Sri P. Paresh Kumar

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CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of 1st Class, Ichapuram.

Date of Offence :01-02-2024

Date of Complaint or Report :01-02-2024

Date of Apprehension of accused :---

Date of Release on Bail:Sec. 41-A CrPC notice on 01-02-2024

Date of Commencement of trial:27-06-2024

Date of Close of trial:01-08-2024

Date of Sentence of order:07-08-2024

Explanation for delay:No delay

Name of the complainant:State represented by the SI of Police, Town Police Station, Ichapuram.

Crime No.:38/2024

Calendar and Judgment in C.C.No.116/2024 on the file of Judl. Magistrate of 1 st

Class Court, Ichapuram.

Name and Address of the accused:

1. Gedala Lavan, S/o Jagadeeswara Rao, 21 years, SC (Mala) by caste, Mutyalammapeta, Ichapuram Town and Mandal.

2. Ganala Chaitanya, S/o Kumara Swamy, 21 years, Devangula by caste, Devara Veedhi, Koligam Village, Ichapuram Mandal.

Offence:- :U/Sec.34(a) of A.P.Excise Amendment Act, 2020. (Imports, Exports, Transports, Manufactures, Collects or Possesses or Sells any intoxicant shall on conviction be punished) Finding:- :Not guilty. Sentence of order:- In the result, A1 and A2 are found not guilty of the off ence punishable U/Sec.34(a) of A.P.Excise Amendment Act, 2020. Accordingly, they are acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused shall in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO-1 to 3 are ordered to be destroyed after expiry of appeal time.

Sd/-P.Paresh Kumar

JUDL. MAGISTRATE OF 1ST CLASS

ICHAPURAM

Copy to The Hon'ble 1st Addl. District and Sessions Judge's Court, Srikakulam.

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IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, ICHAPURAM

Present: Sri P.Paresh Kumar,

Judicial Magistrate of First Class, Ichapuram.

Wednesday, the 07th day of August, 2024.

C.C.No.116/2024

Between

State, Reptd. By the Sub Inspector of Police, Town Police Station, Ichapuram.

...Complainant

And

1. Gedala Lavan, S/o Jagadeeswara Rao, 21 years, SC (Mala) by caste, Mutyalammapeta, Ichapuram Town and Mandal.

2. Ganala Chaitanya, S/o Kumara Swamy, 21 years, Devangula by caste, Devara Veedhi, Koligam Village, Ichapuram Mandal.

...Accused

This case is coming before me on 01-08-2024 for final hearing in the presence of Learned APP and of Sri. B.Venugopal Rao,Counsel for accused; upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of Police, Town, Ichapuram filed a charge sheet in Cr.No.38/2024 for the offence punishable U/Sec.34(a) of A.P.Excise Amendment Act, 2020 against the accused.

02. The brief averments of case of prosecution are that:

The offence took place on 01.02.2024 at 17:00 hours at Check post, Purushottapuram,

Ichapuram Town & Mandal, which lies in the limits of Ichapuram Town P.S and within the jurisdiction of the Honourable court. On 01.02.2024 in the evening hours, LW-6 received reliable information through his sources that some persons are in possession & transportation of IMFL liquor bottles at Check post, Purushottapuram, Ichapuram Mandal, immediately, LW-6 secured the presence of LWs-1 & 2 and mediators LWs-3 & 4 and left from the PS and reached check post, Purushottapuram of Ichapuram Mandal and conducted vehicle checking.

At about 17:00 hours, they found that two persons were proceeding from Girisola village junction to Ichapuram Town on a motor cycle bearing no.AP30 M 9446 along with a cardboard box, on noticing the uniformed police, they stopped their motor cycle and tried to ran away from the place by leaving the motor cycle and cardboard box. Then LW-6 caught hold them

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with the help of LWs-3 & 4 and separated them and on questioning, the first person voluntarily revealed his name & other details as follows. “His name is noted supra as A-1. He is residing at Mutyalammapeta, Ichapuram Town and Mandal. He is studying degree final year in Adithya Degree College. He got acquaintance with the accused A-2 and then converted into good friends. A-2 is studying B. Tech final year at Tekkali. They both addicted to consumption of alcohol and they hatched a plan to purchase IMFL bottles at Odisha state and to bring to their residence for consumption. According to their plan, on 01.02.2024 in the afternoon hours, they went to Girisola village of Odisha state on A-1 motor cycle bearing no.AP30 M 9446 and purchased 8 IMFL bottles and kept in a cardboard box and while they were bring the same to A-1 residence for consumption on A-1 motor cycle bearing no.AP30 M 9446, in the meanwhile, they were caught hold by the police”. Then he handed over A-1 to LWs-1 & 2 and called the second person and on questioning, he voluntarily revealed his name & other details as follows. His name is noted supra as accused A-2. He is residing at Devara Veedhi, Koligam

Village, Ichapuram Mandal. He is studying B. Tech final year at Tekkali. He further stated and corroborated with the same facts of A-1 in all material aspects etc. Then, LW-6 opened the cardboard box in the presence of the mediators LWs-3 & 4 and it contains 1) Tubong Premium

Beer Strong 650 ml - 2 bottles, each bottle cost is Rs. 160/-, 2) Budweiser Premium king of

Beers 650 ml - 2 bottles, each bottle cost is Rs. 160/-, 3) Kingfisher Super Premium Strong

Beer 650 ml – 4 bottle, each bottle cost is Rs. 150/- and the total 8 bottles, 5.2 liters and cost is Rs. 1,240/-. Then LW-6 seized the total 8 IMFL bottles in the presence of the mediators under cover of mediators report. Then LW-6 questioned about the license, but the accused have no license. Then LW-6 informed about the nature of offence to the accused and asked the accused appear before Police station to receive 41(A) Cr.P.C notice and drawn samples from each brand for the purpose of chemical examination and the remaining IMFL bottles were seized under the cover of mediators report. Basing on that, LW-6 registered the FIR in

Crime No.38/2024, U/s 34(a) of A.P. Excise Amendment Act, 2020. Hence, the charge sheet laid before this court.

03.On receipt of charge sheet, this case was taken on file for the offence

U/Sec.34(a) of A.P. Excise (Amendment) Act 2020, against the accused.

04.On appearance of A1 and A2, copies of documents were furnished to them as contemplated U/Sec.207 of Criminal Procedure Code, 1973.

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05.When examined U/Sec.239 of Cr.P.C., the accused denied the allegations leveled against them. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused U/Sec.34 (a) of A.P.Excise (Amendment) Act 2020, which was read over and explained to them in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

06.During the course of trial, the prosecution examined as PWs 1 and 2, Ex.P1 to P4 and MO-1 to 3/Ex.P1 is the mediator report, Ex.P2 is the original F.I.R, Ex.P3 is the letter of advice, Ex.P4 is the report of Chemical Examiner, MO-1 to 3 are sample bottles are marked and the remaining witnesses were given up by the prosecution.

07.On closure of evidence let in by the prosecution, the accused were examined

U/Sec.313 of Cr.P.C., with regard to the incriminating material available against them, for which, they denied the same and reported no defence evidence.

08.Heard arguments from both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of PWs.1 and 2 coupled with Exs.P1 to P4 and MO.1 to 3 are clearly discloses that the contraband was seized from the possession of accused. The liquor bottles and he intend to sell the same in open market to gain unlawfully which contravene the provision U/Sec.34 (a) of A.P.Excise (Amendment) Act 2020. As such, the accused are liable for punishment for the above section.

b)Per contra the counsel for accused argued that no property was seized from the possession of accused as alleged by prosecution. Admittedly, the scene of offence is a busy locality. The evidence of PW.1 contradicting with other evidence in respect of the seizure of contraband from the possession of the accused. The mediator report clearly discloses that they are not visit the scene of offence. When the scene of offence was situated in a busy locality what is the necessity for the police to secure the stock mediators from the scene of offence. When the mediators are available in the scene of offence what prompted the police to scribe Ex.P1 mediator report. The above referred circumstances clearly goes to show that nothing was seized from the possession of the accused as stated by the prosecution. At the same time no measurements or any amount was seized from the possession of accused to prove the alleged sale of liquor. As such, the prosecution failed to establish the seizure of liquor bottles from the possession of accused. Hence, he requested this Court to acquit the accused for the offence leveled against them.

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09.After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

1. “Whether the police seized the entire contraband from the possession of A1 and A2 in the presence of mediators?”

2. “Whether the Police gathered any evidence with regard to sale of liquor bottles by accused?”

3. “Whether the prosecution able to prove the guilt of accused beyond all reasonable doubt for the offence U/Sec.34(a) of A.P. Excise Amendment Act, 2020?”

10. POINT No.1:

a) In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of accused, the prosecution got examined PWs.1 and 2 and exhibited the documents Ex.P1 to P4 and Mo.1. PW.1 is a mediator in whose presence the entire contraband was seized from the possession of accused. PW.2 is Inspector, SEB,

Ichapuram who conducted patrolling along with other staff members and registered the mediator report and filed the charge sheet after receipt of analysis report and destruction proceedings.

b)One of the mediators was examined as PW.1 who deposed in his evidence “On 01-02-2024 at 05.00 PM LW-6 came to me and requested him to come to police station along with LW-4. On that himself along with Lw-2 rushed to Ichapuram Town police Station from then LW-6 along with his staff i.e., LW-1, 2 and 5 rushed to the scene of offence i.e., at Check post, Purushottapuram, Ichapuram town and mandalam. Then, two male persons came to them on a Bike bearing No. AP 30 M 9446 with a card board box. On noticing the police in uniform they try to escape from the place of offence by leaving the motor cycle. Then, LW-6 caught hold them and brought the accused before him and verified the gunny bag. In which there are 1) Tubong Premium beer strong each 650ml two bottles, 2) Budweiser premium king of beers each 650ml two bottles, 3) Kingfisher super premium strong beer each 650ml four bottles. On questioning the accused, they disclosed their identity as Gedala Lavban of

Mutyalammapeta and Ganala Cjhaitanya of Koligam village and the source of said arrack packets. They confessed that they are addicted to consumption of alcohol and they hatched a plan to purchase IMFL bottles at Odisha state and to bring to their residence for consumption.

For that effect police drafted mediator report in his presence and obtained our signatures.

