1
IN THE COURT OF THE SPL.JUDICIAL FIRST CLASS MAGISTRTE FOR EXCISE CASES
:: KADAPA.
Present : Smt. N.LAVANYA,
SPL. JUDICIAL FIRST CLASS MAGISTRATE FOR PROHIBITION AND EXCISE: KADAPA
Friday this the 18th day of November, 2016
C.C.No.224/2016
(Cr.No. 43/201415 of Proh & Excise Police Station Kadapa)
Between
The State: Represented by S.I of police, Prohibition and Excise police Station Kadapa.… Complainant
And
1. Yamanuru Sylaja, aged 32 years, D/o Subba Reddy, R/o Do.No. 85/315, Sarojini Nagar Colony, Jyothi Chemicals, Kadapa.
2. Kamanuru Lakshmi Narayana Reddy, S/O K Chelama Reddy, Flat.No.403, Venkatadri Apartments, Yerramukkapalle,
Kadapa.….....Accused No1 and A2
This case is coming on 15112016 for final hearing before me, in the presence of Assistant Public Prosecutor for the complainant and of Sri P. Ramaprasad Reddy and Smt. G. Sivakamini, Advocates for the accused, perusing the material available on record, and upon hearing the argument on both side I am delivering the following:
J U D G M E N T
1.This case is tried against the accused for the offence punishable under section 34(a) of A.P. Excise Act.
2
2.The brief facts of prosecution case is that on 17062014 at about 08:00 Pm as per the instructions of the Assistant commissioner of prohibition and excise enforcement wing Kadapa during raids conducted by Pw2 along with Pw1,
Lw2,Lw3 and conducted house search after serving search proceedings to A1 at house bearing No. 85/315,Sarojini Nagar colony,Kadapa found one card board box with printed letters “King Whisky” on four sides of the said carton and also found the carton containing 48 bottles of “Old Tavern Whisky” with EAL.No.5538293 to 5538340 and with batch No.143 dated 27052014 at one of the corner of a room on west side of the said house. Then Pw2 has ame to conclusion on observing the defects on brand label and EALS that the said liquor bottles were fake liquor bottles. On enquiry the accused disclosed her identity as Yamanuru Sylaja, aged about 32 years, D/O Subba
Reddy,R/O Do.No. 85/315, Sarojini Colony,Jyothi Chemicals,Kadapa. Further A1 stated that the said liquor bottles are purchased from K. Lakshmi Narayana Reddy, aged about 38 years, S/O Chelama Reddy, Flat No.403, Venkatadri Apartments,
Yerramukkapalle,Kadapa. Later Pw2 drew one bottle as a sample for chemical examination purpose which is duly sealed and labeled both the sample and remaining liquor bottles and also affixed identification of slips. Later Pw2 arrested the A1 under cover of Panchanama. Further Pw2 handed over the A1, case documents, sample, remaining liquor bottles to Pw3(SI Prohibition and Excise Kadapa) for taking further action. On the strength of Ex.P1,Pw3 registered the case in Cr.No.43/201415 U/S 34(a) Of AP Excise Act. On 18062014 accused produced before court and forwarded to judicial custody. During the course of investigation sample was sent to the chemical examiner the examiner opined that the sample is sub standard liquor vide C.E.No.
481/2014 dated 08092014. on 28072016 A2 surrendered before court. The property was confiscated by the deputy commissioner of prohibition and excise kadapa 3 and order for destruction of property Vide Rc.No. A1/168/2014 dated 07042016 and the same has been destroyed in the presence of concerned authorities under
Panchanama dated 30052016. after completion of investigationPw4 laid charge sheet.
3.This case was taken on file under section 34 (a) of A.P Excise Act against the accused.
4.Copies of documents furnished to both the Accused in compliance of section 207 Cr.P.C. And Accused examined under section 239 Cr.P.C. Charge under section 34 (a) of A.P. Excise Act was framed against both the accused, read over and explained to both the accused in Telugu under section 240(2) Cr.P.C. After having understood the same,both the accused pleaded not guilty to the charge framed against them by this court for the aforementioned offence and claimed to be tried.
