Smt Nalla Usha Lakshmi Kumari

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -

CUM-PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL.

Present:- Smt.N.Usha Lakshmi Kumari

Judicial Magistrate of First Class-Cum- Principal Junior Civil Judge,

Palakol.

Wednesday, this the 12th day of April, 2023.

C.C.No.17/2023

(Cr.No.207/2021 of Special Enforcement Bureau, Palakol PS)

Between:

State Represented by its Sub-Inspector,

Special Enforcement Bureau, Palakol ..... Complainant.

AND

Pitala Bhagath Singh s/o. Chitti Babu, age. 25 years, Caste: SC (Mala)

R/o. Pedapeta, Achanta village and Achanta Mandal ....... Accused.

This case coming on 10.04.2023 for final hearing before me in the presence of Learned A.P.P for State and Sri V.Naga Raju, Learned

Counsel for Accused and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

01.This case arises out of Cr.No.207/2021 of Special

Enforcement Bureau, Prohibition and Excise, Palakol, registered against the accused for the offence under Section 34 (a) of the A.P. Excise (Amendment) Act,2020 on the basis of Ex.P-1 Special Report.

02.L.W.4- Sk.Khasim, the Sub-Inspector, Special Enforcement

Bureau, Palakol, laid the charge sheet against the accused herein under

Section 34 (a) of the A.P. Excise (Amendment) Act, 2020 with the following averments:

On 13-12-2021 at about 6-30 AM, as per the instructions of the

Additional Superintendent of Police, Eluru and Assistant Commissioner,

SEB, Eluru, LW3,LW4, L.W.5 in the presence of L.W.1, L.W.2/mediators 2 and staff conducted raid and reached at the right side road turning of the road leading to Pedapeta opposite to Friday market situated at the left side of Palakol to Achanta road in Achanta village limits of Achanta

Mandal and found the person he was sitting in a maroon color scooter.

On seeing the raid party he became confused and tried to escape from the scene of offence. Inspector, SEB stopped him with the help of staff and asked about the reasons for escape and about the contents of the bag. The accused stated that there are Indian Made Liquor bottles in the bag. Then L.W.3 opened the bag in the presence of mediators and staff and found there arefour liquor bottles in two pockets each pocket having two bottles. Total 4 bottles and verified they are Green Stone Indian premium brandy of 180ml size MRP is 96/- per bottlewith company labels. The EALs on the bottles were scratched the said bottles were Non duty paid liquor and printed as "For Sale in Puducherry state only". L.W.3 explained the grounds that possession and transportation of ID without valid permit of license is offence under A.P.Excise Act and arrested the accused and seized ID liquor. Then after in the presence of the mediators searched the vehicle found 24 (twenty four ) liquor bottles in the under the seat cover i.e, they are (1) Men’s Club Fine Whiskey of 180ml size -2(2) Bombay Deluxe Grape Brandy of 180ml size-22 bottles sealed and affixed identity slips. In the presence of mediators LW3 verified the vehicle that is Maroon color Suzuki Access 125 Registration

No. AP 37 BD 7476, enquired the name and address particulars, on that the accused revealed his name and address as noted above. He also revealed that he purchased the above total (4+24=28) IML bottles from

Yanam wine shop on MRP rate. He revealed his vehicle in his own at presence they have no license copy.

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Basing on the special report LW.3 - S.I registered the report as FIR in Cr.No.207/2021 u/s.34(a) r/w9(1) of AP Excise (Amendment) Act 2020. The samples drawn was sent to chemical examiner, Kakinada through Prohibition and Excise Superintendent, Bhimavaram and received chemical analysis report dt.11-2-2022 opining that the said samples are

Indian Made Liquor. The remaining property confiscated with the orders of Superintendent of Police, Eluru, West Godavari District. The seized vehicle of the Marooon color suzuki Access 125, Reg.No.AP 37 BD 7476 is confiscted to the state of Deputy commissioner of special Enforcement

Bureau, Vijayawada. LW.4/Sk.Khasim resumed the investigation and filed charge sheet before the Court against the accused. Thereby, the accused is liable for punishment under the above Section of law.

03.Cognizance was taken for the offence under Section 34 (a) of the A.P. Excise (Amendment ) Act 2020 against the accused.

04.After furnishing the copies of the relevant documents as contemplated under Section 207 of the Cr.P.C., the accused was examined under Section 239 of the Cr.P.C. and he denied the offence.

Charge under Section 34 (a) r/w 9(1) of the A.P. Excise (Amendment )

Act 2020 has been framed and read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

05. During the course of trial, in order to prove its case, the prosecution examined P.Ws.1 to 3 and marked Exs.P-1 to P-6 and M.O.1 the details of which are mentioned at the appendix of evidence.

06.After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of Cr.P.C., he denied the same and 4 reported no defence evidence. The accused has not adduced either oral or documentary evidence. The Learned APP given up the evidences of

LWs 2/Kodamanchili Padma Rao, VRA and LW5/B.Veerabadra rao, HC,

SEB, Palakol for avoiding contradictions.

07.Heard the learned Assistant Public Prosecutor for the State and the learned Counsel for the accused. Perused the material available on record.

08. Now the point that arise for determination is:

Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 34 (a) of the A.P. Excise

Amendment Act, 2020 beyond all reasonable doubt ?

POINT No.1 :

09.In order to make out an offence under Section 34 (a) of the

A.P. Excise (Amendment) Act, 2020, the prosecution shall prove that an accused is found in importing, exporting, transporting, manufacturing, collecting, or possessing or selling any intoxicant without any license or permit in that regard and the same is seized from his possession as per the procedure laid down under law.

10.It is an admitted fact that the M.O.1 samples is Indian made liquor. That aspect was deposed by P.W’s.1 to P.W.3 and same was not disputed by the accused. The same was supported by recitals in the analysis report in Ex.P-4. Therefore, the prosecution established their case to that extent. But, it is the duty of the prosecution to prove that the M.O.1 is lifted from the property seized from the accused and more particularly the seizure of the property from the accused. In order to prove the same, P.W. stated that he along with PW.3 and with his staff went for conducting patrolling for Excise Offences on 13-12-2021 at about 6-30 AM and reached at the right side road turning of the road 5 leading to Pedapeta opposite to Friday market sitauted at the left side of palakol to Achanta road in Achanta Mandal and found the accused while he was in possession of mica bag containingfour liquor bottles in two pockets each pocket having two bottles. Total 4 bottls and verified they are Green Stone indian premium brandy of 180ml with company labels and the accused revealed his identity, he tried to secure mediators but nobody came forward to act as mediators; and that he arrested the accused after informing him about the grounds of arrest and seized the contraband and later he drew one sample bottle i.e, Green Stone indian premium brandy of 180mlfrom for the purpose of analysis, sealed and labelled the sample bottles under the cover of Ex.P-1 Mediator’s Report drafted by him as none came forward to act as mediators; Then after in the presence of the mediators searched the vehicle found 24(twenty four ) liquor bottles in the under the seat cover i.e, they are (1) Men’s Club

Fine Whiskey of 180ml size -2(2) Bombay Deluxe Grape Brandy of 180ml size-22 bottles sealed and affixed identity slips. In the presence of mediators LW3 verified the vehicle that is Maroon color Suzuki Access 125 Reg.No.AP 37 BD 7476 and that he brought the accused, the case record and the case property to the Special Enforcement Bureau,

Prohibition and Excise Station, Palakol and basing on the mediator’s report, PW.1 registered FIR under Ex.P.2, he sent the sample (M.O.1 ) to the Chemical Examiner, Kakinada, under cover of letter of advice Ex.P-

3. Later the entire record was handed over to LW3/L.Chiranjeevi for further investigation. LW4 resumed investigation and concluded the case that the accused indulged himself in illegal possession of IML with valid permit or license and committed the alleged offence. LW3/L.Chiranjeevi received the chemical analysis report from chemical examiner Kakinada 6 vide CE No.350/2022 dt.11-2-2022 Ex.P4 is the chemical analysis report.

