Smt. N.Mary

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MC. No.50/2021 Dated 18.04.2022

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

TANUKU.

Present: Smt. N. Mary II Additional Judicial Magistrate of First Class Tanuku Monday, this the 18th day of April 2022

M. C. No.50 of 2021

Between: Jetla (Ayisetti) Bala Tripura Sundari @ Tripura W/o Jetla Subrahmanyam, D/o Ayisetti Rama Mohana Rao, Hindu, Female, 27 years, House wife, D.No.1-111, Palangi Village, Undrajavaram Mandal of W.G.Dt., …Petitioner

and

Jetla Subrahmanyam, S/o Suryanarayana, Hindu, Male, 30 years, Employee in L & T Finance Company, Residing near Sai Baba temple, Gorebal Camp, Sindhanur Taluk, Rayachur District of Karnataka State. …Respondent

This petition is coming on before me on 31.03.2022 for hearing in the presence of Sri P.Vijaya Kumar, advocate for petitioner; and respondent having remained ex parte on 22.12.2021; and upon perusing the material on record and having stood over for consideration till this day, the Court made the following___

O R D E R

This is a petition filed under Section 125 of Cr.P.C. by Petitioner for grant of maintenance to a tune of Rs.25,000/- per month to the petitioner and costs of the petition.

2. The brief averments of the Petition are as follows:-

i) The Petitioner is legally wedded wife of the Respondent and their marriage was solemnized on 26.06.219 at Sri Penmatsa Venkata Raju and Smt Suryamma Function hall of Tanuku according to Hindu Rites and Caste Customs and their marriage was consummated and there is no issues to the petitioner out of their wedlock.

ii) The parents of the Petitioner came to know about the respondent and his parents through Polisetti Nageswara Rao, Polisetti Dhana Lakshmi and Mottipalli Anji Babu of

Tadiparru village and they played active role in fixing the alliance between the petitioner and the respondent. They came to the house of parents of the petitioner and stated to them that the respondent is residing in the State of Karnataka and that he completed

MBA and he has been working in L&T Finance Company and getting salary of a sum of 2

MC. No.50/2021 Dated 18.04.2022

Rs.40,000/- PM and that he is having valuable assets such as house and sites and recommended the parents of the petitioner to perform the marriage of petitioner with the respondent.

iii) Accordingly, the marriage date was fixed as 26.6.2019 and as per the custom and practice, the marriage is to be celebrated as per the convenience of the parents of the petitioner either at their house or at any other place of their choice. At the time of marriage, the parents of petitioner gave Rs.5,00,000/- towards dowry to them and the younger brother of the respondent i.e. Jetla Venkata Ramana and the sister of the respondent and her husband who are residing Kakinada interfered in the family matters of the petitioner and by making phone calls to the petitioner, they demanded her to pay

additional dowry amount of Rs.5,00,000/- to the respondent.

iv) At the time of marriage, her parents presented necklace worth Rs.1,00,000/- and paraphernalia worth Rs.2,00,000 and one gold ring worth Rs.35,000/- to the Respondent and the father of the Petitioner gave a sum of Rs.5,000/- to the Respondent on the occasion of Sankurathri Festival and on that festival occasion also the father of the

Petitioner presented another gold ring worth Rs.35,000/- to the Respondent.

v) The Respondent demanded her to get a sum of Rs.10,000/- every month from the parents of the Petitioner. The Petitioner expressed her inability to do so. For that , the

Respondent grew wild and beat her indiscriminately and tried to kill her by scuffling her neck. She prevented him to do so with utmost difficulty. Apart from that he tried to kill the petitioner by hanging her to a ceiling fan. On both the occasions, the parents of the

Respondent remained as dumb spectators and they did not prevent the Respondent when he tried to kill the Petitioner. The Petitioner tolerated all the cruel acts of the Respondent for a period of 14 months with a hope that one day or the other, there will be a change in the attitude of the Respondent and also for the reason that her parents would be subjected to grief and misery for the sufferings of the Petitioner in the hands of the

Respondent.

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vi) The various acts of harassment caused to the petitioner in the hands of the

Respondent are numerous in nature and some of the vital cruel acts of harassment of the

Respondent are summarized below :

a ) The Petitioner was not allowed to use cell phone. The Respondent gave a cell phone to her and imposed restrictions in using the same and only for limited minutes he used to allow the Petitioner to make calls from the said cell phone. The Respondent is suspicious in nature. The calls made by the Petitioner to her parents were got recorded by the

Respondent and at night times, he used to hear the recorded conversation and Petitioner throughout night questioning her on such calls and made her to lose her sleep. Since she questioned him for not allowing her to talk with her parents as per her convenience and timings, he thrown away the said cell phone to ground and resulting damage of the same.

b. The Respondent used to say that since the petitioner did not bring dowry in a considerable amount, she will be subjected such comforts only in proportionate to the dowry given by her parents. When the petitioner is out of doors, her mother-in-law did not provide tea, Tiffin and meals for all such days of out of doors. When she got stomach pain, he took her to a Doctor and to meet out medical expenses of the petitioner he pledged the necklace of her for a sum of Rs.2,000 and he further stated that the further medical expenses if any would be expended by getting sale of the said necklace.

c. The cruel acts of the Respondent, the petitioner got severe weakness and her health was damaged. The Respondent took her to outside on his motor bike and used to stop the said bike on the middle of the road and asked the Petitioner to go to her village and made her to stand on the road hours together. The Petitioner was made to stand on the road and the passersby were astonished to see the Petitioner in such a state.

d) The Respondent used to threat to the Petitioner by abusing her that he will broke her legs if she goes to the house of her parents. He further threatened that he would break the legs of her parents if they come to his house.

e) He very often threatened that the petitioner would be treated as servant maid in their house and not more than that and as such she will receive the same treatment as a 4

MC. No.50/2021 Dated 18.04.2022

cook and servant maid in their house and if she does not like such treatment she may leave his house and he refused to lead matrimonial life with the petitioner.

f) The Parents and brother of the Respondent even though in their very presence the petitioner acted in a rude behavior with the petitioner they remained as a dumb spectators and they did not suggest to the Respondent not to act in such a rude manner with the petitioner and on the other hand they abetted the Respondent to act in a cruel manner against the petitioner. They did not provide food to the Petitioner and on all cruel acts of the Respondent against the Petitioner, they supported the Respondent and abetted him to do such cruel acts.

g) The Respondent used to say to the Petitioner that extramarital relationship with a woman of his village and he will come to house once in a week and if the same is not liked by the petitioner she may go to her village. The Respondent used to raise one dispute or the other with the petitioner every day and used to beat her and asked the petitioner to leave his home.

h). The Petitioner was not allowed to sleep on a cot in the house of the Respondent and she was asked to sleep on a bare floor or on a mat. Apart from that, the Petitioner was not allowed to open the doors of the Refrigerator and the same was locked and the grinder was kept in a big bag and tied with rope to prevent the Petitioner to use the same.

i) On one occasion the Respondent throttled the neck of the petitioner to take away her life and with utmost difficulty, she resisted the Respondent to save her life. On another occasion the Respondent tried to hang the Petitioner to a fan and the Petitioner raised cries and the Respondent stopped as neighbors gathered on hearing the cries of the Petitioner.

j) The Respondent made frequent phone calls to the parents of the Petitioner and asked them to take back the Petitioner. On 14-08-2020 the parents of the Petitioner went to the house of the Respondent and tried to set right the attitude of the Respondent towards the Petitioner and they also expressed their inability to meet out the financial 5

MC. No.50/2021 Dated 18.04.2022

demands of the Respondent. They also requested the parents of the Respondent and also brother of the Respondent to help them to change the attitude of the Respondent towards the Petitioner. But the Respondent and his parents and other family members insulted the parents of the Petitioner and the Parents of the Petitioner as well as the petitioner left from the house of the Respondent and came to Palangi Village as the petitioner expressed her fear to her life and limb in the hands of the Respondent and his parents and other family members who acted cruelly against the petitioner. The parents of the Petitioner observing the health condition of the Petitioner got medical treatment to her as her mental and physical health was not in a fit condition. The elders who recommended the alliance also interfered in the matter. Since 14-08-2020 , their efforts did not yield. The

Respondent did not bother about the welfare of the Petitioner and he had never evinced any interest to look after the welfare of the Petitioner. The Petitioner cannot entertain the thought of joining with the Respondent on account of ghastly attempts of the Respondent against her endangering her life and limb and the parents of the Petitioner have been looking after her welfare. In such circumstances the petitioner filed a case in Crime

No.442/2021 under Section 498-A, 506 r/w Sec.34 of 1.P.C. and Sec. 3 and 4 of D.P.Act against the Respondent and others on 28-08-2021 before Undrajavaram P.S

k) On 23-08-2021, the Respondent got issued a legal notice through his Counsel to the petitioner by making false averments and demanded the Petitioner to join with him and threatened her to meet with legal consequences if she fails to join with him.