From that property, LW-6 drawn one bottle from each brand for the purpose of chemical analysis. LW-6 seized the contraband and motorcycle and arrested the accused.” While crpss examination, he admitted that “The place offence is the busy locality. The villagers are also

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moving on the road frequently. He admitted that the police did not mentioned the descriptive particulars of cardboard box which was in the position of accused in Ex.P1. He admitted that the measurements of bag was not mentioned in Ex.P1. He admitted that the police did not serve written notice to him to act as a mediator. He admitted that he did not receive written consent from M.R.O to act as a mediator. He admitted that he did not mentioned in his movement register that he went to act as a mediator on the date of offence.”

c) P.W.2 who is the SI of police, deposed in his evidence that “On 01.02.2024 at about 5.00 PM basing upon reliable information, LW.6 along with LWs 1, 2, PW.1 and LW.4 was went to the scene of offence ie., at Checkpost, Purushottapuram, Ichapuram and conducting vehicle checking. Then, two persons approaching towards LW.6 on motor cycle bearing reg.

No. AP 30 M 9446 having a card board box. On seeing the police in uniform, the accused tried to fled away. Then LW.6 along with his staff caught hold the persons, on questioning them, they revealed their identities as Gedela Lavan of Ichapuram and Danala Chaitanya of Koligam village and confessed that they both addicted to consumption of alcohol and they hatched a plan to purchase IMFL bottle at Odisha state, on 01.02.2024 they went to Girisola village on motor cycle and purchased (1) Tubond Premium Beer strong 650 ML -02 bottles (2) Budweiser

Premium king of beers 650 ml -02 bottles and (3) Kingfisher Super premium strong beer 650

ML -04 bottles. Then LW.6 opened the bag and found the contraband. In the presence of mediator, LW.6 has drawn one bottle as sample bottle from each brand as a sample. For that effect PW-1 drafted mediator report. LW.6 taken into custody of accused and seized case property. Basing up on Ex.P1, LW.6 registered a case in Crime No.38/2024, U/s. 34(a) of A.P.

Excise and Amendment Act, 2020 and sent the original FIR to the Honourable court and remaining to his higher officials are concerned. LW.6 issued a notice u/sec. 41-A Cr.P.C to the accused A.1 and A.2 and obtained their explanations. After completion of his investigation, he handed over the case file to him, then he made it correct lines and sent the samples along with requisition to REL, Visakhapatnam for chemical analysis. He received chemical analysis report from REL, Visakhapatnam vide CE No. 578/2024 with an opinion that the samples are beer. After completion of his investigation, he laid charge sheet before the honorable court.”

While cross examination he admitted that “LW.6 did not prepared rough sketch at the scene of offence. The place of offence is a busy locality. He admitted that MO.1 did not contains the signatures of PW-1, LWs 2 and 3.”

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d) Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc. Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; SECTION 55 of AP Excise Act : Power to search without warrant Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person about to

make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100 (4) of Cr.P.C. If he fails to secure any independent mediator, he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of

Special Report. The offence U/s.34(a) of AP Excise Amendment Act, 2020 is made cognizable offence and once the Excise officials are entrusted with the investigation of cognizable offence, they become police officials and the police Officials can never say that they are not the police officials. If any police officer failed to follow the above said procedure the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure.

e) Coming to the present case on hand, the case of prosecution is that, when the

Police conducting patrolling they found the accusedwho is coming on a Motorcycle. On seeing them, the accused are tried to escape from that place by leaving the bag. Then in the presence of mediators, LW-6 opened the bag and found the contraband. When such is the case the Police are at liberty to intercept the said person by following proper procedure. As

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per the analysis report marked under Ex.P4 the contraband seized from the possession of accused is a Indian Made Liquor. As per the quantity seized from the possession of accused is not a permissive one as per orders in GOMs.No.310 Revenue (Excise) Department, dt.26.10.2020. As such the police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained

before the court is whether the said liquor bottles are in possession of accused for the

purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties for gain.

f)Now, the clinching issue before the court is whether the said contraband was seized by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. PW.1 is the mediator whose presence the entire contraband alleged to have seized scene of offence. The evidence of PW.1 not corroborated by PW.2, the Police/LW-6 who participated in the patrolling and who present at the time of preparation of mediator report. As such the Court has scrutinize the evidence of

PWs.1 and 2, to fish out the original things happened at the time of alleged seizure. As could be seen from the evidence of PWs.1 and 2, there were several inconsistent versions with regard to securing of mediators and the things alleged to have happened at the time of preparing Ex.P1 mediator report. Moreover it is an admitted fact that the scene of offence was situated in a busy locality. When such is the case what is the necessity for the Officials to secure the official mediator and why not local person. Moreover the mediators in whose presence the entire contraband was seized were not drafted Ex.P1 mediator report.

g)It is an admitted fact that PW.2 received credible information with regard to transport and selling the same in the open market for higher price. Admittedly the scene of offence was busy locality. To show the visit of PW.2 along with other police personnel and mediators, there is no evidence before the Court except the oral testimony of PWs.1 and 2. It is an admitted fact that though PW.1 visited the scene of offence, he did not scribe Ex.P1 mediator report. The evidence of PWs.1 and 2 is silent with regard to the name of the scribe of Ex.P1. If really, there is any amount of truth in the evidence of PWs.1 and 2, there is every possibility to prepare Ex.P1 through PW.1 who is one of the mediator. The non scribing of

Ex.P1 by PW.1 creates a doubt in the mind of the Court with regard to the visit of PWs.1 and 2 to the scene of offence along with other police personnel.

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h)Except the evidence of official witnesses, there is no other independent evidence on record to show the visit of police to the scene of offence. There is every possibility to examine any of the local witness in that locality to establish their visit and at the time of preparation of Ex.P1 mediator report. As such, PW.2 failed to follow the provision as contemplated U.Sec.100(4) Cr.P.C. though there is a ample opportunity for him to secure any independent mediator in the locality. But he did not move his little finger in that angle. The very contention of accused is that at the instance of police, PW.1 signed on Ex.P1. In the absence of any positive evidence on record I find force in the contention of the accused.

There is every possibility for PW.1 and mediators to put their signatures in the police station to honour the request of the police. As such, this Court is not inclined to believe the evidence of PW.1 with regard to the seizure of entire contraband from the accused.

i)It is an admitted fact that the scene of offence was situated in a busy locality.

There is every possibility for PW.2 to secure any independent mediator at the scene of offence. But PW.2 did not make any such attempt to believe the version of prosecution. There is every possibility for PW.2 to obtain the signatures of PW.1 in the police station. As per the evidence of PW.1, Police drafted Ex.P1 mediator report. But it was not reflected the name of the police. It also creates a doubt in the mind of the court who drafted Ex.P1 mediator report.

All the referred circumstances clearly goes to show that the visit of PWs.1 and 2 along with other staff to the scene of offence is doubtful. There is no positive evidence before this court that the contraband was seized from the scene of offence as stated by the prosecution. As such I am not believe the evidence of PWs.1 and 2 with regard to seizure of contraband from the scene of offence. Accordingly, point No.1 is answered.

11. POINT No.2

a) Further the other allegation of prosecution is that accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sell the said liquor bottle. The police didn’t examine any person to whom the accused sold the liquor bottle. It is an admitted fact that no measurements or any liquor bottles and motorcycle were seized from the possession of accused at the scene of offence. It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence it cannot be said that the said contraband is in transporting by the accused for the purpose of selling the same in open market. Without producing cogent evidence it is not proper to believe the evidence of prosecution to convict

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accused for the offence U/Sec.34(a) of AP Excise Amendment Act, 2020. After evaluating the entire evidence on record, this Court is also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. I have gone through the above referred decision. Our lordships categorically discussed with regard to this effect of case of prosecution for non complying of the provisions under Sec.55 of AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, I am not believe the evidence of prosecution witnesses to punish accused for the offence U/Sec.34(a) of AP Excise

Amendment Act, 2020. Viewed from any angle the prosecution failed to prove the guilt of accused beyond all reasonable doubt for the offence U/Sec.34(a) of AP Excise Amendment

Act, 2020. As such the benefit of doubt certainly goes in favour of accused. Accordingly, point

No.2 is answered.

12. POINT No.3 : In view of the answers to point Nos.1 and 2, A1 and A2 are entitled for acquittal.

13.In the result, A1 and A2 are found not guilty of the off ence punishable U/Sec.34(a) of A.P.Excise (Amendment) Act 2020. Accordingly, they are acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused shall in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO-1 to 3 is sample ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and pronounced by me in Open Court, on this the 07th day of August, 2024.

Sd/-P.Paresh Kumar

JUDICIAL MAGISTRATE OF 1s t CLASS

ICHAPURAM

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APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: PW-1Uppada Raja Reddy, VRO.Nil PW-2V. Satyanarayana, S.I of Police.

Exhibits marked

For Prosecution: Ex.P1Mediator Report. Ex.P2Original FIR. Ex.P3Letter of advice. Ex.P4Chemical examiner report.

For Defence: Nil

Material objects

MO-1 to 3 are sample bottle

Sd/-P.Paresh Kumar

JUDICIAL MAGISTRATE OF 1s t CLASS

ICHAPURAM

//1//

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of 1st Class, Ichapuram. Date of Offence :17-04-2023 Date of Complaint or Report :17-04-2023 Date of Apprehension of accused :17-04-2023 Date of Release on Bail :21-04-2023 Date of Commencement of trial :05-05-2026 Date of Close of trial :05-05-2026 Date of Sentence of order :06-05-2026 Explanation for delay:No Delay Name of the complainant :State represented by Proh., & Excise Inspector, Proh., & Excise Station, Ichapuram. Crime No. :36/2023

Calendar and Judgment in C.C.No.79/2026 on the file of

Judl. Magistrate of 1 st Class Court, Ichapuram.

Name and Address : Miriyala Neelayya, S/o late Appalaswamy, age 45 years, C/o of the accusedJangam, Occ: Coolie, R/o D.No.1-348, Jadupudi colony of Kanchili mandal, Srikakulam District. Offence:- :U/sec.7(B) r/w 8(B) of A.P Prohibition Amendment Act, 2020 (Imports, Exports, Transports, Manufactures, Collects or Possesses or Sells any intoxicant shall on conviction be punished) Finding:-:Not guilty.

