M.Sailaja

C.C.No.531/2022 1 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

ALLAGADDA

Present:- Sri ABDUL RAHMAN SHAIK,

Judicial Magistrate of First Class, Koilkuntla.

FAC. Judicial Magistrate of First Class, Allagadda.

Thursday, this the 23rd day of March, 2023.

Calendar Case No. 531/2022

Between:

The State: Rep by Sub-Inspector of Police, Rudravaram Police Station.…Complainant

AND

1. Mude Narasimha Naik @ Motipike Naik, S/o. Nanuke Naik,

2. Mude Narasimha Naik @ Gouge Naik, S/o. Pamanna Naik, Aged 36 years,

Both are R/o. Balaswamibai Thanda Village, Rudravaram Mandal. Kurnool District.… Accused

This case having come before me for final hearing on this day in the presence of Learned A.P.P. for the State and of Sri C.V.Ramana Rao, Learned counsel for the Accused, upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following.

JUDGMENT

1.The Sub Inspector of Police, Rudravaram Police Station filed charge sheet against the Accused No.1 and 2 in Cr.No.19/2022 for the offence under Sec.7(a) r/w 8(e) of A.P.P. Act.

2.The following allegations in brief of charge sheet:

This is a case of seizure of ID arrack that occurred on 30.01.2022 at 16.30 hours at the bushes besides Gandleru Reservoir, located at the outskirts of Harinagaram Village, Rudravaram Mandal, wherein the accused

No.1 and 2 were arrested by the police and destroed 4 drums containing 800 liters of jaggary wash and seized 10 liters of ID arrack from the possession of accused under the cover of police proceedings.

Basing on the strength of police proceedings a case in Crime

No.19/2022 U/s.7(a) r/w 8(e) of APP Act of Rudravaram P.S. was registered and on completion of investigation, charge sheet is filed against the accused for the offence punishable U/s. 7(a) r/w 8(e) of APP Act.

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C.C.No.531/2022 2 J.M.F.C., Allagadda

3.On perusal of record, the case was taken on file U/Sec. 7(a) r/w 8(e) of A.P.P. Act.

4. On appearance of the accused No.1 and 2, copies of documents are furnished as contemplated under section 207 Cr.P.C.

5.The Accused No.1 and 2 are examined U/Sec. 239 Cr.P.C., for the offence U/Sec. 7(a) r/w 8(e) of A.P.P. Act and contents of charge sheet read over to the accused in Telugu and they denied the same, pleaded not guilty and claimed to be tried. Hence, the charge.

6.To prove the charge, the prosecution examined PW-1 and got marked Exs.P1 to P5 and M.O.1. The evidence of Lws.1 to 4 were given up by the learned A.P.P. Thus the closure of prosecution evidence.

7. The accused No.1 and 2 are examined U/s 313 Cr.P.C with the incriminating material arisen from the witnesses examined. They denied the same and reported no defence evidence. Hence defence evidence is closed treating as Nil.

8. Heard both sides. Perused the material available on record.

9. Now the point for determination is that:

Whether Accused No.1 and 2 have committed an offence under

Sec.7(a) r/w 8(e) of A.P.P. Act and whether the Prosecution was able to

prove the guilt of the Accused of the charge under section 7(a) r/w

8(e) of A.P.P. Act, beyond reasonable doubt?

10.Point:

It is the case of prosecution that the Accused No.1 and 2 were in possession of 10 liters of ID arrack and selling the ID arrack which is unfit for human consumption. Charge for the offence punishable under section 7(a)

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C.C.No.531/2022 3 J.M.F.C., Allagadda r/w 8(e) of A.P.P. Act is framed against the Accused No.1 and 2. The defence of the Accused is that they did not commit the offence and they are innocents. To prove the case against the Accused, the prosecution examined

PW-1 and got marked Exs.P1 to Ex.P5 and MO.1.

11.Regarding the commission of offence, evidence of PW-1 remains for consideration. PW-1/P.Niranjan Reddy, S.I. of Police deposed that on 30.01.2022 at about 15.30 hours on credible information about selling of ID arrack himself and his staff went near to Gandleru Reservoir, Rudravaram

Mandal, and then the accused tried to skulk away on seeing the police but the police caught hold them and on enquiry they revealed their identity and then he destroyed 4 drums containing 800 liters of jaggery wash and he found 10 liters of ID arrack and then he took the sample in an empty bottle/M.O.1 of 180 ml capacity and prepared Ex.P1 police proceedings and seized the remaining arrack after taking sample and they took the accused along with the seized property to the police station. Basing on Ex.P1 proceedings, he registered the case in Cr.No.19/2022 for the offence u/s.7(a) r/w 8(e) of A.P.P. Act and issued Ex.P2 FIR and after report of Ex.P4/Chemical analysis report, he filed charge sheet.

12.During the cross examination, he stated that the scene of offence is a busy locality and that public are roaming in that way and that he did not summons the public at scene of offence to act as mediators. He denied the suggestions that the accused never committed any offence and that a false case was registered against the accused for statistical purpose and that they never went to the place of occurrence, never prepared Ex.P1 proceedings and that Ex.P1 proceedings was prepared in the police station.

13. For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) Cr.P.C. Section 100 (4) and (5) of Cr.P.C. is as follows:

Persons in charge of closed place to allow search.- (4) Before making a

Page No. 3 of 8

C.C.No.531/2022 4 J.M.F.C., Allagadda 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 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. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

14. Further Hon'ble High court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

15. In view of the above legal position the investigating officer/PW-1 has to secure the presence of two independent mediators at the time of seizing contraband from the scene of offence and at the time of arrest of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

16. In so far as the securing the presence of mediators is concerned, the evidence of prosecution witnesses and Ex.P1 goes to show that though the place of seizure is located in a busy locality, they did not made any efforts Page No. 4 of 8

C.C.No.531/2022 5 J.M.F.C., Allagadda to secure the presence of mediators. The fact of no request of police to neighbors, certainly leads to assume that they did not even made efforts to secure any independent witnesses. If police asked, anybody of that locality might have acted as mediators to the search at least.

