5 A.J.C.J.COURT, HINDUPUR

created and tried to show that it is property of plaintiff, but they are false documents and prayed to dismiss the suit.

9.ISSUES NO.1 to 3 :

1. Whether the plaintif is in possession and enjoyment of the plaint schedule property by the time of filing of the suit?

2. Whether his possession is lawful one?

3. Whether there is cause of action to file the suit?

Issues 1 to 3 are taken up together to avoid the repetition of discussion.

This court has perused the oral and documentary evidence adduced by the both parties.

The main contention of the plaintiff is that the suit scheduled property is gifted to her by her father Kunti Narasimhappa. The plaintiff in her chief examination affidavit reiterated the contents of plaint. The plaintiff got marked Exs.A1 to A4. Ex.A1 is registered gift deed dated 18-04-1984. Ex.A2 is House tax receipts four in number in the name of plaintiff. Ex.A3 is electricity bill two in number standing in the name of plaintiff. Ex.A4 is office copy of legal notice,served acknowledgements and issued notices. A perusal of contents of Ex.A1 it is clear that father of the plaintiffs executed the gift deed in favour of the plaintiff in respect of suit schedule property. As per this document it is shown that the her father Kunti Narasimhappa has executed a registered gift deed in favour of plaintiff in survey number 429-2 on 18-04- 1984.

10. To prove that since the date of gift she is in possession of the suit schedule property she has filed before this court Exs.P.2 and Ex.P.3, House tax receipts four in number on the name of plaintiff and electricity bills two in number standing in the name of plaintiff respectively. Basing on this two exhibits it is clear that the plaintiff is in the possession of the suit schedule property. The documents filed by the plaintiff show that she is the owner of the suit schedule property.

O.S. 169/2012 6 A.J.C.J.COURT, HINDUPUR

11.The plaintiffs by exhibiting Exs.A1 to A4 and by examining herself as

P.W.1 established that she is in possession and enjoyment of the suit schedule property. On the other hand the defendant have not filed any documents to show that the suit schedule property is his property and have not examined any person in his behalf. When the plaintiff proved that she is in possession and enjoyment of the suit schedule property she is entitled to seek the permanent injunction. Admittedly the defendant is disputing the possession and enjoyment of the plaintiff over the suit schedule property.

When the defendant is disputing the possession and enjoyment of the plaintiff over the suit schedule property unless he is restrained by way of permanent injunction it is not possible to the plaintiff to enjoy the property. In view of above discussion this issue is answered in favour of the plaintiff and against the defendant.

12.ISSUE NO.4 :

Whether the plaintif is entitled to decree for permanent

injunction against the defendant as prayed for?

The documents filed by the plaintiff show that she is in possession owner of the suit schedule property. Further the defendant has not challenged the documents filed by the plaintiff. The plaintiff by marking

Exs.A1 to A4 primafacie proved the case. The evidence of PW-1 is remained un-challenged. The plaintiff in her plaint pleaded that the defendant is unnecessarily interfering with her possession and the said fact was not challenged by the defendant. When the plaintiff proved that she got primafacie case and balance of convenience is in her favour she is entitled to seek the permanent injunction against the defendant

13.In view of finding on issue No.1 holding the plaintiff is in possession and enjoyment of the suit schedule property, the plaintiff is entitled to seek permanent injunction against the defendant from anyway interfering with the possession and enjoyment of the plaintiff over the suit schedule property.

O.S. 169/2012 7 A.J.C.J.COURT, HINDUPUR

Accordingly this issue is answered in favour of the plaintiff and against the defendant.

14.ISSUE NO.5 :

To what relief ?

In the result, suit is decreed with costs by granting permanent injunction restraining the defendant, his men and agents from any way interfering with the possession and enjoyment of the plaintiffs over the suit schedule property.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court, this the 13th day of November, 2017.

ADDL.JUNIOR CIVIL JUDGE,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

PW-1: Anjinamma-Nil-

DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF

Ex.A1:- Registered gift deed dated 18-04-1984. Ex.A2:- House tax receipts four in number. Ex.A3 :- Electricity bills two in number. Ex.A4 :- Office copy of the legal notice Dt.18-06-2012.

DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT

- NIL -

ADDL.JUNIOR CIVIL JUDGE,

HINDUPUR.

1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR

Present: Smt. L.SARADA REDDY,

Prl. Judicial Magistrate of First Class.

Wednesday, the 18th day of June, 2020

CALENDAR CASE No.43/2020

Between:

State: The Sub-Inspector of Police, Chilamathur P.S. … Complainant.

And

Vadde Adinarayana, aged 39 years, S/o Venkataramappa, Madurepalli Village,

Chilamathur Mandal. ...Accused.

This case came on 12-06-2020 for final hearing before me in the presence of Assistant Public Prosecutor for Complainant and of Sri G.Krishnamurthy, Advocate for accused and 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, Chilamathur P.S. has filed the

Charge Sheet in Crime Number 149/2019 against the accused for the offence under Section 34 (a) of A.P. Excise Act.

2. The case of the prosecution is that:

On 15-11-2019 at out skirts of Kodikonda Village, at

Morasalapalli cross, Chilamathur Mandal wherein the accused was selling Karnataka State liquor i.e., 90-Haywards cheers whiskey and 288-

Bangalore Malt Whiskey without having any valid license from concerned authorities and violated the rules and regulations of A.P.Excise Act.

L.W.4 was arrested the accused and seized liquor from his possession under a cover of police proceedings. Then brought to the Police Station along with the accused, seized liquor sachets. Hence the charge sheet.

3.This case is taken on file under Section 34 (a) of A.P. Excise

Act against the accused.

2

4.After appearance of the accused, copies of documents were furnished to him as required under Section 207 Code of criminal procedure (here in after for short as Cr.P.C.).

5.The accused was examined under Section 239 Cr.P.C. and charge under Section 34 (a) of A.P. Excise Act has been framed against the accused and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried.

6.To prove the case of the prosecution, the prosecution has examined P.Ws.1 and 2 and got exhibited Exs.P-1 to P-3.

7.The accused was examined under Section 313 Cr.P.C., the incriminating evidence against the accused read over and explained to him in Telugu for which he denied and reported no defence evidence on his side.

8.Heard both sides.

9.The learned Assistant Public Prosecutor argued that the case may be decided basing on evidence available on the record.

10.On the other hand, the learned counsel for the accused vehemently argued that P.W.2 foisted a false case against the accused for statistical purpose and the prosecution has not placed any evidence to show that the excise officials tried to secure the mediators and prayed to acquit the accused.

11. Now the point for determination is :

Whether the prosecution has proved guilt of the accused

under Section 34 (a) of A.P. Excise beyond all reasonable doubt?

12. POINT:The specific case of the prosecution is that on 15-11-2019 at outskirts of Kodikonda Village, at Morasampalli Village,

Chilamathur Mandal wherein the accused was found by selling Karnataka

State made liquor i.e., 90-Haywards cheers whiskey and 378-Bangalore

Malt whiskey without having any valid license from concerned authorities was arrested and seized liquor from his possession under a cover of 3 police proceedings. Then brought to the Police Station along with the accused, seized quarter bottles. Whereas the accused had denied the charge that was leveled against him and pleaded innocence. Therefore, the burden of proof lies on the shoulders of prosecution to prove that the accused was found in possession of the IML. Now let me see, how far the prosecution has succeeded in its' attempts to drive home the alleged guilt of the accused.

13. The first witness for the prosecution is P.W.1-Manjunath, Constable and his evidence is that on 19-10-2019 at about 7-00 P.M., L.W.3 has received credible information with regard to illegal possession of liquor and sale at Yagnisettipalli Village of Chilamathur Mandal, immediately himself, L.W.3 along with other staff rushed to the above said place and found the accused was in possession of 90-Haywards cheers whiskey and 378-Bangalore Malt Whiskey without having any valid license from concerned authorities. L.W.3 arrested and seized liquor from her possession under a cover of police proceedings. Through P.W.1, Ex.P1 is marked. The same is the evidence of P.W.2-Venkateswarulu, Sub-

Inspector of Police, but he added that he registered a case in

Cr.No.149/2019 of A.P. Excise Act under section 34 (a) of A.P. Excise Act and during the course of his investigation, he sent samples for analysis and he received report from the chemical examiner, who opined that the samples tested are Indian Made Liquor.