Sentence of order:- In the result, Accused found not guilty for the offence U/sec.7(B) r/w 8(B) of A.P Prohibition Amendment Act, 2020 and he is acquitted under section 248(1) of CrPC. The bail bond of the accused shall in force for a period of Six months U/s.437-A CrPC. The case property i.e., MO.1 is ordered to be destroyed after expiry of appeal time.

Sd/- P.Paresh Kumar

Judicial magistrate of 1st class

Ichapuram

Copy to The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam. Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//2//

APSR0A0003002026

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

ICHAPURAM

Present: Sri P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

Wednesday, the 06th day of May, 2026.

C.C.No.79/2026

Between: State represented by Proh., & Excise Inspector, Proh., & Excise

Station, Ichapuram.

…. Complainant And: Miriyala Neelayya, S/o late Appalaswamy, age 45 years, C/o Jangam, Occ: Coolie, R/o D.No.1-348, Jadupudi colony of Kanchili mandal, Srikakulam District. …. Accused

This case is coming before me on 05-05-2026 for final hearing in the presence of Learned APP for State and of Sri. N. Ramanayya Reddy, Sri. R.

Devaraj Reddy and Sri. G. Seetayya Reddy Counsels for Accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01. The Proh., & Excise Inspector, Proh., & Excise Station, Ichapuram filed a charge sheet in Cr.No.36/2023 for the offence punishable U/sec.7(B) r/w 8(B) of

A.P Prohibition Amendment Act, 2020 against Accused.

The Brief averments of the prosecution case are :

02. On 17.04.2023 at about 05.15 PM during the route watch conducted by the

Sub Inspector, Special Enforcement Bureau, BMPP-IV, Ichapuram (LW.4) along with his staff (LW2 & LW3) at "Gravel road junction (from Basava Kothuru village to

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//3//

Munsabpeta village road junction)" which is 500 meters distance in North direction to Basava Kothuru village of Kaviti Mandal, the accused was found who came towards raid party in possession of one cloth bag in his right hand. He tried to escape from that place when he saw the staff in uniform. On suspicion, the LW.4 stopped him with the help of staff. On questioning, he replied that there are

I.D.Liquor packets in that bag. Thereafter, the LW.4 deputed LW.2 for securing mediators. After some time, LW.2 brought the LW.1 who was willing to act as a mediator. Then, LW.4 verified the bag in the presence of LW.1 and found 25 Odisha arrack sachet, each sachet containing 200ml, Total 05 Lts. All the sachets were labeled with a 'spoon symbol' and 'C. Saradapur O.S. Shop', "licence:

Shyamsundar sahoo, quantity:200ml, MRP.Rs.25/-". Then, the LW.4 verified the source of contraband in the presence of LW.1. The accused confessed that the I.D.

liquor packets were purchased each sachets for Rs.25/- at Govt. arrack shop,

Munasabupeta village, Odisha state for selling at higher prices to gain profit at his village. Then the LW.4 verified the bonafides of the accused. The accused disclosed his identity particulars. Basing on mediator's report, L.W.5 registered as a case in Cr.No.36/2023 under sec. 7-B r/w 8-B of A.P. Prohibition Amendment Act, 2020.

03. On receipt of charge sheet, this case was taken on file for the offence

U/s 7(B) r/w 8(B) of A.P. Prohibition Amendment Act, 2020, against Accused.

04. On appearance of Accused, copies of documents were furnished to him as contemplated U/Sec.207 CrPC.

05. When examined U/Sec.239 CrPC., Accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against Accused U/s 7(B) r/w 8(B) of A.P.

Prohibition Amendment Act, 2020, which was read over and explained to him in

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

06. During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined and Exs.P1 to P4 and MO.1/Ex.P1 is mediator report. Ex.P2 is the original FIR. Ex.P3 is the letter of advice. Ex.P4 is the report of Chemical Examiner,

MO.1 is two sample sachets were marked. Remaining witnesses are given up by prosecution. No Exhibits were marked in “D” Series. Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//4//

07. On closure of evidence let in by the prosecution, Accused was examined U/Sec.313 CrPC., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08. Heard both sides.

a) The Learned APP argued that the evidence of PWs.1 and 2 coupled with Exs.P1 to P4 and MO.1 clearly discloses that the contraband was seized from the possession of Accused is a I.D arrack and he has no valid license to sell the same in open market for profit which contravene the provision U/s 7(B) r/w 8(B) of

A.P. Prohibition Amendment Act, 2020. As such, Accused was liable for punishment for the above section.

b) Per contra the counsel for Accused argued that no property was seized from the possession of accused as alleged by prosecution. Admittedly, the scene of offence of Accused where the contraband alleged to have seized from the possession of Accused was situated in a busy locality. The evidence of PW.1 contradicting with other evidence in respect of the seizure of contraband from the possession of the Accused.When the scene of offence was situated in a busy locality what is the necessity for the police secure the stock mediators from the place of offence. When the mediators are available in the scene of offence what prompted one constable to scribe Ex.P1 mediator report. The above referred circumstances clearly goes to show that nothing was seized from the possession of the accused as stated by the prosecution. As such, the prosecution failed to establish the seizure of I.D liquor from the possession of Accused. Hence, they requested this Court to acquit Accused for the offence leveled against him.

09. After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

“ 1. Whether the police seized the entire contraband from the possession of Accused in the presence of mediators?”

“2. Whether the Police gathered any evidence with regard to sale of

I.D arrack by Accused?” “3. Whether the prosecution able to prove the guilt of Accused beyond all reasonable doubt for the offence U/s 7(B) r/w 8(B) of A.P. Prohibition Amendment Act, 2020?”

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//5//

10. POINT No.1:

a) In order to prove the case of prosecution and to establish the seizure of I.D arrack from the possession of Accused, the prosecution got examined PWs.1 and 2 and exhibited the documents Ex.P1 to P4 and MO.1. PW.1 is a mediator in whose presence the entire contraband was seized from the possession of accused. PW.2 is I.O, who rushed along with other staff members and registered the mediator report. PW.2 is filed the charge sheet after receipt of analysis report and destruction proceedings.

b) The mediator was examined as PW.1 deposed that “on 17-04-2023 at about 05-15 PM, he received phone call from LW-4 to come to police Station. Then, himself along with LW-2 to 4 went to the scene of offence i.e., Gravel road junction which is 500 meters distance in North direction to Basava Kothuru village of Kaviti mandalam and conducting route watch. The accused approached them with one white polythene bag. Upon noticing the police in uniform, they try to escape from the scene of offence by leaving their bag. Then, immediately LW-4 along with the staff caught hold the accused. On questioning the accused, they revealed their identity as Miriyala Neelayya of Kanchili mandalam and confessed that he has a bag which contains 25 Odisha Arrack sachets each 200 ml. Further he confessed that, he bought from the Government wine shop at Munsabupeta village of Odisha and sell the same for higher prices to get illegal benefits. For that effect, he drafted mediator report and obtained signatures. Lw-4 seized the case property and drawn two sachets as sample for the purpose of chemical analysis.” While cross examination he admitted that, “he cannot say the descriptive particulars of seized property as per Ex.P1. Police did not serve summons to him to act as mediator. He did not mention in any of the registers regarding his movement in his office with regard to this visit. The place offence is the busy locality. The villagers are also moving on the road frequently. The police did not mention the descriptive particulars of plastic bag which was in the position of accused in Ex.P1. The colour of bag was not mentioned in Ex.P1.”

c) P.W.2 deposed in his evidence that “on 17-04-2023 at about 05-15 PM,

LW-4 along with PW-1, LW-2 and 3 went to the scene of offence i.e., Gravel road junction which is 500 meters distance in North direction to Basava Kothuru village Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//6// of Kaviti mandalam and conducting route watch. The accused approached them with one white polythene bag. Upon noticing the police in uniform, they try to escape from the scene of offence by leaving their bag. Then, immediately LW-4 along with the staff caught hold the accused. On questioning the accused, they revealed their identity as Miriyala Neelayya of Kanchili mandalam and confessed that he has a bag which contains 25 Odisha Arrack sachets each 200 ml. Further he confessed that, he bought from the Government wine shop at Munsabupeta village of Odisha and sell the same for higher prices to get illegal benefits. For that effect, he drafted mediator report and obtained signatures. Lw-4 seized the case property and drawn two sachets as sample for the purpose of chemical analysis.

After completion of his investigation, he handedover the case file to Lw-5. Basing on Ex.P1, LW-5 register a crime in the Crime No.36/2023, U/s.7(B) r/w 8(B) of AP

Prohibition Amendment Act, 2020 and submitted copies of F.I.R., to all concerned officers. Then, LW-5 sent samples to the Chemical Examiner, Visakhapatnam under the cover of letter of advice. The Chemical Examiner send his report, opining that the sample is containing Illicitly distilled liquor and unfit for human consumption and injurious to health. On the same day, he sent the accused to the Hon’ble Court for

Judicial remand. After completion of investigation, LW-5 handed over the case file to LW-6. Then, he made it correct lines and filed charge sheet before the Court.”

While cross examination he admitted that, “the name of the scribe of mediator report under Ex.P.1 is not mentioned. LW-4 did not mention the particulars of the staff participated along with him, but LW-4 obtained their signatures in Ex.P.1. LW-4 did not mention the measurements of bag carried by accused. The scene of offence is a busy locality and LW-4 did not examine the persons at the scene of offence.”

d) Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 7-B Prohibition of Boot Legging Activities: The manufacturing, transporting, setting, buying, importing, exporting or storing of any alcoholic liquor and supplying or transporting of any raw materials for the manufacture of alcoholic liquor illegally or clandestinely, otherwise than in accordance with the provisions of A.P. Excise Act, 1968 is hereby prohibited.”

