Sri M.Sreenu

1

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS ::

RAYACHOTY

Present:- Sri M.Sreenu, Judl.Magistrate of I class, Rayachoty. FAC I Addl.Judl.Magistrate of I class,Rayachoty.

Thursday, this the 17th day of October, 2019.

C.C.No.554 of 2019

State Represented by the Proh & Excise Inspector, Rayachoty.…. Complainant -Vs –

Sake Ravi Naga Simha, S/o Narasimhulu, Age 40 years, R/o Veeraballi Village and Mandal, Caste by Valmiki, Occupation : Cooly. … Accused

This case is coming on 11-10-2019 before me for final hearing in presence of Assistant Public Prosecutor, for the state and of Sri C.Pavan Kumar Reddy and

B.Ram Gopal Reddy, Advocates for Accused and having heard arguments and after considering the evidence on record, this court delivered the following:

J U D G M E N T

State Represented by the Proh & Excise Inspector, Rayachoty filed charge sheet in Crime No.63/2019 for the offence punishable under section 34(a) of A.P.

Excise Act, 1968 against the accused.

2.The case of the prosecution in brief is that:

On 08-04-2019 at about 10.30 pm as per the instructions of the

Assistant Commissioner of Prohibition and Excise (Enforcement), Kadapa druing the raids conducted by the PW2 along with staff at Ragimanu Dinnepalli Cross road on Rayachoty to Veeraballi bus road, Veeraballi Mandal wherein they found one the accused in possession of having (1) 48 nips of Mc Dowells No.1 VSOP

Deluxe Brandy battles each 180 ML (2) 48 nips of Old Taverin Gold whisky bottles each 180 ML (3) 96 nips of Old Taverin Gold whisky bottles each 180 ML (4) 96 nips of Old Taverin Gold whisky bottles each 180 ML (5) 48 nips of Mc Dowells

No.1 Gold Premium Brandy each 180 ML and total 336 nips bottles duty paid liquor in four white color plastic bags without having any valid license or permit or bills form concern authorities and also without heals and tried for mediators by 2 deputing PW1 to secure mediators at Somavaram Village of Veeraballi Mandal but went in vain. Then PW2 drawn samples of liquor from accused in four white color plastic bags into seven 180 ML bottles for the purpose of chemical analysis got sealed and labeled the sample as well as property and PW2 arrested the acused and also drafted special report at scene of offence. PW.2 has registered a case in

Cr.No.63/2019, U/sec.34(a) of A.P.Excise Act, 1968 and the accused sent to remand for judicial custody through this Hon’ble court. Hence, the charge.

3.On receipt of charge sheet, this case was taken under section 34(a) of

A.P.Excise Act, 1968 against the accused.

4.On appearance of the accused copies of records are furnished to him as contemplated under Section 207 of Cr.P.C.

5.When examined under Section 239 Cr.P.C., the accused denied the substance of accusation. After perusing the entire material on record and on hearing both sides, a charge under section 34(a) of A.P. Excise Act., 1968, is framed against the accused, read over and explained its contents in Telugu language, for which he pleaded not guilty and claimed the case to be tried.

6.The prosecution examined P.Ws.1 and 2 and got marked Ex.P.1 to P5 besides MO.1 to MO.3.

7.After closure of prosecution evidence, the accused is examined

U/sec.313 Cr.P.C for the incriminating material appearing against him in the prosecution evidence, by explaining the same in Telugu for which he denied.

Accused reported no defence evidence on his behalf.

8.Heard both sides.

 The learned A.P.P. argued that the evidence of P.W.2 is consistent to prove the guilt of the accused beyond all reasonable doubt and therefore, the accused is liable to be convicted for the charge leveled against him.

On the other hand, the learned counsel for the accused argued that

P.Ws.1 and 2 who are police officials examined on behalf of the prosecution and further argued that there are so many contradictions between the 3 evidence of P.Ws.1 and 2 and as such, their evidence is not believable and accordingly, the accused is entitled for benefit of doubt.

9. The point germane for consideration is:

“Whether the prosecution has proved the guilt of the accused beyond all reason U/Sec.34(a) of A.P.Excise Act., 1968?

10. POINT:

The prosecution in order to establish its case against the accused has examined P.Ws.1 and 2 and got marked Exs.P.1 to P.5. P.W1 in this case has deposed on 08-04-2019 at about 10.30 pm, he along with PW2 and other staff and they proceeded to Ragimaanu Dhinnepalli Cross road situated on Rayachoty to Veeraballi Bus road and found accused in possession of (1) 48 nips of Mc

Dowells No.1 VSOP Deluxe Brandy battles each 180 ML (2) 48 nips of Old Taverin

Gold whisky bottles each 180 ML (3) 96 nips of Old Taverin Gold whisky bottles each 180 ML (4) 96 nips of Old Taverin Gold whisky bottles each 180 ML (5) 48 nips of Mc Dowells No.1 Gold Premium Brandy each 180 ML and total 336 nips bottles. Then PW2 deputed him for secure mediators at Somavaram Village of

Veeraballi Mandal but no one came forward to stand as mediators and he reported the same to PW2. Then PW2 took three sample bottles each 180 ML of liquor from accused for the purpose of chemical analysis got sealed and labeled the sample as well as property and PW2 arrested the accused and also drafted special report.

During cross examination, Pw1 denied that he did not accompanied with the PW2 as no conducted raids on the day by PW2. He further denied that they did not seize any property from the possession of accused and he signed special report at police station at request of PW2 & LW5.

