Smt M.V.Seshamma

C.C.No.496 of 20171SPCL. JMFC (P&E), KURNOOL

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SMT. M.Venkata Seshamma Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

Friday, the 14 th Day of February, 2020

C.C.No.496/2017

Between: State: Represented by The Sub-Inspector of Police, Kurnool II Town Police Station. … Complainant. -And- A1.Shaik Shabbir S/o Chand Basha, age 42 years, H.No.46/85-18, Budhvar Peta, Kurnool. A2.Vadde Rama Krishna, S/o Vadde Ramudu, age 25 years, Vaddegeri, Nandikotkur town. A3.Shaik Fayaz, age 36 years, S/o Chand Basha, H.no.32/322, Gadd Street, Kurnool. A4.Telugu Thirupathiah, age 65 years, S/o late Maddilety, Plot No.402, Srinivasa Towers, Balaji Nagar, Near Kesava Reddy School, Kurnool … Accused Nos.1 to 4.

This case coming before me on 12.02.2020 for final hearing in the presence of Assistant Public Prosecutor for prosecution and of

Sri. T. Chandra Sekhar, Advocate for accused Nos.1 to 4 and having stood over for consideration till today, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Kurnool II Town P.S. laid charge sheet against the accused in Crime no. 247/2016 for the offence U/s.420 IPC and

Sec.7(I)(A) of Essential Commodities Act.

2.i.The brief facts of the charge sheet are that:

As per the information of Vigilance and Enforcement Official, Kurnool the the de facto complainant, A. Sai Baba, Food Inspector, Asst. Suppl.

Officer, Kurnool (LW1) and officials of Vigilance and Enforcement, Kurnool reached old control room along with panchayatdars Sri Aluvala

Lakshmikantha Reddy, VRO (LW4) and Sri K. Ranganatha Rao, VRO (LW5) on 15.11.2016 at 9.00 hours on seeing a vehicle bearing No. AP 22 B 1299

C.C.No.496 of 20172SPCL. JMFC (P&E), KURNOOL coming from old bus-stand side stopped the vehicle and interrogated the vehicle driver about his identity and transporting material. The de facto complainant, A. Sai Baba, Food Inspector, Asst. Suppl. Officer, Kurnool (LW1),

Madiraju Rama Krishina Rao, Special Tahsildar Vigilance & Enforcement office (LW2) and V. Srinivasa Reddy, Inspector of Police, Vigilance &

Enforcement office (LW3) verified the load of vehicle and identified the load of vehicle as PDS rice. On further interrogation the accused revealed his name and identity particulars and voluntarily confessed that since 3 months he is working as driver for A1 and A2 and as per their instructions, he is transporting the PDS rice illegally from dealers of Kurnool town and shifting it to godowns at Dhone and Kurnool. On verification they found 43 bags in count and each bag is weighing 50 Kgs and the driver does not have any documents pertaining to the rice and they informed the driver as transporting of rice belongs to the public without Govt. permission is an offence and seized the 43 bags and send the report to Kurnool CS, Kurnool.

Further, they handed over the accused/A3 and vehicle to the SHO, Kurnool II town police station to take necessary action against the accused ii.Based on the panchanam report the Sub-Inspector of Police,

Kurnool II town P.S (LW6) registered the case and investigated into.

iii.As part of investigation, on 15.11.2016, A3 was sent to judicial remand. The accused A1 & A2 approached the Hon’ble VI Addl. District

Session Judge cum Special SC & ST Court, Kurnool and got anticipatory bail and A4 got anticipatory bail from Hon’ble VI Additional Sessions Judge,

Kurnool. After completion of investigation police filed charge sheet.

3.The offence was taken cognizance on file against the accused Nos.1 to 4 under Sections 420 IPC and Section 7(1)(a)(ii) of Essential Commodities

Act.

C.C.No.496 of 20173SPCL. JMFC (P&E), KURNOOL

4.The Accused were examined U/s.239 examined under Section 239

Cr.P.C., for which, they denied commission of the offence. Charges under

Sections 420 IPC and Section 7(1)(a)(ii) of Essential Commodities Act against the accused Nos.1 to 4 had been framed, read over and explained to them in

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

5.In order to prove the case of the prosecution, the prosecution has examined PW-1 to PW-5 and got marked Exs.P1 to P8. Ex.D1 Inspection report is marked on behalf of defence. The evidence of LW3/Inspector of

Police, Vigilance & Enforcement office, Kurnool was closed by learned

Assistant Public Prosecutor. The accused were examined under Section 313

Cr.P.C. putting forth the incriminating material that appears against them from the evidence of prosecution witnesses. The accused denied their guilt.

No evidence either oral or documentary was adduced on behalf of the defence.

6. Heard both sides and perused the material on record.

7.Now the point for determination is “Whether the prosecution

is able to bring home the guilt against the accused Nos.1 to 4 for

the offences U/ss. 420 IPC and Sec. 7(1)(a)(ii) of Essential

Commodities Act beyond reasonable doubt?

POINT:

8.To prove the prosecution case, the Prosecution had examined PW1 to

PW5 and got Ex. P1 to Ex.P8 marked. PW.1 is Food Inspector, Kurnool. PW.2 is Tahsildar in Vigilance Department. PW3 is VRO of Vaddageri, Kurnool town.

PW4 is VRO, Kurnool. PW.5 is SI of police of Kurnool II town PS.

9.The arrayed offence against accused are U/sec. 420 of IPC and U/sec.

7of EC Act. For the sake of convenience, the section 420 of IPC is hereunder reproduced.

420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable

C.C.No.496 of 20174SPCL. JMFC (P&E), KURNOOL security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

10.To prove the 1st charged offence U/sec. 420 of IPC, the prosecution has to prove that the accused cheated or dishonestly induced a person to deliver of property

11.PW1 deposed that on 15.11.2016 they received credible information from Vigilance office about transportation of PDS rice from.

Then, he immediately he along with PW2, LW3/Inspector of Police, Vigilance & Enforcement office, Kurnool, PW3 and PW5 went to old control room,

Kurnool town and found one vehicle bearing No. AP 22B 1299 stopped the vehicle. During enquiry the accused revealed his identity particulars and confessed about the illegal transportation of PDS Rice from A4, who is the dealer and A2 proceeding to Eidga, beside the highway, near Santhosh

Nagar, Kurnool town. Then they seized 43 bags of PDS rice and crime vehicle under the cover of Ex.P1 panchanama and handed over the stock of 43 bags of PDS rice to Mandal level stock point after obtaining Ex.P2 custodian receipt and handed over the A2 and crime vehicle along with

Ex.P1 panchanama to II town police station. Later, he lodged Ex.P3 report to the police station against the accused.

12.PW2 also corroborated the version of PW1 stating that they seized 43 bags of PDS rice and crime vehicle under Ex.P1 panchanama, handed over the PDS rice bags to Mandal level stock point under Ex.P2 custodian receipt.

Later, they handed over the accused No.2 and crime vehicle along with

Ex.P1 panchanama to II town p.s and Ex.P3 report was lodged by PW1 against the accused.

13.In their cross-examination PW1 and PW2 admitted that they did not filed any call data before the court with regard to the information they

C.C.No.496 of 20175SPCL. JMFC (P&E), KURNOOL received about the illegal transportation of PDS rice and further they did not weighed the bags of PDS rice which they seized and took photographs of the scene of offence or PDS rice bags and also they did not examine any neighbours of the scene of offence.

14. PW3 VRO of Vaddegeri, Kurnool who acted as mediator in this case deposed on 15.11.2016 at about 11.15 to 11.30 AM on the oral instructions of their Tahsildar, he along with PW4 went to Vigilance office, Kurnool and there they were informed by Special Tahsildar, Vigilance/PW2 about the seizure of 45 bags of PDS rice from a vehicle, nearby old control room,

Kurnool and further stated him they will call them later for their signatures after for preparing seizurnama and also asked them to furnish their details.

Thereafter, they called them and they went to Vigilance office and he put his signatures on Ex.P4 panchanama dt.15.11.2016. This witness was declared as hostile by the learned Assistant Public Prosecutor after taking permission of the court. Though this witness was examined in the nature of cross examination nothing material could be elicited through the examination of this witness by the learned Assistant Public Prosecutor for his turning hostile.