5.The prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 04 witnesses as P.Ws 1 to PW 4 and got marked 06 documents as Ex.P1 to P6 and marked material objects as Mo1 in all to bring home the guilt of the accused, later the prosecution reported that their evidence is closed.
6.After closure of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution, they denied those circumstances and maintained their innocence and reported no defence evidence on their behalf.
7.The learned Assistant Public Prosecutor has argued that from the oral evidence of PW1 to Pw4 and basing on the documents marked Ex.P1 to Ex.P6, 4
Mo1, clearly shows that the accused with an intention to get unlawful income both the accused are collude with each other and selling the samae ton public by keedping the liquor bottles at the house of A1. Further argued that A2 is distributing the same to A1 for gaining unlawful income is punishable U/sec 34 (a) of A.P. Excise act.
Hence the guilt of both the accused are proved and accused shall be punished accordingly.
8.On the other hand, the learned counsel for the accused argued that prosecution not secured independent and respectable inhabitants of the locality in which the place to be searched is situate and they secured Pw1 before proceeding to scene of offence. hence his evidence is not at all useful for prosecution to prove the case against accused. further he argued that prosecution has not conducted investigation properly and seized the contraband as per procedure. And there is no sufficient grounds to prove the guilt of the accused by the prosecution hence the accused may be set at liberty.
9.I have heard Learned APP for State and Learned counsel for accused.
10. NOW THE POINTS FOR DETERMINATION IS:
After the perusal of the case record, I have found the following point to be determined:
i) Whether prosecution has established the case against the accused for the offence punishable under Section 34 (a) of A.P. Excise act 1968 beyond all reasonable doubt?
APPRECIATION OF EVIDENCE, DECISION AND REASONS THEREOF:
11.To determine the abovementioned point and to reach a judicial decision on the same. I am here by answering all the points raised before me by both the counsels.
5
12.Before going to answer the points raised by both counsel I am going to reiterate the evidence deposed by the witnesses. As per Pw1 (VRO) evidence he deposed that on the date of incident at 8 PM while he was present in his office Pw2 sent one constable to his office and requested to come police station and that he went to police station later him self, Pw2,Lw2 and other staff went to
Do.No.85/315,Sarojini Nagar. Later Pw2 searched the above house. At the time of search A1 was present. Later Pw2 found 48 liquor bottles. Later Pw2 lifted one bottle as a sample which is duly sealed and labeled. Further Pw2 seized remaining 47 liquor bottles under cover of Panchanama(Ex.P1)
13.As per evidence of Pw2(SI) he deposed that on 17102014 at 08:00 PM as per th instructions of Assistant Commissioner of Enforcement, Kadapa he conducted raids along with Pw1, Lw2, 3 and other staff himself along with Revenue officials(Pw1),Lw2 and other staff conducted rides, to that he reached house bearing
No. 85/315, Srojini Nagar, Kadapa. There he issued search proceedings to A1 and entered inside the house. There he noticed one carton box. On his verification the said carton box containing 48 bottles of old tavern fine whisk each containing 180ml.
Later he came to know that those bottles are fake liquor. On his enquiry A1 disclose her identity as Y. Sailaja, D/o Subba Reddy, D.No. 85/315, Sarojini Nagar Colony,
Kadapa. Furtehr she stated that those liquors are secured from K. Lakshmi Narayana
Reddy, S/o K. Chalama Reddy, Flat No. 403, Venkatadri Apartments Yerramukkapalli.
Further he lifted Mo1 as a sample for forwarding the same to chemical analysis,
Kurnool. Later he questioned A1 with regard to license or permit but she failed to produce the same. On that he arrested A1 in the presence of Pw1, Lw2 under cover of exp1. Later he handed over case documents, Mo1, remaining liquor bottles, A1 at
Prohibition Excise station, kadapa for taking further action.