l) The physical as well as the mental health of the Petitioner was damaged and the

Petitioner has been receiving medical treatment and she is under the care of her parents and residing with her parents at Palangi Village and her marriage with the Respondent was proved to be night mare. The parents of the Petitioner were also mentally upset and they spend money for the marriage of the Petitioner by borrowing money from their relatives and family friends. The Petitioner is not having any valuable movable and immovable properties of any kind and she is not having any income yielding deposits etc., 6

MC. No.50/2021 Dated 18.04.2022

in any nationalized Banks etc., and she is leading her life with the financial assistance of her parents who belong to middle class.

m) The Respondent has been working in L & T Finance Company and he is getting a sum of Rs.40,000/- per month towards his salary and he is having own house and the same is situated in a commercial area at, Gorreballa Camp, Sindhanur Talulk, Rayachur

District of Karnataka State and he is having 1/3rd share in the site and agricultural land situated at Kothapalli Village, near Gokavaram of E.G.Dt which is a joint family property and he is capable of providing maintenance to the Petitioner and on account of sadistic behavior the life of the Petitioner became ruined and her mental and physical health was damaged. Hence, she prays to grant Rs. 25,000/- per month towards basic necessaries of life commodities and the high inflation rate prevailing in the present day market and the Respondent whose monthly earnings are not less than Rs.40,000/- has been willfully avoiding to look after the welfare of Petitioner. Hence the petition.

3. The Respondent on receipt of notice, failed to appear before this Court, No representation on his behalf and hence he was set exparte.

4. During the course of enquiry, the 1st Petitioner herself examined as PW.1 and no documents were marked.

5. Heard the learned counsel for the Petitioners. Perused the record.

6. Now the point for determination is:-

"Whether the Petitioner is entitled for maintenance as prayed for"?

POINT:-

7. It is the evidence of PW.1 that her marriage with respondent was solemnized on 26.6.2019 at Sri Penumatsa Venkata raju function hall, Tanuku as per Hindu Rites and

Customs in the presence of elders. At the time of marriage, her parents had given

Rs.5,00,000/- to the respondent towards dowry besides presented 6 sov of gold and also silver worth of Rs. 1 lakh. After her marriage, she joined with her husband at Karnataka with paraphernalia worth of Rs.2 lakhs. Her parents in laws also used to reside with them at Karnataka. Ex.P1 is wedding card.

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7.1. PW.1 further would depose that the respondent looked after her properly for one month only. Thereafter, he started abusing her on filthy issues and expressing his disinterest towards her. He did not allow her even to talk with her parents over phone and took away her cell phone. On one occasion, she requested him for her phone back but he throw the mobile to wall and due to which it was completely damaged. The respondent used to harass her and beat her in between four walls. He always made her to stand on road hours together. He used to say that whenever he orders, she has to go to her parents house and whenever he asks to come back to Karnataka then only she bound to come. She bares his unruly behavior several times. He used to demand for additional dowry of Rs. 10 lakhs whenever, she expressed her parents inability to pay such huge amounts, he used to beat her indiscriminately and used to say leave her house.

7.2. PW.1 further categorically stated that her parents presented 48 grams of gold at the time of my marriage, but he took away the same, pledged it , availed loan and utilized the said amounts for his own. The parents of respondent never came in her rescue. The respondent used to behave unruly with his parents also. After eight months of marriage, on one day, he made her to call her parents over phone and asked them to come over to

Karnataka within 24 hours and demanded to take back her with them to Palangi. At that time, he said to her parents that he intends to give divorce to her. Immediately, her parents came to Karnataka and though they tried to pacify the issues and admonish him, but he did not mend his ways and thoughts and behaviour. But the respondent ordered that she has to with him only as servant maid.

7.3. Then, her parents brought her to Palangi and subsequently placed the matter

before the elders. Then, the elders asked him to come to Palangi for amicable

reconciliation but he did not turn up by saying that he neither allowed her for conjugal life nor he give divorce. Then, she filed criminal case u/sec. 498-A IPC with Undrajavaram police station. After knowing about the registration of case, the respondent came down to Undrajavaram police station and took station bail and went away. In order to avoid, criminal proceeding consequences, the respondent got issued a registered legal notice for 8

MC. No.50/2021 Dated 18.04.2022

Restitution of conjugal rights with all false averments. Since one year, she is staying with her parents and she is not doing well.

7.4. The respondent is working in L&T finance company and getting salary of

Rs.40,000/- per month. The respondent is having house at Gorreballa camp, Sindhanure

Taluk, Raychur District. The respondent is also having 1/3 share in agricultural land situated at Kottapalli village of East Godavari District. The respondent without there being any justifiable reason deliberately deserted her and neglected her. Since one year he did not provide any amounts for her sustenance and maintenance. Hence, she prays this court, kindly grant an amount of Rs.25,000/- per month for her basic necessities.

8. The learned counsel for the Petitioner would contend that, from the testimony of

PW.1, it is clear that, the Respondent harassed PW.1 and neglected her. The learned counsel for the Petitioner would also contend that Respondent is able bodied person and he has sufficient means to provide maintenance to the Petitioner.

9. In order to grant maintenance to the Petitioner, the Petitioner has to establish that the Respondent willfully neglected the Petitioner, refused to maintain her, the Petitioner is unable to maintain herself and the Respondent has sufficient means to maintain the

Petitioner. The contents of her chief affidavit prima facie indicates that, the petitioner is legally wedded wife of respondent and she is a homemaker and she has no independent income of her own and that she has no financial sources for the survival of herself whereas, the respondent has got sufficient means to maintain and the said evidence is remain unchallenged by the respondent.

10. The next question for consideration is, as to what is the quantum of maintenance to be granted, taking into consideration of the evidence on record about the sources of respondent.

11. It is the contention of petitioner that, The respondent is working in L&T finance company and getting salary of Rs.40,000/- per month. The respondent is having house at

Gorreballa camp, Sindhanure Taluk, Raychur District. The respondent is also having 1/3 share in agricultural land situated at Kottapalli village of East Godavari District. The 9

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unchallenged evidence of petitioner amply prove that the respondent showed insensitive attitude towards petitioner inspite of having sufficient financial worthiness.

11. The respondent appears to be aged about 30 years. Since the respondent is not disputing his relationship with the petitioner by way of filing counter or subjecting PW.1 to cross examination, he had no other go, except to pay maintenance for meeting her basic necessities of food, shelter and clothing. To meet those basic necessities, even an ordinary person, in these hard days of living, at least requires not less than Rs.200/- per a day. Therefore, considering the necessities of the petitioner, responsibility of the respondent, circumstances warrens this court, to award a monthly maintenance of

Rs.6,000/- to the petitioner, which could serve her present needs. The point is answered accordingly.

12. In the result, the Petition is allowed and the Respondent is directed to pay an amount of Rs.6,000/- per month (Rupees six thousand only) to the Petitioner, towards her maintenance from the date of the petition. Further the Respondent is directed to pay the awarded maintenance to the Petitioner by 5th day of every month, either directly or depositing the same in the Savings bank account of the Petitioner or by depositing the same in the Court, so as to enable the same to be given to the Petitioner. The respondent shall pay the arrears of maintenance amount in equal monthly installments along with the regular monthly maintenance amount.

Typed to my dictation by Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 18th day of April, 2022.

Sd/- N.Mary

II ADDL. JUDL. MAGISTRATE OF I CLASS

TANUKU.

Appendix of Evidence

Witnesses Examined

For Petitioner: For Respondent:

PW.1: Jetla Bala Tripua Sundari Ex parte.

Documents Marked

For Petitioner: For Respondent: NIL

Ex.P1/-- Wedding Card Id/- N.M

II AJMFC, TNK

Note: Office to furnish copy of this order free of cost to petitioner.

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C.C.No.203/2017 II AJMFC, Tanuku

IN THE COURT OF THE II ADDL. JUDICIAL MAGISTRAE OF I CLASS

TANUKU

Present:- Smt. N.MARY, II Addl.Judicial Magistrate of I Class, Tanuku

Wednesday, this the 13th day of April, 2022

C.C.No.203/2017

(Old CC No.256/2006)

(Crime No. 25/2006 of Attili Police Station)

Between:

Sub-Inspector of Police,

Attili Police Station. ...Complainant

and

Pothula Nagaraju S/o Satyanarayana, 26 years, Settibalija, Hari Prince Tailor, behind Ganesh Mahal, Attili Village, N/o Eeduru Village, Attili Mandal …Accused

This case coming before me for final hearing on 12.04.2022 in the presence of Sri A.Ravi Prasad, Learned Assistant Public Prosecutor for the State and Sri N.Someswara Rao, Advocate for accused and having stood over consideration till this day, this Court delivered the following:

J U D G M E N T

This case arises out of Cr.No.25/2006, for the offence under Sections 52(A), 63 & 64 of Copy Right Act, 1957, registered by, Attili Police Station with the following allegations:

2. The case of the prosecution as was set out by PW1, in brief is that:

On the night of 18.4.2006 at 9.30 pm, on receipt of reliable information,

LW.4/K.A.Swamy –SI of Police along with LWs.1 and 2 i.e. Kalingineedi Rama

Krishna and Papolu Narasimha rao, raided the shop of accused under the name and style of Hari Prince tailor shop situated at Attili village and found the infringed piracy CDs of newly released Telugu Cinemas i.e. 1) Style , 2) Ranam 3) Happy, 4)

Chatrapathi 5) Premisthe in the Tailor shop of Accused, basing on the confession of accused, he had seized the above sad CDs from the possession of accused under the cover of mediators report. LW.4 brought the accused to police station along with seizure CDs, registered FIR in Cr.No.25/2006 U/Sec. 52(A) r/w 63 and 2

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C.C.No.203/2017 II AJMFC, Tanuku 64 of A.P. Copy Right Act, 1957 and investigated into, recorded the statements of witnesses, prepared rough sketch of the scene of offence in the presence of mediators. Thereafter, on completion of investigation, he laid charge sheet.