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//7//

SECTION 8-B Penalty for sale, export, import and transport of alcoholic liquor

manufactured illegally and clandestinely:- Whoever in contravention of Section 7-B of this Act indulges in sale, export, import or transport of illicitly distilled alcoholic liquor shall on conviction be liable for imprisonment for a term which shall not be less than one year but which may extend upto eight years and with fine which shall not be less than two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence.” SECTION 55 of AP Excise Act : Power to search without warrant Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person about to

make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any sachets from the possession of suspected person, he must follow the procedure as contemplated U/Sec.100(4) of Cr.P.C. If he fails to secure any independent mediator, he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of Special Report. The offence U/Sec.7(B) r/w 8(B) of APP (Amendment) Act 2020 is made cognizable offence and once the

Police officials are entrusted with the investigation of cognizable offence. If any police officer failed to follow the above said procedure, the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure. The mediator report drafted by police constable is nothing but the confessional statement of accused. As such, said report is hit by the provisions U/Sec.25 and 27 of Indian Evidence Act. In those circumstances, the prosecution must establish the recovery of contraband from the possession of

Accused by placing cogent evidence before the court. Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//8//

e) Coming to the present case on hand, the case of prosecution is that, when the Police are rushed to the scene of offence of Accused and found the

Accused in possession of I.D arrack sachets. During the course of interrogation

Accused voluntarily confessed before them the said arrack sachets were for the purpose of personal consumption in a function. When such is the case the Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of

Accused. Ex.P4 the analysis report also concur with the same. As such the Police has every authority to question the illegal possession of Arrack by the Accused as it is not a permissive quantity. The only question remained before the court is whether the said Arrack was in possession of Accused for the purpose of selling the same in open market. It is an admitted fact that the Accused didn’t possess any valid license to sell the arrack sachets to third parties for gain.

f) Now, the clinching issue before the court is whether the said contraband was seized from the scene of offence of Accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available

before this Court. PW.1 is the mediator in whose presence the entire contraband

alleged to have seized from the possession of Accused. The evidence of PW.1 not corroborated by PW.2, the Police who rushed the scene of offence and who present at the time of preparation of mediator report. As such the Court has scrutinize the evidence of PWs.1 and 2 to fish out the original things happened at the time of alleged seizure from the possession of Accused. As could be seen from the evidence of PWs.1 and 2, there were several inconsistent versions with regard to securing of mediators and the things alleged to have happened at the time of preparing Ex.P1 mediator report. Moreover, it is an admitted fact that the scene of offence was situated in a busy locality. When such is the case what is the necessity for the Police Officials did not secure the mediators in this case. Moreover, the mediator in whose presence the entire contraband was seized and not drafted

Ex.P1 mediator report.

g) It is an admitted fact that PW.2 received credible information with regard to purchase the I.D arrack sachets to sell the higher price. He did not secure the mediator. By that time, For that reason he was shown as Accused in this case. Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//9//

Admittedly, the scene of offence is busy locality. On that PW.2 along with other police personnel, there is no evidence before the Court except the oral testimony of

PWs.1 and 2. When such is the case what is the necessity for PW.2 did not secure the mediators. It is an admitted fact that though PW.1 visited the scene of offence and he did not scribe Ex.P1 mediator report. The evidence of PWs.1 and 2 is silent with regard to the name of the scribe of Ex.P1. If really, there is any amount of truth in the evidence of PWs.1 and 2, there is every possibility to prepare Ex.P1 through

PW.1 who is the mediator. The scribe of Ex.P1 by PW.1 creates a doubt in the mind of the Court with regard to the visit of PWs.1 and 2 to the scene of offence along with other police personnel.

h) Except the evidence of official witnesses, there is no other independent evidence on record to show the checking of police to the Accused. As such, PW.2 failed to follow the provision as contemplated U/Sec.100(4) Cr.P.C. though there is a ample opportunity for him to secure any independent mediator in the locality of scene of offence. But he did not move his little finger in that angle. As per the evidence of PW.1, the one of the mediator who accompanied PW.2 to the scene of offence along with some other police personnel. But the name of PW.2 and his staff in the presence were not reflected in Ex.P1. The very contention of accused is that at the instance of police, PW.1 and 2 signed on Ex.P1. In the absence of any positive evidence on record I find force in the contention of the accused. There is every possibility for PW.1 and 2 to put their signatures in the police station to

honour the request of the police. As such, this Court is not inclined to believe the

evidence of PW.1 with regard to the seizure of entire contraband from the accused.

i) It is an admitted fact that the scene of offence was situated in a busy locality. PW.2 to secure no independent mediator at the scene of offence. But PW.2 did not make any such attempt to believe the version of prosecution. There is every possibility for PW.2 to obtain the signatures of PW.1. As per the evidence of PW.1,

Ex.P1 mediator report was not reflected the name of PW.1. It also creates a doubt in the mind of the court who drafted Ex.P1 mediator report. All the referred circumstances clearly goes to show that the visit of PWs.1 and 2 along with other staff to the scene of offence is doubtful. There is no positive evidence before this court that the contraband was seized from the possession of accused in the scene Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//10// of offence as stated by the prosecution. As such I am not believe the evidence of

PWs.1 and 2 with regard seizure of contraband from the possession of accused.

Accordingly, point No.1 is answered.

11. POINT No.2

a) Further the other allegation of prosecution is that Accused intend to sell the said I.D arrack in his village for illegal gain. But there is no scrap of paper

before the court that, to whom the accused sell the said arrack sachets. The police

didn’t examine any person to whom the accused sold the arrack sachets. It is an admitted fact that no measurements or any amount was seized from the possession of Accused at the scene of offence. Moreover Ex.P1 is also silent with regard to seizure of any amount from the possession of Accused towards the sale proceeds of I.D arrack sachets at the time of seizure of MO.1 along with contraband. Without producing any evidence, it cannot be said that the said MO.1 is in possession of accused for the purpose of selling the same in open market.

Without producing cogent evidence, it is not proper to believe the evidence of prosecution to convict Accused for the offence U/Sec.7(B) r/w 8(B) of AP Prohibition

Amendment Act, 2020. Moreover, the police failed to follow the provisions at the time of seizure of contraband from the possession of accused. After evaluating the entire evidence on record, this Court is also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. I have gone through the above referred decision. Our lordships categorically discussed with regard to this effect of case of prosecution for non-complying of the provisions under Sec.55 of AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, I am not believe the evidence of prosecution witnesses to punish Accused for the offence

U/Sec.7(B) r/w 8(B) of AP Prohibition Amendment Act, 2020. Viewed from any angle the prosecution failed to prove the guilt of Accused beyond all reasonable doubt for the offence U/Sec.7(B) r/w 8(B) of AP Prohibition Amendment Act, 2020.

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//11//

As such the benefit of doubt certainly goes in favour of accused. Accordingly, point

No.2 is answered.

12. POINT No.3 :

In view of the answers to point Nos.1 and 2, Accused is entitled for acquittal.

13. In the result, Accused is found not guilty of the offence punishable

U/Sec.7(B) r/w 8(B) of AP Prohibition Amendment Act, 2020. Accordingly, he is acquitted U/Sec.248(1) CrPC. The bail bonds of Accused shall in force for a period of six months under Sec. 437-A CrPC. The case property i.e., MO.1 is ordered to be destroyed after expiry of appeal time.

Typed on my own, corrected and pronounced by me in Open Court, this the 06th day of May, 2026.

Sd/- P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//12//

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence

PW.1: Narada Tellavadu, VRA. None PW.2: P.D. Prasad, CI of Police, Proh., & Excise Station, Ichapuram.

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1: Mediator report. --Nil— Ex.P2: Original FIR. Ex.P3: Letter of advice. Ex.P4: Chemical Examiner Report.

MATERIAL OBJECTS

MO.1 is two Sample sachets.

Sd/- P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

Digitally Signed by

PEDASINGU

PEDASINGU PARESH KUMAR

PARESH KUMAR

Date: 2026.05.11 15:58:22 +0530

//1//

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

SOMPETA

Present: Sri P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class, Sompeta

Friday, the 4th day of October, 2024.

C.C.No. 76/2024

Between: State: Represented by the Sub-Inspector of Police, Kanchili Police Station. Crime No. 4/2024 …. Complainant And: Lotla Joga Rao, S/o late Appanna, age 53 years, R/o Pedda Srirampuram Village, Kanchili Mandal, Srikakulam District ….Accused

This case is coming before me on 01-10-2024 for final hearing in the presence of learned Assistant public prosecutor for State and of Sri. B. Dharma

Rao, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of Police, Kanchili Police Station filed a charge sheet in Cr.No. 4/2024 for the offence punishable U/sec.34(1)(i) of A.P. Excise

Amendment Act, 2020 against accused.

The Brief facts of the prosecution case are :

02.The Sub-Inspector of Police, Kanchili Police Station, filed a charge sheet that the accused had chosen the dealing of DPL bottles for illegal profits knowingly that the dealing is contravened the provisions of AP Excise Amendment Act 2020.

For the last few days he purchased 10 liquor bottles Old Admiral fine VSOP brandy 180 ml and MRP 120/- and total Rs. 1200/-, from the Government wine shops at

NM Puram meant for selling for higher prices and the same were brought to his //2// village and on 09-01-2024 possession in front of his house which meant for selling and traced at 18.00 hrs at in front of his house at Pedda Srirampuram Village,

Kanchili Mandal. On tip off about his departure, LW.6-S. Balaraju, Sub Inspector of

Police, Kanchili summoned LW.s 1 and 2, left police station along with LW.1 to 4 reached Srisain Street of Pedda Srirampuram Village and waiting traced the accused at 06.00 PM with the liquor bottles, seized the liquor bottles after separation of one sample bottle for sending to RPEL,Visakhapatnam and drafted mediator report from 18.00 hrs to 19.00 hrs, served U/sec 41-A CrPC to the accused due to seized quantity below ten liters, (which guidelines given by superiors give 41-A CrPC notice to accused , if the quantity of seized property below 10 liters. ) The seized property and accused was brought to police station at 19.30 hrs and registered the mediator report as FIR in Crime No 04/2024 U/Sec 34(1)(i) of AP Excise Amendment Act 2020. During the court of investigation LW.6 sent the sample bottles to RPEL, Visakhapatnam. LW.5 issued the analysis report in C.E NO 198/2024 and Sl.No 18249 and opined that they are Indian liquor. LW.7-

G. Rajesh, Sub Inspector of police filed charge sheet after completion of investigation.

03.On receipt of charge sheet, this case was taken on file for the offence

U/sec.34(1)(i) A.P. Excise Amendment Act, 2020, against Accused.

04.On appearance of Accused copies of documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., Accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against Accused U/sec.34(1)(i) A.P. Excise

Amendment Act, 2020, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

//3//

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined and Exs.P1 to P4 and Mos.1 were marked.