6
14.The evidence of Pw3 on 1762014 while he was present in police station, Pw2 came to police station and handed over accused, Ep1, Mo1 and other remaining liquor bottles. Basing on Exp1 he registered a case in crime No. 43/2014 15 U/sec 34(a) of AP Excise Act. Later he remanded the accused to judicial custody through court and forwarded Mo1 to chemical analysis, Kurnool though court. On receiving chemical analysis Exp4 report he filed charge sheet.
Point No.1
15.The main contention of the defence is that prosecution not secured independent and respectable inhabitants of the locality near the scene of offence and they secured Pw1 before proceeding to scene of offence. hence the evidence of Pw1 is not at all useful to prove the guilt of the accused.
16.Though the contention of defence is that prosecution is failed to secure local independent witness near the scene of offence. It is no doubt true that
PW1 is not a mediator from the locality. But he was working as Village Revenue officer who is working under Government. Further he is not having any enmity against accused to speak against accused. As per his evidence he is a witness for observation report of the scene of offence as well as the reports under which the accused were arrested and examined to recovery of the liquor bottles from the possession of accused No1. He spoke about the Accused house door number along with street name where liquor bottles was seized, Therefore taking Pw1 as independent witness for search doesn't vitiate the search proceedings. Further the evidence of Pw1 is consistent and trustworthy and nothing was elicited by defence against prosecution version to impeach creditworthiness of Pw1. Admittedly, Pw1 signed all the documents and also witness to the recovery memo. Even after searching crossexamination, evidence of remains unshaken. Moreover Pw1 evidence is 7 corroborating with the evidence of Pw2 (SI) in every aspect with regard to possession of liquor bottles by accused with regard to quantity. Therefore I came to conclusion that the provision of section 100(4) Cr PC are followed by the police officials while seizing liquor bottles from the posession of accused and the seizer made in this case is as per procedure.
17.Further defence counsel argued that the contraband which was seized by police from the house in the presence of accused. But no where they shown that the said house belongs to Accused, hence there is no proof to show that accused is the owner of the said house where liquor bottles were seized to that defence relied on decession of Honorable High Court of Andhra Pradesh in Kalidindi Rama Raju @
Rambabu Vs. State of A.P. 2002 (1) ALD (crl) 863 (AP) where in it was held that AP Excise Act 1968 – Section 34 (a) – Contraband recovered from the tiles factory in the presence of the accused – No evidence to show that he is the owner or lease of the premises – Alleged confession made by him that he is the owner
before the Excise officer is not admissible in evidence in view of section 25 of the Evidence
Act – Conviction cannot therefore be sustained.
18.Though Defence counsel contention is the seizure made in the house doesn't belongs to the accused. Hence there is no evidence to show that accused is the owner of the said house. To that he relied on Kaldinidi Ram Raju (Supra) case.
But the said ruling is not applicable to the case on hand. As the independent witness was not examined to establish that the accused is the owner of the said flat. But here in this case, as per Pw1 evidence, he deposed that at the time of search accused is present in the said house and revealed that she is the owner of the said house. Once accused raised an argument that she is not the owner of the said house where seizure made, then burden shifts on the accused to show the proofs that she is not the owner, 8 but here in this case accused not taken any steps to show that she is not the owner of the said house. Though prosecution failed to produce the documents to show that accused is the owner of the said house, then accused may produce the documents like
Aadhar card, ration card, voter card or any other document to show that she is not resident/owner of the said house. Without showing the said documents simply saying that she is not the owner of the said premises is not believable. Hence I am of opinion that Accused failed to show that she is not the owner of the house where the liquor bottles were seized.