17. As per the above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. As already observed, in the instant case, PW-1, who made the search and seizure and took samples at the relevant point of time, clearly admitted that he did not take steps for securing the presence of two independent mediators and for conducting any panchanama or mahazar. No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of

Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from PW-1 for not following the procedure contemplated under Section 100

Cr.P.C.

18.Therefore, though PW-1 has followed the procedure to some extent while taking samples, preparing the Ex.P1 and arrest of accused but he/PW-1 failed to give any plausible reasons for not securing the presence of mediators at the time of his search, seizure and arrest of accused and also discrepancies with regard to the drafting of the Ex.P1, in which, this court considered view, caused great prejudice to the accused. Hence, this court is of the opinion that the prosecution failed to prove its case beyond reasonable doubt and the accused are entitled for Doctrine of Benefit of Doubt, which leads to acquittal.

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C.C.No.531/2022 6 J.M.F.C., Allagadda

19. In the result, the accused No.1 and 2 are found not guilty for the offence under Section 7(a) r/w 8(e) of A.P. Prohibition Act and they are acquitted U/s. 248 (1) of Code of Criminal Procedure and they are set at liberty. The bail bonds of accused and of their sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack sample bottle shall be destroyed after expiry of appeal or appeal time.

Typed to my dictation by the Personal Assistant, Corrected and

pronounced by me in the Open Court on this the 23 rd day of March, 2023.

Judicial Magistrate of First Class,

Koilkuntla. FAC. Judicial Magistrate of First Class, Allagadda.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

FOR PROSECUTION : FOR DEFENCE: :

PW1 : P.Niranjan Reddy-- NIL –

EXHIBITS MARKED

FOR PROSECUTION :FOR DEFENCE : NIL

Ex.P1 is the police proceedings

Ex.P2 is the First Information Report

Ex.P3 is the letter of advise

Ex.P4 is the chemical analysis report

Ex.P5 is the destruction orders from Superintendent of police, Kurnool.

MATERIAL OBJECTS

M.O.1 : Sample collected by S.I. of Police

J.M.F.C., Koilkuntla. FAC. J.M.F.C., Allagadda.

Page No. 6 of 8

C.C.No.531/2022 7 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

ALLAGADDA

Calendar Case No. 531/2022

1Calender Case No.531/2022

2.Name of the Police Station and Cr.No.Rudravaram P.S. Cr.No.19/2022

3.Description of the Accused1. Mude Narasimha Naik @ Motipike Naik, S/o. Nanuke Naik,

2. Mude Narasimha Naik @ Gouge Naik, S/o. Pamanna Naik, Aged 36 years,

Both are R/o. Balaswamibai Thanda Village, Rudravaram Mandal. Kurnool District.

4.Date of Occurrence30.01.2022

5.Date of Complaint30.01.2022

6.Date of apprehension31.01.2022

7.Date of release on bail04.02.2022

8.Date of Examination16.12.2022

9.Date of Commencement of Trial16.12.2022

10.Date of Closure of Trial06.01.2023

11.Date of Judgment23.03.2023

Offences Under Sections : 7(A) r/w 8(e) of A.P.P Act.

Finding : Accused is found not guilty.

O R D E R : In the result, the accused No.1 and 2 are found not guilty for the offence under Section 7(A) r/w 8(e) of A.P. Prohibition Act and they are acquitted U/s. 248 (1) of Code of Criminal Procedure and they are set at liberty. The bail bonds of accused and of their sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack bottle shall be destroyed after expiry of appeal or appeal time.

Judicial Magistrate of First Class,

Koilkuntla.

FAC.Judicial Magistrate of First Class,

Allagadda.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Page No. 7 of 8

C.C.No.531/2022 8 J.M.F.C., Allagadda Assistant Sessions Judge, Kurnool.

Page No. 8 of 8

C.C.No.484/2022 1 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

ALLAGADDA

Present:- Sri ABDUL RAHMAN SHAIK,

Judicial Magistrate of First Class, Koilkuntla.

FAC. Judicial Magistrate of First Class, Allagadda.

Thursday, this the 23rd day of March, 2023.

Calendar Case No. 484/2022

Between:

The State: Rep by Sub-Inspector of Police, Rudravaram Police Station.…Complainant

AND

1. Javaji Dasthagiri, S/o. Obulapthi, Aged 34 years.

2. Javaji Chinna Madanna, S/o. Chinna Madanna, Aged 40 years.

Both are R/o. Chithrenipalle Village, Rudravaram Mandal, Kurnool District.… Accused

This case having come before me for final hearing on this day in the presence of Learned A.P.P. for the State and of Sri C.V.Ramana Rao, Learned counsel for the Accused, upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following.

JUDGMENT

1.The Sub Inspector of Police, Rudravaram Police Station filed charge sheet against the Accused No.1 and 2 in Cr.No.98/2022 for the offence under Sec.7(a) r/w 8(e) of A.P.P. Act.

2.The following allegations in brief of charge sheet:

This is a case of seizure of ID arrack that occurred on 27.04.2022 at 15 hours at the bushes at Gouspeera Kunta, located at the outskirts of

Chithrenipalle Village, Rudravaram Mandal, wherein the accused No.1 and 2 were arrested by the police and seized 20 liters of ID arrack from the possession of accused under the cover of police proceedings.

Basing on the strength of police proceedings a case in Crime

No.98/2022 U/s.7(a) r/w 8(e) of APP Act of Rudravaram P.S. was registered and on completion of investigation, charge sheet is filed against the accused for the offence punishable U/s. 7(a) r/w 8(e) of APP Act.

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C.C.No.484/2022 2 J.M.F.C., Allagadda

3.On perusal of record, the case was taken on file U/Sec. 7(a) r/w 8(e) of A.P.P. Act.