He sent proposal for confiscation of remaining property and obtained confiscation proceedings and is marked as Ex.P5. In the presence of mediators LW3 verified the vehicle that is Maroon color Suzuki Access 125 Reg.No.AP 37 BD 7476. The remaining proprty confiscated with the orders of he Dy.commissioner of SEB,Vijayawada vide RC

No.1300/2022/C dt. 24-5-2022. The seized vehicle of the Maroon color

Suzuki Access 125,Reg.No.AP 37 BD 7476 is confiscated to the state of

Dy.Commissioner of SEB, Vijayawada. After completion of further investigation, PW.3 laid charge sheet before the Court against the accused. P.Ws.2 and 3 also deposed in same lines as that of P.W.1 about the arrest of the accused and seizure of the property.

11. During the course of cross-examination of P.W-1, he deposed that, he received a phone call at 5-45 AM while he was at his house. VRA is also at his house. he informed VRA and gave information. He obtained oral permission from MRO. There are no written instructions from MRO.

His duty timings are 10 AM to 5 PM, at that time when he received phone call he was in duty. He residing at Kommara veedhi, Achanta. He know the accsued is residing at Pedapeta,Achanta but do not know the exact address. He have acquaintance with accused prior to filing of this case.He do not know the avocation of accused. He admitted that, the scene of offence is busy locality. He further deposed that, he cannot say the direction in which the accsued is trying to escape, they all apprehended the accused. Further admitted that, he is not authorized to apprehend the accused. He deposed that, he cannot say the color of the short worn by accused. The head constable drafted the mediators report on his dictation. He was called by the excise officials for drafting the mediators 7 report, but he did not draft the medaitors report. He admitted that he do not know the contents of the Ex.P1/mediators report. He cannot say the names of the companies brand but four bottls from each brand is taken as sample. He further admitted that, he put his signature on the reports without knowing its contents on drafting the reports by some one,he subscribed his signature when someone drafted the mediators report without knowing its contents, on confrontation of identity slips on MO1 there is no signature of accused and he denied the suggestion that he did not go to the scene of offence and no offence took place as deposed by him in his chief.

12. During cross examination of PW2, he deposed that, he received information at 5-30 AM while he was present at his house. They reached scene of offence at 6-30 AM via Achantavemavaram. The distance between the SEB station and scene of offence is nearly 15 kilometers which takes about half an hour. Himself, LW.4/SI of police and

LW5 participated in the raid. At 5-30 AM SI of police, Head constable are not present at station. They did not conduct raid before reaching scene of offence. They picked up the mediators near Achanta and proceeded to scene of offence. He further deposed that the mediators are residents of

Achanta he do not know idea about the distance between

Konapothugunta and Achanta is 1 kilometer. They informed the mediators to stay at Konapothugunta and picked up from there, he do not have idea the time of their pick up. LW.4 /Sk.Khasim drafted the medaitors report on my dictation. Witness adds again LW4 drafted the mediators report on the dictation of mediators. He denied the suggestion that the mediators report do not know how to draft the medaitors report. They reached the Friday market at Pedapeta road. On seeing 8 them four persons ran away except one person. HImself along with his staff apprehended the accused. He further deposed that, he cannot say the colour of the short worn by the accused on the date of alleged offence. He denied the suggestion that the Mos are not manufactured in

Pondichery and does not disclose the same. He did not draw samples from all the seized bottles, there is abnormal delay in sending the sample for chemical analysis. He deposed that he do not know the date when the sample was sent for chemical analysis. They obtained the signatures of

PWs on mediators report at the scene of offence. He obtained the signature of accused on the identity slips affixed on the MOs along with himself, SI of police, and other staff. He admitted that the identity slips are prepared by their department. He obtained the signature of the accused at the scene of offence on the identity slips. He did not go to the house of accused and did not enquire to whom the accused sold the bottles. He did not enquire the source of bottles at pondechery. He do not know the manner of illegal transport. He denied the suggestion that he did not go to the scene of offence and did not arrest the accused did not seize the property and MOS are prepared at police station.He denied the suggestion that this case is falsely implicated against the accused for statistical purpose.

13. PW3 in his cross examination, he deposed that he also participated in the raid. They started at 5-30 AM from SEB station along with PW1,mediators and staff to the scene of offence. He did not mention the names of other staff in the mediators report. The report filed by the mediators report but not special report. He drafted the mediators report on the dictation given by the mediators. He further deposed that he secured the mediators at Konapothugunta, As per him the scene of 9 offence is at Market in Achanta. He admitted that they secured the mediators before one kilometer from the scene of offence, they found one person sitting on the bike at Friday market. He admitted that the

Friday market is busy with several shops and is busy locality. He deposed that they did not examine the local people. The liquor bottles are brought from pondecherry. He denied the suggestion that the seized bottles does not contain the label as pondecherry. His investigation reveals that the accused brought the bottles on his bike. He did not enquire the shops from which the accused purchased the bottles. He did not enquire the hiked price of bottles and to whom he sold. Accused is resident of

Pedapeta of Achanta village. He did not go to the house of accused and did not enquire the neighbours. He examined VRA,VRO. He denied the suggestion that he did not follow the section 100 (4) Cr.PC. He denied the suggestion that he did not go to the scene of offence and he did not draft the mediators report on dictation and that this case is filed for statistical purpose and he filed charge sheet without verification and proper investigation.

14. In view of the above said admissions, it is quite clear that no fruitful efforts taken by the Investigating Officer to secure the presence of mediators for arrest of accused and the seizure of the property.

Furthermore it is evident from the evidence that drafting of mediators report by the prosecution is not according to law.

15. It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a 10 person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether P.W.1 put his efforts to secure the presence of independent mediators, once the case property was alleged to have been found in the possession of the accused. Even otherwise, PWs.1 to 3 are Special Enforcement Bureau

Officials and their evidence manifestly demonstrates that they did not make any sincere efforts to secure the presence of independent mediators albeit it is stated in the evidence before the court that the scene of offence is busy locality. According to the provisions of Section 100 (4) of the Cr.P.C., albeit it was stated in the evidence before the court that the scene of offence is busy locality whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the alleged possession of the accused is not in terms of the provisions of Section 100 (4) of the Cr.P.C albeit it is stated in the evidence by PWs before the court that the scene of offence is busy locality The above all creates suspicion about seizure of the property from the accused.

15. This Court relied upon Judgment reported in [2002 (1) ALT (Crl.) 437 (A.P) between the parties MUDAVATH MOTHIA v. STATE

OF A.P. wherein our Hon'ble High Court of A.P.inter alia held at para-5 as follows:

“Adverting to the same, the offence under Section 34 of the A.P. Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise 11 officials can never say that they are not the police officials. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the BAR under Section 25 and 27 of Indian Evidence Act, and Section 161 of the Cr.P.C. It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt.”

Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3)

ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held held at para- 5 as follows:

"Thus, from the evidence on record, it is clear that the

Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW.1 nor that of PW.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P.1,

Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C. albeit it was stated in the evidence before the court that the scene of offence is busy locality are not followed by the Excise Officials while seizing the plastic can containing I.D.liquor. Therefore, the seizure made in this case is illegal.”