11.Pw2/Sub-Inspector of Police, P & E has deposed about the chronological events of investigation and he further deposed that on 08.04.2019 on the instructions of Assistant Commissioner Prohibition and Excise, Kadapa he along with LW1 & PW1 and other staff conducted a raids and they reached

Ragimaanu Dhinnepalli Cross road at about 10.30 PM and found accused having 4 possession 4 white colour plastic bags. Upon seeing police, accused was trying to fled away from that place and they caught hold accused. Then, he enquired accused identity particulars and also enquired him, for which he stated that said 4 bags contains liquor bottles total 336 nips. Then he deputed PW1 for securing mediators at Somarajupalli Village and after some time he returned and reported that no one act as mediators. Then he enquired about the contents of said bags and found (1) 48 nips of M.C VSOP Deluxe Brandy each 180 ML (2) 48 nips of Old

Taverin Gold whisky bottles each 180 ML (3) 96 nips of Old Taverin Gold whisky bottles each 180 ML (4) 96 nips of Old Taverin Gold whisky bottles each 180 ML (5) 48 nips of M.C Gold Premium Brandy each 180 ML. Then he drawn three sample bottles from three brands of contraband and same is marked as MO.1 to

MO.3 and drafted the special report and arrested the accused and all of them returned to station. Basing on the Ex.P.1, he registered a case in Cr.No.63/2019,

U/sec.34(a) of A.P.Excise Act 1968 and issued F.I.R to all concerned officers. The

F.I.R is marked as Ex.P.2. On the same day he produced arrested accused before this Hon'ble court for the purpose of judicial remand and also he forwarded M.O.1 to MO.3 to FSL for chemical analysis through this Hon'ble court along with letter of advise/Ex.P3. During the course of investigation he received chemical analysis report/Ex.P4 and he received destruction orders/Ex.P5. Later after completion of investigation, LW5/Inspector of police laid charge sheet before this Hon'ble court and he verified LW5’s signature. During cross examination, Pw2 admitted that the scene of offence is busy locality and it is surrounded so many villages.

12.According to the prosecution P.Ws.1 and 2 are the police officials in whose presence the accused was arrested and the contraband was seized. As can be seen from the evidence of P.W.2/Sub-Inspector Proh & Excise, his evidence is only formal in nature and further Pw2 in his cross examination admitted that the scene of offence is busy locality and it is surrounded so many villages. Hence, the evidence of P.W.2 is not helpful to the case of the prosecution to connect accused for the offence punishable under Sec.34(a) of AP Excise Act., 1968.

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13.The rest of the listed witness whose evidence is given up by the prosecution also belong to the same department and P.W1 who is working as police constable has deposed about his participating in raid on the date of incident along with Pw2 who is his superior officer. At this stage, the evidence of

P.W.2 is to be scrutinized so cautiously, since he may be interested to get the accused convicted with a view to make their investigation fruitful. And further

PW.2 contended that as no body came forward he searched the bag and he noticed the bag containing 15 Nos of liquor bottles.

14.On the other hand, the learned defence counsel contended that the prosecution failed to follow the procedure for search and seizure of alleged contraband and failed to secure independent witnesses and that itself shows that the police officials foisted a false case against the accused for his statistical purpose and as there is no incriminating material in the evidence of prosecution side, benefit of doubt may be extended to the accused and he may be acquitted.

15. In view of the foregoing discussion, the latches on the part of the investigation agency are clearly focused except the evidence of official witness i.e., Pw1 and P.W.2. There is no corroborative independent witness to prove the seizure of property and arrest of the accused. In the circumstances, it is not safe to convict the accused merely basing on the testimonies of Pw1 and P.W.2 who are police officials. As such, this court of the considered view that the prosecution has miserably failed to bring home the guilt of the accused for charge under section 34(a) of A.P.Excise Act., 1968 and hence, the accused is entitled to be acquitted.

Point is answered accordingly in favour of accused and against the prosecution.

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

Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C. MO.1 to MO.3 shall be destroyed after expiry of appeal time.

Typed to my dictation to the Typist, on office computer, corrected and pronounced by me in the open court, on this the 17th day of October, 2019.

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Sd/- M.Sreenu,

Judl.Magistrate of I class, Rayachoty FAC I Addl.Judl.Magistrate of I class, Rayachoty.

APPENDIX OF EVIDENCE

Witnesses Examined for PROSECUTION: DEFENCE:

PW.1: B.Amereswara -NIL- PW.2: K.Kalyan Kumar, S.I of Proh & Excise.

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P1: Special report - Nil – Ex.P2: FIR Ex.P3: Letter of advise Ex.P4: Analysis report. Ex.P5: Destruction orders.

MATERIAL OBJECTS MARKED:

Mo1: Sample bottle.

Mo2: Sample bottle.

Mo3: Sample bottle.

Sd/- M.Sreenu,

Judl.Magistrate of I class, Rayachoty FAC I Addl.Judl.Magistrate of I class, Rayachoty.

// True Copy //

Judl.Magistrate of I class, Rayachoty FAC I Addl.Judl.Magistrate of I class, Rayachoty.

7

CALENDAR AND JUDGMENT

IN THE COURT OF THE I ADDL. JUDL.MAGISTRATE OF FIRST CLASS ::

RAYACHOTY

C.C.No.554 of 2019

Date of ReportApph. Of Release onCommenClose of Result OffenceaccusedBailcement trial of trial 08-04-1908-04-1908-04-1910-04-1905-09-1909-10-1917-10-19

State Represented by the Proh & Excise Inspector, Rayachoty.…. Complainant -Vs –

Sake Ravi Naga Simha, S/o Narasimhulu, Age 40 years, R/o Veeraballi Village and Mandal, Caste by Valmiki, Occupation : Cooly. … Accused

Offence :: U/.Section 34(a) of A.P. Excise Act., 1968

Finding : Accused is found not guilty.

Sentence of Order:

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

Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C. MO.1 to MO.3 shall be destroyed after expiry of appeal time.

Sd/- M.Sreenu,

Judl.Magistrate of I class, Rayachoty FAC I Addl.Judl.Magistrate of I class, Rayachoty.

Copy submitted to: The Hon’ble I Addl. District Judge, Kadapa.

// True Copy //

Judl.Magistrate of I class, Rayachoty FAC I Addl.Judl.Magistrate of I class, Rayachoty.

1

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

RAYACHOTY

Present:- Sri M.Sreenu, Judl.Magistrate of I class, Rayachoty.

Friday, this the 20th day of March, 2020

C.C.No.6 of 2020

Between:

State represented by the S.I of Police, T.sundupalli P.S. …. Complainant -Vs –

1. Avula Narayana swamy, s/o Mallaiah, 58 years, Yekila Naidu, J.C.Kuravapalli H/o Gundlapalli (v), T.sundupalli mandal.

2. Bukke Sakru Naik,40 years, s/o Jole Naik, coolie,.

3. Vadille Nageswara Naik,42 years, s/o Ramachandra naik, coolie.

4. Mude Jagadish naik, 24 years, s/o Ramachandra naik, cauto driver. A2 to A4 caste by Sugali, R/o Jillenanda Pedda thanda village, K.V.Palli Mandal, Chittoor district.