3. The Court took cognizance of the offence under sections 52-A, 63 & 64 of

Copy Right Act, 1957 against the accused.

4. Accused put in appearance before the Court, copies of all documents as contemplated under Section 207 Cr.P.C., are furnished to him.

5. Accused was examined under Section 251 Cr.P.C., and whereupon, the accusation was read over and explained to him in Telugu, for which, he denied to have committed the offence and claimed to be tried.

6. The prosecution in order to prove the complicity of the accused examined

PW1 and PW.2 got marked Exs.P1 & P2 apart from MO.1 –Fifteen (15) CDs.

7. Accused is examined under Section 313(1)(a) Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, he denied and reported no defence evidence.

8. I have heard the learned Assistant Public Prosecutor and Learned counsel

for accused person.

9. Now the question that arises for the consideration:

“Whether the prosecution is able to prove the guilt of the accused

beyond reasonable doubt, for the offence under sections 52-A, 63

& 64 of Copy Right Act, 1957” ?

P O I N T:

10. It is the main case of prosecution that the Accused indulging in illegal activities i.e possession and letting the infringed video CDs without having any video rights and thereby earning money in illegal means.

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11. The prosecution, examined PW1, Manager in Geetha Film distributor, Eluru and PW2 is the Investigating Officer.

12. It is a evidence of PW.2/S.I of police that on 18.4.2006 at 9.30 pm, on receipt of credible information regarding possession of CDs and letting hire of CDs he along with mediators PW1, LW2 P.Narasimharao and staff rushed to the Hari

Prince tailors shop where they found the accused transacting business and selling the piracy CDs; on enquiry, he disclosed his identity particulars and he confessed that he is letting out the piracy CDs of newly released Telugu movies; in pursuant of confession of accused; PW.2 verified the shop and seized 9 sets of piracy CDs (in total 15), which are newly released movies i.e. Style, Ranam,

Chantrapathi, Happy and Premisthe which were marked as MO1 through PW1;

Ex.P1/ report was prepared to that effect ; arrested the accused ; registered a case in Cr. No.25/2006 u/sec. 52(A),63 and 64 of Copy Right Act, 1957 of Attili police station under Ex.P2 and filed charge sheet for the offences indicated above

12. During Cross-examination he admitted that no written report was received from PW1 prior to conducting raid and that he did not seize any electrical devises like CPU, Hard disk etc. which were used for copy and preparing piracy

CDs and that did not verify the content in 15 CDs before seizure. He denied the suggestion put to him that he did not follow the procedure as contemplated u/sec.

100(8) of Cr.P.c and that entire record was prepared at police station in order to meet statistics.

13. Learned counsel for the accused would contend that, there is no record to show that, the accused running tailoring shop in the said premises and that the investigating agency has not displayed the pirated CDs in the presence of mediators, and that, without examining the owner of the shop accused was falsely implicated. He further would contend that, in the absence of examining any 4

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C.C.No.203/2017 II AJMFC, Tanuku producer or authorized dealers of alleged movies, more particularly, in the absence of any scientific evidence distinguishing the original CDs with that of pirated CDs, connecting the accused, for the offence, leveled against him would certainly cause great prejudice to him, hence pleaded for acquittal of Accused.

14. The claim of PW.2 that, he secured PW1, went to the shop of accused, enquired the accused on 18.4.2006 at about 9.30 PM, whereof accused alleged to have confessed that, he is doing tailoring in the shop situated behind Ganesh

Mahal in Attili village and he has been selling and letting hire of new Telugu film

CDs to the public and also hiring infringed video CDs for illegal gain. In pursuance of his statement, he verified the shop and found 15 Telugu new film CDs and had seizedCDs (MO.1) under Ex.P1 mediators report.

15. Whereas PW.1/Manager in Geetha Film distributor, Eluru deposed that on 18.04.2006 at 9.00p.m, having information that some pirated CDs were being distributed relating to newly released Telugu movies ie Ranam, Happy and

Premisthe etc., he and one Narasimha Rao, went to Attili police station and gave information to police, then, they along with police went to a Tailoring shop , found the accused there and on questioning, he has shown CDs of the films over which, rights were there and he further produced unlabeled CDs of 5 films, for which, there are no Copy Rights and unauthorized copies , then police prepared mediator's report/Ex.P1 and seized all 15 CDs from the possession of accused under MO.1 which are pirated in nature

16. In his cross examination, PW.1 admitted that one Giri has given information about the possession of pirated CDs by Accused. He further admitted that he cannot recollect the day on which he gave report and he cannot recollect the door number of shop and that he cannot say the name of the place where they found the shop of the accused and that he does not know who drafted 5

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C.C.No.203/2017 II AJMFC, Tanuku

Ex.P1 and that the CDs did not bear his signatures. He categorically admitted that similar CDs to MO.1 are available in open market.

17. What the Ld. counsel contends is that, the investigating agency did not sent the CDs to Forensic Science Laboratory, for examination to know, whether its contains any material, and that, the material objects seized did not contain the panch slips and no scrap of paper is filed to show that, accused have collected amount from any persons, for recording cinemas. According to him, these material discrepancies found in the evidence of PW1 and PW2 are sufficient to extend the benefit in favor of accused.

18. It is true, PW.1 did not file any document to show that he is Manager in

Geetha Film distributor, Eluru. Nowhere PW.1 stated that the CDs were played through CD player in his presence. PW.2 fairly admitted that he did not verify the content in 15 CDs before Seizure. The contents of Ex.P1 discloses that the slips had affixed. Whereas, PW.1 in his cross examination admitted that all the CDs put in a cover, but each and every CD does not bear his signatures. PW.1 genuinely admitted that he cannot say who drafted Ex.P1/mediator’s report. In view of the discrepancy, the contention of PW2 that, in the presence of PW1, he conducted enquiries, whereof, the accused confessed to have admitted the offence, that was committed by him, in the presence of PW1 and another mediator loses its significance. Had PW.2 really participated in the said raid, he would have stated the name of place, date of report and who drafted Ex.P1 etc.

19. The investigating officer should have sent the CDs and computer devices/hard disks to Forensic Science Laboratory, for examination, but, that has not been done in this case. Though, PW2 claims that, he seized MO.1 (bunch of 15 CDs) from Accused, as has been admitted by him, those material objects did not contain the panch slips with the signatures of mediators. There is no 6

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C.C.No.203/2017 II AJMFC, Tanuku consistency in the evidence of PW1 and PW2, regarding the verification of content of CDs, before conducting the proceedings.

20. When, the investigating officer/ the prosecuting party claims that, the accused without having licence possessed CDs and selling and letting piracy CDs on hire, but no document filed who or which Industry originally had Copy Right over the said Cinemas and whose copy right the accused infringed. It is the duty cast on the investigating officer, PW2, to secure relevant documentary evidence to that effect. This being primary requirement of prosecution, for prosecuting the accused, alleging that, he has committed the offence, without any licence, in violation of the provisions of the Act, failed to place any such positive material, for appreciating the investigation claimed to have been carried out by PW2, with the help of PW.1 and his staff.

21. When the prosecution prima facie failed to place any positive material to show that, whether the pictures which names were mentioned in the reports covered under Ex.P.1 contains copy rights from any Film Industry, the allegation made by it against accused that, he was distributing the cinemas of those movies, without any license or without any copy right loses its significance. In the case at hand, except the solitary testimony of PW.1, one of the mediator and PW.2, the investigating officer, which is not corroborating with each other on many of the material aspects, no scientific evidence as required to prove the charge leveled against the accused is brought on record.