16. In the light of the discussion made herein-above and in view of the aforementioned decisions, non-examination of the independent mediators/ witnesses in this case from the locality where the property is said to have been seized, is fatal to the case of the prosecution.

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17. Further, a perusal of the record shows that the sample was sent to the Chemical Examiner, Kakinada, on 10-1-2022 but as per the evidence on record the alleged offence took place on 13-12-2021, when the alleged sample was drawn and the chemical analysis report Ex.P4 was given on 11-2-2022. Thus, there was a delay of about 69 days in analyzing the sample by the Chemical Examiner, Kakinada for analysis and the said delay was not explained properly and therefore such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1) ALT (Crl.) 32].

18. From the above, it is crystal clear that except the evidence adduced by the Special Enforcement Bureau Officials - PWs.1 to 3, who are very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused was found in possession in two pockets each pocket having two bottles. Total 4 bottles and verified they are

Green Stone indian premium brandy of 180ml Then after in the presence of the mediators searched the vehicle found 24(twenty four ) liquor bottles in the under the seat cover i.e, they are (1) Men’s Club Fine

Whiskey of 180ml size -2(2) Bombay Deluxe Grape Brandy of 180ml size-22 bottles sealed and affixed identity slips at the scene of offence is highly doubtful in as much as the evidence of Special Enforcement

Bureau, prohibition and Excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on 13 mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt.

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

19. In the result, the accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O1 shall be destroyed after appeal time is over.

Typed to my dictation directly on the computer by the Personal Assistant Grade-III, corrected and pronounced by me in open court on this the 12th day of April, 2023.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For defence :

P.W.1 : K.Raja Babu - N O N E -

P.W.2 : L.Chiranjeevi

P.W.3 : Sk.Khasim 14

DOCUMENTS MARKED

For Prosecution:

Ex.P-1 : Mediator’s Report.

Ex.P-2 : F.I.R

Ex.P-3 : Letter of Advice.

Ex.P-4 : Laboratory Analysis report.

Ex.P-5 : Confiscation Proceedings

Ex.P-6 : Confiscation Orders

For Defence :- Nil-.

MATERIAL OBJECTS MARKED

M.O.1 : Four sample bottles drawn from each brand i.e, Green Stone Indian Premium Brandy, Men’s Club Fine Whiskey of 180ml,Bombay Deluxe Grape brandy of 180ml and labelless liquor bottle of 180ml.

J.F.C.M-Cum- PJCJ Palakol 15

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-CUM-

PRINCIPAL JUNIOR CIVIL JUDGE : : PALAKOL

C.C.No.17/2023

(Cr.No.207/2021 of Special Enforcement Bureau, Palakol)

Date of Offence : 13-12-2021

Date of Complaint : 13-12-2021

Apprehension of accused : 13-12-2021

Remand period of accused : 13-12-2021 to 17-12-2021

Release on bail : 17-12-2021

Commencement of trial : 31-01-2023

Close of trial : 03-03-2023

Sentence or order : 12-04-2023

Explanation for delay : No Delay

Name of the Complainant : The state represented by its Inspector, Special Enforcement Bureau, Palakol

Name of the accused : Pitala Bhagath Singh s/o. Chitti Babu, age. 25 years, R/o. Pedapeta, Achanta village Achanta Mandal

Offence : U/s 34 (a) r/w 9(i) of A.P. Excise (Amendment) Act 2020

Finding : Not Guilty.

Sentence or Order :

In the result, the accused is found not guilty for the offence punishable under Section U/s 34 (a) r/w 9(i) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 shall be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

Copy submitted to the Hon’ble Ist Additional District Judge, Eluru, West Godavari, for favour of information.

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

CUM-PRINCIPAL JUNIOR CIVIL JUDGE, PALAKOL.

Present : Smt.N.Usha Lakshmi Kumari,

Judicial Magistrate of the First Class –cum- PJCJ,Palakol.

Wednesday, this the 12th day of April, 2023.

C.C.No. 15 OF 2023

Between State represented by Its Inspector, Special Enforcement Bureau, Palakol. …Complainant

And

Arupalli Manikanta s/o. Mangarao, age. 31 years, Caste: Gowda, Achanta village and Mandal …Accused.

This case is coming on for final hearing before me on 10-4-2023 in the presence of the Assistant Public Prosecutor for the State and Sri P.Durgarao, Advocate for accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This case arises out of Crime No.47/2022 of Special Enforcement

Bureau, Palakol P.S., registered a case against the accused for the offence under

Section 7(B) r/w 8(B) of the A.P. Prohibition(Amendment) Act,2020 on the basis of Mediators report.

2.L.W.4- Sk.Khasim, Sub-Inspector, Special Enforcement Bureau,

Palakol laid the charge sheet against the accused herein under Section 7(B) r/w 8(B) of A.P. Prohibition (Amendment)Act-2020 with the following averments:

3. On 26-04-2022 at about 6-00 PM., as per the instructions of the

Additional Superintendent of police, Bhimavaram and Assistant Enforcement

Superintendent, SEB, Bhimavaram during the raid conducted by

LW3/L.Chiranjeevi, CI, SEB, Palakol along with LW4, LW.5 and other staff proceeded to Achanta village and Mandal conduct patrolling for Prohibition and excise offences and at the road margin on the eastern side of Nakkala Kaluva

Bridge on Marteru road in Achanta village and found one person coming towards them with a Hero Glamour Motor cycle one white color gunny bag handling in the vehicle. On seeing the raid party with uniform he became confused and tried to escape from the scene of offence. On suspicion LW3 detained the person along with gunny bag with the help of staff and questioned about the reasons for 2 escape and about the contents of the bag. On examination the white color gunny bag was found with two liters capacity plastic bottle with full of ID liquor.

The accused revealed his identity particulars and also revealed that he purchased the ID liquor from unknown person at Eleseru village of East Godavari for lower price to sell the same at higher price at his house for his family maintenance. In the presence of the mediators verified the vehicle i.e, Blue color Hero Glamour

Motor cycle Reg.No.AP 37 BX 8772, on enquiry he revealed the vehicle is in his own without any license and LW3/L.Chiranjeevi, Circle Inspector, SEB, Palakol arrested the accused after explaining the grounds of arrest that manufacturing, possession and selling of ID liquor is offence under sec.7(B) r/w 8(B) of AP

Prohibition(Amendment) Act,2020, seized the case property and drawn 300 ml of

ID liquor as sample under the cover of mediators report to send for chemical analysis. LW.3 returned to the station along with the case file, accused, property and basing on the same registered the case in Cr.No.47/2022 punishable under sec. 7(B) r/w 8(B) of AP Prohibition (Amendment) Act, 2020 and sent him to judicial remand. LW4/Sk.Khasim, SI, SEB,Palakol sent the sample to the chemical examiner, Kakinada through Assistant prohibition and Excise superintendent ,

Bhimavaram and received laboratory analysis report vide C.E.No.1508/2022 dt.29-6-2022 and opined that the sample is “illicitly distilled liquor unfit for human consumption and injurious to health. The seized vehicle is confiscated to the state of Deputy commissioner of SEB, vijayawada, Krishna District and the remaining property destroyed on the orders of the Deputy commissioner, SEB,

Vijayawada. After completion of further investigation, LW4 laid charge sheet

before the Court against the accused. Thereby, he is liable for punishment under

the above Section of law.

4.Cognizance was taken for the offence under Section 7(B) r/w 8(B) of the A.P. Prohibition (Amendment) Act, 2020 against the accused.