15. PW4 VRO of Kurnool who also acted as mediator in this case deposed on 15.11.2016 at about 9.00 AM he along with PW3/VRO accompanied PW1 and his staff to Andhra Kitchenware, near old control room, Kurnool town seized 45 bags of PDS rice from vehicle bearing No.AP 22 B 1299, which was driven by A2 and further A2 revealed that the said

PDS rice bags are from ration shop dealer/A4 and Ex.P1 panchanama was drafted to that effect in which he contributed his signature. In his cross examination he admitted that they did not did not file any call data with regard to the information they received about illegal transportation of PDS rice and nor they examine any neighbours from the scene of offence and also they did not weighed the PDS bags of rice at scene of offence.

C.C.No.496 of 20176SPCL. JMFC (P&E), KURNOOL

16. PW5 had deposed evidence about the registration of FIR in

Cr.No.247/2016 for offence U/sec. 420 IPC and U/Sec.7(i)(a) of Essential

Commodities Act issued Ex.P5 is FIR and submitted to all the concerned. He examined PW1, PW2 and LW3/Inspector of Police, Vigilance & Enforcement office, Kurnool and recorded their detailed statements. The crime vehicle was seized under Ex.P6 police proceedings dt.16.11.2016. Thereafter, observing all arrest formalities, he produced A2 before the Hon’ble Court for judicial remand and A1, A3 and A4 applied for anticipatory bail from Hon’ble

VI Addl. Sessions Judge Court, Kurnool . As per the Ex.P8 proceedings of

Joint Collector, Kurnool he released crime vehicle to the owner towards interim custody under Ex.P7 receipt dt.23.12.2016. After completion of investigation he filed charge sheet.

17.In his cross examination he admitted that he did not obtained the signature of the complainant on Ex.P5 FIR and no photgraphs at the time of seizure of crime vehicle were filed and also he did not examine the person by name Jayanna, who is the custodian of Ex.P2 seized PDS rice.

18.Considering the requires U/sec. 420 of IPC, the prosecution should show that accused has cheated or dishonestly induced a person to deliver of property. What is cheating is defined U/Sec. 415 of IPC, which says that when a person deceives the other fraudulently or dishonestly and thereby induced the deceived person to deliver any property.

19.The evidence produced by the prosecution does not show the ingredient U/sec. 415 of IPC to say the accused had deceived to deliver the property. When admittedly the alleged seized stock is of PDS rice as contended by prosecution why PW5 investigating officer had failed to examine the case from the prospective that where the seized property had come to the possession of accused. When the prosecution alleges that the alleged seized stock is of PDS rice, which would not generally be in the

C.C.No.496 of 20177SPCL. JMFC (P&E), KURNOOL possession of private parties apart from fair price dealers, this for them to prove the source getting possession of the same by accused. The prosecution had also failed to produce the sample of seized stock before the

Court. They have also failed to sent the seized stock to analysis for determining the variation of seized rice.

20.Further, But PW1 and PW2 had stated that they handed over the seized property of 43 bags of PDS rice to Mandal Level Stock point Incharge and obtained Ex.P2 acknowledgment. Mere filing of acknowledgment receipt does not relieve the prosecution from proving the same of handing over those rice bags to Incharge of that MLS point. The prosecution neither examined them had also not cited said Incharge of MLS point nor cited him as witness in the memo of evidence to prove the said seizure and handing over of 43 bags of PDS rice which is subject matter to the Incharge of MLS point.

21.Even the ingredients U/sec. 420 of IPC that requires to be proved by the prosecution do not attract the present case, as there is no whisper by the prosecution to say whom the accused had dishonestly induced to deliver the property. Because PW5 had not examined the core person from whom the alleged stock given to the possession of accused. It is settled principle of criminal law that corpus deliciti should be proved initially, that means here in this case that transportation of PDS rice illegally should be proved. But the prosecution except the oral evidence of PW1 to PW5, the seized stock is not proved nor filed any photographs of seized stock of 43 bags of PDS rice into the court. PW5 had only registered Ex.P5 basing on Ex.P1 panchanama but not done any separate investigation to verify the source of supply of said

PDS rice. Hence, this court concludes that prosecution failed to prove the ingredient U/sec. 420 of IPC against accused.

C.C.No.496 of 20178SPCL. JMFC (P&E), KURNOOL

22.The another offence arrayed against accused is U/sec. 7 of EC Act Act. Section 7 in The Essential Commodities Act, 1955 34 [ 7 Penalties. — 1 [ (1) If any person contravenes any order made under section 3,—

(a) he shall be punishable,—

(i) in the case of an order made with reference to clause (h) or clause

(i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: 35 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]

(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.]

23.The Sec. 7 of E.C. Act do not attract to the accused as they are not to dealers of fair price as per Sec. 3 of Central Government may make rules in increasing supplies of Essential commodities for their security equal distribution and availability at fair prices. PW.1 to PW.6 had admittedly stated that A1 and A2 are not dealers hence it is rightly contended by the defence that sec.7 of the Act do not attracts to them hence prosecution did not give any submission in this regard to say that sec. 7 EC act is applicable to accused when they are not to fair price dealers. Therefore, the prosecution had also failed to prove the allegation leveled against accused

Nos.1 to 4 U/sec. 7 of E.C. Act and thereby they are entitled for acquittal.

24. In the result, the accused Nos.1 to 4 are found not guilty for the offence U/sec. 420 IPC and sec. 7(1)(a)of Essential Commodities Act.

Accordingly, the accused are acquitted U/sec. 248 (1) of Cr.P.C. The accused

Nos.1 to 4 are directed to execute bond for Rs.5,000/-(Rupees five thousand)

C.C.No.496 of 20179SPCL. JMFC (P&E), KURNOOL under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred

Directly, t yped to my dictation by Personal Assistant, corrected, signed and

pronounced by me in the open court, this the 14 th day of February, 2020.

Sd/- Smt. M. Venkata

Seshamma Spl. Judl. Magistrate of First Class

For Prohibition &

Excise, Kurnool

Appendix of Evidence

Witnesses Examined

For prosecution: For

Defence: PW.1: Saibab PW.2: M. Rama Krishan Rao -None- PW.3: K. Ranganatha Rao PW.4: A. Laxmikantha Reddy PW.5: Ch. Khaja Vali

Exhibits Marked.

For Prosecution: For

Defence:

Ex.P.1: Complaint given by PW1 dt.15.11.2016Ex.D1: Inspection Report Ex.P.2: Custodian Receipt dt.15..1.2016 Ex.P.3: Report to SHO dt.15.11.2016 Ex.P.4: Signature on panchanama dt.15.11.2016 Ex.P.5: FIR No.247/2016 dt.15.11.2016 Ex.P.6: Police proceedings dt.15.11.2016 Ex.P.7: Receipt dt.23.12.2016 Ex.P.8: Orders of Joint Collector, Kurnool dt.20.12.2016

Sd/- Smt. M. Venkata

Seshamma Spl. Judl.Magistrate of First Class For Prohibition & Excise, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C.No.496 of 201710SPCL. JMFC (P&E), KURNOOL C.C.No.496 of 201711SPCL. JMFC (P&E), KURNOOL

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

CALENDAR CASE No.496/2017

1. Date of Offence: 15.11.2016

2. Date of Complaint or report: 15.11.2016

3. Date of apprehension of the accused : 16.11.2016

4. Date of release on bail : 30.11.2016 A2 20.12.2016A1&A3 16.11.2016A4

5. Date of commencement of trial: 08.04.2019

6. Date of close of trial: 12.02.2020

7. Date of Sentence or Order: 14.02.2020

8. Explanation of delay if any: --

COMPLAINANT: The Sub-Inspector of Police, Kurnool II Town Police station in Cr.No.,247/2016. A1.Shaik Shabbir S/o Chand Basha, age 42 years, H.No.46/85-18, Budhvar Peta, Kurnool. Accused A2.Vadde Rama Krishna, S/o Vadde Ramudu, age 25 years, Vaddegeri, Nandikotkur town. A3.Shaik Fayaz, age 36 years, S/o Chand Basha, H.no.32/322, Gadd Street, Kurnool. A4.Telugu Thirupathiah, age 65 years, S/o late Maddilety, Plot No.402, Srinivasa Towers, Balaji Nagar, Near Kesava Reddy School, Kurnool

Offence : Cheating and dishonestly inducing delivery of property, Penalties Section of Law : Under Section U/ss. 420 IPC & Sec.7(1)(a) of E.C Act. Finding of Court : Accused Nos.1 to 4 are found not guilty. Sentence/ Order : In the result, the accused the accused is found not guilty for the offence 420, 423, 425,465,468 and 471 IPC and accordingly, he is acquitted under Section 248(1) Cr.P.C. The accused is directed to execute bond for Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.