22. He did not even examine the Copy Right holders of the movies, for coming to the conclusion, whether or not, is there any complaint received by them stating that pirated CD movies were under circulation. The requirements of

Section 55(A), 63, 64 of Copy Right Act have not been compiled by the prosecution. No doubt, the investigating officer has seized 15 CDs covered by 7

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C.C.No.203/2017 II AJMFC, Tanuku

MO1, but, that itself is not sufficient to say in the absence of concrete proof that, accused in violation of the express provisions of the Act, have committed the offence alleged. Undoubtedly, accused is not claiming the property under seizure.

23. The fact remains that the prosecution did not cite the distributor of the said movies, and no authorized filed the above complaint. PW.1 admitted that he did not lodge any report. He did not examine any public to whom Accused said to have let out alleged pirated CDs. The investigating officer PW2, who did investigation, in his cross examination has stated that, he did not receive any written complaint about the alleged offence. Though, he claims that, he visited the shop of accused, conducted enquiries, he categorically admitted that, he did not secure any document to show that, accused are conducting business in the said shop. He did not even examine the owner of the shop. He further admitted that, he did not compare the original CD with the pirated one. Therefore, in the absence of any such positive material showing that, the CDs under seizure are copied from the original CDs and let out the same to the public, for getting monetary benefit, and thereby, causing loss to the dealers/distributors of the movie, it is not safe to connect the accused, with the offence alleged.

24. When it is the specific case of P.W.2 that, accused in order to gain monetary profit by way of circulation of pirated CDs for sale in open market, he should have examined some independent witnesses to whom, the accused circulated them for money. However, no such exercise has been done by the investigating officer. The recovery was effected from the accused upon the disclosure of the accused and no public witness was examined. As far as the admissibility of the said disclosure statement is concerned, same is inadmissible in evidence being directly hit by Section 25 of Indian Evidence Act as the same was made to police officers. PW.1 and PW.2 admitted that there are several shops 8

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C.C.No.203/2017 II AJMFC, Tanuku and taxi stand exists. PW.2 claimed that he made efforts to secure mediators, but none came forward to act as mediators. The IO has failed to note down the particulars of the person who refused to join the investigation. This casts doubt about the sincere efforts made by the IO to join independent witnesses.

25. In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of

Maharashtra reported in AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Thus, herein the instant case too the non-joining of the public witness at the time of alleged search and recovery of CDs creates doubt in the story of the prosecution.

26. PW.2 also admitted that he did not secure any documentary proof from any producer or authorized distributors of above indicated movies, more particularly, no scientific evidence collected distinguishing the original CD with that of pirated CD to prove about the alleged offence. Had PW2 secured any record from the accused not only showing collection of amounts, but also about his running the said shop, case of prosecution could have been appreciated by placing reliance on the contents of mediators report covered by Ex.P1. But, that has not been done. All these infirmities in the prosecution case make the same doubtful.

Something more is required to be projected by the prosecution for connecting the accused, with the offence, leveled against them. The evidence brought on record, therefore, is not inspiring confidence, for recording a finding of guilt and as such, I hold that, accused is not guilty of the offence and he is entitled for acquittal.

27. IN THE RESULT, Accused is found not guilty for the offence punishable under sections 52(A), 63 and 64 of Copy Right Act, 1957. Accordingly, he is 9

Dt. 13.04.2022

C.C.No.203/2017 II AJMFC, Tanuku acquitted of the said offence under section 255(1) Cr.P.C. The bail bond of the accused shall remain in force for a period of 6 months as per the Provision of

Sec.437-A of Cr.P.C.

28. The case property Vide CP.No.52/2017 (Old CP No.351/07) i.e MO.1– 15

CDs as per Form-60 are ordered to be destroyed after lapse of appeal time.

Typed to my direct dictation on Laptop, corrected and pronounced by me in open Court on this the 13th day of April, 2022.

Sd/- N.Mary

II Addl. Judicial Magistrate of I Class, TANUKU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION: DEFENCE:

PW1: K.Rama Krishna-Manager - None – PW2: K.A.Swamy-SI of Police

EXHBITS MARKED

For Prosecution: Defence:

Ex.P.1 : Mediator’s report --NIL-- Ex.P.2 : FIR in Crime No.25/2006

MOs marked: MO.1 – 15 CDs

Id/- N.M

II A.J.F.C.M.

Tanuku 10

Dt. 13.04.2022

C.C.No.203/2017 II AJMFC, Tanuku

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO.203/2017 ON THE FILE OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS :: TANUKU. Date of

OffenceComplaint Apprehension Release on Commence-Close of trialSentence of of accused or reportbailment of trialOrder 18.04.2006 18.04.200619.04.200603.05.200612.11.200712.04.202213.04.2022

Explanation for delay:

On 15.06.2006, this Court has taken cognizance of the offence under Section 52–A, 63 and 64 of Copy Right Act against the Accused and issued summons to the Accused. Later, Accused present and examined u/sec. 251 Cr.P.C. On 12.11.2007, PW 1 present and examined, marked Ex.P1 and MO.1 and matter posted for the evidence of LWs.2 to 4 call on 19.11.2007. Then the matter adjourned from time to time. Thereafter, the record was transferred to Addl. Chief Metropolitian Magistrate Court, Hyderabad as per the proceedings of the Hon’ble District Judge, W.G.Eluru communicated in Dis No.979 dt. 16.02.2008. Later, the record was transferred from Addl. Chief Metropolitian Magistrate Court, Hyderabad to this Court vide Dis No.3450 dt. 25.6.2016 and the same was renumbered in CC No.256/2016. When the matter was posted for evidence of Lw.2, due to Covid-19 pandemic circumstances, the matter has been adjourned from time to time. On 12.04.2022, LW.2 present and examined as PW.2 and marked Ex.P2 and defence evidence closed on the same day and heard arguments and posted for Judgment.

Name of the Complainant:

State Represented by its Sub Inspector of Police, Attili Police Station.

Name of the Accused:

Pothula Nagaraju S/o Satyanarayana, 26 years, Settibalija, Hari Prince Tailor, behind Ganesh Mahal, Attili Village, N/o Eeduru Village, Attili Mandal

Offence : 52(A), 63 and 64 of Copy Right Act, 1957

Crime No. 25/2006 of Attili Police Station

Finding: Found not guilty

Result: IN THE RESULT, Accused is found not guilty for the offence punishable under sections 52(A), 63 and 64 of Copy Right Act, 1957. Accordingly, he is acquitted of the said offence under section 255(1) Cr.P.C. The bail bond of the accused shall remain in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C.

The case property Vide CP.No.52/2017 (Old CP No.351/07) i.e MO.1–Fifteen (15) CDs as per Form-60 are ordered to be destroyed after lapse of appeal time.

Sd/- N.Mary

II Addl. Judicial Magistrate of I Class, Tanuku Copy submitted to:

The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS:: TANUKU.

Present: Smt. N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Friday, this the 28th day of June, 2019.

Calendar Case No. 379/2019

Between The State: Station House Officer, Proh. & Excise Station, Tanuku. Crime No.43/2019 … Complainant. AND

Undurthi Vijaya Kumar, S/o Muniyya, Age 34 years, Caste SC-Madiga, R/o Tanuku Town, Tanuku Mandal … Accused

This case is coming on 27.06.2019 before me for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri N.Someswara Rao, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following :

J U D G M E N T

The State: Station House Officer, Prohibition and Excise Station, Tanuku, filed charge sheet against accused in Cr.No.43/2019 for the offence punishable U/Sec.34 (a) of A.P. Excise Act, 1968.

2.The case of the prosecution in nutshell that :

On 30.03.2019 at about 10.15 pm , as per the instructions of Dy. Commissioner and Assist. Commissioner of P & E, West Godavari, Eluru, the Pw.3 along with LWs.4 & 5 and staff secured mediators PWs.1 and 2, while detecting the Proh. & Excise offences, when they reached near the Old Royal Cinema theatre at Arundhathipeta situated in 6th ward of Tanuku Town limits of Tanuku Mandal, found the accused in possession of hand cover in his right hand. On seeing the police, he tried to skulk away from there. On suspicion, PW.3 detained him and examined him. On examination, the accused stated that he is in possession of Indian Made Liquor bottles. On verification of the bag, found

Ten (10) Indian Made Liquor bottles each 180 Ml., and there were Excise Adhesive

Labels on their caps which were containing the label as “ for Sale of Andhra Pradesh 2

Only' which were Duty paid Indian Made liquor bottles. On enquiry, the accused confessed that he was in possession of liquor bottles in the said bag and selling the same for higher rate for profits. When enquired he said that he is not having any permit and license. Later, he served S.41(a)(1) Cr.P.C notice to him and seized the property from the possession of accused. Then, PW.3 drawn one bottle from the seized liquor bottle as samples sealed the same, affixed identity slips duly signed by the mediators and accused under of cover of Mediator's report. Later, PW.3 handed over the accused, case property along with the connected case record to the Station House

Officer, P & E Station, Tanuku for further action. Pw.4 received the entire record and registered the case in Cr.No. 43/2019 U/sec. 34(a) of AP Excise Act, 1968 and sent the samples to the Regional Proh. & Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment. On receipt of C.E report and after completion of investigation,

Inspector of police, P & E., filed charge sheet.