4. On appearance of the accused No.1 and 2, copies of documents are furnished as contemplated under section 207 Cr.P.C.

5.The Accused No.1 and 2 are examined U/Sec. 239 Cr.P.C., for the offence U/Sec. 7(a) r/w 8(e) of A.P.P. Act and contents of charge sheet read over to the accused in Telugu and they denied the same, pleaded not guilty and claimed to be tried. Hence, the charge.

6.To prove the charge, the prosecution examined PW-1 and got marked Exs.P1 to P5 and M.O.1. The evidence of Lws.1 to 4 were given up by the learned A.P.P. Thus the closure of prosecution evidence.

7. The accused No.1 and 2 are examined U/s 313 Cr.P.C with the incriminating material arisen from the witnesses examined. They denied the same and reported no defence evidence. Hence defence evidence is closed treating as Nil.

8. Heard both sides. Perused the material available on record.

9. Now the point for determination is that:

Whether Accused No.1 and 2 have committed an offence under

Sec.7(a) r/w 8(e) of A.P.P. Act and whether the Prosecution was able to

prove the guilt of the Accused of the charge under section 7(a) r/w

8(e) of A.P.P. Act, beyond reasonable doubt?

10.Point:

It is the case of prosecution that the Accused No.1 and 2 were in possession of 20 liters of ID arrack and selling the ID arrack which is unfit for human consumption. Charge for the offence punishable under section 7(a) r/w 8(e) of A.P.P. Act is framed against the Accused No.1 and 2. The defence of the Accused is that they did not commit the offence and they are Page No. 2 of 7

C.C.No.484/2022 3 J.M.F.C., Allagadda innocents. To prove the case against the Accused, the prosecution examined

PW-1 and got marked Exs.P1 to Ex.P5 and MO.1.

11.Regarding the commission of offence, evidence of PW-1 remains for consideration. PW-1/P.Niranjan Reddy, S.I. of Police deposed that on 27.04.2022 at about 15 hours on credible information about selling of ID arrack himself and his staff went near toGousepeera Kunta, Chithrenipalle

Village, Rudravaram Mandal, and then the accused tried to skulk away on seeing the police but the police caught hold them and on enquiry they revealed their identity and then he found 20 liters of ID arrack and then he took the sample in an empty bottle/M.O.1 of 180 ml capacity and prepared

Ex.P1 police proceedings and seized the remaining arrack after taking sample and they took the accused along with the seized property to the police station. Basing on Ex.P1 proceedings, he registered the case in

Cr.No.98/2022 for the offence u/s.7(a) r/w 8(e) of A.P.P. Act and issued Ex.P2

FIR and after report of Ex.P4/Chemical analysis report, he filed charge sheet.

12.During the cross examination, he stated that the scene of offence is a busy locality and that public are roaming in that way and that he did not summons the public at scene of offence to act as mediators. He denied the suggestions that the accused never committed any offence and that a false case was registered against the accused for statistical purpose and that they never went to the place of occurrence, never prepared Ex.P1 proceedings and that Ex.P1 proceedings was prepared in the police station.

13. For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) Cr.P.C. Section 100 (4) and (5) of Cr.P.C. is as follows:

Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such

Page No. 3 of 7

C.C.No.484/2022 4 J.M.F.C., Allagadda 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. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

14. Further Hon'ble High court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

15. In view of the above legal position the investigating officer/PW-1 has to secure the presence of two independent mediators at the time of seizing contraband from the scene of offence and at the time of arrest of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

16. In so far as the securing the presence of mediators is concerned, the evidence of prosecution witnesses and Ex.P1 goes to show that though the place of seizure is located in a busy locality, they did not made any efforts to secure the presence of mediators. The fact of no request of police to neighbors, certainly leads to assume that they did not even made efforts to secure any independent witnesses. If police asked, anybody of that locality Page No. 4 of 7

C.C.No.484/2022 5 J.M.F.C., Allagadda might have acted as mediators to the search at least.

17. As per the above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. As already observed, in the instant case, PW-1, who made the search and seizure and took samples at the relevant point of time, clearly admitted that he did not take steps for securing the presence of two independent mediators and for conducting any panchanama or mahazar. No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of

Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from PW-1 for not following the procedure contemplated under Section 100

Cr.P.C.

18.Therefore, though PW-1 has followed the procedure to some extent while taking samples, preparing the Ex.P1 and arrest of accused but he/PW-1 failed to give any plausible reasons for not securing the presence of mediators at the time of his search, seizure and arrest of accused and also discrepancies with regard to the drafting of the Ex.P1, in which, this court considered view, caused great prejudice to the accused. Hence, this court is of the opinion that the prosecution failed to prove its case beyond reasonable doubt and the accused are entitled for Doctrine of Benefit of Doubt, which leads to acquittal.

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C.C.No.484/2022 6 J.M.F.C., Allagadda

19. In the result, the accused No.1 and 2 are found not guilty for the offence under Section 7(a) r/w 8(e) of A.P. Prohibition Act and they are acquitted U/s. 248 (1) of Code of Criminal Procedure and they are set at liberty. The bail bonds of accused and of their sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack sample bottle shall be destroyed after expiry of appeal or appeal time.

Typed to my dictation by the Personal Assistant, Corrected and

pronounced by me in the Open Court on this the 23 rd day of March, 2023.

Judicial Magistrate of First Class,

Koilkuntla. FAC. Judicial Magistrate of First Class, Allagadda.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

FOR PROSECUTION : FOR DEFENCE: :

PW1 : P.Niranjan Reddy-- NIL –

EXHIBITS MARKED

FOR PROSECUTION :FOR DEFENCE : NIL

Ex.P1 is the police proceedings

Ex.P2 is the First Information Report

Ex.P3 is the letter of advise

Ex.P4 is the chemical analysis report

Ex.P5 is the destruction orders from Superintendent of police, Kurnool.

MATERIAL OBJECTS

M.O.1 : Sample collected by S.I. of Police

J.M.F.C., Koilkuntla. FAC. J.M.F.C., Allagadda.