14. The officer conducting search and seizure shall call upon two independent mediators from the place of search or if no such mediator is available from the locality, it is the duty of the officer to call upon mediators from any other locality. Here, it would be apt on my part to refer section 100(4) of Cr.P.C and it reads as follows : - ''Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in 4 which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”

15. The above provision makes it clear that the officer about to make search shall invariably call upon two or more independent and respectable inhabitants of the place of the search and in the event it could not be possible to procure presence of local inhabitants, he shall call upon the inhabitants of other locality. So, the duty of officer conducting search, would not be absolved when he fails to secure local inhabitants of search as mediators and in that event he shall try to secure inhabitants of some other locality to stand as mediators. Had there been any difficulty for the Investigating Officer, in securing the presence of local or non-local respectable inhabitants for search and seizure in these types of cases, he should have taken steps atleast to secure mediators in the vicinity of the police station or any Revenue officials by order in writing before search was started. PW.3, the officer, who conducted raid, ought not to have failed to join the public witnesses and he must show a genuine attempt having been made to join public witnesses during the search. But he has not taken any precautions for securing respectable local, or non-local inhabitants or public witnesses. A stereo type statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witnesses inasmuch as the scene of offence is a busy loaclity. Although it has been stated in Ex.P1 that despite the request of P.W.2 none of the villagers have come forward to stand as mediators, Ex.P1 is silent about the names of the villagers whom were requested by P.W.1. Thus the failure on the part of the

Investigating Officer, to secure any independent respectable inhabitants 5 for search throws a serious doubt about search and seizure in this case.

The prosecution has miserably failed to examine any residents from the vicinity of place of offense to say that the accused was selling liquor for monitory gain. All these lacunae, in the evidence of prosecution renders it's case highly doubtful. Having, regard to the totality of facts and circumstances of the case, this court does not find a ring of truth in the case of the prosecution inasmuch a serious doubt has been entertained in the mind of this court regarding the alleged search and seizure in the case.

16. The point is therefore answered against the prosecution holding that it failed to establish that the accused was found selling IML without any valid license.

17. The entire prosecution case is rest upon the evidence of P.Ws.1 and 2. Admittedly P.Ws.1 and 2 are the department people. It is categorically admitted fact that the scene of offence is a busy locality but no independent witnesses has been secured. There are no signatures of independent witnesses in the Police Proceedings. To establish the guilt of the accused the prosecution has to prove the seizure of the property except the evidence of P.W.2 to show that stock was seized from the accused there is no other evidence. P.W.2 is interested witness. In the absence of independent witness the evidence of P.W.2 is not believable. Relying on the sole testimony of

P.W.2 it is not safe to proceed against the accused.

18. The learned counsel for the accused further argued that the complainant and investigating officer is one and the same person and

P.W.3 has no right to investigate the case. To support his contention he relied upon a decision reported in 1976 CRL. L.J. 713 AIR 1976

SUPREME COURT 985 in between Bhagwan Singh V/s The State

of Rajasthan.

6

Wherein their lord ship at para 5 held that “ The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorized to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case”.

In this case also P.W.2 is the complainant and investigating officer.

When P.W.2 himself is the complainant he has no right to investigate the case, on this ground alone the accused are entitled for acquittal.

19. IN THE RESULT, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248 (1) Cr.P.C. for the said offence. The bail bond of accused shall stand cancelled after lapse of six months.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court, this the 18th day of June, 2020.

PRL.JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution:For defence: P.W.1Manjunath NONE – P.W.2Venkateswarulu

EXHIBITS MARKED

For prosecution: Ex.P-1 isPolice Proceedings Ex.P-2 isF.I.R Ex.P-3 isChemical Analysis report

For defence: Nil MATERIAL OBJECTS MARKED : NIL

JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR

7

CALENDAR AND JUDGMENT

DISTRICT OF ANATHAPURAM

CALENDAR OF CASE TRIED BY THE JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR

Date ofDate ofAppre-Date ofDate ofDate ofDate of offencereport orhensionreleasedcommenceclose ofsentence complainofon bailment oftrialof order taccusedtrial 1234567 15-11-1915-11-1915-11-1916-11-1910-03-2012-06-2018-06-20

Explanation of delay and remarksNIL.