5.After furnishing the copies of the relevant documents as contemplated under Section 207 of the Cr.P.C., accused was examined under

Section 239 of Cr.P.C. and he denied the offence. Charge under Sections 7(B) r/w 8(B) of the A.P. Prohibition (Amendment) Act, 2020 was framed and read 3 over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6.During the course of trial, in order to prove its case, the prosecution examined PWs.1 to 3 and marked Exs.P.1 to P.6 and M.O.1, the details of which are mentioned at the appendix of evidence. The learned APP given up the evidence of LW.2/K.Padma Rao/VRA and LW5/B.Veerabhadrarao, HC, SEB,

Palakol to avoid contradictions.

7. PW.1, who is the VRO accompanied PW2, deposed about his presence at the scene of offence, P.W.2, who is the Investigation officer deposed about the facts of raid, apprehension of the accused, seizure of property from the possession of accused, registration of crime, sending sample to chemical examiner, receipt of analysis report. P.W.3, corroborated PW.2 with regard to the facts, concluding of investigation and filling of charge sheet before the Hon’ble court.

8.After closure of the evidence on the side of the prosecution, when accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of the Cr.P.C., he denied the same and reported no defence evidence.

9.Heard the learned Assistant Public Prosecutor for the State and the learned counsel for the accused. Perused the material available on record.

10.The learned APP contended that the evidence on record clearly proves the guilt of the accused for the offence with which he is charged and that the accused may be convicted and sentenced accordingly.

11.Per contra, the learned counsel for the accused submitted that the accused did not commit any offence as alleged and that he was brought from his house and this case was foisted falsely against him for statistical purpose. He further submitted that no independent witnesses were examined in this case and thus the so-called seizure is against the provisions of Section 100(4) of the

Cr.P.C. He thus, prayed that the accused is entitled to acquittal.

12. Now the points that arise for determination are as follows:

1) Whether the accused is found in possession of one white color mica gunny bag with two liters of ID Liquor in one plastic bottle?

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2) Whether the said container is seized from the possession of accused at the scene of offence as per the procedure laid down under law ?

3) Whether the prosecution has proved the guilt of accused for the offence punishable under Section 7(B) r/w 8(B) of the A.P. Prohibition (Amendment) Act, 2020 beyond all reasonable doubt ?

13. POINT NOs.1 To 3:

In order to make out an offence under Sections 7(B) r/w 8(B) of A.P.

Prohibition (Amendment)Act,2020, the prosecution shall prove that an accused is found in manufacturing, possession, storing, collecting, purchasing, selling or transporting illicitly distilled liquor and the same is seized from their possession as per the procedure laid down under law.

14.It is admitted fact that the M.O.1 sample bottle is illicitly distilled liquor and unfit for human consumption and injurious to health. That aspect was deposed by PW.2 and same was not disputed by the accused. The same was supported by recitals in the laboratory analysis report in Ex.P4. Therefore, the prosecution established their case to that extent. But, it is the duty of the prosecution to prove that the M.O.1 sample is lifted from the property seized from the accused and more particularly the seizure of the property from the accused. In order to prove the same, PW.1 stated that he along with PW.2, P.W.3 went for conducting patrolling for Prohibition and Excise Offences on 26-04-2022 at about 6-00 PM reached at the road margin on the eastern side of Nakkala

Kaluva bridge on Marteru road in Achanta vilalge and Mandal and they found accused while he was in possession of one plastic bottle i.e, two liters capacity of plastic bottle contains 2 liters of ID liquor ; and P.W.2 on examination, the accused revealed his identity, and that he arrested the accused after informing him about the grounds of arrest and drawn 300 ml of ID liquor from seized property of two liters ID liquor as sample for the purpose of analysis, sealed and labelled the sample bottle under the cover of Ex.P.1/Mediator’s report drafted by

P.W.3; and that he brought the accused, the case record and the case property to the Special Enforcement Bureau Palakol Station and basing on Ex.P.1-

Mediator's Report, he registered a case in Cr.No.47/2022 against the accused under Section 7(B) r/w 8(B) of the A.P. Prohibition(Amendment) Act,2020 and 5 issued Ex.P.2-FIR, submitted to the Hon’ble Court, copies to the concerned, produced the accused before the Hon’ble court for judicial remand and he sent the sample (M.O.1) to the Chemical Examiner, Kakinada vide Ex.P3/letter of advice and after receipt of Ex.P.4/Analysis Report. Ex.P5/ Confiscation proceedings of remaining seized property, Ex.P6/ Confiscation orders for the seized vehicle. PW3, after completion of investigation, he laid the charge sheet

before the Court against the accused.

15.During the course of cross-examination of PW.1, deposed that he took written permission from MRO and he did not file the same before the court.

Except his oral evidence there is no documentary proof to show that he obtained written permission from MRO, the mediators report is drafted at the scene of offence. He admitted that, the scene of offence is not having residential houses.

They seized the mica hand bag. He further deposed that, he can say the boundaries of the scene of offence, he prepared the rough sketch. At first instance, he signed followed by VRA, SI of police, CI and Head constable finally the accused on the mediators report. The bottle in which MO1 is drawn was brought by the department officers and 300 ml is drawn as sample. He admitted that the MO1 bottle is having the capacity of 250 ml but not 300 ml. He do not know about the seized bottles. He denied the suggestion that he did not go to the scene of offence and signed on the mediators report at the police station and that he is deposing false at the instance of Excise police.

16.During the course of cross-examination of PW.2, he deposed that, he did not obtain the written permission from concerned authorities to request the VRA, VRO to act as mediators. He did not produce the hand bag and seized bottles before the court. The mediators report is drafted towards nakkalakaluva.

LW.4/P.W.3/SI of police drafted the mediators report on his dictation. He did not file the photographs with regard to the destruction of seized bottles. On the next date of alleged offence, the sample is sent for chemical analysis. He denied the suggestion that this case is falsely implicated against the accused for statistical purpose.

6

17. During the cross examination of P.W.3, he admitted that the mediators report is drafted by the mediators and the report drafted by SEB officials is special report. He drafted the mediators report on the dictation of the mediators.

18. In view of the above said admissions, it is quite clear that no fruitful effort taken by the investigation of officer to secure the presence of mediators for arrest of accused and the seizure of the property and also conducted table investigation in this case.

19.It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether really

P.W.3 drafted the mediators report, further P.W.1/VRO is accompanied with

P.W.2 and 3, there is no plausible explanation for not drafting the mediators report by P.W.1, being the mediator is highly doubtful about the presence of mediator at the scene of offence. The officials did not put their efforts to secure the presence of independent mediators once the case property was alleged to have been found in the possession of the accused. Even otherwise, PWs.2 and 3 are Police Officials and their evidence manifestly demonstrates that they did not make any sincere efforts to secure the presence of independent mediators according to the provisions of Section 100(4) of the Cr.P.C.,.Whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the alleged possession of the accused is not in accordance with the provisions of

Section 100(4) of the Cr.P.C. The above all creates suspicion about seizure of the property from the accused. PW.2 did not mention the names of other staff members who proceeded to scene of offence and did not mention the same in his mediators report. This shows that PW.2 conducted table investigation and PW.3 7 filed charge sheet without verification cannot be ruled out as argued by the learned counsel for the accused.

20.This Court relied upon Judgment reported in [2002 (1) ALT (Crl.) 437 (A.P) between the parties MUDAVATH MOTHIA v. STATE OF A.P.

wherein our Hon'ble High Court of A.P. inter alia held at para-5 as follows:

“Adverting to the same, the offence under Section 34 of the A.P.

Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. The non-examination of independent mediators is fatal to the prosecution version, The seizure proceedings drafted also cannot be considered in view of the BAR under Section 25 and 27 of Indian Evidence

Act, and Section 161 of the Cr.P.C. It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt.”