Page No. 6 of 7

C.C.No.484/2022 7 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

ALLAGADDA

Calendar Case No. 484/2022

1Calender Case No.484/2022

2.Name of the Police Station and Cr.No.Rudravaram P.S. Cr.No.98/2022

3.Description of the Accused1. Javaji Dasthagiri, S/o. Obulapthi, Aged 34 years.

2. Javaji Chinna Madanna, S/o. Chinna Madanna, Aged 40 years.

Both are R/o. Chithrenipalle Village, Rudravaram Mandal,, Kurnool District

4.Date of Occurrence27.04.2022

5.Date of Complaint27.04.2022

6.Date of apprehension28.04.2022

7.Date of release on bail04.05.2022

8.Date of Examination11.10.2022

9.Date of Commencement of Trial16.12.2022

10.Date of Closure of Trial05.01.2023

11.Date of Judgment23.03.2023

Offences Under Sections : 7(A) r/w 8(e) of A.P.P Act.

Finding : Accused is found not guilty.

O R D E R : In the result, the accused No.1 and 2 are found not guilty for the offence under Section 7(A) r/w 8(e) of A.P. Prohibition Act and they are acquitted U/s. 248 (1) of Code of Criminal Procedure and they are set at liberty. The bail bonds of accused and of their sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack bottle shall be destroyed after expiry of appeal or appeal time.

Judicial Magistrate of First Class,

Koilkuntla.

FAC.Judicial Magistrate of First Class,

Allagadda.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions Judge, Kurnool. Page No. 7 of 7

C.C.No.536/2022 1 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

ALLAGADDA

Present:- Sri ABDUL RAHMAN SHAIK,

Judicial Magistrate of First Class, Koilkuntla.

FAC. Judicial Magistrate of First Class, Allagadda.

Thursday, this the 23rd day of March, 2023.

Calendar Case No. 536/2022

Between:

The State: Rep by Sub-Inspector of Police, Rudravaram Police Station.…Complainant

AND

Pasupula Narasimha, S/o. Late Paparayudu, Aged 30 years, R/o. Sivalayam Street, Rudravaram Village and Mandal, Kurnool District.… Accused

This case having come before me for final hearing on this day in the presence of Learned A.P.P. for the State and of Sri P.Subbaiah, Learned counsel

for the Accused, upon perusing the material papers on record and upon hearing

the counsel on either side, this Court delivers the following.

JUDGMENT

1.The Sub Inspector of Police, Rudravaram Police Station filed charge sheet against the Accused in Cr.No.235/2020 for the offence under

Sec.34(A) of A.P. Excise Act.

2.The following allegations in brief of charge sheet:

This is a case of seizure of liquor bottles that occurred on 27.07.2020 at 6.45 hours near High School in Rudravaram Village and

Mandal, wherein the accused was arrested by the police and seized 40 bottles of 9 Sea Horses whisky of 180 ml each and 12 Galaxy Whisky bottles of 180 ml each from the possession of accused under the cover of police proceedings.

Basing on the strength of police proceedings a case in Crime

No.235/2020 U/s.34(A) of APE Act of Rudravaram P.S. was registered and on completion of investigation, charge sheet is filed against the accused for the offence punishable U/s. 34(A) of APE Act. Page No. 1 of 7

C.C.No.536/2022 2 J.M.F.C., Allagadda

3.On perusal of record, the case was taken on file U/Sec. 34(A) of

A.P.E. Act.

4. On appearance of the accused, copies of documents are furnished as contemplated under section 207 Cr.P.C.

5.The Accused examined U/Sec. 239 Cr.P.C., for the offence U/Sec.

34(A) of A.P.E. Act and contents of charge sheet read over to the accused in

Telugu and he denied the same, pleaded not guilty and claimed to be tried.

Hence, the charge.

6.To prove the charge, the prosecution examined PW-1 and got marked Exs.P1 to P5 and M.Os.1 and 2. The evidence of Lws.1, 2 and 4 were given up by the learned A.P.P. Thus the closure of prosecution evidence.

7. The accused examined U/s 313 Cr.P.C with the incriminating material arisen from the witnesses examined. He denied the same and reported no defence evidence. Hence defence evidence is closed treating as

Nil.

8. Heard both sides. Perused the material available on record.

9. Now the point for determination is that:

Whether Accused have committed an offence under Sec.34(A) of

A.P.E. Act and whether the Prosecution was able to prove the guilt of

the Accused of the charge under section 34(A) of A.P.E. Act, beyond

reasonable doubt?

10.Point:

It is the case of prosecution that the Accused was in possession of 40 bottles of 9 Sea Horses whisky of 180 ml each and 12 Galaxy Whisky bottles of 180 ml each and selling the liquor bottles for higher price. Charge for the offence punishable under section 34(A) of A.P.E. Act is framed against the Accused. The defence of the Accused is that he did not commit the

Page No. 2 of 7

C.C.No.536/2022 3 J.M.F.C., Allagadda offence and he is innocent. To prove the case against the Accused, the prosecution examined PW-1 and got marked Exs.P1 to Ex.P5 and Mos.1 and 2.

11.Regarding the commission of offence, evidence of PW-1 remains for consideration. PW-1/N.Ram Mohan Reddy, S.I. of Police deposed that on 27.07.2020 at about 6.30 hours on credible information about selling of liquor bottles himself and his staff went near to High School, Rudravaram

Mandal, and then the accused tried to skulk away on seeing the police but the police caught hold him and on enquiry he revealed his identity and then the he searched the plastic cover possessed by the accused and found 40 bottles of 9 Sea Horses whisky of 180 ml each and 12 Galaxy Whisky bottles of 180 ml each. Then he took the sample bottles/M.Os.1 and 2 of each category and prepared Ex.P1 police proceedings and seized the remaining liqour bottles after taking sample and they took the accused along with the seized property to the police station. Basing on Ex.P1 proceedings, he registered the case in Cr.No.235/2020 for the offence u/s.34(A) of A.P.E. Act and issued Ex.P2 FIR and after report of Ex.P4/Chemical analysis report, he filed charge sheet.