Sd/- Smt. M. Venkata Seshamma

SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant

Sessions Judge, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

C.C.No.496 of 201712SPCL. JMFC (P&E), KURNOOL

KURNOOL.

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-1-

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(FOR PROHIBITION & EXCISE), KURNOOL

Present:- Smt. M.Venkata Seshamma Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

Friday, the 20th day of March, 2020

C.C. No. 2816/2019

Between: State: Represented by the Prohibition & Excise Sub-Inspector, Kurnool. … Complainant. -Versus-

Neelishikari Pedda Ramudu, aged 45 years, S/o Neelishikari Pedda manohar, Resident of Orvakal village and mandal. … Accused.

This case coming before me on 18.03.2020 for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri. S. Krishna

Reddy, Advocate for the accused and upon perusing the material on record, the Court delivered the following:

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

1.The Prohibition and Excise Sub Inspector, Kurnool filed charge sheet in

Crime No.125/2019 alleging that the accused has committed the offence punishable u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

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

i.On 11.03.2019 during the raids conducted by the M. Bala

Narasimha Reddy, Prohibition & Excise Inspector, Enforcement, Kurnool (LW1) along with her staff K. Bharath, Prohibition & Excise Constable, A.C.

Enforcement, Kurnool (LW2) and K. Nagendra, Prohibition & Excise Head

Constable, Kurnool, A.C. Enforcement (LW3) to detect excise offences, at about 2.30 PM near Ganigunthala situated at a distance of one KM, towards

East of Orvakal village. There they found the accused was coming towards

Orvakal village by keeping in possession of one yellow colour plastic pot on his right shoulder. On seeing the Excise officials the accused tried to skulk away, but they surrounded and detained him. On enquiry, the accused revealed his identity particulars and further stated that the pot containing

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-2- arrack for sale. Then Prohibition & Excise Inspector, Enforcement, Kurnool (LW1) tried to secure mediators from Orvakal village by sending K. Bharath,

Prohibition & Excise Constable (LW3) and he returned after 20 minutes and stated that the nobody came forward to act as mediators and then

Prohibition & Excise Inspector, Enforcement, Kurnool(LW1), verified the pot of the accused and found 15 liters of arrack (pot measuring capacity 15 liters) and then he took little quantity of arrack from the pot and poured the same into 180 ml. bottle, as sample for the purpose of chemical analysis, affixed his seal and identity slip on the sample bottle. Then she also affixed her seal and identity slip on the pot containing remaining arrack, seized the sample bottle and property under the cover of panchanama/special report drafted on spot and later the Prohibition & Excise Sub-Inspector (LW2) handed over the entire case file, sample bottle and property to the Prohibition & Excise

Station, Kurnool (LW4) .

ii.Basing on the strength of Special report, a case was registered by the K. Durga Naveen Babu, Proh. & Excise Sub-Inspector (LW4), in

Cr.No.125/2019 for the offence u/s.7(A)r/w Section 8(e) of A.P. Prohibition Act, 1995 and served notice under sec.41(A) Cr.P.C with a direction to attend

before him on 12.03.2019 for further investigation and he complied the

notice. The sample was sent to chemical analysis by Prohibition & Excise

Sub-Inspector, Kurnool, K. Durga Naveen Babu (LW4), the chemical examiner gave opinion that the sample is illicitly distilled liquor unfit for human consumption and as per the proceedings of Dy. Commissioner, Prohibition &

Excise the reaming property was destroyed. After completion of investigation charge sheet was filed against the accused for the offence u/s. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

3.The offence was taken cognizance on file against the accused u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

4. When the accused appeared before the Court, copies of all the documents were furnished to him as contemplated u/s.207 Cr.P.C.

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-3-

5.Accused was examined u/s.239 Cr.P.C.to which he denied the offence.

Thereafter, charge u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition

Act, 1995 has been framed, read over and explained to him in Telugu for which he denied the same and pleaded not guilty and claimed to be tried.

6. In order to establish its case, the prosecution examined PWs-1 to 3 and got marked Exs.P1 to P5. MO-1 is the sample bottle. In view of the evidence of

PWs-1 to 3, the learned Asst. Public Prosecutor has given up the evidence of

K. Nagendra, Proh. & Excise head Constable, A.C. Enforcement, Kurnool (LW3)

S. Swaminathan, Prohibition and Excise Head Constable, Kurnool (LW-5).

7.After closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

8.Heard learned counsel for the parties.

9. The point for determination is: “Whether prosecution has brought home the guilt of Accused for the offence U/Sec. 7(A) R/W 8(e) of A.P. Prohibition Act, 1995 beyond all reasonable doubt?”

POINT:

10.In order to establish its case, as already noted, prosecution has examined PW-1 to PW-3 and got marked Ex.P1 to Ex.P5, M.O.1 sample bottle.

PW-1 is the Investigating Officer of the case. PW-2 is the Prohibition & Excise

Constable who assisted PW1 during investigation. PW-3 is the Prohibition &

Excise Sub-Inspector, Kurnool who registered the case and send the sample tochemicalanalysis.

Ex. P1 is Special Report. Ex. P2 is the FIR. Ex. P3 is Analysis report. Ex. P4 is the proceedings of the Dy. Commissioner Prohibition & Excise and Ex.P5 is the Destruction panchanama. MO1 is sample bottle.

11.The Case of prosecution is that on 11.03.2019 at 02.30 PM, near

Ganigunthala, situated at a distance of one KM, towards East of Orvakal

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-4- village the accused was found possessing 15 liters of arrack in a pot for sale, as such a special report was recorded evidencing recovery of Illicitly Distilled

Liquor. Prosecution examined PW1 to PW3 and got marked ExP1 to P5 and

MO1 to prove the guilt of the accused.

12.According to prosecution in the presence of PW1, the transaction was recorded and Illicitly Distilled Liquor was recovered. The PW1 completed the investigation drawn samples for the purpose of chemical analysis drafted

Ex.P1 special report dt.11.03.2019 and completed investigation according to this witnesses nobody came forward to stood as witness except the oral say of this witnesses nothing is brought on record to prove their efforts to secure independent mediators at scene of offence. Section 100 Criminal Procedure

Code gives the protection to the persons from false implication and to ensure the fairness of search and seizure. According to prosecution in the presence of PW1 the accused have confessed the guilt and Illicitly Distilled Liquor was recovered from the possession of accused. But, in view of the section 25 and 26 of Indian Evidence Act confession of the accused shall not be used against him, as such what is available on record is the evidence of the Excise Official.

He deposed about the incident as narrated in the special report.

13.The learned counsel for accused contended that the PW1 is Excise official and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He submitted that in all fairness the Excise Officials should have made an attempt to secure the Panchayatdars from the immediate vicinity of the scene of offence and the very fact that no notice was issued to any one by the Excise Officials for the reasons best known to them, he submitted that the accused is entitled to the benefit of doubt.

14.He further contended that except the self serving oral testimony of the

Excise Official, absolutely there is no evidence on record to prove the recovery of property and its disposal. He submitted that in the absence of

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-5- 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 section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

15.Admittedly, on considering the entire evidence on record it is found that no attempt was made by the Excise Officials to take recourse to law for securing the presence of Panchayatdars. Though it is contended by the

Prosecution evidence PW1 that the seized contraband was destroyed no material evidence in writing is brought on record in support of its contention.