3. This case was taken on file for the offence under sec. 34(a) of A.P. Excise

Act.

4. On appearance of the accused, the case copies were furnished to him as per the section 207 Cr.P.C.

5. Accused was examined under section 239 Cr.P.C. and explaining the substance of charge sheet, for which, he denied the offence. A charge under section 34(a) of A.P. Excise Act has been framed read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6. In order to prove the case, the prosecution examined P.Ws.1 to 4 and

Ex.P1 to P5 and M.O.1 – one sample bottle is marked.

7. After closure of the prosecution evidence, accused was examined under section 313 Cr.P.C. with regard to incriminating material appearing against him in the evidence of prosecution, for which, he denied and reported no defense evidence.

8. Heard on both sides.

3

9. Now the point for determination is:

Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

POINT:

10. The learned A.P.P. argued that in order to prove the guilty of the accused, the prosecution examined the mediators and P.Ws.3 & 4 and that their evidence is consistent, trustworthy and inspires confidence that PWs.3 & 4 arrested the accused and seized liquor bottles ; hence, the accused is liable for Conviction.

11. On the other hand, the learned counsel for the accused argued that the mediators PWs.1 and 2 did not corroborate their evidence of prosecution. Further, it is the contention of counsel for the accused that PWs.3 & 4 did not follow mandatory requirements, while conducting the search and seizure of alleged liquor bottles/tetra packets; further, the prosecution failed to prove the guilt of the accused; hence, the accused is entitled for acquittal.

12. As per version of prosecution, PWs.3 & 4 searched the accused and seized the Indian Made Liquor bottles/tetra packets in the presence of mediator PWs.1 & 2 under the cover of Mediators Report – Ex.P3 and it was registered as Ex.P4 u/s. 34(a) of A.P. Excise Act and Ex.P5/C.E report discloses that sample is IML bottles/MO.1 in the presence of Pws. 1 & 2.

13. PW.3 (P.Ashok, P & E Sub Inspector of Police, Eluru) stated that on 30.03.2019 at about 10.15 pm, as per the instructions of Dy. Commissioner of P & E (Enforcement), Eluru, he along with LW.4 K.Lokeswara Rao, P & E constable, LW.5 Md.

Nasreen, P & E Constable by securing mediators PWs.1 and 2, proceeded for detection of Proh. & Excise offences and when they reached near the Old Royal Cinema theatre at

Arundhathipeta situated in 6th ward of Tanuku Town limits of Tanuku Mandal, found the accused in possession of hand cover in his hand, on suspicion, he detained him and on examination, the accused confessed that he is in possession of Indian Made Liquor 4 bottles/tetra packets and in the presence of Mediators and his staff, he verified the bag, found ten(10) Indian Made Liquor bottles of each 180 Ml., i.e. Any Time Fine Whisky 180 ml (10), later Mediator' 'report /Ex.P3 was prepared and handed over the record for further investigation to Lw.6 Smt Ch.Devaki, P & E Sub Inspector, Tanuku.

14. PW.4 Ch.Devaki, SI of Police, P & E, Tanuku deposed that he received the entire record from PW.3 and the same was registered as a case in Cr.No.43/2019 U/sec.

34(a) of AP Excise Act, 1968 and served S.41(a)(1) Cr.P.C notice on the accused and subsequently, she sent the samples to the Regional Proh.& Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment and that on receipt of Ex.P5- C.E report, filed charge sheet against the accused.

15. As per the evidence of PWs.3 & 4, they seized IML bottles from the possession of the accused in the presence of PWs.1 & 2independent witnesses.

Whereas, PWs.1 & 2 categorically stated that they do not know the accused and they could not identify the accused who was arrested by the Excise police on that day and they do not know the facts of the case. Though the accused was very much present in the open court, PWs.1 & 2 could not identify him.

16. It is the case of the accused that he is nothing to do with the offence and he never committed any offence and he was falsely implicated in this case.

In “Yedduru Sreenivasul Reddy V. State of A.P reported in ”2002(1)

ALD(Crl) 347 wherein their Lordships held at para 14 that: Section 55 of the Act contains valuable safeguards for the liberty of citizen in order to protect them from ill- founded or frivolous prosecution or harassment. Of course, the petitioner did not raise such pleas before the Courts below, but it is for the prosecution to bring on record while charging the accused, that they have followed the procedure contemplated under

Section 55 of the Act and 100(4) of the Code. For these reasons, I am satisfied that prosecution has failed to prove that P.Ws.3 & 4 have followed such a procedure.

Consequently, for these lacunae, the search and seizure is vitiated and the conviction is 5 wholly unsustainable. Accordingly, the Criminal Revision Petition is allowed and the conviction and sentence are set aside.”

17. In “S.Babu Saheb @ Babu Vs. State of A.P reported in 2010 (1) ALT (Crl.) 32, their lordship held at paragraphs No.16 and 17 that:

Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area orat a place where there is no possibility of securing any local mediators, then probably they will be justified inconducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100(4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under Sub-section (4) of Section 100 Cr.P.C. The object of Section 100

Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. Sec. 59 of A.P. Excise Act 1968 also says the provisions of Cr.P.Crelating to arrests, search etc., shall apply to all actions taken in those aspects under the A.P.

Excise Act also. Therefore the procedure in respect of searches, arrests is the same in

Cr.P.C, A.P. Prohibition Act and in A.P. Excise Act. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.

Of course, it cannot be said that the evidence of a witness, who accompanied the police, cannot be always believed nor it can be discarded only on the ground that he 6 accompanied the excise or police officials. But where, in a case, the excise officials, having an opportunity to take respectable mediators, did not make any effort to take such mediators certainly it casts a doubt about the prosecution version. In this case, admittedly no efforts were made to secure the presence of the local mediators.”

18. Here in the case on hand also, there is no explanation from the excise officials that though they have ample opportunity to secure the respectable local inhabitants, but as to why they secured PWs.1 & 2 and took along with them when admittedly they are conducting the search in a busy locality, wherein there is every possibility of securing the presence of independent mediators. The evidence of PWs.3 & 4 does not disclose that they tried to secure mediators at scene of offence. Thus,

PWs.3 & 4 have not followed the procedure laid down in Sec.100(4) of Cr.P.C, while seizing alleged IML bottles. Thus, the above authorities and provision make very clear that search shall be conducted in the presence of local inhabitants of that locality and searching officer shall made sincere efforts to secure mediators by the time of search and seizure of liquor bottles.

19. Though it is mandatory procedure u/s 59 of AP Excise Act, the police officer shall follow the procedure under Cr.P.C., PWs.3 & 4 have not made any attempt to get the local inhabitants or independent persons. Alleged seizure of liquor bottles in the absence of local inhabitants creates a doubt in respect of seizure. It is denied by

PWs.3 & 4 that the accused was falsely implicated in this case only for statistical purpose.

20. It may be noted here that it is not the evidence of PWs.3 & 4 that they had seen the accused while he was selling liquor bottles. As per PWs.3 & 4, basing on confession statement of accused, they arrested the accused. Where the confession is made to the police at the time when the person making the confession is under arrest, is inadmissible in evidence under section 26 of Indian Evidence Act and it cannot be considered. Therefore, the alleged confession of accused herein cannot be considered.

7

If confession of accused is separated from the evidence of PWs.3 & 4, there is no material on record to show that accused is selling liquor bottles.

21. Mere possessing of IML bottles is not an offence. Therefore, offence u/s 34(a) of AP Excise Act, 1968, cannot be leveled against the accused. Thus, the evidence of Excise Officials, in the absence of corroboration of mediators i.e PWs.1 & 2 are not believable and seizure cannot be said as proved. Hence, benefit of doubt is extended to accused. In view of fore said facts and circumstances of the case and discussion, this court is of the opinion that the prosecution miserably failed to establish the guilty of the accused beyond all reasonable doubt.

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

U/sec. 34 (a) Excise Act and he is acquitted U/s 248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months from this day as provided u/sec. 437-

A Cr.P.C. Mo.1 – One Sample bottle shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court, this the 28th day of June, 2019.

Sd/- N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Appendix of Evidence

Witnesses Examined

For Prosecution: Defence :

PW.1: T.Srinivasa Kumar None. PW.2: V.N.Durga Rao Pw.3: P.Ashok, P & E SI of Police, Eluru PW.4: Ch.Devaki, P & E SI, Tanuku //Exhibits marked for// Prosecution: Defence : Nil.