… Accused

This case coming before me on 13-3-2020 for final hearing in presence of

Assistant Public Prosecutor, for the state and of Sri P.Reddaiah, Advocate for

Accused and having heard arguments and the matter having stood over consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of police, T.Sundupalli P.S filed charge sheet in Crime

No.309/2019 for the offence punishable under section 7(A) r/w 8(e) of A.P

Prohibition Act, 1995 against the accused.

2.The case of the prosecution in brief is that:

On 19-09-2019 at about 11 AM, upon credible information with regard to illegal possession of ID Arrack, Pw3 and his staff members along with two mediators/Pw1 and Pw2 went to Guntlapalli J.C Kuravapalli cross and there they found A1 to A4 were coming in two wheelers and an auto and on seeing them A1 to A4 tried to ran away from that place and on that police caught hold them. On search by Pw3 he found two bags of ID arrack in the auto and one bag of ID arrack in each two wheeler and on his enquiry A1 to A4 confessed about the commission of offence and that Pw3 seized 200 liters of ID arrack from the 2 possession of A1 to A4 in the presence of Pws 1 and 2 and thereafter Pw3 arrested the accused under a cover of Ex.P1 seizure panchanama proceedings dt.19-9- 2019. Basing on the Ex.P1, Pw3 has registered the present case and investigated into and the accused were sent to remand for judicial custody through this

Hon’ble court. Hence, the charge.

3.On receipt of charge sheet, this case was taken under section 7(A) r/w 8(e) of A.P Prohibition Act, 1995 against the accused.

4.On appearance of the accused copies of records are furnished to them as contemplated under Section 207 of Cr.P.C.

5.When examined under Section 239 Cr.P.C., the accused denied the substance of accusation. After perusing the entire material on record and on hearing both sides, a charge under section 7(A) r/w 8(e) of A.P Prohibition Act, 1995, is framed against the accused, read over and explained its contents in

Telugu language, for which they pleaded not guilty and claimed the case to be tried.

6.The prosecution examined P.Ws.1 to 3 and got marked Ex.P.1 to P6 besides Mo1 to Mo4.

7.After closure of prosecution evidence, the accused were examined

U/sec.313 Cr.P.C for the incriminating material appearing against them in the prosecution evidence, by explaining the same in Telugu for which they denied.

Accused reported no defence evidence on their behalf.

8.Heard both sides.

 The learned A.P.P. argued that the evidence of P.W.1 and Pw3 are consistent to prove the guilt of the accused beyond all reasonable doubt and therefore, the accused are liable to be convicted for the charge leveled against him.

On the other hand, the learned counsel for the accused argued that

P.Ws.1 and 3 are officials of revenue and police department and he further argued that there are so many contradictions between the evidence of

P.Ws.1 and 3 and as such, their evidence is not believable and Pw2 turned 3 hostile to the case of prosecution and accordingly, the accused are entitled for benefit of doubt.

9. The point germane for consideration is:

“Whether the prosecution has proved the guilt of the accused beyond all reason U/Sec. 7(A) r/w 8(e) of A.P

Prohibition Act, 1995?

10. POINT:

The prosecution in order to establish its case against the accused has examined P.Ws.1 to 3 and got marked Exs.P.1 to P.6. P.W1 who is working as

Village Revenue officer has deposed on 19-9-2019 at about 11 AM himself and

Lw4/V.R.O accompanied to the police on their requisition and went to the

Guntlapalli J.C Kuravapalli cross and there they found A1 to A4 were coming in two wheelers and an auto and on seeing them A1 to A4 tried to ran away from that place and on that police caught hold them. On search by Lw7/S.I of police he found two bags of ID arrack in the auto and one bag of ID arrack in each two wheeler (total four bags) and on that Lw7 seized said ID arrack and arrested the accused in their presence under a cover of seizure panchanama proceedings and then he put his signature in Ex.P1 dt.19-9-2019. During cross examination, Pw1 admitted that police often called Pws 1 and 2 to the police station and obtained the signatures at police station and that the total proceedings under Ex.P1 has been done in police station.

11.Pw2, who is subordinate to Pw1, did not state anything against the accused and stood hostile to the case of prosecution. Pw3 who is working as S.I of police has deposed about the chronological events of investigation and he deposed on 19-9-2019 at about 11 AM on receipt of credible information about illegal selling of ID arrack. Acting on the said information, he along with other staff members including Pws 1 and 2 and conducted raids at Guntlapalli J.C Kuravapalli cross and there they found A1 to A4 were coming in two wheelers and an auto and on seeing them A1 to A4 tried to ran away from that place and on that police caught hold them. On search by him he found two bags of ID arrack in the auto 4 and one bag of ID arrack in each two wheeler and on his enquiry A1 to A4 confessed about the commission of offence and that he seized 200 liters of ID arrack from the possession of A1 to A4 in the presence of Pws 1 and 2 and thereafter he arrested the accused under a cover of Ex.P1 seizure panchanama proceedings dt.19-9-2019. Basing on the Ex.P1 he has registered the present case and finally he deposed about filing of charge sheet against the accused. During cross examination, Pw3 denied a suggestion that Pw1 and Pw2 did not accompany with them to the scene of offence and that they have not gone to scene of offence on the date of incident.

12.Having gone through the prosecution, Pw1 and Pw2 are the revenue officials. Pw3 is the police official who registered and investigated the case. Pw1 deposed in his chief examination that he would accompany with police and went to the scene of offence whereas accused were caught hold by police. But when it comes to cross examination Pw1 deposed that he put his signature at police station on panchanama prepared at police station. Even Pw2 who is subordinate to Pw1 did not support the prosecution version. According to Pw2, he and Pw1 went to the police station at the request of police and they signed on panchanama at police station. Therefore, the evidence of Pw1 and Pw2 would no way in any manner help the prosecution to prove the search and seizure along with arrest of accused done by Pw3. The evidence of Pw3 who allegedly conducted raid and acted as an investigation officer is only formal in nature though Pw3 denied that

Pws 1 and 2/V.R.O and V.R.A did not accompany him to the scene of offence and that they did not secure mediators at scene of offence. Hence, the evidence of

P.W.3 is not helpful to the case of the prosecution to connect accused for the offence punishable under Sec.7(A) r/w 8(e) of A.P Prohibition Act, 1995

13.The rest of the listed witness whose evidence is given up by the prosecution. As the evidence of Pw1 and Pw2 is not helpful to prosecution case, the evidence of Pw3 being police official has to be scrutinized so cautiously, since he may be interested to get the accused convicted with a view to make his 5 investigation fruitful. And further PW.3 contended that as no body came forward he searched the bag and he noticed the bag containing 200 liters of I.D Arrack.