Except the self serving oral testimony of the Excise Official, absolutely there is no evidence on record to prove the recovery of property and its disposal.

As rightly contended by the learned counsel for the accused, in the absence of any corroborative evidence from independent source as to the recovery of

Illicitly Distilled Liquor from the possession of accused, it is unsafe to conclude that the accused committed the offence punishable U/s. 7-A r/w

Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

16.The Hon'ble High Court of A.P. In Mudavath Motia Vs. State of A.P., 2002 (I), ALT (Criminal) 437 A.P.) has held that the excise officials entrusted with the investigation into any excise offence if it is cognizable nature they would become police officials it is settled on that any confession, panchanama recorded by the police officials has no sanctity in the eye of law as it is hit by sec. 25 and 26 of Indian Evidence Act, 1872. Therefore, in the instant case the special report Ex.P1 dt.11.03.2019 containing the alleged confession of accused shall not be taken into consideration.

17.In view of the discussion in the preceding paragraphs, this court finds that it is quite unsafe to arrive at the guilt of the accused solely basing on the self serving oral testimony of the Excise officials as such I record a

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-6- finding that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. I answer the point accordingly.

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

U/s. 7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995, as such

Under Section 248 (1) Cr.P.C. As such he is acquitted of the same. The accused is directed to execute bond for Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.The case property i.e. M.O.1 sample bottle deposited through CPR

No.188/2019 shall be destroyed, after expiry of appeal time.

Directly typed to my dictation by Stenographer, corrected and pronounced by me in open Court on this the 20 th day of March, 2020.

Sd/- Smt. M. Venkata Seshamma

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence

Witnesses Examined

For prosecution:For Defence: PW-1: M. Bala narasimha Reddy, Proh. & Excise, S.I - None– PW-2: K. Bharath, Proh. & Excise Constable PW-3: K. Durga Naveen Babu, Proh. & Excise S.I.

Exhibits marked

For prosecution:For Defence: Ex.P1: Special Report dt.11.03.2019 - Nil – Ex.P2: F.I.R in Cr.No.125/2019 dt.11.02.2019 Ex.P3: Chemical analysis Report dt.29.04.2019 Ex.P4. Attested copy of Proceedings of Deputy Commissioner dt.20.04.2019 Ex.P5: Attested copy of Destruction panchanama Dt.02.07.2019

MO-1: Sample Bottle.

Sd/- Smt. M. Venkata Seshamma

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE,

KURNOOL.

//True copy//

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-7-

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

C.C.No.2816/2019

1.Date of Offence:11.03.2019

2.Date of Complaint or report:11.03.2019

3.Date of apprehension of the accused :12.03.2019

4.Date of release on bail:12.03.2019

5.Date of commencement of trial:07.02.2020

6.Date of close of trial:18.03.2020

7.Date of Sentence or Order:20.03.2020

8.Explanation of delay if any:

COMPLAINANT :The Prohibition and Excise Sub- Inspector, Kurnool in Crime No. 125/2019.

Neelishikari Pedda Ramudu, aged 45 years, S/o AccusedNeelishikari Pedda manohar, Resident of Orvakal village and mandal.

Offence : Possession of I.D. Liquor. Section of Law : Under Section 7-A r/w 8(e) of A.P. Prohibition Act.

Finding of Court : Accused is found not guilty.

Sentence/ Order In the result, the accused is found not guilty for the offence punishable U/s. 7-A r/w Section 8(e) of the Andhra Pradesh

Prohibition Act, 1995, as such Under Section 248 (1) Cr.P.C. As such he is acquitted of the same. The accused is directed to execute bond for

Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.The case property i.e. M.O.1 sample bottle deposited through CPR No.188/2019 shall be destroyed, after expiry of appeal time

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions

Judge, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C.No.2816 of 2019 SPCL. JMFC (P&E), KURNOOL-8-

FORM No. P.18

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR PROHIBITION & EXCISE, KURNOOL.

C.C.No.2816/2019

Between: State, represented by the Prohibition & Excise Sub - Inspector, Kurnool.… Complainant.

And

Neelishikari Pedda Ramudu, aged 45 years, S/o Neelishikari Pedda manohar, Resident of Orvakal village and mandal. … Accused.

This case is filed by the Prohibition & Excise Sub-Inspector, Kurnool in

Crime No.125/2019 for the offence u/s.7-A r/w 8(e) of A.P. Prohibition Act, 1995.

Date of Offence:11.03.2019

Date of filing:14.11.2019

Date of Order:20.03.2019

Result of the Case : In the result, the accused is found not guilty for the offence punishable U/s. 7-A r/w Section 8(e) of the Andhra Pradesh

Prohibition Act, 1995, as such Under Section 248 (1) Cr.P.C. As such he is acquitted of the same. The accused is directed to execute bond for

Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.The case property i.e. M.O.1 sample bottle deposited through CPR No.188/2019 shall be destroyed, after expiry of appeal time

Sd/- Smt. M.Venkata Seshamma

SPL.JUDL.MAGISTRATE OF I CLASS

(P&E),

KURNOOL.

To The Prohibition & Excise Sub-Inspector, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-1-

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(FOR PROHIBITION & EXCISE), KURNOOL

Present:- Smt. M.Venkata Seshamma Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

Thursday, 19th day of March, 2020

C.C. No. 2823/2019

Between: State: Represented by the Prohibition & Excise Sub-Inspector, Kurnool. … Complainant. -Versus-

Neelishikari Shanthi, aged 30 years, W/o N.S. Murari, Resident of Shikari Colony, Orvakal village and mandal. … Accused.

This case coming before me on 19.03.2020 for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri. G.

Ramesh Babu, Advocate for the accused and upon perusing the material on record, the Court delivered the following:

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

1.The Prohibition and Excise Sub Inspector, Kurnool filed charge sheet in

Crime No.176/2019 alleging that the accused has committed the offence punishable u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

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

i.On 08.04.2019 during the raids conducted by the Proh. & Excise

Sub-Inspector of Kurnool, K. Durga Naveen Babu (LW1)along with his staff

P. Jeevamani, Proh. & Excise Constable, Kurnool (LW2) and C.Leela Mohan

Rao, Proh. & Excise Head Constable (LW3) to detect excise offences, at about 5.30 PM near Ganigunthala situated at a distance of ½ KM towards East of

Orvakal village. There they found the accused was standing by keeping in possession of one white colour plastic bag in her right hand. On seeing the

Excise officials, the accused tried to ran away from the spot, but on suspicion they surrounded and detained the accused. On interrogation by Proh. &

Excise Sub-Inspector of Kurnool, K. Durga Naveen Babu (LW1) the accused revealed her name and address and further stated the bag containing arrack

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-2- sachets for sale. Then Proh. & Excise Sub-Inspector of Kurnool, K. Durga

NaveenBabu(LW1)sent

C. Leela Mohan Rao, Prohibition & Excise Head Constable (LW3) to Orvakal village for securing mediators. The said C. Leela Mohan Rao, Prohibition &

Excise Head Constable (LW3) returned after 30 minutes and informed him that VRO and Talaries are not available and nobody came forward to act as mediator from the village and then the Prohibition & Excise Sub-Inspector of

Kurnool, K. Durga Naveen Babu (LW1), verified the bag of the accused and found 120 arrack sachets (each sachet measuring capacity 100 ml) and out of it, he took two arrack sachets and poured the same into one 375 ml.

bottle, as sample for the purpose of chemical analysis, affixed his seal and identity slip on the sample bottle. Then he also affixed his seal and identity slip on remaining property of arrack in the bag arrested the accused informing her grounds of arrest as she possessed arrack for sale without any valid licence or permit and drafted a special report under the cover of panchanama/special report on the spot.

ii.The sample was sent to chemical analysis by Prohibition & Excise

Sub-Inspector of Kurnool K. Durga Naveen Babu (LW1), the chemical examiner gave opinion that the sample is illicitly distilled liquor unfit for human consumption and as per the proceedings of Dy. Commissioner for

Prohibition & Excise the remaining property was destroyed. After completion of investigation charge sheet was filed against the accused for the offence u/s. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

3.The offence was taken cognizance on file against the accused u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

4. When the accused appeared before the Court, copies of all the documents were furnished to her as contemplated u/s.207 Cr.P.C.