Ex.P.1 : Signature of PW.1 on mediator report Ex.P.2 : Signature of PW.2 on mediator report Ex.P.3 : Mediators report Ex.P.4 : FIR Ex.P.5 : Analysis report //Material objects marked// M.O.1 : One sample bottle Id/- N.M II AJFCM,Tanuku 8

CALENDAR AND JUDGMENT

DISTRICT OF WEST GODAVARI

Calendar case No.379/2019 tried by the II Addl. Judl. Magistrate of I Class, Tanuku. --------------------------------------------------------------------------------------------------

Date of Offence : 30.03.2019 Report : 30.03.2019 Taken on file : 13.05.2019 Apprehension : 30.03.2019 Release on bail : 30.03.2019 Commencement of trial : 14.06.2019 Closure of trial : 25.06.2019 Sentence of Order date : 28.06.2019

Explanation for the delay Nil

Name of the complainant

The State: Station House Officer, Proh. & Excise Station, Tanuku.

NAME OF THE ACCUSED

Undurthi Vijaya Kumar, S/o Muniyya, Age 34 years, Caste SC-Madiga, R/o Tanuku Town, Tanuku Mandal

Crime No. : 43/2019 Offence : Section 31(a) Excise Act, 1968

Finding : Found not guilty

Sentence or Order :

In the result, accused is found not guilty for the offence punishable U/sec.

34 (a) Excise Act and he is acquitted U/s 248(1) Cr.P.C. The bail bond of accused shall be in force for a period of six months from this day as provided u/sec. 437-A Cr.P.C.

Mo.1 – One Sample bottle shall be destroyed after expiry of appeal time.

Sd/- N.Mary

II ADDL. JUDL. MAGISTRATE OF I CLASS,

TANUKU

Copy submitted to

The Hon’ble I Addl.Dist. & Sessions Judge, West Godavari, Eluru.

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS:: TANUKU.

Present: Smt. N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Thursday, this the 27th day of June, 2019.

Calendar Case No. 378/2019

Between

The State represented by its Station House Officer, Proh. & Excise Station, Tanuku … Complainant. AND

Meka Satyanarayana, S/o Veeranna, Age 65 years, Caste TGowda, R/o Satyawada village, Undrajavaram Mandal … Accused.

This case is coming on 27.06.2019 before me for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri D.V.V.S.N.Murthy, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following :

J U D G M E N T

The State: Station House Officer, Prohibition and Excise Station, Tanuku, filed charge sheet against accused in Cr.No.42/2019 for the offence punishable U/Sec.34 (a) of A.P. Excise Act, 1968.

2.The case of the prosecution in nutshell that :

On 29.03.2019 at about 6.00 pm, as per the instructions of Asst. Commissioner of P & E (Enforcement), Eluru, Pw.1 and his staff during the course of raid for detection of Prohibition & Excise offences, when reached near the Gowda Ramalayam temple situated in Satyawada village limits of Undrajavaram mandal, found the accused standing in possession of white mica bag in his right hand. On seeing the police, he tried to skulk away from there. On suspicion, PW.1- detained him and examined him. On examination, the accused confessed that he is in possession of Indian Made Liquor bottles. On verification of the bag, found Twelve (12) Indian Made Foreign Liquor bottles each 180

Ml., and there were Excise Adhesive Labels on their caps which were containing the label as “ for Sale of Andhra Pradesh Only' which were Duty paid Indian Made liquor bottles.

2

On enquiry, the accused confessed that he was in possession of liquor bottles in the said bag and selling the same for higher rate for profits. After ascertaining the particulars of the accused, served S.41(a)(i) Cr.P.C notice to him and that he possessed and selling the

IML bottles without having proper bill or permit, PW.1 arrested the accused. Then,

PW.1 drawn one liquor bottle from the seized property as samples, sealed the same, affixed identity slips duly signed by the mediators and accused under of cover of Special report. Later, he handed over the accused and case record to PW.2 , P & E, Tanuku for further investigation and the same was received and registered the case in

Cr.No.42/2019 U/sec. 34(a) of AP Excise Act, 1968 and Subsequently, he sent the samples to the Regional Proh. & Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment. On receipt of C.E report and after completion of investigation,

Inspector of police, P & E., filed charge sheet.

3.This case was taken on file for the offence under sec. 34(a) of A.P. Excise Act.

4. On appearance of the accused, the case copies were furnished to him as per the section 207 Cr.P.C.

5. Accused was examined under section 239 Cr.P.C. and explaining the substance of charge sheet, for which, he denied the offence. A charge under section 34(a) of A.P.

Excise Act has been framed read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6. In order to prove the case, the prosecution examined P.Ws.1 & 2 and Exs.P1 to

P3 and M.O.1 – Four sample bottles are marked.

7. After closure of the prosecution evidence, accused was examined under section 313 Cr.P.C. with regard to incriminating material appearing against him in the evidence of prosecution, for which, he denied and reported no defence evidence.

8. Heard on both sides.

9. Now the point for determination is:

Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

3

POINT:

10. The learned A.P.P. argued that in order to prove the guilty of the accused, the prosecution examined P.Ws 1 & 2 and that their evidence is consistent, trustworthy and inspires confidence that PW.1 arrested the accused and seized liquor bottles; hence, the accused is liable for Conviction.

11. On the other hand, the learned counsel for the accused argued that the prosecution examined P.Ws.1 & 2 who are excise officials, and no independent witness corroborates their evidence. Further, it is the contention of counsel for the accused that

PWs.1 & 2 did not follow mandatory requirements, while conducting the search and seizure of alleged liquor bottles; further, the prosecution failed to prove the guilt of the accused; hence, the accused is entitled for acquittal.

12. As per version of prosecution, PWs.1 & 2 searched the accused and seized the Indian Made Liquor bottles under the cover of Special Report – Ex.P1 and registered the FIR/Ex.P2 u/s. 34(a) of A.P. Excise Act and sent the samples for opinion and received Ex.P3/Chemical Analyst opinion.

13. PW1 (M.Srinivasa Rao, P & E Sub Inspector, Enforcement, Eluru) stated that on 29.03.2019 at about 6.00 pm, as per the instructions of Asst. Commissioner of P & E(Enforcement), Eluru, he along with Staff LW.2 S.Syed Baji and LW.3 G.Murali

Krishna Rao, P & E Constable, proceeded for detection of Proh. & Excise offences and when they reached near the Gowda Ramalayam temple situated in Satyawada village limits of Undrajavaram mandal, found the accused standing in possession of white mica bag in his right hand. On seeing them, he tried to skulk away from there, on suspicion, he detained him with the assistance of LWs.2 and 3 and enquired him, to which he stated that he is in possession of liquor bottles. On that he deputed LW.2 & 3 to secure 4 mediators, but he could not secure them as none came forward to act as mediators. As such, in the presence of his staff, he verified the bag, found 12 Indian made liquor bottles and the accused confessed that he purchased the said liquor bottles from various liquor shops in Undrajavaram and selling the same for higher rates to get profit. In the presence of his staff, he seized 12 liquor bottles and drawn one bottle out of 12 bottles as sample. Later, LW.2 S.Sayyed Baji prepared Ex.P.1 Special report. Later , he handed over the accused and case property along with connected case record to PW.2

Ch.Devaki, P & E SI, Tanuku.

14. PW.2 (Ch.Devaki, P & E SI of Police, Tanuku) deposed that she received the case record along with Ex.P.1 Special report from PW.1 and the same was registered as a case in Cr.No.42/2019 U/sec. 34(a) of AP Excise Act, 1968 and issued Ex.P.2 FIR.

Later, she served notice u/sec. 41(A) (i) Cr.P.C. to the accused. Subsequently, she sent the samples to the Regional Proh. & Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment and that on receipt of Chemical Analyst report she filed charge sheet.

15. Thus, it is clear that in the absence of independent local inhabitants, the alleged search and seizure was conducted by PW.1 and PW.2. But, it is well settled Law that the search shall be conducted in the presence of local inhabitants of that locality and searching officer shall made sincere efforts to secure mediators by the time of search and seizure of IML Bottles and beer bottles. The presence of independent respectable mediators at a search and seizure is always desirable. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. Sec. 59 of A.P. Excise Act 1968 also says the provisions of Cr.P.C relating to arrests, search etc., shall apply to all actions taken in those aspects under the A.P. Excise

Act also. Therefore the procedure in respect of searches, arrests is the same in Cr.P.C,

A.P. Prohibition Act and in A.P. Excise Act. The excise officials are also authorized to 5 issue an order in writing asking them to act as mediators under Sub-section (4) of

Section 100 Cr.P.C.

16. It is the case of the accused that he is nothing to do with the offence and he never committed any offence and he was falsely implicated in this case.

In “Yedduru Sreenivasul Reddy V. State of A.P reported in ”2002(1) ALD(Crl) 347 wherein their Lordships held at para 14 that: Section 55 of the Act contains valuable safeguards for the liberty of citizen in order to protect them from ill-founded or frivolous prosecution or harassment. Of course, the petitioner did not raise such pleas before the Courts below, but it is for the prosecution to bring on record while charging the accused, that they have followed the procedure contemplated under Section 55 of the Act and 100(4) of the Code. For these reasons, I am satisfied that prosecution has failed to prove that P.Ws. 1& 2 have followed such a procedure.