07.On closure of evidence let in by the prosecution, accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant public prosecutor argued that the evidence of

PWs.1 and 2 coupled with Exs.P1 to P4 and MO.1 clearly discloses that the contraband was seized from the possession of Accused is a Indian made liquor and he have no valid license to sell the same in open market for profit which contravene the provision U/sec.34(1)(i) A.P. Excise Amendment Act, 2020. As such, Accused is liable for punishment for the above section.

b)Per contra the counsel for accused argued that no property was seized from the possession of accused as alleged by prosecution. Admittedly, the scene of offence of accused where the contraband alleged to have seized from the possession of accused were situated in a busy locality. The evidence of PW.1 contradicting with other evidence in respect of the seizure of contraband from the possession of the accused.The names of the mediators were not reflected in

Ex.P1 mediator report which clearly discloses that they are not visit the scene of offence. When the scene of offence was situated in a busy locality what is the necessity for the police to secure the mediators from the police station itself.

When the mediators are available in the scene of offence what prompted PW.2 to scribe Ex.P1 mediator report. The above referred circumstances clearly goes to show that nothing was seized from the possession of the Accused as stated by the prosecution. At the same time no measurements or any amount was seized from the possession of accused to prove the alleged sale of liquor. As such, the prosecution failed to establish the seizure of liquor bottles from the possession of accused. Hence, he requested this Court to acquit accused for the offence leveled against him.

//4//

09.After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

“1. Whether the police seized the entire contraband from the

possession of Accused in the presence of mediators?”

“2. Whether the Police gathered any evidence with regard to sale of

liquor bottles by Accused?”

“3. Whether the prosecution able to prove the guilt of Accused

beyond all reasonable doubt for the offence U/sec.34(1)(i) A.P.

Excise Amendment Act, 2020,?”

10. POINT No.1:

a) In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of Accused, the prosecution got examined

PWs.1 and 2 and exhibited the documents Ex.P1 to P4 and MOs.1. PW.1 is a mediator in whose presence the entire contraband was seized from the possession of accused. PW.2 is Sub-Inspector, Kanchili PS, who conducted illegal selling of DPL liquor bottles along with other staff members and registered the mediator report. PW.2 is filed the charge sheet after receipt of analysis report and destruction proceedings.

b) One of the mediator was examined as PW.1 who deposed in his evidence that “ On 09-01-2024, at about 06.00 p.m, SI of Police, Kanchili called him by way of phone call to act as mediator. HImself, LW.1/B. Harshavardan along with SI and one and constables went to SRC Puram Village, Kanchili Mandal. At the time the

Accused was found liquor bottles. On seeing police accused trying to skulk away.

On that police caught accused and questioned revealed name and identity particulars. Then PW.2 verified the possession of accused and found 10 liquor bottles of Old Admiral fine VSOP Brandy 180 ML and MRP 120/- total 1200/- purchasing from Government Wine shop at N.M Puram and meant for selling for higher price and the same were brought to accused village. Then they collected one sample bottle for the purpose of chemical analyses. MO.1 is one sample

IML bottle. Then he sealed and affixed identified slips duly signature by himself,

LW.1 and S.I of Kanchili Police. The Kanchili police drafted mediator report. Ex. P1 is the mediator report. ” While cross examination he stated that “He cannot say //5// the descriptive particulars of seized property as per Ex.P1. He is not jurisdictional

VRO for the scene of offence. Police did not serve summons to him to act as mediator. The place of offence is busy locality. The villagers are also moving on the road frequently. It is true police did not mentioned the descriptive particulars of card board box which was in the position of accused in Ex.P1. He did not receive written consent from MRO to act as a mediator. He did not mentioned in his movement register that He is going to act as mediator on the date of offence.”

c) P.W.2 who is the Sub-Inspector of Kanchili Police Station deposed in his evidence that “ On 09-01-2024 at about 6-00 PM, Basing upon reliable information regarding illegal transport of liquor bottles himself along with PW-1/VRO, Lws-1 and 3 who are his staff went to scene of offence i.e., house of you at Pedda

Srirampuram village, Kanchili Mandal. They noticed some people set at the back side of the house and on seeing police in uniform they fed away and one person among them stood their with bag. Then, On questioning the accused revealed identity as Lotla Joga Rao, S/o late Appanna age 53 years, Pedda Srirampuram

Village, Kanchili Mandal and you confessed that you bought 10 liquor bottles Old

Admiral fine VSOP Brandy 180 ml and MRP 120/- total Rs 1200/- from

Government wine shops at N.M Puram meant for selling for higher prices. Then,

He opened the gunny bag and found 10 liquor bottles Old Admiral fine VSOP

Brandy 180 ml. For that effect one of his constable drafted mediator report and obtained signatures. He have drawn one sample bottle (MO.1) for the purpose of chemical analysis. He have seized the contraband and taken into custody of accused. Basing on Ex.P1 he register a crime in the Crime No. 4/2024, U/s 34(1)(i) of AP Excise Amendment Act 2020 and submitted copies of F.I.R., to all concerned officers. Then, On the next day, he served 41-A CrPC notice to accused and obtained explanation. He sent sample bottle to the Chemical Examiner,

Visakhapatnam under the cover of letter of advice. The Chemical Examiner send his report on 16-02-2024 opining that the samples are containing Illicitly distilled liquor and unfit for human consumption and injurious to health. After completion of investigation, LW-7-G. Rajesh, filed charge sheet before the Court. ” While //6// cross examination he stated that “It is true the name of the scribe of Mediator report under Ex.P1 is not mentioned. They took one hour time to draft the

Medoato report. It is true he has not mentioned the particulars of the staff participated along with him, but he obtained their signatures in Ex P1. . It is true that scene of offence is a busy locality and he have not examined the persons at the scene of offence.”

d) Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub- Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person

about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

e) The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100 (4) of Cr.P.C. If he fails to secure any independent mediator, he must prepare a report as per Sec.55 of AP

Excise Act and proceed with the preparation of Special Report. The offence //7//

U/s.34(1)(i) of AP Excise Act is made cognizable offence and once the Police officials are entrusted with the investigation of cognizable offence, they become police officials can never say that they are not the police officials. If any police officer failed to follow the above said procedure the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure.

f) Coming to the present case on hand, the case of prosecution is that, when the Police are rushed to the scene of offence of accused and found the accused in possession of 10 bottles of Old Admiral Fine VSOP Brandy plastic bottles 180 ml without having any valid license. During the course of interrogation Accused voluntarily confessed before them that he was not possessed any valid license and the said liquor bottles were purchased for the purpose of selling the same in open market to gain profit illegally. When such is the case the Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of accused is a Indian Made Liquor. Ex.P4 the analysis report also concur with the same. As such the Police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties for gain.

g) Now, the clinching issue before the court is whether the said contraband was seized from the scene of offence of accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. PW.1 is no other than the mediators in whose presence the entire contraband alleged to have seized from the possession of accused. The evidence of PW.1 not corroborated by PW.2, the Police who participated in the illegal transportation liquor bottles and who present at the time of preparation of mediator report. As such the Court has scrutinize the evidence of PWs.1 and 2 to //8// fish out the original things happened at the time of alleged seizure from the possession of accused. As could be seen from the evidence of PWs.1 and 2, there were several inconsistent versions with regard to securing of mediators and the things alleged to have happened at the time of preparing Ex.P1 mediator report.

Moreover it is an admitted fact that the scene of offence was situated in a busy locality. When such is the case what is the necessity for the Police Officials to secure the mediators from the police station itself. Moreover, the mediators in whose presence the entire contraband was seized were not drafted Ex.P1 mediator report.

h) It is an admitted fact that PW.2 received credible information with regard to transporting liquor bottles from Odisha to Andhra Pradesh and selling the same in the open market for higher price. Then he secured the presence of PW.1 and other mediator. By that time, For that reason he was shown as accused in this case. Admittedly, the scene of offence is busy locality. On that PW.2 along with other police personnel and mediators, there is no evidence before the Court except the oral testimony of PWs.1 and 2. Ex.P1 is the mediator report. Moreover, the scene of offence is busy locality. When such is the case what is the necessity for PW.2 to secure the mediators from the police station itself. It is an admitted fact that though PW.1 visited the scene of offence, he did not scribe Ex.P1 mediator report. The evidence of PWs.1 and 2 is silent with regard to the name of the scribe of Ex.P1. If really, there is any amount of truth in the evidence of PWs.1 and 2, there is every possibility to prepare Ex.P1 through PW.1 who is the mediator. The non scribing of Ex.P1 by PW.1 creates a doubt in the mind of the

Court with regard to the visit of PWs.1 and 2 to the scene of offence along with other police personnel.

i) Except the evidence of official witnesses, there is no other independent evidence on record to show the checking of police to the accused. As such, PW.2 failed to follow the provision as contemplated USec.100(4) Cr.P.C. though there is a ample opportunity for him to secure any independent mediator in the locality of //9// scene of offence. But he did not move his little finger in that angle. As per the evidence of PW.1, the one of the mediator who accompanied PW.2 to the scene of offence along with some other police personnel. But the name of PW.2 and another mediator was not reflected in Ex.P1. The very contention of accused is that at the instance of excise police, PW.1 and other mediator signed on Ex.P1. In the absence of any positive evidence on record I find force in the contention of the accused. There is every possibility for PW.1 and another mediator to put their signatures in the police station to honour the request of the police. As such, this

Court is not inclined to believe the evidence of PW.1 with regard to the seizure of entire contraband from the accused.

j) It is an admitted fact that the scene of offence was situated in a busy locality. There is every possibility for PW.2 to secure any independent mediator at the scene of offence. But PW.2 did not make any such attempt to believe the version of prosecution. There is every possibility for PW.2 to obtain the signatures of PW.1. As per the evidence of PW.1, PW.2 was drafted Ex.P1 mediator report. But it was not reflected the name of PW.2. It also creates a doubt in the mind of the court who drafted Ex.P1 mediator report. All the referred circumstances clearly goes to show that the visit of PWs.1 and 2 along with other staff to the scene of offence is doubtful. There is no positive evidence before this court that the contraband was seized from the possession of accused in the scene of offence as stated by the prosecution. As such I am not believe the evidence of PWs.1 and 2 with regard seizure of contraband from the possession of accused. Accordingly, point No.1 is answered.

11. POINT No.2

a) Further the other allegation of prosecution is that accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sell the said liquor bottle. The police didn’t examine any person to whom the accused sold the liquor bottle. It is an admitted fact that no measurements or any vehicle was seized from the //10// possession of accused at the scene of offence. Moreover Ex.P1 is also silent with regard to seizure of any amount from the possession of accused towards the sale proceeds of liquor bottles at the time of seizure of Mos.1 along with contraband.