21.Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3)

ALT (Crl.) 1 (AP)],our Hon'ble High Court inter alia held at para-5 as follows:

"Thus, from the evidence on record, it is clear that the Excise

Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW.1 nor that of PW.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P.1,

Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality.

Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D.liquor. Therefore, the seizure made in this case is illegal.”

22.In the light of the discussion made herein-above and in view of the aforementioned decisions, non-examination of the independent mediators/ witnesses in this case from the locality where the property is said to have been seized, is fatal to the case of the prosecution.

8

23.Further, a perusal of the record shows that the sample was sent to the Chemical Examiner, Kakinada, on 07-05-2022 but as per the evidence on record the alleged offence took place on 26-04-2022, when the alleged sample was drawn and the chemical analysis report Ex.P4 was given on 29-06-2022.

Thus, there was a delay of about 64 days in analyzing the sample by the

Chemical Examiner, Kakinada for analysis and the said delay was not explained properly and therefore such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P.

[2010 (1) ALT (Crl.) 32].

24. From the above, it is crystal clear that except the evidence adduced by the Police Officials -PWs.2 and 3 and PW.1 is the mediator, who are very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that accused was found in possession of one white color gunny bag which contains one plastic bottle i.e, 2 liters capacity full of ID liquor was seized from the possession of the accused and drawing sample of 300 ml of ID liquor at the scene of offence is highly doubtful in as much as the evidence of police official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt.

Consequently, Point Nos.1 to 3 are answered accordingly in favour of the accused and against the prosecution.

25.In the result, the accused is found not guilty for the offence punishable under Section 7(B) r/w 8(B) of the A.P. Prohibition (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence.

The surety and accused are present and complied Section 437-A Cr.P.C. The 9 bonds executed by the accused and surety shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court, if an appeal is preferred. M.O.1 sample bottles shall be destroyed after appeal time is over.

Typed to my dictation directly on the computer by the Gr.III Stenographer, corrected and pronounced by me in the open court, on this the 12thday of April,2023.

JUDICIAL MAGISTRATE OF THE FIRST CLASS,

CUM-P.J.C.J, PALAKOL.

Appendix of Evidence

Witnesses Examined

For Prosecution For Defence

P.W.1 : K.Raja Babu P.W.2: L.Chiranjeevi

P.W32: Sk.Khasim None

Exhibits Marked

For Prosecution For Defence

Ex.P.1 : Mediator's report Ex.P.2 : FIR

Ex.P.3 : Letter of Advice Ex.P.4 : Laboratory report

Ex.P-5 : Confiscation proceedings

Ex.P-6 : Confiscation orders NIL

Material Objects Marked

M.O.1 is the sample bottle contains 300ml of ID liquor

JUDICIAL MAGISTRATE OF THE FIRST CLASS,

PALAKOL.

10

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

CUM- PRL.JUNIOR CIVIL JUDGE, PALAKOL.

JUDGMENT & CALENDAR :: WEST GODAVARI

C.C.No. 15 OF 2023

Date of Offence : 26-04-2022

Complaint : 26-04-2022

Apprehension of accused : 27-04-2022

Remand : 27-04-2022 to 29-04-2022

Released On bail : 29-04-2022

Commencement of trial : 31-01-2023

Close of Trial : 03-03-2023

Sentence or order : 12-04-2023

Explanation for delay : ---

Name of the Complainant : State represented by Its Inspector, SEB, Palakol

Name of the accused : Arupalli Manikanta s/o. Mangarao, age.31 years, Caste: Gowda, Achanta village and Mandal

Offence : U/Sec.7(B) r/w 8(B) of A.P. Prohibition (Amendment) Act, 2020. Finding : Found not guilty.

Sentence or Order

In the result, the accused is found not guilty for the offence punishable under Section 7(B) r/w 8(B) of the A.P. Prohibition (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The surety and accused are present and complied Section 437-A Cr.P.C. The bonds executed by the accused and surety shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court, if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF THE FIRST CLASS,

Cum- P.J.C.J, PALAKOL.

Copy submitted to the Hon’ble I Addl.District & Sessions Judge,West Godavari, Eluru for favour of information.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -

CUM-PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL.

Present:- Smt.N.Usha Lakshmi Kumari

Judicial Magistrate of First Class-Cum- Principal Junior Civil Judge,

Palakol.

Tuesday, this the 11th day of April, 2023.

C.C.No.49/2023

(Cr.No.74/2022 of Special Enforcement Bureau, Palakol PS)

Between:

State Represented by its Inspector,

Special Enforcement Bureau, Palakol ..... Complainant.

AND

Pasyavula Venkat Narayana, s/o. Thirupathayya, age. 47 years, C/o. Kapu, R/o. 12th ward,

Palakol town and Mandal ....... Accused.

This case coming on 10-04-2023 for final hearing before me in the presence of Learned A.P.P for State and Sri V.Ananda Raju and Sri

K.Winston Babu, Learned Counsels for Accused and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

01.This case arises out of Cr.No.74/2022 of Special Enforcement

Bureau, Prohibition and Excise, Palakol, registered against the accused for the offence under Section 34 (a) of the A.P. Excise (Amendment)

Act,2020 on the basis of Ex.P-1 Special Report.

02.L.W.3-L.Chiranjeevi, the Circle-Inspector, Special

Enforcement Bureau, Palakol, laid the charge sheet against the accused herein under Section 34 (a) of the A.P. Excise (Amendment) Act, 2020 with the following averments:

On 10-10-2022 at about 6-00 AM as per the instructions of the

Additional Superintendent of Police, Bhimavaram and Assistant

Enforcement superintendent of SEB, Bhimavaram, LW1 along with LW2 2 and staff conducted raid and reached at the left side road margin opposite to Erravanthena situated at the left side of Marteru road in

Palakol town limits of Palakol Mandal found one person having white mica hand bag and tried to escape from the scene of offence. LW.1 detained the accused with the help of staff and asked about the reasons for escape and about the contents of the bag. The accused stated that there are Indian Made Liquor bottles in the bag and also revealed that he purchased the said liquor bottles from Palakol GROs in Palakol town in Palakol Mandal @ two bottles at once to sell in his house higher prices for profit. LW.1 tried to secure mediators but nobody came forward. Then he examined the bag in the presence of staff and found there are 7 bottles of HD Heart’s Desire whiskey of 180ml size with company labels. The EALs on the bottles were scratched the said bottles were Non duty paid liquor and printed as "For Sale in AP state only". The S.I explained the grounds that possession and transportation of IML without valid permit of license is offence under A.P.Excise Act and arrested the accused and seized IML bottles sealed and affixed identity slips.

Basing on the special report LW1 - S.I registered the report as FIR in Cr.No.74/2022 u/s.34(a) of AP Excise (Amendment) Act 2020. The samples drawn was sent to chemical examiner, Kakinada through

Prohibition and Excise Superintendent, Bhimavaram and received chemical analysis report dt.3-12-2022 opining that the said samples are

Indian Made Liquor. The remaining property confiscated with the orders of Superintendent of Police, Eluru, West Godavari District.

LW.3/L.Chiranjeevi resumed the investigation and filed charge sheet

before the Court against the accused. Thereby, the accused is liable for

punishment under the above Section of law.

3

03.Cognizance was taken for the offence under Section 34 (a) of the A.P. Excise (Amendment ) Act 2020 against the accused.

04.After furnishing the copies of the relevant documents as contemplated under Section 207 of the Cr.P.C., the accused was examined under Section 239 of the Cr.P.C. and he denied the offence.