JUDGMENT IN CALENDAR CASE NUMBER 43/2020 IN CRIME NUMBER 149/2019 OF CHILAMATHUR P.S. ON THE FILE OF JUDICIAL

MAGISTRATE OF FIRST CLASS AT HINDUPUR.

COMPLAINANTSub-Inspector of Police, Chilamathur P.S.

----------------------------------------------------------------------------------------------------- Name of the Father’s Religion Sex /Age Calling Village Mandal accused name ----------------------------------------------------------------------------------------------------- Vadde Adinarayana, aged 39 years, S/o Venkataramappa, Madurepalli Village, Chilamathur Mandal. ----------------------------------------------------------------------------------------------------

OFFENCEu/Sec. 34 (a) of A.P. Excise Act FINDINGAccused found not guilty. IN THE RESULT, the accused is found not guilty for the SENTENCEoffence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248 (1) Cr.P.C. for the said offence. The bail bond of accused shall stand cancelled after lapse of six months.

SEAL:JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR.

Copy submitted to: The Hon’ble II Additional District & Sessions Judge, Hindupur .

CALENDAR CASE NUMBER43/2020 DATE OF JUDGMENT 18-06-2020 DATE OF DISPATCH OF CALENDAR 24-06-2020

1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR

Present: Smt. L.SARADA REDDY,

Prl. Judicial Magistrate of First Class.

Thursday, the 18th day of June, 2020

CALENDAR CASE No.35/2020

Between:

State: The Sub-Inspector of Police, Lepakshi P.S. … Complainant.

And

Paravalla Adeppa, aged 36 years, S/o Late Narayanappa, S.C.colony, Kanchisamudram Village,

Lepakshi Mandal. ...Accused.

This case came on 12-06-2020 for final hearing before me in the presence of Assistant Public Prosecutor for Complainant and of Sri G.Krishnamurthy, Advocate for accused and 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, Lepakshi P.S. has filed the

Charge Sheet in Crime Number 118/2019 against the accused for the offence under Section 34 (a) of A.P. Excise Act.

2. The case of the prosecution is that:

On 02-11-2019 at 8-30 A.M., near Handrineeva Canal, at the outskirts of Kanchisamudram village of Lepakshi Mandal wherein the accused was selling Karnataka State liquor i.e., 33-Haywards cheers whiskey without having any valid license from concerned authorities was arrested and seized liquor from his possession under a cover of police proceedings. Then brought to the Police Station along with the accused, seized liquor sachets. Hence the charge sheet.

3.This case is taken on file under Section 34 (a) of A.P. Excise

Act against the accused.

4.After appearance of the accused, copies of documents were 2 furnished to him as required under Section 207 Code of criminal procedure (here in after for short as Cr.P.C.).

5.The accused was examined under Section 239 Cr.P.C. and charge under Section 34 (a) of A.P. Excise Act has been framed against the accused and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried.

6.To prove the case of the prosecution, the prosecution has examined P.Ws.1 and 2 and got exhibited Exs.P-1 to P-3.

7.The accused was examined under Section 313 Cr.P.C., the incriminating evidence against the accused read over and explained to him in Telugu for which he denied and reported no defence evidence on his side.

8.Heard both sides.

9.The learned Assistant Public Prosecutor argued that the case may be decided basing on evidence available on the record.

10.On the other hand, the learned counsel for the accused vehemently argued that P.W.2 foisted a false case against the accused for statistical purpose and the prosecution has not placed any evidence to show that the excise officials tried to secure the mediators and prayed to acquit the accused.

11. Now the point for determination is :

Whether the prosecution has proved guilt of the accused

under Section 34 (a) of A.P. Excise beyond all reasonable doubt?

12. POINT:The specific case of the prosecution is that on 02-11-2019 at 8-30 A.M., near Handrineeva Canal, at the outskirts of

Kanchisamudram village of Lepakshi Mandal wherein the accused who is found selling Karnataka State made liquor i.e., 33-Haywards cheers whiskey without having any valid license from concerned authorities was arrested and seized liquor from his possession under a cover of police proceedings. Then brought to the Police Station along with the 3 accused, seized quarter bottles. Whereas the accused had denied the charge that was leveled against him and pleaded innocence. Therefore, the burden of proof lies on the shoulders of prosecution to prove that the accused was found in possession of the IML. Now let me see, how far the prosecution has succeeded in its' attempts to drive home the alleged guilt of the accused.