Consequently, for these lacunae, the search and seizure is vitiated and the conviction is wholly unsustainable. Accordingly, the Criminal Revision Petition is allowed and the conviction and sentence are set aside .”

17. Here in the case on hand also, the evidence of PW.1 and PW.2 do not disclose whether they tried to secure mediators at scene of offense or issued any order in writing asking them to act as mediators under Sub-section (4) of Section 100 Cr.P.C..

As per record, except PW.1 and PW.2, who are excise officials none of the independent witnesses were cited. Thus, PW1 and PW.2 have not followed the procedure laid down in Sec.100(4) of Cr.P.C, while seizing alleged IML bottles. Though it is mandatory procedure u/s 59 of AP Excise Act, the police officer shall follow the procedure under

Cr.P.C., PW1 and PW.2 have not made any attempt to get the local inhabitants or independent persons. Hence, the alleged seizure of liquor bottles in the absence of mediators creates a doubt the case of the prosecution. Hence, it is fatal to the case of the prosecution.

18. In a decision reported in Gurajala Ramesh and others V. State of

A.P, 2003(2) ALD (Crl) 13 (A.P), their Lordships held in Para 17 and 18 that:

'' it is manifest, that, illegality was committed by the same Police Officer, who detected, or, found the offence, or, crime, also giving the F.I.R. recording the statements 6 of the witnesses under Section 161(3), Cr.P.C. 1973, and also otherwise investigating into the crime, and finally filing the charge-sheet, and giving evidence as P.W 1. Hence, the impugned convictions and sentences, as confirmed by the Appellate Court, are unsustainable at Law, and hence, have to be set aside. ''

By applying the above authority to the present set of facts and circumstances and as PW2 herself is the informant and investigating officer, no credence may be given to his version as regards the factual aspects of the case.

19. It may be noted here that it is not the evidence of PWs.1 & 2 that they have seen the accused while he was selling liquor bottles. As per PW.1, basing on confession statement of accused, he arrested the accused. Where the confession is made to the police at the time when the person making the confession is under arrest, is inadmissible in evidence. It is well settled principle under section 26 of Indian Evidence

Act that confession before police is not admissible in evidence and it cannot be considered. Therefore, the alleged confession of accused herein cannot be considered.

If confession of accused is separated from the evidence of PW.1, there is no material on record to show that accused is selling liquor bottles. Merely possessing IML bottles is not an offence. Therefore, offence u/s 34(a) of AP Excise Act, 1968, cannot be leveled against the accused. Thus, the evidence of PW.1- Excise Official, in the absence of mediators is not believable and seizure cannot be said as proved. Hence, benefit of doubt is extended to accused. In view of fore said facts and circumstances of the case and discussion, this court is of the opinion that the prosecution miserably failed to establish the guilty of the accused beyond all reasonable doubt.

20. In the result, accused is found not guilty for the offence punishable U/s 34

(a) Excise Act and he is acquitted U/s 248(1) Cr.P.C. The bail bonds of accused shall 7 be in force for a period of six months from this day as provided u/sec. 437-A Cr.P.C.

Mo.1 – One Sample bottle shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court, this the 27th of June, 2019.

Sd/- N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Appendix of Evidence

Witnesses Examined

Prosecution: Defence : None.

PW.1 : M.Srinivasa Rao, P & E Sub Inspector, Eluru PW.2 : Ch.Devaki, P & E SI, Tanuku //Exhibits marked//

Prosecution: Defence : Nil.

Ex.P.1 : Special report Ex.P.2 : FIR Ex.P.3 : : Chemical analyst report //Material objects marked//

M.O.1 : One sample bottle

Id/- N.M II AJFCM,Tanuku 8

CALENDAR AND JUDGMENT

DISTRICT OF WEST GODAVARI

Calendar case No.378/2019 tried by the II Addl. Judl. Magistrate of I Class, Tanuku. --------------------------------------------------------------------------------------------------

Date of Offence : 29.03.2019 Report : 29.03.2019 Taken on file : 13.05.2019 Apprehension : 29.03.2019 Release on bail : 29.03.2019 Commencement of trial : 25.06.2019 Closure of trial : 25.06.2019 Sentence of Order date : 27.06.2019

Nil Explanation for the delay

Name of the complainant

The State: Station House Officer, Proh. & Excise Station, Tanuku.

NAME OF THE ACCUSED

Meka Satyanarayana, S/o Veeranna, Age 65 years, Caste Gowda, R/o Satyawada village, Undrajavaram Mandal

Crime No. : 42/2019 Offence : Section 31(a) Excise Act, 1968

Finding : Found not guilty

Sentence or Order :

In the result, accused is found not guilty for the offence punishable U/s 34 (a)

Excise Act and he is acquitted U/s. 248(1) Cr.P.C. The bail bond of accused shall be in force for a period of six months from this day as provided u/sec. 437-A Cr.P.C. MO.1 –

One Sample bottle shall be destroyed after expiry of appeal time.

Sd/- N.Mary

II ADDL. JUDL. MAGISTRATE OF I CLASS,

TANUKU

Copy submitted to

The Hon’ble I Addl.Dist. & Sessions Judge, West Godavari, Eluru.

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS:: TANUKU.

Present: Smt. N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Friday, this the 28th day of June, 2019.

Calendar Case No. 387/2019

Between

The State represented by its Station House Officer, Proh. & Excise Station, Tanuku … Complainant. AND

Dude Srinivas, S/o Danayya, age 38 years, Caste Kapu, R/o Tanuku Town, Tanuku mandal … Accused.

This case is coming on 26.06.2019 before me for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri M.Pratap Kumar, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following :

J U D G M E N T

The State: Station House Officer, Prohibition and Excise Station, Tanuku, filed charge sheet against accused in Cr.No.40/2019 for the offence punishable U/Sec.34 (a) of A.P. Excise Act, 1968.

2.The case of the prosecution in nutshell that :

On 27.03.2019 at about 3.15 pm, as per instructions of Asst. Commissioner of

Proh. & Excise (Enforcement), Eluru, Pw.1 and his staff, while detecting the Proh. &

Excise offences, when they reached near the Anjaneyaswamy statue situated in

Gogulamma street of Attili village limits of Attili mandal, found the accused standing in possession of black cover in his right hand. On seeing the police, he tried to skulk away from there. On suspicion, PW.1- detained him and examined him. On examination, the accused confessed that he is in possession of Indian Made Liquor bottles. On verification of the bag, found twelve (12) Indian Made Liquor bottles each 180 Ml., and there were Excise Adhesive Labels on their caps which were containing the label as “ for

Sale of Andhra Pradesh Only' which were Duty paid Indian Made liquor bottles. On 2 enquiry, the accused confessed that he was in possession of liquor bottles in the said bag and selling the same for higher rate for profits. After ascertaining the particulars of the accused, served S.41(a)(i) Cr.P.C notice to him and that he possessed and selling the IML bottles without having proper bill or permit, PW.1 arrested the accused. Then,

PW.1 drawn one liquor bottle from each brand i.e two bottles from the seized property as samples, sealed the same, affixed identity slips duly signed by the mediators and accused under of cover of Special report. Later, PW.1 handed over the accused, case property along with connected case record to the Station House Officer, P & E , Tanuku for further investigation. Later PW.2 received the case property and entire record and the same was registered the case in Cr.No.40/2019 U/sec. 34(a) of AP Excise Act, 1968.

Subsequently, he sent the samples to the Regional Proh. & Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment. On receipt of C.E report and after completion of investigation, Inspector of police, P & E., filed charge sheet.

3.This case was taken on file for the offence under sec. 34(a) of A.P. Excise Act.

4. On appearance of the accused, the case copies were furnished to him as per the section 207 Cr.P.C.

5. Accused was examined under section 239 Cr.P.C. and explaining the substance of charge sheet, for which, he denied the offence. A charge under section 34(a) of A.P.

Excise Act has been framed read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6. In order to prove the case, the prosecution examined P.Ws.1 & 2 and Exs.P1 to

P3 and M.O.1 – two sample bottles are marked.

7. After closure of the prosecution evidence, accused was examined under section 313 Cr.P.C. with regard to incriminating material appearing against him in the evidence of prosecution, for which, he denied and reported no defence evidence.

8. Heard on both sides.

3

9. Now the point for determination is:

Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

POINT:

10. The learned A.P.P. argued that in order to prove the guilty of the accused, the prosecution examined P.Ws 1 & 2 and that their evidence is consistent, trustworthy and inspires confidence that PW.1 arrested the accused and seized liquor bottles; hence, the accused is liable for Conviction.

11. On the other hand, the learned counsel for the accused argued that the prosecution examined P.Ws.1 & 2 who are excise officials, and no independent witness corroborates their evidence. Further, it is the contention of counsel for the accused that

PWs.1 & 2 did not follow mandatory requirements, while conducting the search and seizure of alleged liquor bottles; further, the prosecution failed to prove the guilt of the accused; hence, the accused is entitled for acquittal.