12.During the cross examination, he stated that the scene of offence is a busy locality and that public are roaming in that way and that he did not summon the public at scene of offence to act as mediators. He denied the suggestions that the accused never committed any offence and that a false case was registered against the accused for statistical purpose and that they never went to the place of occurrence, never prepared Ex.P1 proceedings and that Ex.P1 proceedings was prepared in the police station.

13. For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) Cr.P.C. Section 100 (4) and (5) of Cr.P.C. is as follows:

Persons in charge of closed place to allow search.- (4) Before making a

Page No. 3 of 7

C.C.No.536/2022 4 J.M.F.C., Allagadda 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 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. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

14. Further Hon'ble High court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

15. In view of the above legal position the investigating officer/PW-1 has to secure the presence of two independent mediators at the time of seizing contraband from the scene of offence and at the time of arrest of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

16. In so far as the securing the presence of mediators is concerned, the evidence of prosecution witnesses and Ex.P1 goes to show that though the place of seizure is located in a busy locality, they did not made any efforts Page No. 4 of 7

C.C.No.536/2022 5 J.M.F.C., Allagadda to secure the presence of mediators. The fact of no request of police to neighbors, certainly leads to assume that they did not even made efforts to secure any independent witnesses. If police asked, anybody of that locality might have acted as mediators to the search at least.

17. As per the above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. As already observed, in the instant case, PW-1, who made the search and seizure and took samples at the relevant point of time, clearly admitted that he did not take steps for securing the presence of two independent mediators and for conducting any panchanama or mahazar. No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of

Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from PW-1 for not following the procedure contemplated under Section 100

Cr.P.C.

18.Therefore, though PW-1 has followed the procedure to some extent while taking samples, preparing the Ex.P1 and arrest of accused but he/PW-1 failed to give any plausible reasons for not securing the presence of mediators at the time of his search, seizure and arrest of accused and also discrepancies with regard to the drafting of the Ex.P1, in which, this court considered view, caused great prejudice to the accused. Hence, this court is of the opinion that the prosecution failed to prove its case beyond reasonable doubt and the accused is entitled for Doctrine of Benefit of Doubt, which leads to acquittal.

Page No. 5 of 7

C.C.No.536/2022 6 J.M.F.C., Allagadda

19. In the result, the accused is found not guilty for the offence under

Section 34(A) of A.P. Excise Act and he is acquitted U/s. 248 (1) of Code of

Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months. The Mos.1 and 2/sample liquor bottles shall be destroyed after expiry of appeal or appeal time.

Typed to my dictation by the Personal Assistant, Corrected and

pronounced by me in the Open Court on this the 23 rd day of March, 2023.

Judicial Magistrate of First Class,

Koilkuntla. FAC. Judicial Magistrate of First Class, Allagadda.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

FOR PROSECUTION : FOR DEFENCE: :

PW1 : N.Ram Mohan Reddy-- NIL –

EXHIBITS MARKED

FOR PROSECUTION :FOR DEFENCE : NIL

Ex.P1 is the police proceedings

Ex.P2 is the First Information Report

Ex.P3 is the letter of advise

Ex.P4 is the chemical analysis report

Ex.P5 is the destruction orders from Superintendent of police, Kurnool.

MATEIRAL OBJECTS

M.Os.1 and 2 : Sample liquor bottles

J.M.F.C., Koilkuntla. FAC. J.M.F.C., Allagadda.

Page No. 6 of 7

C.C.No.536/2022 7 J.M.F.C., Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

ALLAGADDA

Calendar Case No. 536/2022

1Calender Case No.536/2022

2.Name of the Police Station and Cr.No.Rudravaram P.S. Cr.No.235/2020

3.Description of the AccusedPasupula Narasimha, S/o. Late Paparayudu, Aged 30 years, R/o. Sivalayam Street, RudravaramVillageand Mandal, Kurnool District.

4.Date of Occurrence27.07.2020

5.Date of Complaint27.07.2020

6.Date of apprehension27.07.2020

7.Date of release on bail31.07.2020

8.Date of Examination12.10.2022

9.Date of Commencement of Trial16.12.2022

10.Date of Closure of Trial06.01.2023

11.Date of Judgment23.03.2023

Offences Under Sections : 34(A) of A.P. Excise Act.

Finding : Accused is found not guilty.

O R D E R : In the result, the accused is found not guilty for the offence under Section 34(A) of A.P. Excise Act and he is acquitted U/s. 248 (1) of Code of Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months.

The Mos.1 and 2/sample liquor bottles shall be destroyed after expiry of appeal or appeal time.

Judicial Magistrate of First Class,

Koilkuntla.

FAC.Judicial Magistrate of First Class,

Allagadda.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions Judge, Kurnool.

Page No. 7 of 7

C.C.No.533/2022 1 J.M.F.C.,Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

ALLAGADDA

Present:- Sri ABDUL RAHMAN SHAIK,

Judicial Magistrate of First Class, Koilkuntla.

FAC. Judicial Magistrate of First Class, Allagadda.

Thursday, this the 23rd day of March, 2023.

Calendar Case No. 533/2022

Between:

The State: Rep by Sub-Inspector of Police, Rudravaram Police Station.…Complainant

AND

Mude Vishnu Naik, S/o. Nanuke Naik @ Narasimha Naik, Aged 22 years, R/o. Balaswamibai Thanda Village, Rudravaram Mandal, Kurnool District.… Accused

This case having come before me for final hearing on this day in the presence of Learned A.P.P. for the State and of Sri C.V.Ramana Rao, Learned counsel for the Accused, upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following.

JUDGMENT

1.The Sub Inspector of Police, Rudravaram Police Station filed charge sheet against the Accused in Cr.No.21/2022 for the offence under

Sec.7(a) r/w 8(e) of A.P.P. Act.