14.On the other hand, the learned defence counsel contended that the prosecution failed to follow the procedure for search and seizure of alleged contraband and failed to secure independent witnesses and that itself shows that the police official foisted a false case against the accused for his statistical purpose and as there is no incriminating material in the evidence of prosecution side, benefit of doubt may be extended to the accused and he may be acquitted.

15. In view of the foregoing discussion, the latches on the part of the investigation agency are clearly focused except the evidence of official witness i.e., Pw1 and P.W.3. There is no corroborative independent witness to prove the seizure of property and arrest of the accused. In the circumstances, it is not safe to convict the accused merely basing on the testimonies of Pw1 and P.W.2 who are police officials. As such, this court of the considered view that the prosecution has miserably failed to bring home the guilt of the accused for charge under section 7(A) r/w 8(e) of A.P Prohibition Act, 1995 and hence, the accused are entitled to be acquitted. Point is answered accordingly in favour of accused and against the prosecution.

16. In the result, A1 to A4 are found not guilty for the offence punishable under Sec.7(A) r/w 8(e) of A.P Prohibition Act, 1995 and accordingly, they are acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C. Mo1 to Mo4 shall be destroyed after expiry of appeal time.

Typed to my dictation to the Typist, on office computer, corrected and pronounced by me in the open court, on this the 20th day of March, 2020.

Sd/- M.Sreenu.

Judl.Magistrate of I class, Rayachoty

APPENDIX OF EVIDENCE

Witnesses Examined for PROSECUTION: DEFENCE:

PW.1: S.Babu -NIL- 6

PW.2: Patan Jabbar Khan PW3: M.Bhakthavachalam

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P1: Panchanama - Nil – Ex.P2: Signature Ex.P3: Panchanama Ex.P4: FIR Ex.P5: Letter of advise Ex.P6: Analysis report.

MATERIAL OBJECTS MARKED:

Mo1: Sample bottle Mo2: Sample bottle Mo3: Sample bottle Mo4: Sample bottle

Sd/- M.Sreenu.

Judl.Magistrate of I class, Rayachoty 7

CALENDAR AND JUDGMENT

IN THE COURT OF THE I ADDL. JUDL.MAGISTRATE OF FIRST CLASS ::

RAYACHOTY

C.C.No.6 of 2020

Date of ReportApph. Of Release onCommenClose of Result OffenceaccusedBailcement trial of trial 19-9-1919-9-1919-9-1923-9-195-2-2013-3-2020-3-20

Between:

State represented by the S.I of police, T.sundupalli P.S. …. Complainant -Vs –

1. Avula Narayana swamy, s/o Mallaiah, 58 years, Yekila Naidu, J.C.Kuravapalli H/o Gundlapalli (v), T.sundupalli mandal.

2. Bukke Sakru Naik,40 years, s/o Jole Naik, coolie,.

3. Vadille Nageswara Naik,42 years, s/o Ramachandra naik, coolie.

4. Mude Jagadish naik, 24 years, s/o Ramachandra naik, cauto driver. A2 to A4 caste by Sugali, R/o Jillenanda Pedda thanda village, K.V.Palli Mandal, Chittoor district. … Accused

Offence :: U/.Section 7(A) r/w 8(e) of A.P Prohibition Act, 1995.

Finding : A1 to A4 are found not guilty.

Sentence of Order:

In the result, A1 to A4 are found not guilty for the offence punishable under Sec.7(A) r/w 8(e) of A.P Prohibition Act, 1995 and accordingly, they are acquitted under Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C. Mo1 to Mo4 shall be destroyed after expiry of appeal time.

Sd/- M.Sreenu.

Judl.Magistrate of I class,

Rayachoty

Copy submitted to: The Hon’ble I Addl. District Judge, Kadapa.

1

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS: RAYACHOTY.

PRESENT: SRI. M. SREENU,

JUDICIAL MAGISTRATE OF I CLASS, RAYACHOTY,

FAC/ I ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

FRIDAY, THIS THE 01 st DAY OF MARCH, 2019.

C.C.No.88/2019

Between:

Station House Officer, Proh. & Excise Station,

Rayachoty. ….. Complainant.

Vs

Paidi Lakshumaiah, S/o Venkataiah, age 36 years, Sanipaya Village of Veeraballi Mandal, Kadapa District.

….. Accused.

This calendar case coming on this day before me for final hearing on 23-02-2019 in the presence of Assistant Public Prosecutor for complainant/State and of Sri K.Eswaraiah, Advocate for the accused, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:-

:: J U D G M E N T ::

Prohibition & Excise Inspector, Rayachoty laid charge sheet against the accused in Crime No.129/2018 for the offence punishable under Sec.34(a) of A.P.