Charge under Section 34 (a) of the A.P. Excise (Amendment ) Act 2020 has been framed and read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

05.During the course of trial, in order to prove its case, the prosecution examined P.Ws.1 to 3 and marked Exs.P-1 to P-5 and M.O.1 the details of which are mentioned at the appendix of evidence.

06.After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of Cr.P.C., he denied the same and reported no defence evidence. The accused has not adduced either oral or documentary evidence.

07.Heard the learned Assistant Public Prosecutor for the State and the learned Counsel for the accused. Perused the material available on record.

08. Now the point that arise for determination is:

Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 34 (a) of the A.P. Excise Amendment

Act, 2020 beyond all reasonable doubt ?

POINT No.1 :

09.In order to make out an offence under Section 34 (a) of the

A.P. Excise (Amendment) Act, 2020, the prosecution shall prove that an 4 accused is found in importing, exporting, transporting, manufacturing, collecting, or possessing or selling any intoxicant without any license or permit in that regard and the same is seized from his possession as per the procedure laid down under law.

10.It is an admitted fact that the M.O.1 sample is Indian made liquor. That aspect was deposed by P.W.’s.1 to P.W.3 and same was not disputed by the accused. The same was supported by recitals in the analysis report in Ex.P-4. Therefore, the prosecution established their case to that extent. But, it is the duty of the prosecution to prove that the M.O.1 is lifted from the property seized from the accused and more particularly the seizure of the property from the accused. In order to prove the same, P.W.2 stated that he along with PW.3 and with his staff went for conducting patrolling for Excise Offences on 10-10-2022 at about 6-00 AM and reached at the left side road margin opposite to

Erravanthena situated at the left side of Marteru road in Palakol town limits of Palakol Mandal found one person having white mica hand bag, and it containing 7 IML bottles of HD Heart’s Desire whiskey of 180ml with company labels and the accused revealed his identity, he tried to secure mediators but nobody came forward to act as mediators; and that he arrested the accused after informing him about the grounds of arrest and seized the contraband and later he drew one sample bottle i.e, HD Heart’s Desire whiskey of 180ml from for the purpose of analysis, sealed and labelled the sample bottles under the cover of Ex.P-1

Special Report drafted by him as none came forward to act as mediators; sealed and affixed identity slips and that he brought the accused, the case record and the case property to the Special Enforcement Bureau,

Prohibition and Excise Station, Palakol and basing on the special report, 5

PW.1 registered FIR under Ex.P.2, he sent the sample (M.O.1 ) to the

Chemical Examiner, Kakinada, under cover of letter of advice Ex.P-3.

Later the entire record was handed over to PW.3, received the chemical analysis report from chemical examiner Kakinada vide Ex.P4/ chemical analysis report. He sent proposal for confiscation of remaining property and obtained confiscation proceedings and is marked as Ex.P5 for confiscation of the remaining seized property. After completion of further investigation, PW.3 laid charge sheet before the Court against the accused. P.Ws.2 and 3 also deposed in same lines as that of P.W.1 about the arrest of the accused and seizure of the property.

11.During the course of cross-examination of P.Ws-1 and 2, they deposed that, PW1 drafted the special report. They apprehended the accused while he was coming to Marteru. They admitted that, the scene of offence is busy locality. PW1 deputed PW2 for search of mediators but he came back stating that none were available. They further admitted that, there is government wine shop at a parlong distance from

Erravanthena, the MO is easily available in the Government wine shops.

They deposed that, no one is present along with accused when they reached the scene of offence. PW1 did not show the persons at local vicinity as witnesses. They denied the suggestion that they did not go to the scene of offence and did not arrest the accused and did not seize the bottles from the accused and this case is falsely implicated against the accused for statistical purpose.

12. During cross examination of PW.3, he deposed that he did not go to the scene of offence. He admitted that as per the investigation done by P.W.1 and basing on the record and basing on chemical analysis report he filed charge sheet. He did not re-examine PWs 1 and 2 before 6 the filing of charge sheet. He denied the suggestion that he filed the charge sheet without proper verification.

13. In view of the above said admissions, it is quite clear that no fruitful efforts taken by the Investigating Officer to secure the presence of mediators for arrest of accused and the seizure of the property.

Furthermore it is evident from the evidence that drafting of special report by P.W.1 is not according to law.

14.It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether P.W.1 put his efforts to secure the presence of independent mediators, once the case property was alleged to have been found in the possession of the accused. Even otherwise, PWs.1 to 3 are Special Enforcement Bureau

Officials and their evidence manifestly demonstrates that they did not make any sincere efforts to secure the presence of independent mediators albeit it is stated in the evidence before the court that the scene of offence is busy locality. According to the provisions of Section 100 (4) of the Cr.P.C., albeit it was stated in the evidence before the court that the scene of offence is busy locality whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the alleged possession of the accused is not in terms of the 7 provisions of Section 100 (4) of the Cr.P.C albeit it is stated in the evidence by PWs before the court that the scene of offence is busy locality. The above all creates suspicion about seizure of the property from the accused.

15. This Court relied upon Judgment reported in [2002 (1) ALT (Crl.) 437 (A.P) between the parties MUDAVATH MOTHIA v. STATE

OF A.P. wherein our Hon'ble High Court of A.P.inter alia held at para-5 as follows:

“Adverting to the same, the offence under Section 34 of the A.P. Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the BAR under Section 25 and 27 of Indian Evidence Act, and Section 161 of the Cr.P.C. It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt.”

Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3)

ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held held at para- 5 as follows:

"Thus, from the evidence on record, it is clear that the

Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW.1 nor that of PW.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P.1, 8

Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C. albeit it was stated in the evidence before the court that the scene of offence is busy locality are not followed by the Excise Officials while seizing the plastic can containing I.D.liquor. Therefore, the seizure made in this case is illegal.”

16.In the light of the discussion made herein-above and in view of the aforementioned decisions, non-examination of the independent mediators/ witnesses in this case from the locality where the property is said to have been seized, is fatal to the case of the prosecution.

17.Further, a perusal of the record shows that the sample was sent to the Chemical Examiner, Kakinada, on 02-11-2022 but as per the evidence on record the alleged offence took place on 10-10-2022, when the alleged sample was drawn and the chemical analysis report

Ex.P4 was given on 03-12-2022. Thus, there was a delay of about 54 days in analyzing the sample by the Chemical Examiner, Kakinada for analysis and the said delay was not explained properly and therefore such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1)

ALT (Crl.) 32].

18.From the above, it is crystal clear that except the evidence adduced by the Special Enforcement Bureau Officials - PWs.1 to 3, who are very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused was found in possession of accused i.e, 7 9 bottles of HD Heart’s Desire whiskey of 180ml, sealed and affixed identity slips at the scene of offence is highly doubtful in as much as the evidence of Special Enforcement Bureau, prohibition and Excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently, Point is accordingly answered in favour of the accused and against the prosecution.

19.In the result, the accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1shall be destroyed after appeal time is over.

Typed to my dictation directly on the computer by the Personal Assistant Grade-III, corrected and pronounced by me in open court on this the 11th day of April, 2023.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For defence :

P.W.1 : Sk.Khasim - N O N E -

P.W.2 : B.Veerabhadrarao

P.W.3 : L.Chiranjeevi

DOCUMENTS MARKED

For Prosecution:

Ex.P-1 : Special Report.

Ex.P-2 : F.I.R

Ex.P-3 : Letter of Advice.

Ex.P-4 : Laboratory Analysis report.

Ex.P-5 : Confiscation Proceedings

For Defence :- Nil-.