13. The first witness for the prosecution is P.W.1-Pothulaiah,

Constable and his evidence is that on 02-11-2019 at about 8-30 A.M.,

L.W.3 has received credible information with regard to illegal possession of liquor and sale at Kanchisamudram Village, Lepakshi Mandal, immediately himself along with other staff rushed to the above said place and found the accused was in possession of 33-Haywards cheers whiskey without having any valid license from concerned authorities.

L.W.3 arrested and seized liquor from his possession under a cover of police proceedings. Through P.W.1, Ex.P1 is marked. The same is the evidence of P.W.2-Krishna Veni, Sub-Inspector of Police, but she added that he registered a case in Cr.No.118/2019 of A.P. Excise Act under section 34 (a) of A.P. Excise Act and during the course of his investigation, he sent samples for analysis and he received report from the chemical examiner, who opined that the samples tested are Indian

Made Liquor.

14. The officer conducting search and seizure shall call upon two independent mediators from the place of search or if no such mediator is available from the locality, it is the duty of the officer to call upon mediators from any other locality. Here, it would be apt on my part to refer section 100(4) of Cr.P.C and it reads as follows : - ''Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available 4 or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”

15. The above provision makes it clear that the officer about to make search shall invariably call upon two or more independent and respectable inhabitants of the place of the search and in the event it could not be possible to procure presence of local inhabitants, he shall call upon the inhabitants of other locality. So, the duty of officer conducting search, would not be absolved when he fails to secure local inhabitants of search as mediators and in that event he shall try to secure inhabitants of some other locality to stand as mediators. Had there been any difficulty for the Investigating Officer, in securing the presence of local or non-local respectable inhabitants for search and seizure in these types of cases, he should have taken steps atleast to secure mediators in the vicinity of the police station or any Revenue officials by order in writing before search was started. PW.2, the officer, who conducted raid, ought not to have failed to join the public witnesses and he must show a genuine attempt having been made to join public witnesses during the search. But he has not taken any precautions for securing respectable local, or non-local inhabitants or public witnesses. A stereo type statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witnesses inasmuch as the scene of offence is a busy loaclity. Although it has been stated in Ex.P1 that despite the request of P.W.2 none of the villagers have come forward to stand as mediators, Ex.P1 is silent about the names of the villagers whom were requested by P.W.1. Thus the failure on the part of the

Investigating Officer, to secure any independent respectable inhabitants for search throws a serious doubt about search and seizure in this case.

5

The prosecution has miserably failed to examine any residents from the vicinity of place of offense to say that the accused was selling liquor for monitory gain. All these lacunae, in the evidence of prosecution renders it's case highly doubtful. Having, regard to the totality of facts and circumstances of the case, this court does not find a ring of truth in the case of the prosecution inasmuch a serious doubt has been entertained in the mind of this court regarding the alleged search and seizure in the case.

16. The point is therefore answered against the prosecution holding that it failed to establish that the accused was found selling IML without any valid license.

17. The entire prosecution case is rest upon the evidence of P.Ws.1 and 2. Admittedly P.Ws.1 and 2 are the department people. It is categorically admitted fact that the scene of offence is a busy locality but no independent witnesses has been secured. There are no signatures of independent witnesses in the Police Proceedings. To establish the guilt of the accused the prosecution has to prove the seizure of the property except the evidence of P.W.2 to show that stock was seized from the accused there is no other evidence. P.W.2 is interested witness. In the absence of independent witness the evidence of P.W.2 is not believable. Relying on the sole testimony of

P.W.2 it is not safe to proceed against the accused.

18. The learned counsel for the accused further argued that the complainant and investigating officer is one and the same person and

P.W.2 has no right to investigate the case. To support his contention he relied upon a decision reported in 1976 CRL. L.J. 713 AIR 1976

SUPREME COURT 985 in between Bhagwan Singh V/s The State

of Rajasthan.

Wherein their lord ship at para 5 held that “ The infirmity which we 6 are pointing out is not an infirmity arising from investigation by an officer not authorized to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case”.