Excise Act, 1968.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 13.12.2018 at about 7.15 a.m., during the raids conducted by

PW.1/Prohibition and Excise Sub Inspector, Rayachoty along with his staff at

Sanipaya cross road situated on Rayachoty to Veeraballi bus road, Veeraballi Mandal and found the accused suspiciously with a black colour polythene cover containing 07 nips of HD whisky each of 180 ml without having HEALS and any valid license or permit or bills. On suspicion with assistance of staff the Prohibition and Excise officials detained the accused and enquired about the contents of the cover. The accused revealed that the cover contained liquor bottles. Then PW.1/Prohibition and 2

Excise Sub Inspector deputed L.W.1/S.M.Rammohan, Prohibition and Excise

Constable for secure mediators, but in vain. Then PW.1/Prohibition and Excise Sub

Inspector examined the black colour polythene cover and found 07 nips of HD whisky each of 180 ml bottles. Then PW.1/Proh. & Excise Sub Inspector taken out one liquor bottle from the cover as sample got sealed and labeled and also the property. After informing the grounds of arrest the PW.1/Proh. & Excise Sub

Inspector arrested the accused, seized the property sample under cover of a special report drafted on the spot. Then the PW.1/Proh. & Excise Sub Inspector, Rayachoty registered the case in Cr.No.129/2018, U/Sec.34(a) of A.P. Excise Act, 1968 and issued FIRs to all concerned. During the investigation the samples were sent to

Chemical examiner, Kurnool through the Hon'ble Court. The Chemical Examiner who examined the sample opined that the sample is “Indian Liquor”. The property involved in this case excluding sample was produced before the Deputy

Commissioner of Proh. & Excise, Kadapa for confiscation. After completion of investigation PW.2 Prohibition and Excise Inspector, Rayachoty laid charge sheet against the accused for the offence under Sec.34(a) of A.P.Excise Act, 1968.

3) The case was taken on file under Sec.34(a) of A.P.Excise Act, 1968 against the accused.

4) On appearance of accused, copies of documents were furnished to him as contemplated U/sec.207 of Cr.P.C.

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

6) The prosecution in order to bring home the guilt of accused has examined P.Ws.1 & 2 and got marked Ex.P.1 to P.5 and M.O.1. The learned Assistant

Public Prosecutor given up the evidence of L.Ws.1 and 2.

7) On closure of prosecution evidence, accused was examined U/s.313

Cr.P.C., for the incriminating material appearing against him in the prosecution evidence by explaining to him the same in Telugu, for which he denied the same and further he stated that he has no defence evidence on his behalf.

8) Heard learned Assistant Public Prosecutor and the counsel appearing for accused. Perused the material on record.

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9)Learned Assistant Public Prosecutor argued that the evidence of P.Ws.1 & 2 and the contents of Exs.P.1 to P.5 and M.O.1 proved the case of prosecution and prayed to convict the accused as per law.

10)Learned counsel appearing for accused would contend that P.Ws.1 and 2 are Excise Officials and their evidence is not corroborated by the evidence of any independent witness, as such it is not sufficient to prove the case of the prosecution.

Learned counsel appearing for accused would contend that Excise Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the

P.W.1. Learned counsel appearing for accused would contend that except the self serving testimonies of Excise Officials, absolutely there is no evidence on record to prove the recovery of the property from the possession of accused and its disposal.

He would further contend that in the absence of any corroborative evidence from independent source as to the recovery of liquor bottles from the possession of accused, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that the accused committed the offence punishable under Sec.34(a) of A.P. Excise Act, 1968.

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of accused for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 beyond all reasonable doubt” ?

12)POINT: In order to prove the guilt of the accused, prosecution examined P.Ws.1 & 2 and marked Exs.P.1 to P.5 and M.O.1. P.W.1 the Sub Inspector of Prohibition and

Excise station, Rayachoty in his chief-examination deposed about conducting raids on 13.12.2018 at about 7.15 a.m., at Sanipaya cross road situated on Rayachoty to

Veeraballi bus road and found the accused along with contraband, sending of L.W.1 for securing mediators, examination of polythene cover, arrest of accused, seizure of contraband i.e., 07 nips of H.D. Whisky each of 180 ml bottles, drawing of sample under special report, registration of F.I.R, forwarded sample bottle to chemical analysis and forwarded case file to PW.2 for further investigation.

13)P.W.1 in his cross-examination denied the suggestions that, the M.O.1 is planted for the purpose of this case and for statistical purpose, he did not participate 4 raids along with other staff and did not send LW.1 to secure mediators. PW.1 admitted that scene of offence is busy locality.

14)P.W.2 the Inspector of Prohibition and Excise station, Rayachoty in his chief-examination deposed about receiving case file from PW.1, chemical analysis report/Ex.P.4 dated 07.01.2019, destruction orders/Ex.P.5 dated 04.02.2019 from

Deputy Commissioner of Proh. & Excise, Kadapa and after completion of investigation PW.2 laid charge sheet.

15)PW.2 in his cross examination he denied that he did not verify properly the investigation done by PW.1 and he registered a case for statistical purpose.

16)As seen from the evidence, except the oral testimony of P.Ws.1 and 2 there is no other independent witness is available on record. The evidence of P.Ws.1 and 2 shows that they did not make any efforts for securing mediators at the scene of offence. The evidence of P.W.1 that he deputed L.W.1 for securing mediators, but none came forward to act as mediators. The said evidence of P.W.1 is doubtful. If really, P.W.1 made serious attempts for securing mediators, definitely he would have secure the mediators at the scene of offence. Therefore, it is not safe to act upon the evidence of P.W.1.

17) Ex.P.4 chemical analysis report along with Ex.P.3 letter of advice would establish that the M.O.1 contain Indian made liquor. By marking those two documents, the prosecution at best established the nature of the liquor that was sent to the chemical analysis but they failed to establish that it was seized from the conscious possession of the accused.

18)Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P. reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para No.5, it was held as follows:-

Once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible.” It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under 5

Secs. 25 and 27 of the Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.”

19)Further our Hon'ble High Court S. BABU SAHEB ALIAS BABU

VS.STATE OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

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

21)In the result, accused is found not guilty for the offence punishable under

Sec.34(a) of A.P. Excise Act, 1968 and accordingly, he is acquitted under Sec.248 (1)

Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.O.1 sample bottle under C.P.R.No.161/2018 shall be 6 destroyed after expiry of appeal time.

Typed my dictation to the Typist, corrected and pronounced by me in open court, this the 01st day of March, 2019.

Sd/- M.Sreenu,

Judl. Magistrate of I Class, Rayachoty. FAC/ I Addl.Judl. Magistrate of I Class, Rayachoty.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: P.W.1 Shaik Ismail, Prohibition & Excise - NONE - Sub Inspector, Rayachoty. P.W.2 G.Ramamohan, Prohibition & Excise Inspector, Rayachoty

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report - NIL - Ex.P.2 FIR Ex.P.3 Letter of Advice Ex.P.4 Chemical analysis Report Ex.P.5 Destruction Order

MATERIAL OBJECTS MARKED

M.O.1 Sample bottle.