MATERIAL OBJECTS MARKED

M.O.1 : One sample bottle of HD Heart’s Desire whiskey of 180ml

J.F.C.M-Cum- PJCJ Palakol 11

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-CUM-

PRINCIPAL JUNIOR CIVIL JUDGE : : PALAKOL

C.C.No.49/2023

(Cr.No.74/2022 of Special Enforcement Bureau, Palakol)

Date of Offence : 10-10-2022

Date of Complaint : 10-10-2022

Apprehension of accused : 10-10-2022

Remand period of accused : 10-10-2022 to 22-10-2022

Release on bail : 22-10-2022

Commencement of trial : 03-03-2023

Close of trial : 03-03-2023

Sentence or order : 11-04-2023

Explanation for delay : No Delay

Name of the Complainant : The Circle Inspector, Special Enforcement Bureau, Palakol

Name of the accused : Pasyavula Venkat Narayana, s/o. Thirupathayya, age. 47 years, C/o. Kapu, R/o. 12th ward, Palakol town and Mandal

Offence : U/s 34 (a) of A.P. Excise (Amendment) Act 2020

Finding : Not Guilty.

Sentence or Order :

In the result, the accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1shall be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

Copy submitted to the Hon’ble Ist Additional District Judge, Eluru, West Godavari, for favour of information.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -

CUM-PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL.

Present:- Smt.N.Usha Lakshmi Kumari

Judicial Magistrate of First Class-Cum- Principal Junior Civil Judge,

Palakol.

Tuesday, this the 11th day of April, 2023.

C.C.No.50/2023

(Cr.No.73/2022 of Special Enforcement Bureau, Palakol PS)

Between:

State Represented by its Inspector,

Special Enforcement Bureau, Palakol ..... Complainant.

AND

Muramulla Bhaskar Rao, s/o. Krishna, Age. 41 years, C/o. Golla, R/o. L.R.Peta,

Palakol town and Mandal ....... Accused.

This case coming on 10-04-2023 for final hearing before me in the presence of Learned A.P.P for State and Sri P.Durgarao, Learned Counsel

for Accused and having stood over for consideration till this day, this

Court delivered the following:

J U D G M E N T

01.This case arises out of Cr.No.73/2022 of Special Enforcement

Bureau, Prohibition and Excise, Palakol, registered against the accused for the offence under Section 34 (a) of the A.P. Excise (Amendment)

Act,2020 on the basis of Ex.P-1 Special Report.

02.L.W.3-L.Chiranjeevi, the Circle-Inspector, Special

Enforcement Bureau, Palakol, laid the charge sheet against the accused herein under Section 34 (a) of the A.P. Excise (Amendment) Act, 2020 with the following averments:

On 03-10-2022 at about 6-00 AM as per the instructions of the

Additional Superintendent of Police, Bhimavaram and Assistant

Enforcement superintendent of SEB, Bhimavaram, LW1 along with LW2 2 and staff conducted raid and reached at the left side road margin towards railway track at the beginning of the road leading from railway gate to

Palakol railway station in Palakol town limits of Palakol Mandal found three persons one person having white mica hand bag and tried to escape from the scene of offence. Circle-Inspector,SEB detained one person with the help of staff and asked about the reasons for escape and about the contents of the bag. The accused stated that there are Indian

Made Liquor bottles in the bag and also revealed that he purchased the said liquor bottles from Palakol town GRO’s in Palakol Mandal @ two bottls at once and the bottles sold in his house higher prices for profit.

LW.1 tried to secure mediators but nobody came forward. Then he examined the bag in the presence of staff and found there are 10 bottles of HD Heart’s Desire whiskey of 180ml size with company labels. The EALs on the bottles were scratched the said bottles were Non duty paid liquor and printed as "For Sale in AP state only". The S.I explained the grounds that possession and transportation of IML without valid permit of license is offence under A.P.Excise Act and arrested the accused and seized IML bottles sealed and affixed identity slips.

Basing on the special report LW1 - S.I registered the report as FIR in Cr.No.73/2022 u/s.34(a) of AP Excise (Amendment) Act 2020. The samples drawn was sent to chemical examiner, Kakinada through

Prohibition and Excise Superintendent, Bhimavaram and received chemical analysis report dt.3-12-2022 opining that the said samples are

Indian Made Liquor. The remaining property confiscated with the orders of Superintendent of Police, Eluru, West Godavari District.

LW.3/L.Chiranjeevi resumed the investigation and filed charge sheet 3

before the Court against the accused. Thereby, the accused is liable for

punishment under the above Section of law.

03.Cognizance was taken for the offence under Section 34 (a) of the A.P. Excise (Amendment ) Act 2020 against the accused.

04.After furnishing the copies of the relevant documents as contemplated under Section 207 of the Cr.P.C., the accused was examined under Section 239 of the Cr.P.C. and he denied the offence.

Charge under Section 34 (a) of the A.P. Excise (Amendment ) Act 2020 has been framed and read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

05.During the course of trial, in order to prove its case, the prosecution examined P.Ws.1 to 3 and marked Exs.P-1 to P-5 and M.O.1 the details of which are mentioned at the appendix of evidence.

06.After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of Cr.P.C., he denied the same and reported no defence evidence. The accused has not adduced either oral or documentary evidence.

07.Heard the learned Assistant Public Prosecutor for the State and the learned Counsel for the accused. Perused the material available on record.

08. Now the point that arise for determination is:

Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 34 (a) of the A.P. Excise Amendment

Act, 2020 beyond all reasonable doubt ?

POINT No.1 :

4

09.In order to make out an offence under Section 34 (a) of the

A.P. Excise (Amendment) Act, 2020, the prosecution shall prove that an accused is found in importing, exporting, transporting, manufacturing, collecting, or possessing or selling any intoxicant without any license or permit in that regard and the same is seized from his possession as per the procedure laid down under law.

10.It is an admitted fact that the M.O.1 sample is Indian made liquor. That aspect was deposed by P.W.1 to P.W.3 and same was not disputed by the accused. The same was supported by recitals in the analysis report in Ex.P-4. Therefore, the prosecution established their case to that extent. But, it is the duty of the prosecution to prove that the M.O.1 is lifted from the property seized from the accused and more particularly the seizure of the property from the accused. In order to prove the same, P.W.2 stated that he along with PW.3 and with his staff went for conducting patrolling for Excise Offences on 3-10-2022 at about 6-00 AM and reached at the left side road margin towards railway track at the beginning of the road leading from railway gate to Palakol railway station in Palakol town limits of Palakol Mandal, found a person carrying the white mica hand bag containing 10 IML bottles of HD Heart’s

Desire whiskey of 180ml with company labels and the accused on enquiry revealed his identity, he tried to secure mediators but nobody came forward to act as mediators; and that he arrested the accused after informing him about the grounds of arrest and seized the contraband and later he drew one sample bottle i.e, HD Heart’s Desire whiskey of 180ml from for the purpose of analysis, sealed and labelled the sample bottles under the cover of Ex.P-1, sealed and affixed identity slips and 5 that he brought the accused, the case record and the case property to the Special Enforcement Bureau, Prohibition and Excise Station, Palakol and basing on the special report, PW.1 registered FIR under Ex.P.2, he sent the sample (M.O.1 ) to the Chemical Examiner, Kakinada, under cover of letter of advice Ex.P-3. Later the entire record was handed over to PW.3, received the chemical analysis report from chemical examiner

Kakinada vide CE No.3053/2022 dt.3-12-2022vide Ex.P4/chemical analysis report. He sent proposal for confiscation of remaining property and obtained confiscation proceedings and is marked as Ex.P5 for confiscation of the remaining property. After completion of further investigation, PW.3 laid charge sheet before the Court against the accused. P.Ws.2 and 3 also deposed in same lines as that of P.W.1 about the arrest of the accused and seizure of the property.