It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence it cannot be said that the said MOs.1 is in possession of accused for the purpose of selling the same in open market.

Without producing cogent evidence it is not proper to believe the evidence of prosecution to convict Accused for the offence U/Sec.34(1)(i) of AP Excise Act.

Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of accused. After evaluating the entire evidence on record, this Court is also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. I have gone through the above referred decision. Our lordships categorically discussed with regard to this effect of case of prosecution for non complying of the provisions under Sec.55 of

AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, I am not believe the evidence of prosecution witnesses to punish accused for the offence U/Sec.34(1)(i) of AP

Excise Act. Viewed from any angle the prosecution failed to prove the guilt of

Accused beyond all reasonable doubt for the offence U/Sec.34(1)(i) of AP Excise

Act, 2020. As such the benefit of doubt certainly goes in favour of accused.

Accordingly, point No.2 is answered.

12. POINT No.3 :

In view of the answers to point Nos.1 and 2, Accused is entitled for acquittal.

13.In the result, Accused is found not guilty of the offence punishable

U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted //11//

U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in Open Court, the 4th day of October, 2024.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence PW.1: Nelli Vinod Kumar, Panchayat SecretaryNone PW.2: S. Balaraju, S.I of Police

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1: Mediators report. --Nil— Ex.P2: Original FIR, dt. 09-01-2024. Ex.P3: Letter of advise, dt. 22-01-2024 Ex.P4: Chemical Analysis Report, dt. 16-02-2024.

MATERIAL OBJECTS

MO.s 1 : One Sample Bottles

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta // True Copy //

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

//12//

CALENDAR AND JUDGMENT

Calendar Cases tried by the Additional Judl. Magistrate of 1st Class, Sompeta.

Date of Offence :09-01-2024

Date of Complaint or Report :09-01-2024

Date of Apprehension of accused :09-01-2024

Date of Release on U/sec 41-A CrPC:09-01-2024

Date of Commencement of trial:09-07-2024

Date of Close of trial:01-10-2024

Date of Sentence or order:04-10-2024

Explanation for delay:----

Name of the complainant:State represented by the Sub

Inspector of Police Kanchili PS

Crime No.: 04/2024

Calendar and Judgment in C.C.No.76/2024 on the file of

Additional Judl. Magistrate of 1 st Class Court, Sompeta.

Name and Address:Lotla Joga Rao, S/o late Appanna, age 53 years, R/o Pedda Srirampuram Village, of the accused Kanchili Mandal, Srikakulam District Offence:- :U/s. 34(1)(i) of A.P. Excise Amendment, Act 2020 (Imports, Exports, Transports, Manufactures, Collects or Possesses or Sells any intoxicant shall on conviction be punished) Finding:-:Not guilty.

Sentence or order:- In the result, Accused is found not guilty of the off ence punishable U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class Sompeta

Copy to The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam. // True Copy //

//1//

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

SOMPETA

Present: Sri P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class, Sompeta

Friday, the 4th day of October, 2024.

C.C.No. 77/2024

Between: State: Represented by the Sub-Inspector of Police, Kanchili Police Station. Crime No. 5/2024 …. Complainant And: Battula Jagadeesh @ Jageswara Rao, S/o Dandasi, age 53 years, R/o Pedda Street, M.S Palli Village, Kanchili Mandal,Srikakulam District ….Accused

This case is coming before me on 01-10-2024 for final hearing in the presence of learned Assistant public prosecutor for State and of Sri. N.S. Vijay

Kuarmr, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of Police, Kanchili Police Station filed a charge sheet in Cr.No. 5/2024 for the offence punishable U/sec.34(1)(i) of A.P. Excise

Amendment Act, 2020 against accused.

The Brief facts of the prosecution case are :

02.The Sub-Inspector of Police, Kanchili Police Station, filed a charge sheet that the accused had chosen the dealing of DPL bottles for illegal profits knowingly that the dealing is contravened the provisions of AP Excise Amendment Act 2020.

For the last few days he purchased 8 liquor bottles Old Timer Blue Classic whisky plastic bottles -180 ml and MRP 130/- and total Rs. 1040/-, from the Government wine shops at NM Puram meant for selling for higher prices and the same were //2// brought to his shop and on 10-01-2024 possession in front of his shop which meant for selling and traced at 19.00 hrs at in front of his shop at M.S. Palli

Village, Kanchili Mandal. On tip off about his departure, LW.6-S. Balaraju, Sub

Inspector of Police, Kanchili summoned LW.s 1 and 2, left police station along with

LW.1 to 4 reached Main Road, M.S Palli Village, and waiting traced the accused at 07.00 PM with the liquor bottles, seized the liquor bottles after separation of one sample bottle for sending to RPEL,Visakhapatnam and drafted mediator report from 19.00 hrs to 20.00 hrs, served U/sec 41-A CrPC to the accused due to seized quantity below ten liters, (which guidelines given by superiors give 41-A CrPC notice to accused , if the quantity of seized property below 10 liters. ) The seized property and accused was brought to police station at 20.30 hrs and registered the mediator report as FIR in Crime No 05/2024 U/Sec 34(1)(i) of AP Excise

Amendment Act 2020. During the court of investigation LW.6 sent the sample bottles to RPEL, Visakhapatnam. LW.5 issued the analysis report in C.E NO 198/2024 and Sl.No 18250 and opined that they are Indian liquor. LW.7- G.

Rajesh, Sub Inspector of police filed charge sheet after completion of investigation.

03.On receipt of charge sheet, this case was taken on file for the offence

U/sec.34(1)(i) A.P. Excise Amendment Act, 2020, against Accused.

04.On appearance of Accused copies of documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., Accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against Accused U/sec.34(1)(i) A.P. Excise

Amendment Act, 2020, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

//3//

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined and Exs.P1 to P4 and Mos.1 were marked.

07.On closure of evidence let in by the prosecution, accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant public prosecutor argued that the evidence of

PWs.1 and 2 coupled with Exs.P1 to P4 and MO.1 clearly discloses that the contraband was seized from the possession of Accused is a Indian made liquor and he have no valid license to sell the same in open market for profit which contravene the provision U/sec.34(1)(i) A.P. Excise Amendment Act, 2020. As such, Accused is liable for punishment for the above section.

b)Per contra the counsel for accused argued that no property was seized from the possession of accused as alleged by prosecution. Admittedly, the scene of offence of accused where the contraband alleged to have seized from the possession of accused were situated in a busy locality. The evidence of PW.1 contradicting with other evidence in respect of the seizure of contraband from the possession of the accused.The names of the mediators were not reflected in

Ex.P1 mediator report which clearly discloses that they are not visit the scene of offence. When the scene of offence was situated in a busy locality what is the necessity for the police to secure the mediators from the police station itself.

When the mediators are available in the scene of offence what prompted PW.2 to scribe Ex.P1 mediator report. The above referred circumstances clearly goes to show that nothing was seized from the possession of the Accused as stated by the prosecution. At the same time no measurements or any amount was seized from the possession of accused to prove the alleged sale of liquor. As such, the prosecution failed to establish the seizure of liquor bottles from the possession of accused. Hence, he requested this Court to acquit accused for the offence leveled against him.

//4//

09.After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

“1. Whether the police seized the entire contraband from the

possession of Accused in the presence of mediators?”

“2. Whether the Police gathered any evidence with regard to sale of

liquor bottles by Accused?”

“3. Whether the prosecution able to prove the guilt of Accused

beyond all reasonable doubt for the offence U/sec.34(1)(i) A.P.

Excise Amendment Act, 2020,?”

10. POINT No.1:

a) In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of Accused, the prosecution got examined

PWs.1 and 2 and exhibited the documents Ex.P1 to P4 and MOs.1. PW.1 is a mediator in whose presence the entire contraband was seized from the possession of accused. PW.2 is Sub-Inspector, Kanchili PS, who conducted illegal selling of DPL liquor bottles along with other staff members and registered the mediator report. PW.2 is filed the charge sheet after receipt of analysis report and destruction proceedings.

b) One of the mediator was examined as PW.1 who deposed in his evidence that “ On 10-01-2024, at about 07.00 p.m, SI of Police, Kanchili called him by way of phone call to act as mediator. Immediately himself, LW.1-Ratnala krishna Rao along with SI and one and constables went to shop of you at M.S.Palli Village,

Kanchili Mandal. At the time accused was found with cement bag on shoulder.

on seeing police accused trying to skulk away. On that police caught accused and questioned accused reveled name and identity particulars. Then they verified the bag containing 08 Timer Classic Whisky of 180 ml each. On questioning you purchased the IML bottles from N.M.Puram and sell the same at higher price. Then they collected one sample bottle for the purpose of chemical analyses.Then he sealed and affixed identified slips duly signature by himself,

LW.1 and S.I of Kanchili Police. The Kanchili police drafted mediator report.. ”

While cross examination he stated that “He cannot say the descriptive particulars of seized property as per Ex.P1. He is not jurisdictional VRO for the scene of //5// offence. Police did not serve summons to him to act as mediator. The place of offence is busy locality. The villagers are also moving on the road frequently. It is true police did not mentioned the descriptive particulars of card board box which was in the position of accused in Ex.P1. He did not receive written consent from

MRO to act as a mediator. He did not mentioned in his movement register that He is going to act as mediator on the date of offence.”

c) P.W.2 who is the Sub-Inspector of Kanchili Police Station deposed in his evidence that “ On 10-01-2024 at about 7.00 PM, Basing upon reliable information regarding illegal transport of liquor bottles himself along with PW-1/Panchayat

Secretary, Lws-1 and 3 who are his staff went to scene of offence i.e., shop of accused at M.S Palli Village, Kanchili Mandal. they noticed some people set at the back side of the shop of accused and on seeing police in uniform they fed away and one person among them stood their with bag. Then, On questioning accused revealed identity as Battula Jagadeesh @ Jageswara Rao, S/o Dandasi, age 53 years, Pedda Street, M.S Palli Village, Kanchili Mandal and accused confessed that accused bought 08 liquor bottles Old Timer Blue Classic whisky plastic bottles 180 ml and MRP 130/- total Rs 1040/- from Government wine shops at N.M Puram meant for selling for higher prices. Then, he opened the gunny bag and found 08 liquor bottles Old Timer Blue Classic whisky 180 ml. For that effect one of his constable drafted mediator report and obtained signatures. He have drawn one sample bottle for the purpose of chemical analysis. He have seized the contraband and taken into custody of accused. Basing on Ex.P1 he register a crime in the Crime No. 5/2024, U/s 34(1)(i) of AP Excise Amendment Act 2020 and submitted copies of F.I.R., to all concerned officers. On the next day he served 41-A CrPC notice to accused and obtained explanation. He sent sample bottle to the Chemical Examiner, Visakhapatnam under the cover of letter of advice. The

Chemical Examiner send his report on 16-02-2024 opining that the samples are containing Illicitly distilled liquor and unfit for human consumption and injurious to health. After completion of investigation, LW-7-G. Rajesh, filed charge sheet

before the Court. ” While cross examination he stated that “It is true the name of

//6// the scribe of Mediator report under Ex.P1 is not mentioned. They took one hour time to draft the Mediator report. It is true he has not mentioned the particulars of the staff participated along with him, but he obtained their signatures in Ex P1. .