Sd/- M.Sreenu,

J.F.C.M/Rct. FAC/ I A.J.F.C.M/Rct.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS: RAYACHOTY.

PRESENT: SRI. M. SREENU,

JUDICIAL MAGISTRATE OF I CLASS, RAYACHOTY,

FAC/ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

MONDAY, THIS THE 04 th DAY OF OCTOBER, 2018.

C.C.No.634/2018

Between:

Station House Officer, Proh. & Excise Station,

Rayachoty. ….. Complainant.

Vs

1. Derangula Venkata Ramana, S/o Naganna, aged 46 years, R/o Madhavaram Vaddepalli (V), Rayachoty Mandal.

2. Derangula Nagamani, W/o Jayaram @ Jaya R/o Madhavaram Vaddepalli (V), Rayachoty Mandal.

…..Accused.

This calendar case coming on this day before me for final hearing on 01-10-2018 in the presence of Assistant Public Prosecutor for complainant/State and of Sri D. Nagamuni, Advocate for the accused, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:

:: J U D G M E N T ::

Prohibition & Excise Inspector, Rayachoty laid charge sheet against A.1 and A.2 in Crime No.74/2018 for the offence punishable under Sec. 34(a) of A.P. Excise

Act, 1968.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 02.07.2018 at about 2.30 p.m., during the raids conducted by

Prohibition and Excise Sub-Inspector, Rayachoty along with his staff at Yepilavankapalli village cross, situated on the bus road from Rayachoty to Galiveedu bus road of

Rayachoty Mandal found A.1 and A.2 suspiciously with black colour plastic covers. On suspicion with assistance of staff the Prohibition and Excise Sub-Inspector detained A.1 and A.2 and enquired about the contents of the covers. A.1 and A.2 revealed that the covers contained liquor bottles. Then Prohibition and Excise Sub-Inspector deputed 2

L.W.1/P. Rajasekhar, Prohibition and Excise Constable for secure mediators, but in vain.

Then Prohibition and Excise Sub-Inspector examined A.1 cover and found 12 nips of

Heavens door whiskey bottles and examined A.2 cover and found 8 Nips of Mc.Dowells

No.1 Brandy. On interrogation A.1 and A.2 did not reveal anything. Then the Proh. &

Excise Sub-Inspector verified the liquor bottles and found all bottles are meant for sale in AP and are duty paid liquor, but adhesive labels were torn out. The Proh. & Excise

Sub-Inspector taken out one liquor bottle from each cover as samples got sealed and labeled and also the property. After informing the grounds of arrest the Proh. & Excise

Sub-Inspector arrested A.1 and A.2, seized the property samples under cover of a special report drafted on the spot. Then the Proh. & Excise Sub-Inspector, Rayachoty registered the case in Cr.No.74/2018, U/Sec. 34(a) of A.P. Excise Act, 1968 and issued FIRs to all concerned. During the investigation the samples were sent to Chemical examiner,

Kurnool through the Hon'ble Court. The Chemical Examiner who examined the samples opined that the samples are “Indian Liquor”. The property involved in this case excluding samples were produced before the Deputy Commissioner of Proh. & Excise,

Kadapa for confiscation. After completion of investigation P.W.2 Prohibition and Excise

Inspector, Rayachoty laid charge sheet against A.1 and A.2 for the offence under

Sec.34(a) of A.P.Excise Act, 1968.

3) The case was taken on file under Sec.34(a) of A.P.Excise Act, 1968 against

A.1 and A.2.

4) On appearance of accused, copies of documents were furnished to them as contemplated U/sec.207 of Cr.P.C.

5)A.1 and A.2 were examined U/sec.239 Cr.P.C. They denied the accusation made against them. A charge U/sec.34(a) of A.P. Excise Act has been framed against

A.1 and A.2 and the contents of the said charge were read over and explained to them in

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

6) The prosecution in order to bring home the guilt of A.1 and A.2 has examined P.Ws.1 and 2 and got marked Ex.P.1 to P.5 and M.Os.1 and 2. The learned

Assistant Public Prosecutor given up the evidence of L.Ws.1 & 2.

7) On closure of prosecution evidence, A.1 and A.2 are examined U/s.313

Cr.P.C., for the incriminating material appearing against them in the prosecution evidence by explaining to them the same in Telugu, for which they denied the same and further they stated that they have no defence evidence on their behalf.

8) Heard learned Assistant Public Prosecutor and the counsel appearing for 3

A.1 and A.2. Perused the material on record.

9)Learned Assistant Public Prosecutor argued that the evidence of P.Ws.1 and 2 and the contents of Exs.P.1 to P.5 and M.Os.1 & 2 proved the case of prosecution and prayed to convict A.1 and A.2 as per law.

10)Learned counsel appearing for A.1 and A.2 would contend that P.Ws.1 and 2 are Excise Officials and their evidence is not corroborated by the evidence of any independent witness, as such it is not sufficient to prove the case of the prosecution.

Learned counsel appearing for A.1 and A.2 would contend that Excise Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the

P.Ws.1 and 2. Learned counsel appearing for accused would contend that except the self serving testimonies of Excise Officials, absolutely there is no evidence on record to prove the recovery of the property from the possession of accused and its disposal. He would further contend that in the absence of any corroborative evidence from independent source as to the recovery of liquor bottles from the possession of A.1 and

A.2, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that A.1 and A.2 committed the offence punishable under Sec. 34(a) of A.P. Excise Act, 1968.

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of A.1 and A.2 for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 beyond all reasonable doubt?”

12)POINT: In order to prove the guilt of A.1 and A.2, prosecution examined P.Ws.1 and 2 and marked Exs.P.1 to P.5 and M.Os.1 & 2. P.W.1 the Sub-Inspector of Prohibition and Excise station, Rayachoty in his chief-examination deposed about conducting raids on 02.07.2018 at about 2.30 p.m., at Yepilavankapalli village cross, situated on the bus road from Rayachoty to Galiveedu bus road of Rayachoty Mandal found A.1 and A.2 along with contraband, sending of L.W.1 for securing mediators, examination of covers, arrest of A.1 and A.2, seizure of contraband i.e., 12 Nips of Heavens door Whiskey bottles from A.1 and 8 Nips of Mc.Dowells No.1 Brandy from A.2, drawing of samples under special report.