2.The following allegations in brief of charge sheet:

This is a case of seizure of ID arrack that occurred on 03.02.2022 at 15.30 hours near the bushes, beside Gandleru Reservoir, located at the outskirts of Harinagaram Village, Rudravaram Mandal, wherein the accused was escaped from the scene and the police destroyed the manufacturing unit 14 plastic drums containing 2800 liters of jaggery wash and seized 15 liters of ID arrack from the possession of accused under the cover of police proceedings.

Basing on the strength of police proceedings a case in Crime

No.21/2022 U/s.7(a) r/w 8(e) of APP Act of Rudravaram P.S. was registered and on completion of investigation, charge sheet is filed against the accused for the offence punishable U/s. 7(a) r/w 8(e) of APP Act.

Page No. 1 of 7

C.C.No.533/2022 2 J.M.F.C.,Allagadda

3.On perusal of record, the case was taken on file U/Sec. 7(a) r/w 8(e) of A.P.P. Act.

4. On appearance of the accused, copies of documents are furnished as contemplated under section 207 Cr.P.C.

5.The Accused examined U/Sec. 239 Cr.P.C., for the offence U/Sec.

7(a) r/w 8(e) of A.P.P. Act and contents of charge sheet read over to the accused in Telugu and he denied the same, pleaded not guilty and claimed to be tried. Hence, the charge.

6.To prove the charge, the prosecution examined PW-1 and got marked Exs.P1 to P5 and M.O.1. The evidence of Lws.1 to 4 were given up by the learned A.P.P. Thus the closure of prosecution evidence.

7. The accused examined U/s 313 Cr.P.C with the incriminating material arisen from the witnesses examined. He denied the same and reported no defence evidence. Hence defence evidence is closed treating as

Nil.

8. Heard both sides. Perused the material available on record.

9. Now the point for determination is that:

Whether Accused have committed an offence under Sec.7(a) r/w

8(e) of A.P.P. Act and whether the Prosecution was able to prove the

guilt of the Accused of the charge under section 7(a) r/w 8(e) of A.P.P.

Act, beyond reasonable doubt?

10.Point:

It is the case of prosecution that the Accused was in possession of 15 liters of ID arrack and selling the ID arrack which is unfit for human consumption. Charge for the offence punishable under section 7(a) r/w 8(e) of A.P.P. Act is framed against the Accused. The defence of the Accused is that he did not commit the offence and he is innocent. To prove the case Page No. 2 of 7

C.C.No.533/2022 3 J.M.F.C.,Allagadda against the Accused, the prosecution examined PW-1 and got marked Exs.P1 to Ex.P5 and MO.1.

11.Regarding the commission of offence, evidence of PW-1 remains for consideration. PW-1/P.Niranjan Reddy, S.I. of Police deposed that on 03.02.2022 at about 15.30 hours on credible information about selling of ID arrack himself and his staff went near to Gandleru Reservior, Harinagaram

Village, Rudravaram Mandal, and then the accused tried to skulk away on seeing the police but the accused escaped from the scene and then the police destroyed the manufacturing unit 14 plastic drums containing 2800 liters of jaggery wash and seized 15 liters of ID arrack and then he took the sample in an empty bottle/M.O.1 of 180 ml capacity and prepared Ex.P1 police proceedings and seized the remaining arrack after taking sample and they took the accused along with the seized property to the police station. Basing on Ex.P1 proceedings, he registered the case in Cr.No.21/2022 for the offence u/s.7(a) r/w 8(e) of A.P.P. Act and issued Ex.P2 FIR and after report of

Ex.P4/Chemical analysis report, he filed charge sheet.

12.During the cross examination, he stated that the scene of offence is a busy locality and that public are roaming in that way and that he did not summons the public at scene of offence to act as mediators. He denied the suggestions that the accused never committed any offence and that a false case was registered against the accused for statistical purpose and that they never went to the place of occurrence, never prepared Ex.P1 proceedings and that Ex.P1 proceedings was prepared in the police station.

13. For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) Cr.P.C. Section 100 (4) and (5) of Cr.P.C. is as follows:

Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality

Page No. 3 of 7

C.C.No.533/2022 4 J.M.F.C.,Allagadda 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. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

14. Further Hon'ble High court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

15. In view of the above legal position the investigating officer/PW-1 has to secure the presence of two independent mediators at the time of seizing contraband from the scene of offence and at the time of arrest of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

16. In so far as the securing the presence of mediators is concerned, the evidence of prosecution witnesses and Ex.P1 goes to show that though the place of seizure is located in a busy locality, they did not made any efforts to secure the presence of mediators. The fact of no request of police to neighbors, certainly leads to assume that they did not even made efforts to Page No. 4 of 7

C.C.No.533/2022 5 J.M.F.C.,Allagadda secure any independent witnesses. If police asked, anybody of that locality might have acted as mediators to the search at least.

17. As per the above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. As already observed, in the instant case, PW-1, who made the search and seizure and took samples at the relevant point of time, clearly admitted that he did not take steps for securing the presence of two independent mediators and for conducting any panchanama or mahazar. No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of

Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from PW-1 for not following the procedure contemplated under Section 100

Cr.P.C.

18.Therefore, though PW-1 has followed the procedure to some extent while taking samples, preparing the Ex.P1 and arrest of accused but he/PW-1 failed to give any plausible reasons for not securing the presence of mediators at the time of his search, seizure and arrest of accused and also discrepancies with regard to the drafting of the Ex.P1, in which, this court considered view, caused great prejudice to the accused. Hence, this court is of the opinion that the prosecution failed to prove its case beyond reasonable doubt and the accused is entitled for Doctrine of Benefit of Doubt, which leads to acquittal.

Page No. 5 of 7

C.C.No.533/2022 6 J.M.F.C.,Allagadda

19. In the result, the accused is found not guilty for the offence under

Section 7(a) r/w 8(e) of A.P. Prohibition Act and he is acquitted U/s. 248 (1) of

Code of Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months. The

MO.1/180ml ID Arrack sample bottle shall be destroyed after expiry of appeal or appeal time.