It is true that scene of offence is a busy locality and he have not examined the persons at the scene of offence.”

d) Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub- Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person

about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

e) The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100 (4) of Cr.P.C. If he fails to secure any independent mediator, he must prepare a report as per Sec.55 of AP

Excise Act and proceed with the preparation of Special Report. The offence

U/s.34(1)(i) of AP Excise Act is made cognizable offence and once the Police //7// officials are entrusted with the investigation of cognizable offence, they become police officials can never say that they are not the police officials. If any police officer failed to follow the above said procedure the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure.

f) Coming to the present case on hand, the case of prosecution is that, when the Police are rushed to the scene of offence of accused and found the accused in possession of 8 bottles of Old Timmer Blue Classic whisky plastic bottles 180 ml without having any valid license. During the course of interrogation Accused voluntarily confessed before them that he was not possessed any valid license and the said liquor bottles were purchased for the purpose of selling the same in open market to gain profit illegally. When such is the case the Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of accused is a Indian Made Liquor. Ex.P4 the analysis report also concur with the same. As such the Police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties for gain.

g) Now, the clinching issue before the court is whether the said contraband was seized from the scene of offence of accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. PW.1 is no other than the mediators in whose presence the entire contraband alleged to have seized from the possession of accused. The evidence of PW.1 not corroborated by PW.2, the Police who participated in the illegal transportation liquor bottles and who present at the time of preparation of mediator report. As such the Court has scrutinize the evidence of PWs.1 and 2 to fish out the original things happened at the time of alleged seizure from the //8// possession of accused. As could be seen from the evidence of PWs.1 and 2, there were several inconsistent versions with regard to securing of mediators and the things alleged to have happened at the time of preparing Ex.P1 mediator report.

Moreover it is an admitted fact that the scene of offence was situated in a busy locality. When such is the case what is the necessity for the Police Officials to secure the mediators from the police station itself. Moreover, the mediators in whose presence the entire contraband was seized were not drafted Ex.P1 mediator report.

h) It is an admitted fact that PW.2 received credible information with regard to transporting liquor bottles from Odisha to Andhra Pradesh and selling the same in the open market for higher price. Then he secured the presence of PW.1 and other mediator. By that time, For that reason he was shown as accused in this case. Admittedly, the scene of offence is busy locality. On that PW.2 along with other police personnel and mediators, there is no evidence before the Court except the oral testimony of PWs.1 and 2. Ex.P1 is the mediator report. Moreover, the scene of offence is busy locality. When such is the case what is the necessity for PW.2 to secure the mediators from the police station itself. It is an admitted fact that though PW.1 visited the scene of offence, he did not scribe Ex.P1 mediator report. The evidence of PWs.1 and 2 is silent with regard to the name of the scribe of Ex.P1. If really, there is any amount of truth in the evidence of PWs.1 and 2, there is every possibility to prepare Ex.P1 through PW.1 who is the mediator. The non scribing of Ex.P1 by PW.1 creates a doubt in the mind of the

Court with regard to the visit of PWs.1 and 2 to the scene of offence along with other police personnel.

i) Except the evidence of official witnesses, there is no other independent evidence on record to show the checking of police to the accused. As such, PW.2 failed to follow the provision as contemplated USec.100(4) Cr.P.C. though there is a ample opportunity for him to secure any independent mediator in the locality of scene of offence. But he did not move his little finger in that angle. As per the //9// evidence of PW.1, the one of the mediator who accompanied PW.2 to the scene of offence along with some other police personnel. But the name of PW.2 and another mediator was not reflected in Ex.P1. The very contention of accused is that at the instance of excise police, PW.1 and other mediator signed on Ex.P1. In the absence of any positive evidence on record I find force in the contention of the accused. There is every possibility for PW.1 and another mediator to put their signatures in the police station to honour the request of the police. As such, this

Court is not inclined to believe the evidence of PW.1 with regard to the seizure of entire contraband from the accused.

j) It is an admitted fact that the scene of offence was situated in a busy locality. There is every possibility for PW.2 to secure any independent mediator at the scene of offence. But PW.2 did not make any such attempt to believe the version of prosecution. There is every possibility for PW.2 to obtain the signatures of PW.1. As per the evidence of PW.1, PW.2 was drafted Ex.P1 mediator report. But it was not reflected the name of PW.2. It also creates a doubt in the mind of the court who drafted Ex.P1 mediator report. All the referred circumstances clearly goes to show that the visit of PWs.1 and 2 along with other staff to the scene of offence is doubtful. There is no positive evidence before this court that the contraband was seized from the possession of accused in the scene of offence as stated by the prosecution. As such I am not believe the evidence of PWs.1 and 2 with regard seizure of contraband from the possession of accused. Accordingly, point No.1 is answered.

11. POINT No.2

a) Further the other allegation of prosecution is that accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sell the said liquor bottle. The police didn’t examine any person to whom the accused sold the liquor bottle. It is an admitted fact that no measurements or any vehicle was seized from the possession of accused at the scene of offence. Moreover Ex.P1 is also silent with //10// regard to seizure of any amount from the possession of accused towards the sale proceeds of liquor bottles at the time of seizure of Mos.1 along with contraband.

It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence it cannot be said that the said MOs.1 is in possession of accused for the purpose of selling the same in open market.

Without producing cogent evidence it is not proper to believe the evidence of prosecution to convict Accused for the offence U/Sec.34(1)(i) of AP Excise Act.

Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of accused. After evaluating the entire evidence on record, this Court is also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. I have gone through the above referred decision. Our lordships categorically discussed with regard to this effect of case of prosecution for non complying of the provisions under Sec.55 of

AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, I am not believe the evidence of prosecution witnesses to punish accused for the offence U/Sec.34(1)(i) of AP

Excise Act. Viewed from any angle the prosecution failed to prove the guilt of

Accused beyond all reasonable doubt for the offence U/Sec.34(1)(i) of AP Excise

Act, 2020. As such the benefit of doubt certainly goes in favour of accused.

Accordingly, point No.2 is answered.

12. POINT No.3 :

In view of the answers to point Nos.1 and 2, Accused is entitled for acquittal.

13.In the result, Accused is found not guilty of the offence punishable

U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted

U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six //11// months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in Open Court, the 4th day of October, 2024.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence PW.1: Tamada Gurumurthy, Panchayat SecretaryNone PW.2: S. Balaraju, S.I of Police

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1: Mediators report. --Nil— Ex.P2: Original FIR, dt. 10-01-2024. Ex.P3: Letter of advise, dt. 22-01-2024 Ex.P4: Chemical Analysis Report, dt. 16-02-2024.

MATERIAL OBJECTS

MO.s 1 : One Sample Bottles

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta // True Copy //

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

//12//

CALENDAR AND JUDGMENT

Calendar Cases tried by the Additional Judl. Magistrate of 1st Class, Sompeta.

Date of Offence :10-01-2024

Date of Complaint or Report :10-01-2024

Date of Apprehension of accused :10-01-2024

Date of Release on U/sec 41-A CrPC:10-01-2024

Date of Commencement of trial:08-07-2024

Date of Close of trial:01-10-2024

Date of Sentence or order:04-10-2024

Explanation for delay:----

Name of the complainant:State represented by the Sub

Inspector of Police Kanchili PS

Crime No.: 05/2024

Calendar and Judgment in C.C.No.77/2024 on the file of

Additional Judl. Magistrate of 1 st Class Court, Sompeta.

Name and Address:Battula Jagadeesh @ Jageswara Rao, S/o Dandasi, age 53 years, R/o Pedda Street, M.S of the accused Palli Village, Kanchili Mandal,Srikakulam District Offence:- :U/s. 34(1)(i) of A.P. Excise Amendment, Act 2020 (Imports, Exports, Transports, Manufactures, Collects or Possesses or Sells any intoxicant shall on conviction be punished) Finding:-:Not guilty.

Sentence or order:- In the result, Accused is found not guilty of the off ence punishable U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class Sompeta Copy to The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam. The Superintendent of Police, Srikakulam. // True Copy // //13//

//1//

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

SOMPETA

Present: Sri P.Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class, Sompeta

Friday, the 4th day of October, 2024.

C.C.No. 78/2024

Between: State: Represented by the Sub-Inspector of Police, Kanchili Police Station. Crime No. 7/2024 …. Complainant And: Voona Nageswara Rao, S/o late Mallayya, age 52 years, R/o Main Road, J.L. KotaVillage, Kanchili Mandal, Srikakulam District ….Accused

This case is coming before me on 01-10-2024 for final hearing in the presence of learned Assistant public prosecutor for State and of Sri. J. Panda and

K. Raju, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of Police, Kanchili Police Station filed a charge sheet in Cr.No. 7/2024 for the offence punishable U/sec.34(1)(i) of A.P. Excise

Amendment Act, 2020 against accused.

The Brief facts of the prosecution case are :

02.The Sub-Inspector of Police, Kanchili Police Station, filed a charge sheet that the accused had chosen the dealing of DPL bottles for illegal profits knowingly that the dealing is contravened the provisions of AP Excise Amendment Act 2020.