13)P.W.1 in his cross-examination admitted that scene of offence is busy locality and surrounded by the many villages. P.W.2 Prohibition and Excise Inspector, 4

Rayachoty deposed in the similar lines of P.W.1.

14)As seen from the evidence, except the oral testimony of P.Ws.1 and 2 there is no other independent witness is available on record. The evidence of P.Ws.1 and 2 shows that they did not make any efforts for securing mediators at the scene of offence.

The evidence of P.W.1 that he deputed by L.W.1 for securing mediators, but none came forward to act as mediators. The said evidence of P.W.1 is doubtful. If really, P.W.1 made serious attempts for securing mediators, definitely he would have secure the mediators at the scene of offence. Therefore, it is not safe to act upon the evidence of P.Ws.1 and 2.

15) Ex.P.4 chemical analysis report along with Ex.P.3 letter of advice would establish that the M.Os.1 & 2 contain Indian made liquor. By marking those two documents, the prosecution at best established the nature of the liquor that was sent to the chemical analysis but they failed to establish that it was seized from the conscious possession of A.1 and A.2.

16)Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P. reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para No.5, it was held as follows:-

Once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible.” It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.”

17)Further our Hon'ble High Court S. BABU SAHEB ALIAS BABU VS.STATE

OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted.

5

The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

18)In the case on hand, the prosecution failed to secure the independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of A.1 and A.2 and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of A.1 and A.2 in commission of the offence. The material produced by the prosecution is not sufficient to bring home the guilt of A.1 and A.2 beyond reasonable doubt.

Thereby, the point is decided in favour of the defence and against to the prosecution.

19)In the result, A.1 and A.2 are found not guilty for the offence punishable under Sec.34(a) of A.P. Excise Act, 1968 and accordingly, they are acquitted under

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

C.P.R.No.86/2018 shall be destroyed after expiry of appeal time.

Typed my dictation to the Typist, corrected and pronounced by me in open court, this the 4th day of October, 2018

Sd/- Sri.M.Sreenu,

Judl. Magistrate of I Class, Rayachoty. FAC/Addl.Judl. Magistrate of I Class, Rayachoty.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1 Kalyan Kumar, Prohibition & Excise -NONE- Sub-Inspector, Rayachoty P.W.2 G. Rama Mohan, Prohibition & Excise Inspector.

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report - NIL - 6

Ex.P.2 FIR

Ex.P.3 Letter of Advice

Ex.P.4 Chemical analysis Report

Ex.P.5 Destruction Order

MATERIAL OBJECTS MARKED

M.O.1 & 2 Sample bottles.

Sd/- Sri.M.Sreenu,

J.F.C.M/Rct. FAC/A.J.F.C.M/Rct.

1

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS: RAYACHOTY.

PRESENT: SRI. M. SREENU,

JUDICIAL MAGISTRATE OF I CLASS, RAYACHOTY,

FAC/ I ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

FRIDAY, THIS THE 01 st DAY OF MARCH, 2019.

C.C.No.97/2019

Between:

State, rep. by Inspector of Police, Proh. & Excise Station,

Rayachoty. ….. Complainant.

Vs

Bandi Nagamma, wife of Late Bandi Krishna, age 45 years, R/o Devapatla Vaddepalli village of Sambepalli Mandal, caste by Vadde, Occupation:Coolie.

….. Accused.

This calendar case coming on this day before me for final hearing on 28-02-2019 in the presence of Assistant Public Prosecutor for complainant/State and of Sri D. Naga Mallu, Advocate for the accused, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:-

:: J U D G M E N T ::

Prohibition & Excise Inspector, Rayachoty laid charge sheet against the accused in Crime No.101/2018 for the offence punishable under Sec.7(A) r/w 8(e) of

A.P. Prohibition Act, 1995.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 25.10.2018 at about 10.20 a.m., as per the instructions of Assistant

Commissioner of Prohibition and Excise, Enforcement, Kadapa during the raids conducted by PW1/Sub-Inspector, Prohibition and Excise, Rayachoty along with his staff at Rowthukunta Boyapalli cross, situated on the bus road from Rayachoty to

Piler of Sambeapalli Mandal and found the accused suspiciously with a pink colour plastic bag. On suspicion with assistance of staff the Prohibition and Excise Inspector detained the accused and enquired about the contents of the bag. Accused revealed 2 that the bag contained I.D arrack. Then Prohibition and Excise Inspector deputed

L.W.2/Prohibition and Excise Constable, for securing mediators, but in vain. Then

P.W.1 examined the plastic bag and found 07 liters of I.D. Liquor. On interrogation, accused revealed her identity particulars. P.W.1 lifted 180 ml sample for the purpose of analysis and got sealed and labeled. Then P.W.1 arrested the accused and seized the property under cover of special report drafted on the spot. Then P.W.1 registered the case in crime No.101/2018 under Sec.7(A) r/w. 8(e) of A.P.Prohibition Act, 1995 and the accused was sent to judicial custody. During investigation, the sample was sent to chemical examiner, Kurnool through the Hon'ble court. The chemical examiner/LW3, who examined the sample opined that the sample is ‘illicit distilled liquor which is unfit for human consumption and injurious to health’. The property involved in this case excluding the sample was produced before the Deputy

Commissioner of Proh. & Excise, Kadapa for confiscation. After completion of investigation PW.1 Prohibition and Excise Inspector, Rayachoty laid charge sheet against the accused. Hence, the Charge.

3) Cognizance was taken for the offence punishable U/sec.7(A) r/w 8(e) of

AP Prohibition Act, 1995 against the accused.

4) On appearance of accused, copies of documents were furnished to her as contemplated U/sec.207 of Cr.P.C.

5)Accused was examined U/sec.239 Cr.P.C. She denied the accusation made against her. A charge U/sec.7 (A) r/w 8(e) of A.P.P. Act, 1995 has been framed against the accused and the contents of the said charge were read over and explained to her in Telugu for which she pleaded not guilty and claimed to be tried.

6) The prosecution in order to bring home the guilt of accused has examined P.W.1 and P.W.2 and got marked Ex.P.1 to P.5 and M.O.1.