11.During the course of cross-examination of P.Ws-1 and 2,

P.W.1 did not prepare rough sketch at scene of offence, he did not mention the names of persons whom they requested to act as mediators.

They did not draw samples from all seized bottles and not submitted all the seized bottles. They denied the suggestion that the chemcial analysis report is fabricated document. They admitted that the scene of offence is busy locality. They denied the suggestion that PW1 did not go to the scene of offence and did not arrest the accused and did not seize the bottles from the accused and this case is falsely implicated against the accused for statistical purpose.

12. During cross examination of PW3, he deposed that, he did not go to the scene of offence. He admitted that, as per the investigation done by P.W.1 and basing on the record and basing on chemical analysis report he filed charge sheet. He did not re-examine PWs 1 and 2 before 6 the filing of charge sheet. He denied the suggestion that he filed the charge sheet without proper verification.

13. In view of the above said admissions, it is quite clear that no fruitful efforts taken by the Investigating Officer to secure the presence of mediators for arrest of accused and the seizure of the property.

Furthermore it is evident from the evidence that drafting of special report by P.W.1 is not according to law.

14.It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether P.W.1 put his efforts to secure the presence of independent mediators, once the case property was alleged to have been found in the possession of the accused. Even otherwise, PWs.1 to 3 are Special Enforcement Bureau

Officials and their evidence manifestly demonstrates that they did not make any sincere efforts to secure the presence of independent mediators albeit it is stated in the evidence before the court that the scene of offence is busy locality. According to the provisions of Section 100 (4) of the Cr.P.C., albeit it was stated in the evidence before the court that the scene of offence is busy locality whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the alleged possession of the accused is not in terms of the 7 provisions of Section 100 (4) of the Cr.P.C albeit it is stated in the evidence by PWs before the court that the scene of offence is busy locality. The above all creates suspicion about seizure of the property from the accused.

15.This Court relied upon Judgment reported in [2002 (1) ALT (Crl.) 437 (A.P) between the parties MUDAVATH MOTHIA v. STATE

OF A.P. wherein our Hon'ble High Court of A.P.inter alia held at para-5 as follows:

“Adverting to the same, the offence under Section 34 of the A.P. Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the BAR under Section 25 and 27 of Indian Evidence Act, and Section 161 of the Cr.P.C. It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt.”

Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3)

ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held held at para- 5 as follows:

"Thus, from the evidence on record, it is clear that the

Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW.1 nor that of PW.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P.1, 8

Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100(4) Cr.P.C. albeit it was stated in the evidence before the court that the scene of offence is busy locality are not followed by the Excise Officials while seizing the plastic can containing I.D.liquor. Therefore, the seizure made in this case is illegal.”

16.In the light of the discussion made herein-above and in view of the aforementioned decisions, non-examination of the independent mediators/ witnesses in this case from the locality where the property is said to have been seized, is fatal to the case of the prosecution.

17.Further, a perusal of the record shows that the sample was sent to the Chemical Examiner, Kakinada, on 02-11-2022 but as per the evidence on record the alleged offence took place on 03-10-2022, when the alleged sample was drawn and the chemical analysis report

Ex.P4 was given on 03-12-2022. Thus, there was a delay of about 61 days in analyzing the sample by the Chemical Examiner, Kakinada for analysis and the said delay was not explained properly and therefore such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1)

ALT (Crl.) 32].

18.From the above, it is crystal clear that except the evidence adduced by the Special Enforcement Bureau Officials - PWs.1 to 3, who are very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused was found in possession of accused i.e, 10 9 bottles of HD Heart’s Desire whiskey of 180ml, sealed and affixed identity slips at the scene of offence is highly doubtful in as much as the evidence of Special Enforcement Bureau, prohibition and Excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently, Point is accordingly answered in favour of the accused and against the prosecution.

19.In the result, the accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O1 shall be destroyed after appeal time is over.

Typed to my dictation directly on the computer by the Personal Assistant Grade-III, corrected and pronounced by me in open court on this the 11th day of April, 2023.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For defence :

P.W.1 : Sk.Khasim - N O N E -

P.W.2 : B.Veerabhadrarao

P.W.3 : L.Chiranjeevi

DOCUMENTS MARKED

For Prosecution:

Ex.P-1 : Special Report.

Ex.P-2 : F.I.R

Ex.P-3 : Letter of Advice.

Ex.P-4 : Laboratory Analysis report.

Ex.P-5 : Confiscation Proceedings

For Defence :- Nil-.

MATERIAL OBJECTS MARKED

M.O.1 : One sample bottle of HD Heart’s Desire whiskey of 180ml

J.F.C.M-Cum- PJCJ Palakol 11

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-CUM-

PRINCIPAL JUNIOR CIVIL JUDGE : : PALAKOL

C.C.No.50/2023

(Cr.No.73/2022 of Special Enforcement Bureau, Palakol)

Date of Offence : 03-10-2022

Date of Complaint : 03-10-2022

Apprehension of accused : 03-10-2022

Remand period of accused : 03-10-2022 to 12-10-2022

Release on bail : 12-10-2022

Commencement of trial : 03-03-2023

Close of trial : 03-03-2023

Sentence or order : 11-03-2023

Explanation for delay : No Delay

Name of the Complainant : The Circle Inspector, Special Enforcement Bureau, Palakol

Name of the accused : Muramulla Bhaskar Rao, s/o. Krishna, age. 41 years, C/o. Golla, R/o. L.R.Peta, Palakol town and Mandal

Offence : U/s 34 (a) of A.P. Excise (Amendment) Act 2020

Finding : Not Guilty.

Sentence or Order :

In the result, the accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise (Amendment) Act, 2020 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The bonds executed by the accused shall be in force for a further period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 shall be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF FIRST CLASS

-Cum-PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL.

Copy submitted to the Hon’ble Ist Additional District Judge, Eluru, West Godavari, for favour of information.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF FIRST CLASS:: PALAKOL

Present: Smt. N. Usha Lakshmi Kumari

Principal Junior Civil Judge-Cum-

Judicial Magistrate of First Class.

Tuesday, this the 18th day of April,2023

O.S.NO.260/2022

Between:

Magham Venkata Subba Rao s/o. Rama Subbaiah (late) age. 70 years, Male, Hindu, Business, D.No.6-11-2, 26th ward, Sugar colony, Palakol.

….. Plaintiff

And

Kancherla Siva Rama Krishna s/o. Madhava Rao (late) age. 40 years, Male, Hindu, Kirana business, L.R.Peta garuvu, Palakol, W.G.District.

….. Defendant.

This case coming on 18-4-2023 for batta not paid before me in the presence of Sri. B.Nagabhushana Rao, Advocate for plaintiff and having stood over to this day for consideration, this Court delivered the following:

J U D G M E N T

This is suit is filed by the plaintiff for (a) grant a decree against the defendant in favour to pay Rs. 6560/- with subsequent interest at rate of 12% p.a due amount from the date of suit to till the realization.

Plaintiff called absent. No representation though waited till 5-00 PM. Batta not paid though conditional order given by this court for payment of batta. Hence, It appears that the plaintiff is not interested to proceed further.

In the result, the suit is dismissed for default as batta not paid.

Typed to my dictation on computer, corrected and pronounced by me

in the open Court on this 18 th day of April,2023.

Principal Junior Civil Judge-Cum-

Judicial Magistrate of First Class,

Palakol.