5.Accused was examined u/s.239 Cr.P.C.to which she denied the offence.

Thereafter, charge u/s.7-A r/w Section 8(e) of the Andhra Pradesh Prohibition

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-3-

Act, 1995 has been framed, read over and explained to her in Telugu for which she denied the same and pleaded not guilty and claimed to be tried.

6. In order to establish its case, the prosecution examined PWs-1 & 2 and got marked Exs.P1 to P5. MO-1 is the sample bottle. In view of the evidence of

PWs-1& 2, the learned Assistant Public Prosecutor has given up the evidence of

P. Jeevamani, Prohibition and Excise Constable, Kurnool (LW-3),

S. Swaminathan, Proh. & Excise Sub-Inspector, Kurnool (LW4)

7.After closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against her, for which, she pleaded all such evidence is false and reported no defence.

8.Heard learned counsel for the parties.

9. The point for determination is: “Whether prosecution has brought home the guilt of Accused for the offence U/Sec. 7(A) R/W 8(e) of A.P. Prohibition Act, 1995 beyond all reasonable doubt?”

POINT:

10.In order to establish its case, as already noted, prosecution has examined PW-1 and PW2 and got marked Ex.P1 to Ex.P5, M.O.1 is sample bottle. PW-1 is the Investigating Officer of the case. PW-2 is the Prohibition &

Excise Constable who assisted PW1 during investigation. Ex. P1 is Special

Report. Ex. P2 is the FIR. Ex. P3 is Analysis report. Ex. P4 is the proceedings of the Dy. Commissioner Prohibition & Excise and Ex.P5 is the Destruction panchanama. MO1 is sample bottle.

11.The Case of prosecution is that on 08.04.2019 at 05.30 PM, near

Ganigunthala, situated at a distance of ½ KM towards Easter side of Orvakal village, the accused was found possessing 120 arrack sachets (sachet measuring 100 ml. capacity). Prosecution examined PW1 and PW2 and got marked Exs. P1 to P5 and MO1 to prove the guilt of the accused.

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-4-

12.According to prosecution in the presence of PW1, the transaction was recorded and Illicitly Distilled Liquor was recovered. The PW1 registered the case and completed investigation according to this witnesses nobody came forward to stood as witness except the oral say of this witnesses nothing is brought on record to prove their efforts to secure independent mediators at scene of offence. Section 100 Criminal Procedure Code gives the protection to the persons from false implication and to ensure the fairness of search and seizure. According to prosecution in the presence of PW1 the accused have confessed the guilt and Illicitly Distilled Liquor was recovered from the possession of accused. But, in view of the section 25 and 26 of Indian

Evidence Act confession of the accused shall not be used against her, as such what is available on record is the evidence of the Excise Official. He deposed about the incident as narrated in the special report.

13.The learned counsel for accused contended that the PW1 is Excise official and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He submitted that in all fairness the Excise Officials should have made an attempt to secure the Panchayatdars from the immediate vicinity of the scene of offence and the very fact that no notice was issued to any one by the Excise Officials for the reasons best known to them, he submitted that the accused is entitled to the benefit of doubt.

14.He further contended that except the self serving oral testimony of the

Excise Official, absolutely there is no evidence on record to prove the recovery of property and its disposal. He submitted 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 section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-5-

15.Admittedly, on considering the entire evidence on record it is found that no attempt was made by the Excise Officials to take recourse to law for securing the presence of Panchayatdars. Though it is contended by the

Prosecution evidence PW1 that the seized contraband was destroyed no material evidence in writing is brought on record in support of its contention.

Except the self serving oral testimony of the Excise Official, absolutely there is no evidence on record to prove the recovery of property and its disposal.

As rightly contended by the learned counsel for the accused, in the absence of any corroborative evidence from independent source as to the recovery of

Illicitly Distilled Liquor from the possession of accused, it is unsafe to conclude that the accused committed the offence punishable U/s. 7-A r/w

Section 8(e) of the Andhra Pradesh Prohibition Act, 1995.

16.The Hon'ble High Court of A.P. In Mudavath Motia Vs. State of A.P., 2002 (I), ALT (Criminal) 437 A.P.) has held that the excise officials entrusted with the investigation into any excise offence if it is cognizable nature they would become police officials it is settled on that any confession, panchanama recorded by the police officials has no sanctity in the eye of law as it is hit by sec. 25 and 26 of Indian Evidence Act, 1872. Therefore, in the instant case the special proceedings Ex.P1 dt. 08.04.2019 containing the alleged confession of accused shall not be taken into consideration.

17.In view of the discussion in the preceding paragraphs, this court finds that it is quite unsafe to arrive at the guilt of the accused solely basing on the self serving oral testimony of the Excise officials as such I record a finding that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. I answer the point accordingly.

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

U/s. 7-A r/w Section 8(e) of the Andhra Pradesh Prohibition Act, 1995, as such

Under Section 248 (1) Cr.P.C. As such she is acquitted of the same. The bail bonds of the accused and of her sureties shall be continued for a period of six months as required under section 437-A Cr.PC. The case property i.e.

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-6-

M.O.1 sample bottle deposited through CPR No.199/2019 shall be destroyed, after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court on this the 19 th day of March, 2020.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence

Witnesses Examined

For prosecution:For Defence: PW-1: K. Durga Naveen Babu - None– PW-2: C. Leela Mohan Rao

Exhibits marked For prosecution:For Defence: Ex.P1: Special Report dt.08.04.2019 - Nil – Ex.P2: F.I.R in Cr.No.176/2019 dt.08.04.2019 Ex.P3: Chemical analysis Report dt.21.05.2019 Ex.P4. Attested copy of Proceedings of Deputy Commissioner dt.20.06.2019 Ex.P5: Attested copy of Destruction panchanama Dt.20.07.2019

MO-1 : Sample Bottle.

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE,

KURNOOL.

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-7-

FOR PROH.& EXCISE, KURNOOL.

C.C.No.2823/2019

1.Date of Offence:08.04.2019

2.Date of Complaint or report:08.04.2019

3.Date of apprehension of the accused :09.04.2019

4.Date of release on bail:09.04.2019

5.Date of commencement of trial:07.01.2020

6.Date of close of trial:19.03.2020

7.Date of Sentence or Order:19.03.2020

8.Explanation of delay if any:

COMPLAINANT :The Prohibition and Excise Sub- Inspector, Kurnool in Crime No. 176/2019.

Neelishikari Shanthi, aged 30 years, W/o N.S. Murari, AccusedResident of Shikari Colony, Orvakal village and mandal.

Offence : Possession of I.D. Liquor. Section of Law : Under Section 7-A r/w 8(e) of A.P. Prohibition Act.

Finding of Court : Accused is found not guilty.

Sentence/ Order : In the result, the accused is found not guilty for the offence punishable U/s. 7-A r/w Section 8(e) of the Andhra Pradesh

Prohibition Act, 1995, as such Under Section 248 (1) Cr.P.C. As such she is acquitted of the same. The bail bonds of the accused and of her sureties shall be continued for a period of six months as required under section 437-A

Cr.PC. The case property i.e. M.O.1 sample bottle deposited through CPR

No.199/2019 shall be destroyed, after expiry of appeal time.

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions

Judge, Kurnool.

C.C.No.2823 of 2019 SPCL. JMFC (P&E), KURNOOL-8-

FORM No. P.18

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR PROHIBITION & EXCISE, KURNOOL.

C.C.No.2823/2019

Between: State, represented by the Prohibition & Excise Sub - Inspector, Kurnool.… Complainant.

And

Neelishikari Shanthi, aged 30 years, W/o N.S. Murari, Resident of Shikari Colony, Orvakal village and mandal. … Accused.

This case is filed by the Prohibition & Excise Sub-Inspector, Kurnool in

Crime No.176/2019 for the offence u/s.7-A r/w 8(e) of A.P. Prohibition Act, 1995.