7) On closure of prosecution evidence, accused was examined U/s.313

Cr.P.C., for the incriminating material appearing against her in the prosecution evidence by explaining to her the same in Telugu, for which she denied the same and further she stated that she has no defence evidence on her behalf.

8) Heard learned Assistant Public Prosecutor and the counsel appearing for accused. Perused the material on record.

3

9)Learned Assistant Public Prosecutor argued that the evidence of P.W.1 and P.W.2 and the contents of Exs.P.1 to P.5 and M.O.1 are sufficient to prove the case of prosecution and prayed to convict the accused as per law.

10)Learned counsel appearing for accused would contend that P.W.1 and

P.W.2 are the Excise Officials and their evidence were not corroborated by the evidence of any independent witnesses, as such it is not sufficient to prove the case of the prosecution. Learned counsel appearing for accused would contend that Excise

Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the P.W.1 and P.W.2. Learned counsel appearing for accused would contend that except the self serving testimony of P.W.1 who is Excise

Official, absolutely there is no evidence on record to prove the recovery of the property from the possession of accused and its disposal. They would further contend that in the absence of any corroborative evidence from independent source as to the recovery of illicitly distilled liquor from the possession of accused, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that the accused committed the offence punishable under Sec.

7(A) R/w. 8(e) of APP Act, 1995.

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of accused for the offence punishable under Sec.7(A) r/w 8(e) of A.P. Prohibition Act, 1995 beyond all reasonable doubt?”

12)POINT:

The prosecution in order to bring home the guilt of accused examined

P.W.1& P.W.2 and marked Ex.P.1 to P.5 and M.O.1. It is the contention of the learned counsel for accused that P.W.1 and P.W.2 are Excise Officials and their evidence is not corroborated by the evidence of any independent witnesses, as such it is not sufficient to prove the case of the prosecution. It is the further contention of learned counsel for accused that P.W.1 should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but he did not do so and it throws a doubt about the version of the P.W.1. In the light of above contentions of learned counsel for accused, I proceeded to scrutinize the evidence of 4

P.W.1 with meticulous care and caution and whether his evidence inspires confidence in the mind of the court or not.

13)P.W.1 is the Sub-Inspector, Prohibition and Excise, Rayachoty. P.W.1 in his chief-examination deposed that about the conducting of raids on 25.10.2018 at

Rowthukunta Boyapalli cross situated on Rayachoty to Piler bus road, found the accused with 07 liters of I.D. Arrack, seizure contraband, arrest of the accused, lifting of 180 ml sample, drafting of Ex.P.1 special proceedings, registration of FIR under

Ex.P.2, sending of sample to the chemical examiner under Ex.P.3, forwarded sample bottle to chemical analysis and forwarded case file to PW.2 for further investigation.

14)P.W.1 in his cross-examination admitted that scene of offence is a busy locality. When such is the evidence of P.W.1, what prevented P.W.1 to secure independent mediators at the scene of offence. In this case, according to P.W.1, he sent L.W.2/ Prohibition and Excise Constable for mediators, but in vain. In this case, prosecution given up the evidence of L.W.2 for the reasons best known to them.

Hence, non-examination of L.W.2 is certainly fatal to the case of the prosecution.

15) P.W.2 the Inspector of Prohibition and Excise station, Rayachoty in his chief- examination deposed about receiving case file from PW.1, chemical analysis report/Ex.P.4 dated 07.01.2019 from L.W.3 and destruction orders/Ex.P.5 dated 04.02.2019 from Deputy Commissioner of Proh. & Excise, Kadapa and after completion of investigation, PW.2 laid charge sheet.

16)PW.2 in his cross examination he denied that he did not verify properly the investigation done by PW.1 and he registered a case for statistical purpose. After going through evidence of P.W.2, his role is only to laid charge sheet after following the procedure. Admittedly P.W.2 did not participate in raids allegedly conducted by

P.W.1.

17)As can be seen from the evidence of P.W.1 and P.w.2, no serious attempts were made for securing mediators. In this case, except the oral testimony of

P.W.1 and P.w.2, no other independent witnesses are examined by the prosecution.

When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused cannot be believed. Therefore, non examination of independent mediators at the vicinity of the scene of offence is fatal to the case of the prosecution.

5

18)Our Hon'ble High Court S. BABU SAHEB ALIAS BABU VS.STATE

OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of

Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

19)In the case on hand, P.W.1 himself is the complainant, who detected the offence, seized the I.D. Arrack and is the investigating officer. As such while conducting seizure proceedings under Sec.100 Cr.P.C., the Excise Officials also will step into the shoes of Police Officer, while conducting the search and seizure proceedings, which requires corroboration of independent mediators. Non examination of independent mediators is always fatal to the case of prosecution, which takes away the credibility of the seizure conducted by P.W.1 under cover of

Ex.P.1.

20)In view of the above discussion, this court holds that the prosecution miserably failed to bring home the guilt of the accused beyond all reasonable doubt for the offence punishable under Sec.7(A) r/w 8(e) of A.P.P. Act, 1995. Accordingly, this point is answered in favour of the accused and against the prosecution.

6

21)In the result, accused is found not guilty for the offence punishable under Sec.7(A) r/w 8(e) of A.P.P. Act, 1995 and accordingly, she is acquitted under

Sec.248 (1) Cr.P.C., The bail bonds of the accused shall be in force for a period of six months under Sec.437-A of Cr.P.C., M.O.1 sample bottle under C.P.R.No. 147/2018 shall be destroyed after expiry of appeal time.

Typed my dictation to the Typist, corrected and pronounced by me in open court, this the 01th day of March, 2019.

Sd/- M.Sreenu,

Judl. Magistrate of I Class, Rayachoty. FAC/ I Addl.Judl. Magistrate of I Class, Rayachoty.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: P.W.1: Shaik Ismail, Prohibition & Excise - NONE - Sub-Inspector, Rayachoty P.W.2: G. Ramamohan, Prohibition & Excise Inspector, Raychoty

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report - NIL - Ex.P.2 FIR Ex.P.3 Letter of Advice Ex.P.4 Chemical analysis Report Ex.P.5 Destruction Order

MATERIAL OBJECTS MARKED

M.O.1 Sample bottle.

Sd/- M.Sreenu,

J.F.C.M/Rct. FAC/ I A.J.F.C.M/Rct.