In this case also P.W.2 is the complainant and investigating officer.

When P.W.2 himself is the complainant he has no right to investigate the case, on this ground alone the accused are entitled for acquittal.

19. IN THE RESULT, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248 (1) Cr.P.C. for the said offence. The bail bond of accused shall stand cancelled after lapse of six months.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court, this the 18th day of June, 2020.

PRL.JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution:For defence: P.W.1Pothulaiah NONE – P.W.2Krishna Veni

EXHIBITS MARKED

For prosecution: Ex.P-1 isPolice Proceedings Ex.P-2 isF.I.R Ex.P-3 isChemical Analysis report

For defence: Nil MATERIAL OBJECTS MARKED : NIL

JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR

7

CALENDAR AND JUDGMENT

DISTRICT OF ANATHAPURAM

CALENDAR OF CASE TRIED BY THE JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR

Date ofDate ofAppre-Date ofDate ofDate ofDate of offencereport orhensionreleasedcommenceclose ofsentence complainofon bailment oftrialof order taccusedtrial 1234567 02-11-1902-11-1902-11-1905-11-1917-03-2012-06-2015-06-20

Explanation of delay and remarksNIL.

JUDGMENT IN CALENDAR CASE NUMBER 35/2020 IN CRIME NUMBER 118/2019 OF LEPAKSHI P.S. ON THE FILE OF JUDICIAL

MAGISTRATE OF FIRST CLASS AT HINDUPUR.

COMPLAINANTSub-Inspector of Police, Lepakshi P.S.

----------------------------------------------------------------------------------------------------- Name of the Father’s Religion Sex /Age Calling Village Mandal accused name ----------------------------------------------------------------------------------------------------- Paravalla Adeppa, aged 36 years, S/o Late Narayanappa, S.C.colony, Kanchisamudram Village, Lepakshi Mandal. ----------------------------------------------------------------------------------------------------

OFFENCEu/Sec. 34 (a) of A.P. Excise Act FINDINGAccused found not guilty. IN THE RESULT, the accused is found not guilty for the SENTENCEoffence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248 (1) Cr.P.C. for the said offence. The bail bond of accused shall stand cancelled after lapse of six months.

SEAL:JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR.

Copy submitted to: The Hon’ble II Additional District & Sessions Judge, Hindupur .

CALENDAR CASE NUMBER35/2020 DATE OF JUDGMENT 18-06-2020 DATE OF DISPATCH OF CALENDAR 24-06-2020

1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR.

Present: Smt. L.Sarada Reddy,

Prl. Judicial Magistrate of First Class

Tuesday, the 19 th day of June, 2020

CALENDAR CASE No.995/2019

Between:

State: Sub-Inspector of Police,

Parigi P.S. ...Complainant.

And

1. Vadde Gurumurthy, aged 28 years, S/o Hanumanthappa, Seegupalli Village of Parigi Mandal, Driver of Tractor and Trolley No.AP02-BP-1071/1070.

2. Uppara Narasimhappa, aged 38 years, S/o Late Hanumanthappa, Seegupalli Village of Parigi Mandal, Driver of Tractor and Trolley No.AP02-BP-1464/1465.

...Accused.

This case came on 15-06-2020 for final hearing before me in the presence of Assistant Public Prosecutor for Complainant and of Sri C.Ramachandra Reddy and Smt Rathnamma, Advocate for accused and 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, Parigi Police Station has filed the

Charge Sheet in Crime Number 164/2019 against the accused for the offence under Section 379 of Indian Penal Code (Here in after for short

I.P.C.) and Sec. 21 (1) of Mines and Minerals Act.

2. The case of the prosecution is that:

The brief facts of the prosecution case on 30-11-2019 at about 9-30 AM near Penna River, Seegupalli Village of Parigi Mandal the accused being the drivers of the tractors and trailers bearing Reg.

No.AP02-BP-1071/1070 and AP02-BP-1464/1465 loaded the Sand at

Penna River in their tractors and they are illegally transporting the same 2 to Karnataka State without any valid license. The Sub- Inspector of

Police, of Parigi P.S. caught hold of the accused and on the strength of police proceedings a case is registered the case in Cr.No.164/2019 U/sec 379 IPC and Sec. 21 (1) of Mines and Minerals Act and completed all the investigation formalities. Thereafter the Investigating Officer has filed the charge sheet. Hence the charge sheet.