Date of Offence:08.04.2019

Date of filing:14.11.2019

Date of Order:19.03.2020

Result of the Case : In the result, the accused is found not guilty for the offence punishable U/s. 7-A r/w Section 8(e) of the Andhra Pradesh

Prohibition Act, 1995, as such Under Section 248 (1) Cr.P.C. As such she is acquitted of the same. The bail bonds of the accused and of her sureties shall be continued for a period of six months as required under section 437-A

Cr.PC. The case property i.e. M.O.1 sample bottle deposited through CPR

No.199/2019 shall be destroyed, after expiry of appeal time.

Sd/- Smt. M. Venkata

Seshamma

SPL.JUDL.MAGISTRATE OF I CLASS

(P&E),

KURNOOL.

To The Prohibition & Excise Sub-Inspector, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-1-

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(FOR PROHIBITION & EXCISE), KURNOOL

Present:- Smt. M.Venkata Seshamma Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

Friday, the 12th day of June, 2020

C.C. No. 1429/2016

BETWEEN:

State through the Sub-Inspector of Police, Kurnool II Town Police Station.

… Complainant

And

A1.Syed Mujeeb Basha, age 33 years, S/o Meera Mohiddin, Plot No.4,Raghavendra Nagar, Nirmal Nagar, Kurnool.

A2.Syed Tayyab Basha, age 33 years, S/o Meera Mohiddin, Plot No.4,Raghavendra Nagar, Nirmal Nagar, Kurnool. A3.Syed Raise Basha, age 53 years, S/o late Mohammed Basha, Bellary Vhowrastha, Kurnool .…. Accused.

-oo0oo-

This case is coming before me on 10.03.2020 for hearing in the presence of the learned Assistant Public Prosecutor for the State and

Sri M. Murali Mohan Reddy and Sri S. Manohar, Advocate for accused Nos.1 to 3 and upon hearing the arguments of both sides, this matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Kurnool II Town Police Station, filed charge sheet in Crime No.233 of 2016 against the accused Nos.1 to 3 for the offence punishable under Sections 509 and 506 r/w 34 IPC.

2.The case of the prosecution, in brief, is as under:

(i)The de facto complainant, Syed Arshia Sulthana (LW1) is the younger sister of Syeda Naseem Sulthana (LW2) whose marriage was performed with A1 in the year 2009 and they are blessed with two daughters and one son. Since her marriage A1 used to harass Syeda Naseem Sulthana (LW2) mentally and physically for dowry, she bear all the torture of A1 for the future of her children. But there was no change in the attitude of A1 and at last she lodge a case in Mahila police station in the month of September,

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-2- which is under trial. On 27.10.2016, at 03.00 hours, when the de facto complainant (LW1) along with the her sisters Syeda Naseem Sulthana (LW2) and Syed Waziha Bee (LW3) and Shaik Ayub (LW4) who is husband of complainant (LW1) went to Mahila police station for counselling in DVC case,

A1& A2 and their relatives were also present. After counselling, when LW1 to LW4 came outside, A1 to A3 abused them in filthy language, insulted them by saying that they are not Muslims and their character is not good.

A3 also abused them in filthy language by naming them as bitch and will not change their attitude and also pointed them by saying that they are moving on roads with other males. A1 to A3 also threatened LW1 to LW4 with dire consequences that they would kill them, if they did not withdrawn the complaint preferred against them in Mahila police station.

iii.Basing on the complaint of the de facto complainant/LW1, the

Sub-Inspector of Police, Kurnool II town police station (LW5) registered a case and investigated into. After completion of investigation he filed charge sheet.

3.The case was taken on file for the offence under Sections 506 and 509 r/w 34 IPC against the accused nos.1 to 3.

4.On appearance of the accused Nos.1 to 3, copies of documents were furnished to them as required under Section 207 Cr.P.C. They were examined under Section 239 Cr.P.C., for which, they denied commission of the offence. Charges under Sections 506 and 509 IPC against the accused

Nos.1 to 3 had been framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, the PW1 to PW5 were examined and

Ex.P1 to Ex.P3 are marked. The learned Assistant Public Prosecutor has given up the evidence of LW4/Shaik Ayub. The accused were examined under Section 313 Cr.P.C. putting forth the incriminating material that appears against them from the evidence of prosecution. The accused denied

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-3- their guilt. No evidence either oral or documentary was adduced on behalf of the defence.

6.Heard. Perused the material on record. Perused the written arguments filed by the accused counsel.

7.Now the points for determination are:

1.Whether the Accused A1 to A3 on same day threatened PW1 with dire consequences thereby committed offence punishable under section 506 of IPC?

2.Whether the Accused A1 to A3 abused PW1 to PW3 with filthy language thereby committed offence punishable under section 509 of IPC?

3.Whether the prosecution proved the guilt of accused A1 to A3 for the offences under Section 509 and 506 r/w 34 IPC beyond reasonable doubt?

Point Nos.1 & 2:-

8. Perused the entire evidence and other material available on record. In order to avoid repetition of evidence, points No. 1 & 2 are dealt with simultaneously.The evidence of PW1 to PW3 is that on 27.10.2016, they went to attend the counselling at Mahila police station in connection with the

DVC case of PW2 along with LW4/Shaik Ayub. After completion of counselling, while they were coming outside of counselling center, A1 to A3 who were present there abused them in filthy language uttering that ‘We are not at all Muslims and we don’t have good character’. Further, accused No.3 said that we are bitches moving on the road with other men and if we would not change our attitude and took back the pending case against them, they threatened us to kill. Later, we all returned to home discussed with our parent and on 31.10.2016, were went to II town police station, Kurnool and

PW1 lodged Ex.P1 report against A1 to A3.

9.In her cross examination PW1 admitted that after completion of counselling at Collectorate complex, they had not necessity to go to Mahila police station. PW2 also admitted in her cross examination admitted that

DVC counselling was held at Collectorate and hence there was no necessity

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-4- to approach Mahila P.S, as such abusing of accused to PW1 and their family members near Mahila P.S does not arise. Further, PW2 admitted as per

Ex.P1 report it is mentioned that on 27.10.2016 at about 3.00 PM, PW1 to

PW3 went to Mahila P.S, but as per their Sec.161 Cr.P.C statement on the same day at about 3.00 P.M they went to Collectorate and further PW2 added that due to language constraint, what they conveyed was not drafted in Ex.P1 report.

10.PW4, testified that on 31.10.2016 at about 4.00 PM, PW1 lodged Ex.P1 written report basing on which FIR in Cr.No.233/2016 for the offences under sections 506 and 509 r/w 34 IPC was registered and Ex.P2 FIR was issued.

Later, he secured the presence of PW1 to PW3 and LW4 examined them and recorded their detailed statements, visited the scene of offence and drawn

Ex.P3 rough sketch dt.31.10.2016 and served notice under sec.41(A) Cr.P.C for which they complied and after completion of investigation he filed charge sheet. In his cross examination he admitted that there was delay of four days between date of report/Ex.P1 and date of offence.

11.The offences alleged against the accused are under Sections 506 and 509 IPC. In order to attract the offence under Section 506 IPC, the prosecution must prove the intention on the part of the accused to cause harm to the victim. Mere expression of words without any intention to cause harm would not suffice. In the present case, none of the witnesses examined on behalf of the prosecution have spoken about the threat alleged to have been given by the accused to the complainant/PW1, so to cause harm to her or to feel fear for her life. Even PW1 did not depose before the Court anything on this aspect, so as to attract the offence under Section 506 IPC.

12.The other offence alleged against the accused is under Section 509

IPC. A reading of Section 509 IPC makes it clear that the intention to insult the modesty of a woman is essential to attract the offence. PW1 to PW3 deposed that the accused Nos. 1 to 3 abused them in filthy language. No

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-5- doubt, PW1 to PW3 are all relatives, the incident alleged to have taken place supported the version of PW1. Here, it is to be noted that the root cause for the alleged incident is the ill-feelings between PW1 and A1. Further, it is true that by the time of incident DVC case and 498-A IPC was filed by PW1 against A1. But, PW2 and PW3, who are also present at the time of alleged date of incident, though spoke about their presence at the scene of offence, have spoken about the accused uttering the words as spoken to by PW.1, in order to insult their modesty. But, the prosecution did not able to produce any independent witnesses in this regard, though the scene of offence is a public place, which might have observed by general public. Thus, the prosecution failed to bring on record any reliable evidence so as to attract the offence under Section 509 IPC.