12. As per version of prosecution, PWs.1 & 2 searched the accused and seized the Indian Made Liquor bottles under the cover of Special Report – Ex.P1 and registered the FIR/Ex.P2 u/s. 34(a) of A.P. Excise Act and sent the samples for opinion and received Ex.P3/Chemical Analyst opinion.

13. PW1 (P.Ashok, P & E Sub Inspector, Enforcement, Eluru) stated that on 27.03.2019 at about 3.30 pm, as per the instructions of Asst. Commissioner of P & E

Enforcement, Eluru, he along with LW.2 R.Sai Baba and LW.3 K.Lokeswara Rao , P & E

Constable, proceeded for detection of Proh. & Excise offences and when they reached near the Anjaneyaswamy statue situated in Gogulamma street in Attili Village, found the accused holding black cover in his hand. On seeing them, he tried to skulk away from there, on suspicion, they detained him and enquired him, to which he stated that he is in possession of liquor bottles. On that he deputed LW.2 to secure mediators, but he could 4 not secure them as none came forward to act as mediators. As such, in the presence of his staff, he verified the bag, found twelve bottles each 180 Ml., i.e. Any time Fine

Whisky 180 ml. (6) and Double Fine Whisky (6) and the accused confessed that he purchased the said liquor bottles from various liquor shops and selling the same for higher rates to get profits. Accordingly, he drafted special report/Ex.P.1 and lifted two liquor bottles from the seized property as samples for analysis by chemist. Later, he handed over the accused and case property along with connected case record to PW.2

Smt Ch.Devaki, P & E SI, Tanuku.

14. PW.2 (Ch.Devaki , P & E Sub Inspector of Police, Tanuku) deposed that she received the case record along with Special report from PW.1 and the same was registered as a case in Cr.No.40/2019 U/sec. 34(a) of AP Excise Act, 1968 and issued

Ex.P.2 FIR. Later, she served notice u/sec. 41(A) (i) Cr.P.C. to the accused.

Subsequently, she sent the samples to the Regional Proh.& Excise Laboratory Kakinada for Chemical Analysis under proper acknowledgment and that on receipt of Chemical

Analyst report she filed charge sheet.

15. Thus, it is clear that in the absence of independent local inhabitants, the alleged search and seizure was conducted by PW.1 and PW.2. But, it is well settled Law that the search shall be conducted in the presence of local inhabitants of that locality and searching officer shall made sincere efforts to secure mediators by the time of search and seizure of IML Bottles. The presence of independent respectable mediators at a search and seizure is always desirable. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. Sec.

59 of A.P. Excise Act 1968 also says the provisions of Cr.P.C relating to arrests, search etc., shall apply to all actions taken in those aspects under the A.P. Excise Act also.

Therefore the procedure in respect of searches, arrests is the same in Cr.P.C, A.P.

Prohibition Act and in A.P. Excise Act. The excise officials are also authorized to issue 5 an order in writing asking them to act as mediators under Sub-section (4) of Section 100

Cr.P.C.

16. It is the case of the accused that he is nothing to do with the offence and he never committed any offence and he was falsely implicated in this case.

In “Yedduru Sreenivasul Reddy V. State of A.P reported in ”2002(1) ALD(Crl) 347 wherein their Lordships held at para 14 that: Section 55 of the Act contains valuable safeguards for the liberty of citizen in order to protect them from ill-founded or frivolous prosecution or harassment. Of course, the petitioner did not raise such pleas before the Courts below, but it is for the prosecution to bring on record while charging the accused, that they have followed the procedure contemplated under Section 55 of the Act and 100(4) of the Code. For these reasons, I am satisfied that prosecution has failed to prove that P.Ws. 1& 2 have followed such a procedure.

Consequently, for these lacunae, the search and seizure is vitiated and the conviction is wholly unsustainable. Accordingly, the Criminal Revision Petition is allowed and the conviction and sentence are set aside .”

17. Here in the case on hand also, the evidence of PW.1 and PW.2 do not disclose whether they tried to secure mediators at scene of offense or issued any order in writing asking them to act as mediators under Sub-section (4) of Section 100 Cr.P.C..

As per record, except PW.1 and PW.2, who are excise officials none of the independent witnesses were cited. Thus, PW1 and PW.2 have not followed the procedure laid down in Sec.100(4) of Cr.P.C, while seizing alleged IML bottles. Though it is mandatory procedure u/s 59 of AP Excise Act, the police officer shall follow the procedure under

Cr.P.C., PW1 and PW.2 have not made any attempt to get the local inhabitants or independent persons. Hence, the alleged seizure of liquor bottles in the absence of mediators creates a doubt the case of the prosecution. Hence, it is fatal to the case of the prosecution.

18. In a decision reported in Gurajala Ramesh and others V. State of

A.P, 2003(2) ALD (Crl) 13 (A.P), their Lordships held in Para 17 and 18 that:

'' it is manifest, that, illegality was committed by the same Police Officer, who detected, or, found the offence, or, crime, also giving the F.I.R. recording the statements 6 of the witnesses under Section 161(3), Cr.P.C. 1973, and also otherwise investigating into the crime, and finally filing the charge-sheet, and giving evidence as P.W 1. Hence, the impugned convictions and sentences, as confirmed by the Appellate Court, are unsustainable at Law, and hence, have to be set aside. ''

By applying the above authority to the present set of facts and circumstances and as PW2 herself is the informant and investigating officer, no credence may be given to his version as regards the factual aspects of the case.

19. It may be noted here that it is not the evidence of PWs.1 & 2 that they have seen the accused while he was selling liquor bottles. As per PW.1, basing on confession statement of accused, he arrested the accused. Where the confession is made to the police at the time when the person making the confession is under arrest, is inadmissible in evidence. It is well settled principle under section 26 of Indian Evidence

Act that confession before police is not admissible in evidence and it cannot be considered. Therefore, the alleged confession of accused herein cannot be considered.

If confession of accused is separated from the evidence of PW.1, there is no material on record to show that accused is selling liquor bottles. Merely possessing IML bottles is not an offence. Therefore, offence u/s 34(a) of AP Excise Act, 1968, cannot be leveled against the accused. Thus, the evidence of PW.1- Excise Official, in the absence of mediators is not believable and seizure cannot be said as proved. Hence, benefit of doubt is extended to accused. In view of fore said facts and circumstances of the case and discussion, this court is of the opinion that the prosecution miserably failed to establish the guilty of the accused beyond all reasonable doubt.

20. In the result, accused is found not guilty for the offence punishable U/s 34

(a) Excise Act and he is acquitted U/s 248(1) Cr.P.C. The bail bonds of accused shall 7 be in force for a period of six months from this day as provided u/sec. 437-A Cr.P.C.

Mo.1 – Two Sample bottles shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open court, this the 28th of June, 2019.

Sd/- N.Mary

II Additional Judicial Magistrate of I Class, Tanuku.

Appendix of Evidence

Witnesses Examined

Prosecution: Defence : None.

PW.1 : P.Ashok, P & E SI , Eluru PW.2 : Ch.Devaki, P & E SI, Tanuku //Exhibits marked//

Prosecution: Defence : Nil.

Ex.P.1 : Special report Ex.P.2 : FIR Ex.P.3 : : Chemical analyst report //Material objects marked//

M.O.1 : Two sample bottles

Id/- N.M

II AJFCM,Tanuku 8

CALENDAR AND JUDGMENT

DISTRICT OF WEST GODAVARI

Calendar case No.387/2019 tried by the II Addl. Judl. Magistrate of I Class, Tanuku. --------------------------------------------------------------------------------------------------

Date of Offence : 27.03.2019 Report : 27.03.2019 Taken on file : 13.05.2019 Apprehension : 27.03.2019 Release on bail : 27.03.2019 Commencement of trial : 25.06.2019 Closure of trial : 25.06.2019 Sentence of Order date : 28.06.2019

Nil Explanation for the delay

Name of the complainant

The State: Station House Officer, Proh. & Excise Station, Tanuku.

NAME OF THE ACCUSED

Dude Srinivas, S/o Danayya, age 38 years, Caste Kapu, R/o Tanuku Town, Tanuku mandal

Crime No. : 40/2019 Offence : Section 31(a) Excise Act, 1968

Finding : Found not guilty

Sentence or Order :

In the result, accused is found not guilty for the offence punishable U/s 34 (a)

Excise Act and he is acquitted U/s. 248(1) Cr.P.C. The bail bond of accused shall be in force for a period of six months from this day as provided u/sec. 437-A Cr.P.C. MO.1 –

Two Sample bottles shall be destroyed after expiry of appeal time.

Sd/- N.Mary

II ADDL. JUDL. MAGISTRATE OF I CLASS,

TANUKU

Copy submitted to

The Hon’ble I Addl.Dist. & Sessions Judge, West Godavari, Eluru.