3.This case is taken on file under Section 379 of IPC and section 21 (1) of Mines and Minerals Act against the accused.

4.After appearance of the accused, copies of documents were furnished to them as required under Section 207 Code of Criminal

Procedure. (Here in after for short Cr.P.C.).

5.The accused were examined under Section 239 Cr.P.C. and a charge under section 379 of IPC and section 21 (1) of Mines and Minerals

Act have been framed against the accused and explained to them in

Telugu for which they denied, pleaded not guilty and claimed to be tried.

6.To prove the case of the prosecution, the prosecution has examined P.Ws.1 and 2 and got exhibited Exs.P-1 and P-2.

7.The accused were examined under Section 313 Cr.P.C., the incriminating evidence against the accused was read over and explained to them in Telugu for which they denied and reported no defence evidence on their behalf.

8.Heard both sides.

9. Now t he point for determination is :

Whether the prosecution has proved guilt of the accused

under Section 379 of IPC and section 21 (1) of Mines and

Minerals Act beyond all reasonable doubt?

10. POINT The main contention of the prosecution is that the accused has transported the sand without any valid license and there by committed an offence U/sec. 379 IPC and also U/sec. 21 (1) of Mines and

Minerals Act. To prove the offence U/sec 379 of IPC and 21 (1) of Mines 3 and Minerals Act the prosecution has to prove that the accused has taken the Sand without the consent of the State i.e., without valid license and also the identification of the accused that he is the driver of the crime vehicle at the time of the offence. For this prosecution has examined P.Ws.1 and 2 and marked Exs.P1 and P2.

11.P.W.2-Sreenivasulu, S.I. of Police has deposed that on 30.11.2019 while the Sub-Inspector of Police was present in the police station he received the credible information at 9-30 A.M. regarding the illegal transportation of Sand on which he along with other police staff proceeded to the scene of offence and found the accused loaded the

Sand illegally to his tractor. Later, he along with the other police officials seized the tractor and the sand under the cover of Police proceedings.

But the confession which was marked as Ex.P1 shall get its validity only on the corroboration with mahazar witness as per Sec. 100 of Cr.P.C. He has also deposed about the registration of crime and also handing over the sand to M.R.O., Parigi and obtaining the receipt. Through him Exs.P1 and P2 are marked.

12.In the cross examination he has admitted that there are no proceedings to show that he along with P.W.1 went to the scene of offence. He further admitted that he has not mentioned in any C.D. file that he has received credible information previously. Further he has also clearly admitted that he is the complaint and Investigating Officer in the present case. It is well settled law that the officer conducting search and seizure shall call upon two independent mediators from the place of search or if no such mediator is available from the locality, it is the duty of the officer to call upon mediators from any other locality. Here, it would be apt on my part to refer section 100(4) of Cr.P.C and it reads as follows : - ''Before making a search under this Chapter, the officer or 4 other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”

13. The above provision makes it clear that the officer about to make search shall invariably call upon two or more independent and respectable inhabitants of the place of the search and in the event it could not be possible to procure presence of local inhabitants, he shall call upon the inhabitants of other locality. So, the duty of officer conducting search, would not be absolved when he fails to secure local inhabitants of search as mediators and in that event he shall try to secure inhabitants of some other locality to stand as mediators. Had there been any difficulty for the I.O., in securing the presence of local or non-local respectable inhabitants for search and seizure in these types of cases, he should have taken steps atleast to secure mediators in the vicinity of the police station or any Revenue officials by order in writing

before search was started. PW.1, the officer, who conducted raid, ought

not to have failed to join the public witnesses and he must show a genuine attempt having been made to join public witnesses during the search. But he has not taken any precautions for securing respectable local, or non-local inhabitants or public witnesses. A stereo type statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witnesses inasmuch as the scene of offence has been nearer to the Parigi Mandal. Although it has been stated in Ex.P1 that despite the request of PW2 none of the villagers have come forward to 5 stand as mediators, Ex.P1 is silent about the names of the villagers whom were requested by PW1. Thus the failure on the part of the I.O., to secure any independent respectable inhabitants for search throws a serious doubt about search and seizure in this case. The prosecution has miserably failed to examine any residents from the vicinity of place of offense to say that the accused was illegally transporting the sane for monitory gain. All these lacunae, in the evidence of prosecution renders it's case highly doubtful. Having, regard to the totality of facts and circumstances of the case, this court does not find a ring of truth in the case of the prosecution inasmuch a serious doubt has been entertained in the mind of this court regarding the alleged search and seizure in the case.