13.As per Ex.P1 the alleged incident happened on 27.10.2016 at 03.00 PM at Mahila police station in connection with DVC case file by PW2. But according to Sec. 161 Cr.P.C statements of PW1, PW2, PW3 and LW4/Sahik

Ayub the alleged incident happened, while they were coming out from

Collectorate after counselling. But the FIR was lodged on 31.102016. So there is a delay of four days in lodging the first information report. In column no.8 of the FIR the reasons for delay is mentioned as “She was consulting elders”. PW1 also could not able to explain properly for the delay in filing the FIR. The elders before whom the matter was placed was also neither mentioned nor they were examined by the police to explain and substantiate the said delay of four days. Further, the Investigation officer also failed to explain the delay satisfactorily, which is also fatal to the prosecution case. In the absence of any corroboration from independent witnesses with regard to the incident proper, the evidence of PW4 is of no avail to the case of the prosecution, except to the extent of the alleged arrest of the accused.

Therefore, in the absence of any concrete and material evidence to bring home the guilt of accused beyond reasonable doubt, the sole testimony of

PW1 filled with improvements, contradictions cannot form the sole basis to

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-6- sustain the conviction of accused no.1 to 3 for either of the offences charged with.

14.Therefore, on over all consideration of the testimony of PW1 to

PW3, coupled with Ex.P1 to Ex.P3, this court is of considered view that the prosecution failed to prove their case as projected in the charge sheet muchless as described in Ex.P.1/report. Accordingly, this court has no hesitation to hold that accused No.1 to 3 are entitled for clear acquittal for the offences under section 506 and 509 r/w 34 IPC alleged against them.

Accordingly Points No. 1 & 2 are decided against prosecution.

Point No.3:

15.In the result, the accused Nos. 1 to 3 are found not guilty for the offence charged under Sections 506 and 509 r/w 34 Indian Penal Code, as such Under Section 248 (1) Cr.P.C. As such they are acquitted of the same.

The accused Nos.1 to 3 are directed to execute bond for Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.

Directly typed to my dictation by Personal Assistant, corrected, signed and pronounced by me in the open court, this the 12th day of June, 2020.

SPECIAL JUDL.MAGISTRATE OF

FIRST CLASS (P&E), KURNOOL

Appendix of Evidence

(Witnesses examined for)

Prosecution: Defence: PW1: Syeda Arshia Sulthana NIL PW2: Syeda Naseem Sulthana PW3: Syeda Waziha Bee PW4: Ch. Khaja Ali

Exhibits marked for

Prosecution: Defence:

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-7-

Ex.P1: Report given by PW1on 31.10.2016 - None - Ex.P2: FIR in Cr.No.233/2016 Ex.P3: Rough sketch dt.31.10.2016

SPECIAL JUDL.MAGISTRATE OF FIRST

CLASS (P&E), KURNOOL

C.C.No.1429 of 2016 SPCL. JMFC (P&E), KURNOOL-8-

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

CALENDAR CASE No.1429/2016

1. Date of Offence: 27.10.2016

2. Date of Complaint or report: 31.10.2016

3. Date of apprehension of the accused : 10.11.2016

4. Date of release on bail : 10.11.2016

5. Date of commencement of trial: 15.04.2019

6. Date of close of trial: 14.02.2020

7. Date of Sentence or Order : 12.06.2020

8. Explanation of delay if any : --

COMPLAINANT: The Sub-Inspector of Police, Kurnool II Town Police station in Cr.No.,233/2016.

Section of Law : Under Sections 506, 509 r/w 34 IPC

Finding of Court : Accused Nos.1 to 3 found not guilty.

Sentence/ Order : In the result, the accused Nos. 1 to 3 are found not guilty for the offence charged under Sections 506 and 509 r/w 34 Indian

Penal Code, as such Under Section 248 (1) Cr.P.C. As such they are acquitted of the same. The accused Nos.1 to 3 are directed to execute bond for

Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred.

SPECIAL JUDL.MAGISTRATE OF FIRST

CLASS (P&E), KURNOOL

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant

Sessions Judge, Kurnool.

C.C.No.1519 of 20171SPCL. JMFC (P&E), KURNOOL

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF

FIRST CLASS

(FOR PROHIBITION & EXCISE), KURNOOL

Present:- Smt. M.Venkata Seshamma Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

Friday, the 20th day of March, 2020

C.C.No.1519/2017

Between: State, represented by Sub-Inspector of Police, Kurnool II Town Police Station. … Complainant.

-And-

M. Vamshi, 20 years, S/o M. Krishna, Ashok Nagar, Kurnool town. … Accused.

-oo0oo-

This case coming before me on 18.03.2020 for final hearing in the presence of Assistant Public Prosecutor for prosecution and of

Sri D. Narasimhulu, Legal Aid Counsel for the accused and having stood over for consideration till today, this court delivered the following:

J U D G M E N T

1.The Inspector of Police, Kurnool II Town Police Station laid charge sheet against the accused in Crime No.348/2017 for the offences U/s.457, 380 or 411 IPC.

2.The brief facts of the charge sheet are that:

i.The de facto complainant, Shaik Abdul Jabbar is a resident of

Gadda Street, Kurnool old town and running a scrap shop and Shaik Babu (LW2) is the worker the said shop. On 16.10.2017 at 2100 hours, the de facto complainant (LW1) and Shaik Babu (LW2), left the shop by closing it and on 17.10.2017 at 10.00 hours, when they opened the shop, they found some unknown culprits committed theft of Brass – 5 Kgs and Copper 4 Kgs by removing iron sheet from backside of the shop and the stolen property is of worth Rs.3,000/-. Based on the complaint of de facto complainant (LW1), the Sub-Inspector of Police, Kurnool II town P.S (LW7) registered the case and investigated into.

C.C.No.1519 of 20172SPCL. JMFC (P&E), KURNOOL ii.During his course of investigation on 20.10.2017 at 10.30 hours the Sub-Inspector of Police, Kurnool II town P.S (LW7) arrested the accused at auto-stand, Ashok Nagar, Kurnool town and seized the stolen property i.e., (1) Plastic bag – Brass utensils (water heater & water taps) –

Wg. 5 Kgs (2) Plastic bag – Copper wire roles -Wg. 4 Kgs from the possession of accused in the presence of mediators A. Ramana (LW3) and

G. Ramesh (LW4). On 28.10.2017 at 1000 hours K. Ranganatha Rao (LW5) and V. Maddilety (LW6) conducted identification parade over the stolen seized property at Tahsildar officer, Kurnool under cover of stolen property identification parade, wherein the accused identified his stolen property.

After completion of investigation the Sub-Inspector of Police, Kurnool II town P.S (LW7) filed charge sheet.

3.The case was taken cognizance on file against the accused for the offence under Sections 457, 380 or 411 IPC.

4.The accused was produced from District jail, Kurnool and he was examined under Section 239 Criminal Procedure Code the accused denied having committed any offence. Thereafter, charge under Sections 457, 380 or 411 IPC have been framed, read over and explained to the accused in Telugu, for which the accused denied the same, pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, PW1 to PW5 were examined and

Exs.P1 to P8. In view of the evidence of PW1 the learned Assistant Public

Prosecutor given up the evidence of LW2/ Shaik Babu. On production of accused from District Jail, Kurnool, the accused was examined under

Section 313 Cr.P.C. putting forth the incriminating material that appears against him from the evidence of prosecution witnesses. The accused

C.C.No.1519 of 20173SPCL. JMFC (P&E), KURNOOL denied his guilt. No evidence either oral or documentary was adduced on behalf of the defence.

6.Now the point for determination is;

“Whether the prosecution has been able to prove the guilt of

the accused beyond reasonable doubt for the offences under

section 457, 380 or 411 IPC”?