Typed to my dictation by the Personal Assistant, Corrected and

pronounced by me in the Open Court on this the 23 rd day of March, 2023.

Judicial Magistrate of First Class,

Koilkuntla. FAC. Judicial Magistrate of First Class, Allagadda.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

FOR PROSECUTION : FOR DEFENCE: :

PW1 : P.Niranjan Reddy-- NIL –

EXHIBITS MARKED

FOR PROSECUTION :FOR DEFENCE : NIL

Ex.P1 is the police proceedings

Ex.P2 is the First Information Report

Ex.P3 is the letter of advise

Ex.P4 is the chemical analysis report

Ex.P5 is the destruction orders from Superintendent of police, Kurnool.

MATEIRAL OBJECTS

M.O.1 : Sample collected by S.I. of Police

J.M.F.C., Koilkuntla. FAC. J.M.F.C., Allagadda.

Page No. 6 of 7

C.C.No.533/2022 7 J.M.F.C.,Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

ALLAGADDA

Calendar Case No. 533/2022

1Calender Case No.533/2022

2.Name of the Police Station and Cr.No.Rudravaram P.S. Cr.No.21/2022

3.Description of the AccusedMude Vishnu Naik, S/o.NanukeNaik@ Narasimha Naik, Aged 22 years, R/o. Balaswamibai Thanda Village, Rudravaram Mandal, Kurnool District.

4.Date of Occurrence03.02.2022

5.Date of Complaint03.02.2022

6.Date of apprehension11.05.2022

7.Date of release on bail13.05.2022

8.Date of Examination12.10.2022

9.Date of Commencement of Trial16.12.2022

10.Date of Closure of Trial06.01.2023

11.Date of Judgment23.03.2023

Offences Under Sections : 7(A) r/w 8(e) of A.P.P Act.

Finding : Accused is found not guilty.

O R D E R : In the result, accused is found not guilty for the offence under Section 7(A) r/w 8(e) of A.P. Prohibition Act and he is acquitted

U/s. 248 (1) of Code of Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack bottle shall be destroyed after expiry of appeal or appeal time.

Judicial Magistrate of First Class,

Koilkuntla.

FAC.Judicial Magistrate of First Class,

Allagadda.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions Judge, Kurnool.

Page No. 7 of 7

C.C.No.535/2022 1 J.M.F.C.,Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

ALLAGADDA

Present:- Sri ABDUL RAHMAN SHAIK,

Judicial Magistrate of First Class, Koilkuntla.

FAC. Judicial Magistrate of First Class, Allagadda.

Thursday, this the 23rd day of March, 2023.

Calendar Case No. 535/2022

Between:

The State: Rep by Sub-Inspector of Police, Rudravaram Police Station.…Complainant

AND

Penugonda Subbarayudu, S/o. Krishnaiah, Aged 39 years, R/o. Harinagaram Village, Rudravaram Mandal, Kurnool District.… Accused

This case having come before me for final hearing on this day in the presence of Learned A.P.P. for the State and of Sri C.V.Ramana Rao, Learned counsel for the Accused, upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following.

JUDGMENT

1.The Sub Inspector of Police, Rudravaram Police Station filed charge sheet against the Accused in Cr.No.86/2022 for the offence under

Sec.7(a) r/w 8(e) of A.P.P. Act.

2.The following allegations in brief of charge sheet:

This is a case of seizure of ID arrack that occurred on 19.04.2022 at 17.30 hours on Mukundapuram Rastha, in the outskirts of Harinagaram

Village, Rudravaram Mandal, wherein the accused was arrested by the police and seized 10 liters of ID arrack from the possession of accused under the cover of police proceedings.

Basing on the strength of police proceedings a case in Crime

No.86/2022 U/s.7(a) r/w 8(e) of APP Act of Rudravaram P.S. was registered and on completion of investigation, charge sheet is filed against the accused for the offence punishable U/s. 7(a) r/w 8(e) of APP Act.

Page No. 1 of 7

C.C.No.535/2022 2 J.M.F.C.,Allagadda

3.On perusal of record, the case was taken on file U/Sec. 7(a) r/w 8(e) of A.P.P. Act.

4. On appearance of the accused, copies of documents are furnished as contemplated under section 207 Cr.P.C.

5.The Accused examined U/Sec. 239 Cr.P.C., for the offence U/Sec.

7(a) r/w 8(e) of A.P.P. Act and contents of charge sheet read over to the accused in Telugu and he denied the same, pleaded not guilty and claimed to be tried. Hence, the charge.

6.To prove the charge, the prosecution examined PW-1 and got marked Exs.P1 to P5 and M.O.1. The evidence of Lws.1 and 2 were given up by the learned A.P.P. Thus the closure of prosecution evidence.

7. The accused examined U/s 313 Cr.P.C with the incriminating material arisen from the witnesses examined. He denied the same and reported no defence evidence. Hence defence evidence is closed treating as

Nil.

8. Heard both sides. Perused the material available on record.

9. Now the point for determination is that:

Whether Accused have committed an offence under Sec.7(a) r/w

8(e) of A.P.P. Act and whether the Prosecution was able to prove the

guilt of the Accused of the charge under section 7(a) r/w 8(e) of A.P.P.

Act, beyond reasonable doubt?

10.Point:

It is the case of prosecution that the Accused was in possession of 10 liters of ID arrack and selling the ID arrack which is unfit for human consumption. Charge for the offence punishable under section 7(a) r/w 8(e) of A.P.P. Act is framed against the Accused. The defence of the Accused is that he did not commit the offence and he is innocent. To prove the case Page No. 2 of 7

C.C.No.535/2022 3 J.M.F.C.,Allagadda against the Accused, the prosecution examined PW-1 and got marked Exs.P1 to Ex.P5 and MO.1.