19.The evidence of Pw2 clearly shows that accused is having possession of 48 bottles of old Tavern whiskey each containing 180ml. Further he deposed that later he came to know that those bottles are fake liquor. As per Pw2 evidence I perused Exp3 (chemical analysis report) as per report it shows that the sample which was forwarded for chemical analysis is found to be substandard Indian made liquor”. Though chemical analysis shows that the seized liquor is a substandard liquor but no where he mentioned that it is unfit for human consumption, therefore I am of opinion that it is fit for human consumption. As per section 14 of A.P. Excise act and GOMs No 268 of 1997 shows that one person can possess 6 quart bottles of
Indian Made liquor containing 750ml each, here Pw2 seized.
I. 48 bottles of Old Tavern whisky each containing 180ml
As per Exp4 analysis report shows that the seized liquor bottles are of Indian Made liquor. In exercise of the powers conferred in subsection (1) of Section 14 of the
Andhra Pradesh Excise Act, 1968 (Andhra Pradesh Act 17 of 1968), the Governor of
Andhra Pradesh hereby specifies the maximum quantity of the intoxicants which a person may have in his possession at a time without a permit or license with effect from 1841997.
9
Maximum Quantity of Intoxicants which a person may have in possession without permit:
1. Indian Liquor : Six (6) Quart bottles each 750 Ml.
2. Foreign Liquor : Six (6) Quart bottles each 750 Ml.
3. Denatured Spirit : Three (3) Bulk Liters
4. Methylated Spirit Three (3) Bulk Liters
5. Beer : Twelve (12) bottles each 650 Ml.
20.In view of the notification in GOMS No 268 of 1997 issued under section 14(1) Of AP Excise Act effective from 18041997 one person can possess 6 quart bottles of Indian made liquor containing 750ml, i.e 6X750ml=4500ml. If we calculate the quantity seized by the police i.e 48 bottles of old Tavern fine whiskey 180ml each Ie., 48 X180ml = 8640ml, it shows that accused is having possession of 8640 ml. which is not under the prescribed quantity mentioned in GOMS No 268of 1997 and he is having excess possession of 4140 ml. Therefore possessing of liquor other than prescribed quantity mentioned in GOMS No.268 of 1997 becomes an offence section 34(a) of A.P. Excise Act, In the present case the accused is found in his possession of the intoxicants of Indian made liquor exceeding the quantity permitted in the GOMS No. 268 dated 141997.
21.I am giving answer in favour of prosecution that they successfully proved that the Accused No.1 is having illegal possession of liquor bottles without any valid licence.
Point No.2
22.As per prosecution arguments Accused No.1 confessed that she purchased the said substandard liquor bottles from Accused No.2. hence accused No.2 shall also be guilty for the offence punishable U/sec 34 (A) of A.P. Excise act.
10
23.Though prosecution argued that Accused No.1 confessed against
Accused No.2 that she purchased the said liquor bottles from Accused No.2. but as per section 30 of the Indian Evidence Act is in the nature of empowering the Court to take into consideration a confession made by one of the accused against the others when they are jointly tried. On one hand the confession, if it is voluntary and is considered true and admissible by the court, of an accused is a very strong piece of evidence against himself, however on the other hand it is a weak piece of evidence against other coaccused. In its strict legal sense, the confession of a coaccused does not come within the definition of evidence. The reason behind this is that the person who is making such confession hasn’t stepped into the witness box and that his testimony has not been subjected to crossexamination, thus such confession is, in reality, a type of exparte evidence against other accused persons. To that I am relying on rulings of
Honorable Apex court in Kashmira Singh vs State Of Madhya Pradesh on 4 March,
1952 Equivalent citations: 1952 AIR 159, 1952 SCR 526
The confession of an accused person against a coaccused is not evidence in the ordinary sense of the term. It doesnot come within the meaning of evidence contained in sec. 3 of the Indian Evidence Act in as much as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by crossexamination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities.
The Honorable Supreme Court has held in the case of Hari Charan Kurmi v.
State of Bihar A.I.R. 1964 S.C. 1184 that the confession of a coaccused cannot be treated as substantive evidence, and can be pressed upon only when the Court is inclined to accept other evidence, and feels the necessity of seeking an assurance in support of its conclusions deductible from other evidence.