Point:

7. To prove the prosecution case, the Prosecution had examined PW1 to

PW5 and Ex.P1 to P8. PW1 is the de facto complainant. PW2 and PW3 are the mediators for arrest and confession panchanama of the accused by the police. PW4 is the VRO in whose presence property identification was conducted. PW5 is the Sub-Inspector of police, Kurnool who registered the case and investigated into.

8.The evidence of PW1 show that on 17.10.2017 at about 10.00 AM, when he opened his shop he found five kilograms of brass and four kilograms of copper was committed theft from his shop and he along with

LW2/Shaik Babu searched for the same, but in vain. On the next day, he went to II town police station, Kurnool and lodged Ex.P1 report and after 10 days of his report, police called him at MRO office to identify his stolen property and accordingly he identified the said property in the presence of

PW4 and the property was handed over to him after obtaining Ex.P2 stamped receipt dt.25.10.2017. Further, he stated that he do not know who committed theft. He further admitted that he could not produce the case property as the same was subjected to rust after obtaining its interim custody under Ex.P2

9. PW2 and PW3 were declared hostile by the prosecution and during cross examination of the learned Asst. Public Prosecutor, they

C.C.No.1519 of 20174SPCL. JMFC (P&E), KURNOOL denied having acting as mediators on 20.10.2017 at 8.30 AM and in their presence police apprehended the accused and seized stolen property.

10.PW4 deposed that on 20.10.2017, at about 10.00 am, on the request of Sub-Inspector of police, II town police station, Kurnool he conducted test identification parade of property stated to have been seized from accused. Accordingly, he had conducted property identification parade in Thasildar office wherein, PW1 participated in the parade and identified his Water heaters, Brass taps and Copper wire rolls.

Thereafter property identification parade report was prepared. Ex.P5 is property identification parade report, dt. 20.10.2017.

11.PW5 received the case facts and on 18.10.2017 from PW1, while he was at police station and he lodged Ex.P1 report and basing on the same he registered case in Cr.No.348/2017 for the offence under section 457, 380 of IPC and issued Ex.P6 FIR for the offence under section 457 and 380

IPC, examined PW1 and LW2/Shaik Babu and recorded their detailed statements and later he along with his staff and PW1 visited the scene of offence at Venkataramana colony, near Medplus medical shop, Kurnool and drawn Ex.P7 rough sketch. On 20.10.2017 at about 8.30 AM, they reached auto-stand of Ashok Nagar, Kurnool and found the accused under suspicious circumstances and they apprehended him and on enquiry he revealed his descriptive particulars and confessed about the commission of offence and they arrested the accused in the presence of mediators

PW2 and PW3 under the cover Ex.P8 panchanama and after completion of all formalities produced the accused before court for judicial custody. On 28.10.2017 he conducted identification parade of property through PW4 and LW6, wherein PW1 identified his stolen property and they handed over the said property under Ex.P2 receipt and on completion of investigation he filed charge sheet in this case. In his cross examination he admitted

C.C.No.1519 of 20175SPCL. JMFC (P&E), KURNOOL that place where the accused was arrested is a busy locality and that there is no chance of presence of accused with the scrap of nine kilograms, alleged to be seized from him as per arrest panchanama Ex.P8 dt.20.10.2017 and the complainant also failed to from where he secured the iron scrap of nine K.Gs.

12.On perusal of entire material evidence on record, it found that PW5 had not examined any independent mediators from the said locality,

Ashok Nagar, which is a busy area. Further, PW1 failed to furnish the details how he secured the iron scrap of nine K.Gs, so also the investigation officer failed to gather information about it. PW1 being complainant had not deposed any incriminating material evidence against accused.

13. However, the prosecution had relied upon Ex.P8 panchanama dt.

20.10.2017, wherein the contents shows the alleged confession given by accused, which is inadmissible in evidence by virtue of sec. 25 and 26 of

Indian Evidence Act. Though the heading of said document had taken color of panchanama, but on reading its contents, it is nothing more than confession, hence the same hit by sec. 25 and 26 of Indian Evidence Act.

14.Though the investigating officer PW5 deposed that the accused confessed the commission of offence in the presence of the mediators

PW2 and PW3, the same is not corroborated by any independent witness.

The witnesses who were examined as panch witnesses at the time of confessional panchanamas Ex.P3 and Ex.P4 dt.20.10.2017 have also not supported the evidence of investigating officers and the contents of the panchanamas. The evidence of investigating officer can be only be relied by the court when it inspires confidence. The uncorroborated testimony of investigating officer PW5 cannot become sole basis for conviction of

C.C.No.1519 of 20176SPCL. JMFC (P&E), KURNOOL accused when the mediators turned hostile and when his evidence is not apt to his investigation showing on record.

15.In the light of the above discussed facts and circumstances and the evidence placed before this court, this court is of the considered view that the prosecution failed to prove that the accused committed theft of scrap from the shop of PW1 as confessed by him or that the case property was recovered from the possession of the accused.

16.In the result, the accused is found not guilty of the offence under sections 457, 380 or 411 IPC and accordingly, he is acquitted under

Section 248(1) Cr.P.C for the said offence. The Superintendent, District Jail,

Kurnool is directed to set the accused at liberty if he is not required in any case or crime. The accused is directed to execute bond for Rs.5,000/- (Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred. The case property which was already handed over to the respective de facto complainant/PW1 under

Ex.P2 receipt dt.25.10.2017, shall holds good after expiry of appeal time.

Directly t yped to my dictation by Personal Assistant, corrected, signed and

pronounced by me in the open court, this the 20 th day of March, 2020.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence

Witnesses Examined

For Prosecution: For

Defence:

P.W.1: Shaik Abdul Jabbar - None – P.W.2: G. Ramesh P.W.3: A. Ramana P.W.4: K. Ranganatha Rao P.W.5: M. Chandra Sekhar Reddy

Exhibits Marked

C.C.No.1519 of 20177SPCL. JMFC (P&E), KURNOOL

For Prosecution : For Defence:

Ex.P.1: Complaint given by PW1dt.17.10.2017 -Nil- Ex.P.2: Stamped receipt dt.25.10.2017 Ex.P.3: Signature on panchanama dt.20.10.2017 by PW2 Ex.P.4: Signature on panchanama dt.20.10.2017 by PW3 Ex.P.5: Property identification panchanama dt.20.10.2017 Ex.P.6: FIR in Cr.No.348/2017 Ex.P.7: Rough sketch Ex.P.8: Confession and seizure panchanama dt.20.10.2017

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

C.C.No.1519 of 20178SPCL. JMFC (P&E), KURNOOL

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH. & EXCISE, KURNOOL.

CALENDAR CASE No.1519/2017

1. Date of Offence: prior to 17.10.2017

2. Date of Complaint or report: 18.10.2017

3. Date of apprehension of the accused: 08.01.2020

4. Date of release on bail : UTP

5. Date of commencement of trial: 28.02.2020

6. Date of close of trial: 18.03.2020

7. Date of Sentence or Order: 20.03.2020

8. Explanation of delay if any: -- COMPLAINANT: The Sub-Inspector of Police, Kurnool II Town Police Station in Crime No., 348/2017.

Offence : Theft and dishonestly receiving stolen property, knowing it to be stolen Section of Law : Under Sections 457, 380 alternatively 411 IPC Finding of Court : Accused is found not guilty Sentence/ OrderIn the result, the accused is found not guilty of the offence under sections 457, 380 or 411 IPC and accordingly, he is acquitted under Section 248(1) Cr.P.C for the said offence. The accused is directed to execute bond for Rs.5,000/-(Rupees five thousand) under sec.437-A Cr.P.C to appear before the appellate court, if any appeal is preferred. The interim custody orders of case properties i.e., cash of Rs.18,000/- which was already handed over to the respective de facto complainant vide Crl.M.P.No.3603/2016 dt.24.12.2016 through court for interim custody, holds good after expiry of appeal time.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool. Copy submitted to The Chief Judicial Magistrate - Cum - Principal Assistant Sessions Judge, Kurnool.