11.Regarding the commission of offence, evidence of PW-1 remains for consideration. PW-1/P.Niranjan Reddy, S.I. of Police deposed that on 19.04.2022 at about 17 hours on credible information about selling of ID arrack himself and his staff went near to Mukundapuram Village Rastha,

Harinagaram Village, Rudravaram Mandal, and then the accused tried to skulk away on seeing the police but the police caught hold him and on enquiry he revealed his identity and then he found plastic cover contains 10 liters of ID arrack and then he took the sample in an empty bottle/M.O.1 of 180 ml capacity and prepared Ex.P1 police proceedings and seized the remaining arrack after taking sample and they took the accused along with the seized property to the police station. Basing on Ex.P1 proceedings, he registered the case in Cr.No.86/2022 for the offence u/s.7(a) r/w 8(e) of A.P.P.

Act and issued Ex.P2 FIR and after report of Ex.P4/Chemical analysis report, he filed charge sheet.

12.During the cross examination, he stated that the scene of offence is a busy locality and that public are roaming in that way and that he did not summons the public at scene of offence to act as mediators. He denied the suggestions that the accused never committed any offence and that a false case was registered against the accused for statistical purpose and that they never went to the place of occurrence, never prepared Ex.P1 proceedings and that Ex.P1 proceedings was prepared in the police station.

13. For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) Cr.P.C. Section 100 (4) and (5) of Cr.P.C. is as follows:

Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality

Page No. 3 of 7

C.C.No.535/2022 4 J.M.F.C.,Allagadda 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. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

14. Further Hon'ble High court of A.P in 'Yeduru Sreenivasul

Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down :- “When the search and seizure taken place in a busy locality and none have come forward to act as a punch witness, the police should have resort to section.100(4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustained.”

15. In view of the above legal position the investigating officer/PW-1 has to secure the presence of two independent mediators at the time of seizing contraband from the scene of offence and at the time of arrest of accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

16. In so far as the securing the presence of mediators is concerned, the evidence of prosecution witnesses and Ex.P1 goes to show that though the place of seizure is located in a busy locality, they did not made any efforts to secure the presence of mediators. The fact of no request of police to neighbors, certainly leads to assume that they did not even made efforts to Page No. 4 of 7

C.C.No.535/2022 5 J.M.F.C.,Allagadda secure any independent witnesses. If police asked, anybody of that locality might have acted as mediators to the search at least.

17. As per the above provision of law, it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If, for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. As already observed, in the instant case, PW-1, who made the search and seizure and took samples at the relevant point of time, clearly admitted that he did not take steps for securing the presence of two independent mediators and for conducting any panchanama or mahazar. No doubt, non-observance of the procedure mandated under the Criminal

Procedure Code may not be fatal in each and every case, if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of

Section 100 Cr.P.C. In the instant case, no such explanation is forthcoming from PW-1 for not following the procedure contemplated under Section 100

Cr.P.C.

18.Therefore, though PW-1 has followed the procedure to some extent while taking samples, preparing the Ex.P1 and arrest of accused but he/PW-1 failed to give any plausible reasons for not securing the presence of mediators at the time of his search, seizure and arrest of accused and also discrepancies with regard to the drafting of the Ex.P1, in which, this court considered view, caused great prejudice to the accused. Hence, this court is of the opinion that the prosecution failed to prove its case beyond reasonable doubt and the accused is entitled for Doctrine of Benefit of Doubt, which leads to acquittal.

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C.C.No.535/2022 6 J.M.F.C.,Allagadda

19. In the result, the accused is found not guilty for the offence under

Section 7(a) r/w 8(e) of A.P. Prohibition Act and he is acquitted U/s. 248 (1) of

Code of Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months. The

MO.1/180ml ID Arrack sample bottle shall be destroyed after expiry of appeal or appeal time.

Typed to my dictation by the Personal Assistant, Corrected and

pronounced by me in the Open Court on this the 23 rd day of March, 2023.

Judicial Magistrate of First Class,

Koilkuntla. FAC. Judicial Magistrate of First Class, Allagadda.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

FOR PROSECUTION : FOR DEFENCE: :

PW1 : P.Niranjan Reddy-- NIL –

EXHIBITS MARKED

FOR PROSECUTION :FOR DEFENCE : NIL

Ex.P1 is the police proceedings

Ex.P2 is the First Information Report

Ex.P3 is the letter of advise

Ex.P4 is the chemical analysis report

Ex.P5 is the destruction orders from Superintendent of police, Kurnool.

MATEIRAL OBJECTS

M.O.1 : Sample collected by S.I. of Police

J.M.F.C., Koilkuntla. FAC. J.M.F.C., Allagadda.

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C.C.No.535/2022 7 J.M.F.C.,Allagadda

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

ALLAGADDA

Calendar Case No. 535/2022

1Calender Case No.535/2022

2.Name of the Police Station and Cr.No.Rudravaram P.S. Cr.No.86/2022

3.Description of the AccusedPenugonda Subbarayudu, S/o. Krishnaiah, Aged 39 years, R/o. Harinagaram Village, Rudravaram Mandal, Kurnool District.

4.Date of Occurrence19.04.2022

5.Date of Complaint19.04.2022

6.Date of apprehension20.04.2022

7.Date of release on bail27.04.2022

8.Date of Examination12.10.2022

9.Date of Commencement of Trial16.12.2022

10.Date of Closure of Trial06.01.2023

11.Date of Judgment23.03.2023

Offences Under Sections : 7(A) r/w 8(e) of A.P.P Act.

Finding : Accused is found not guilty.

O R D E R : In the result, accused is found not guilty for the offence under Section 7(A) r/w 8(e) of A.P. Prohibition Act and he is acquitted

U/s. 248 (1) of Code of Criminal Procedure and he is set at liberty. The bail bonds of accused and of his sureties shall remain in force for a period of six months. The MO.1/180ml ID Arrack bottle shall be destroyed after expiry of appeal or appeal time.

Judicial Magistrate of First Class,

Koilkuntla.

FAC.Judicial Magistrate of First Class,

Allagadda.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions Judge, Kurnool.

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