11
The Honorable Supreme Court in the case of Pancho v. State of Haryana (2011) 10 SCC 165, held that confessions of a coaccused aren’t the substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidences in a criminal trial.
24.In the present case also there is no substantive evidence against
Accused No.2 and the confession given by Accused No.1 was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the coaccused with that crime. Further prosecution has not taken any steps to go to the house of Accused No.2 for search liquor bottles to prove that he is supplying substandard liquor bottles to others. Therefore I came to conclusion that prosecution failed to prove that Accused
No.2 sold substandard Indian made liquor to Accused No.1.
25.For the foregoing reasons and by pursuing the records this court has no hesitation to hold that prosecution successfully prove the case and guilt of
Accused No.1 beyond all reasonable doubt for offence under Section 34(a) of A.P.
Excise Act.
In the result Accused No.1 is found guilty for the offence under Section 34 (a) of A.P.
Excise Act and Accused No.1 is hereby convicted in terms of Section 248 (2) Cr.P.C.
and Accused No.2 is found not guilty for the offence punishable U/sec 34 (A) of A.P.
Excise Act and accused No.2 is hereby acquitted in terms of section 248(1) of Cr.P.C.
The Mos 1 and if any unmarked property shall be destroyed after expiry of appeal time.
12
Typed by myself on my laptop, corrected it and pronounced in the open court in presence of learned counsels appearing for both sides on 18th day of
November, 2016 under my hand and seal of this court.
Sd/ Smt. N.Laavanaya, Spl. Judl. Magistrate of I Class for Proh. & Excise Offenses, Kadapa.
When questioned the accused No1 with regard to the quantum of sentence the accused No1 pleaded mercy and requested to take lenient view and she stated that she is having small children and she is having parents and further she stated that she has to look after the welfare of her family members.
Having considered the nature and circumstances of the case I feel it is just and proper to punish the accused No.1 rather than taking any lenient view. Therefore, the accused No.1 is convicted U/Sec.248(2) of Cr.P.C and sentenced her to undergo simple imprisonment for a period of six months and she shall also liable to pay fine of
Rs.5,000/ (Rupees Five thousand only) in default of payment of fine, she shall undergo simple imprisonment for a period of one Month, for the offence punishable
U/s.34 (a) of Andhra Pradesh Excise Act 1968. The remand period already undergone by the accused if any, is ordered to be set off as per section 428 of Cr.P.C.
Typed by myself in my Laptop corrected and pronounced by me in the open court on this 18th November, 2016.
Sd/ Smt. N.Laavanya,
Spl. Judl. Magistrate of I Class for Proh. & Excise Offenses, Kadapa.
13
APPENDIX OF EVIDENCE:
WITENSSES EXAMINED FOR:
PROSECUTION
P.W.1: A. Srinivasulu, VRO, Kadapa
P.W.2: V. Jaffar, P & E SI.
P.W.3: S. Swaminathan, P & E SI
P.W.4: S. Kishore Kumar, P & E SI
DEFENCE
NIL
EXHIBITS MARKED:
Ex.P.1: Panchanama, dt:17072014 at 800 PM
Ex.P.2: FIR in Cr.No.43/201415 of P & E S, Kadapa
Ex.P.3: Letter of advice, dt:04092014
Ex.P.4: Analysis report, dt:08092014
Ex.P.5: Attested copy of the Deputy Commissioner of Prohibition and Excise, Kadapa,
dt:07042016
Ex.P.6: Attested copy of destruction panchanama, dt:30052016.
MATERIAL OBJECTS MARKED:
Mo.1 : One sample bottle of Old Tavern fine whisky containing 180 ML.
Sd/ Smt. N.Laavanya,
Spl. Judl. Magistrate of I Class for Proh. & Excise Offenses, Kadapa.
// True Copy //
Spl. Judl. Magistrate of I Class for Proh. & Excise Offences, Kadapa.