14. The learned counsel for the accused further argued that the complainant and investigating officer is one and the same person and

P.W.1 has no right to investigate the case. To support his contention he relied upon a decision reported in 1976 CRL. L.J. 713 AIR 1976

SUPREME COURT 985 in between Bhagwan Singh V/s The State

of Rajasthan.

Wherein their lord ship at para 5 held that “ The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorized to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information

Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case”.

In this case also P.W.2 is the complainant and investigating officer. When

P.W.2 himself is the complainant he has no right to investigate the case, on this ground alone the accused are entitled for acquittal. In addition to this PW1 has also corroborated P.W.2 the Investigating Officer.

6

15.In the result the prosecution has utterly failed to prove the offence because of non identification of the accused, not proving the mahazar and also the incapacity of the accused in driving a tractor.

Hence the accused is acquitted.

16.IN THE RESULT, Accused is found not guilty for the offences

U/Sec 379 of IPC and section 21 (1) of Mines and Minerals Act and he acquitted U/Sec.248 (1) Cr.P.C. The bail bond of the accused shall stands cancelled after expiry of appeal time.

Dictated to the Stenographer for typed to dictation, corrected and

pronounced by me in open court, this the 19th day of June, 2020.

PRL.JUDICIAL MAGISTRATE OF FIRST CLASS,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE:

P.W.1RamanjineyuluNone –

P.W. 2 Sreenivasulu

EXHIBITS MARKED:

FOR PROSECUTION:

Ex.P-1Police proceedings.

Ex.P-2FIR

FOR DEFENCE: - N I L.

MATERIAL OBJECTS MARKED: -NIL -

J.M.F.C/HDP.

7

DISTRICT OF ANANTAPURAMU

CALENDAR OF CASE TRIED BY THE JUDICIAL MAGISTRATE OF FIRST

CLASS AT HINDUPUR.

Date ofDate ofApprehensioDate ofDate ofDate ofDate of offencereport orn ofreleasedcommencemclose ofsentence complaintaccusedon bailent of trialtrialof order 1234567 30-11-19 30-11-19 01-12-1904-12-1911-03-20 15-06-20 19-06-20

Explanation of delay and NIL. remarks

JUDGMENT IN CALENDAR CASE NUMBER 995/2019 IN CRIME NUMBER No.164/2019 OF PARIGI P.S. ON THE FILE OF THE JUDICIAL MAGISTRATE

OF FIRST CLASS COURT AT HINDUPUR.

COMPLAINANTSub-Inspector of Police, Parigi P.S.

Name of the Father’s Religion Sex /Age Calling Village Mandal accused name ----------------------------------------------------------------------------------------------------

1. Vadde Gurumurthy, aged 28 years, S/o Hanumanthappa, Seegupalli Village of Parigi Mandal, Driver of Tractor and Trolley No.AP02-BP-1071/1070.

2. Uppara Narasimhappa, aged 38 years, S/o Late Hanumanthappa, Seegupalli Village of Parigi Mandal, Driver of Tractor and Trolley No.AP02-BP-1464/1465.

OFFENCESU/Sec. 379 of IPC and section 21 (1) of Mines and Minerals Act FINDINGAccused found not guilty. SENTENCEIN THE RESULT, Accused Nos.1 and 2 are found not guilty for the offences U/Sec 379 of IPC and section 21 (1) of Mines and Minerals Act and they are acquitted U/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall stands cancelled after expiry of appeal time.

SEAL: PRL. JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Copy submitted to: The Hon’ble II Additional District & Sessions Judge, Hindupur.

CALENDAR CASE NUMBER995/2019 DATE OF JUDGMENT 19-06-2020 DATE OF DISPATCH OF CALENDAR 24-06-2020