For the last few days he purchased 15 liquor bottles of Manjeera Blue Premium

Deluxe Whisky Plastic bottles 180 ml and MRP 130/- and total Rs. 1,950/-, from the

Government wine shops at NM Puram meant for selling for higher prices and the //2// same were brought to his village and on 12-01-2024 possession in front of his house which meant for selling and traced at 19.00 hrs at in front of his house at

J.L Kota Village, Kanchili Mandal. On tip off about his departure, LW.6-S. Balaraju,

Sub Inspector of Police, Kanchili summoned LW.s 1 and 2, left police station along with LW.1 to 4 reached main Road, J.L. Kota Village and waiting traced the accused at 19.00 hrs with the liquor bottles, seized the liquor bottles after separation of one sample bottle for sending to RPEL,Visakhapatnam and drafted mediator report from 19.00 hrs to 20.00 hrs, served U/sec 41-A CrPC to the accused due to seized quantity below ten liters, (which guidelines given by superiors give 41-A

CrPC notice to accused , if the quantity of seized property below 10 liters. ) The seized property and accused was brought to police station at 20.30 hrs and registered the mediator report as FIR in Crime No 07/2024 U/Sec 34(1)(i) of AP

Excise Amendment Act 2020. During the court of investigation LW.6 sent the sample bottles to RPEL, Visakhapatnam. LW.5 issued the analysis report in C.E NO 198/2024 and Sl.No 18251 and opined that they are Indian liquor. LW.7- G.

Rajesh, Sub Inspector of police filed charge sheet after completion of investigation.

03.On receipt of charge sheet, this case was taken on file for the offence

U/sec.34(1)(i) A.P. Excise Amendment Act, 2020, against Accused.

04.On appearance of Accused copies of documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., Accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against Accused U/sec.34(1)(i) A.P. Excise

Amendment Act, 2020, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

//3//

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined and Exs.P1 to P4 and Mos.1 were marked.

07.On closure of evidence let in by the prosecution, accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant public prosecutor argued that the evidence of

PWs.1 and 2 coupled with Exs.P1 to P4 and MO.1 clearly discloses that the contraband was seized from the possession of Accused is a Indian made liquor and he have no valid license to sell the same in open market for profit which contravene the provision U/sec.34(1)(i) A.P. Excise Amendment Act, 2020. As such, Accused is liable for punishment for the above section.

b)Per contra the counsel for accused argued that no property was seized from the possession of accused as alleged by prosecution. Admittedly, the scene of offence of accused where the contraband alleged to have seized from the possession of accused were situated in a busy locality. The evidence of PW.1 contradicting with other evidence in respect of the seizure of contraband from the possession of the accused.The names of the mediators were not reflected in

Ex.P1 mediator report which clearly discloses that they are not visit the scene of offence. When the scene of offence was situated in a busy locality what is the necessity for the police to secure the mediators from the police station itself.

When the mediators are available in the scene of offence what prompted PW.2 to scribe Ex.P1 mediator report. The above referred circumstances clearly goes to show that nothing was seized from the possession of the Accused as stated by the prosecution. At the same time no measurements or any amount was seized from the possession of accused to prove the alleged sale of liquor. As such, the prosecution failed to establish the seizure of liquor bottles from the possession of accused. Hence, he requested this Court to acquit accused for the offence leveled against him.

//4//

09.After hearing both side arguments and considering the entire material on record, now the points for determination before the Court is :

“1. Whether the police seized the entire contraband from the

possession of Accused in the presence of mediators?”

“2. Whether the Police gathered any evidence with regard to sale of

liquor bottles by Accused?”

“3. Whether the prosecution able to prove the guilt of Accused

beyond all reasonable doubt for the offence U/sec.34(1)(i) A.P.

Excise Amendment Act, 2020,?”

10. POINT No.1:

a) In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of Accused, the prosecution got examined

PWs.1 and 2 and exhibited the documents Ex.P1 to P4 and MOs.1. PW.1 is a mediator in whose presence the entire contraband was seized from the possession of accused. PW.2 is Sub-Inspector, Kanchili PS, who conducted illegal selling of DPL liquor bottles along with other staff members and registered the mediator report. PW.2 is filed the charge sheet after receipt of analysis report and destruction proceedings.

b) One of the mediator was examined as PW.1 who deposed in his evidence that “ On 12-01-2024 at 06.30 hours, he received phone call from by the SI of police Kanchili P.S. Immediately himself and LW.2 and s.i of Police and constables went to Jalantrakota Sachivalayam, Kanchili Mandal. At that time they found accused at backside house of accused. On seeing the police accused tried to run away, but they detained accused. Then they verified the bag which contained 15

Manjeera Deluxe Whisky of 180 ml each; LW.6 asked accused and replied that accused purchased the liquor bottles from N.R.Puram shop, for selling at higher price for accused livelihood. Then LW.6 seized the property they took one sample bottle of IML. for the purpose of chemical analyses and prepared Mediators in the presence of himself and LW.2/Sarveswara Rao.. The Kanchili police drafted mediator report. Ex. P1 is the mediator report. ” While cross examination he stated that “He cannot say the descriptive particulars of seized property as per

Ex.P1. He is not jurisdictional VRO for the scene of offence. Police did not serve //5// summons to him to act as mediator. The place of offence is busy locality. The villagers are also moving on the road frequently. It is true police did not mentioned the descriptive particulars of card board box which was in the position of accused in Ex.P1. He did not receive written consent from MRO to act as a mediator. He did not mentioned in his movement register that He is going to act as mediator on the date of offence.”

c) P.W.2 who is the Sub-Inspector of Kanchili Police Station deposed in his evidence that “ On 12-01-2024 at about 7-00 PM, Basing upon reliable information regarding illegal transport of liquor bottles himself along with PW-1/VRO, Lws- 3 and 4 who are his staff went to scene of offence i.e., house of accused at Main

Road, J.L. Kota Village, Kanchili Mandal. They noticed some people set at the back side of the house of accused and on seeing police in uniform they fed away and one person among them stood their with bag. Then, On questioning accused revealed identity as Voona Nageswara Rao, S/o late Mallayya, age 52 years, Main

Road, J.L. Kota Village, Kanchili Mandal and accused confessed that accused bought 15 liquor bottles of Manjeera Blue Premium Deluxe Whisky plastic bottles - 180 ml each MRP 130/- total Rs 1950/- from Government wine shops at N.M

Puram meant for selling for higher prices. Then, he opened the gunny bag and found 15 liquor bottles of Manjeera Blue Premium Deluxe Whisky plastic bottles - 180 ml For that effect one of his constable drafted mediator report and obtained signatures. He have drawn one sample bottle (MO.1) for the purpose of chemical analysis. He have seized the contraband and taken into custody of accused.

Basing on Ex.P1 he register a crime in the Crime No. 7/2024, U/s 34(1)(i) of AP

Excise Amendment Act 2020 and submitted copies of F.I.R., to all concerned officers. Then, On the next day, he served 41-A CrPC notice to accused and obtained explanation. He sent sample bottle to the Chemical Examiner,

Visakhapatnam under the cover of letter of advice. The Chemical Examiner send his report on 16-02-2024 opining that the samples are containing Illicitly distilled liquor and unfit for human consumption and injurious to health. After completion of investigation, LW-7-G. Rajesh, filed charge sheet before the Court ” While cross //6// examination he stated that “It is true the name of the scribe of Mediator report under Ex.P1 is not mentioned. They took one hour time to draft the Mediator report. It is true he has not mentioned the particulars of the staff participated along with him, but he obtained their signatures in Ex P1. . It is true that scene of offence is a busy locality and he have not examined the persons at the scene of offence.”

d) Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case is rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub- Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or other person

about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

e) The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100 (4) of Cr.P.C. If he fails to secure any independent mediator, he must prepare a report as per Sec.55 of AP

Excise Act and proceed with the preparation of Special Report. The offence //7//

U/s.34(1)(i) of AP Excise Act is made cognizable offence and once the Police officials are entrusted with the investigation of cognizable offence, they become police officials can never say that they are not the police officials. If any police officer failed to follow the above said procedure the entire proceedings undertaken by him are null and void and same cannot be taken into consideration to believe the search and seizure.

f) Coming to the present case on hand, the case of prosecution is that, when the Police are rushed to the scene of offence of accused and found the accused in possession of 15 bottles of Manjeera Blue Premium Deluxe whisky bottles 180 ml without having any valid license. During the course of interrogation Accused voluntarily confessed before them that he was not possessed any valid license and the said liquor bottles were purchased for the purpose of selling the same in open market to gain profit illegally. When such is the case the Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of accused is a Indian Made Liquor. Ex.P4 the analysis report also concur with the same. As such the Police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties for gain.

g) Now, the clinching issue before the court is whether the said contraband was seized from the scene of offence of accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. PW.1 is no other than the mediators in whose presence the entire contraband alleged to have seized from the possession of accused. The evidence of PW.1 not corroborated by PW.2, the Police who participated in the illegal transportation liquor bottles and who present at the time of preparation of mediator report. As such the Court has scrutinize the evidence of PWs.1 and 2 to //8// fish out the original things happened at the time of alleged seizure from the possession of accused. As could be seen from the evidence of PWs.1 and 2, there were several inconsistent versions with regard to securing of mediators and the things alleged to have happened at the time of preparing Ex.P1 mediator report.

Moreover it is an admitted fact that the scene of offence was situated in a busy locality. When such is the case what is the necessity for the Police Officials to secure the mediators from the police station itself. Moreover, the mediators in whose presence the entire contraband was seized were not drafted Ex.P1 mediator report.

h) It is an admitted fact that PW.2 received credible information with regard to transporting liquor bottles from Odisha to Andhra Pradesh and selling the same in the open market for higher price. Then he secured the presence of PW.1 and other mediator. By that time, For that reason he was shown as accused in this case. Admittedly, the scene of offence is busy locality. On that PW.2 along with other police personnel and mediators, there is no evidence before the Court except the oral testimony of PWs.1 and 2. Ex.P1 is the mediator report. Moreover, the scene of offence is busy locality. When such is the case what is the necessity for PW.2 to secure the mediators from the police station itself. It is an admitted fact that though PW.1 visited the scene of offence, he did not scribe Ex.P1 mediator report. The evidence of PWs.1 and 2 is silent with regard to the name of the scribe of Ex.P1. If really, there is any amount of truth in the evidence of PWs.1 and 2, there is every possibility to prepare Ex.P1 through PW.1 who is the mediator. The non scribing of Ex.P1 by PW.1 creates a doubt in the mind of the

Court with regard to the visit of PWs.1 and 2 to the scene of offence along with other police personnel.

i) Except the evidence of official witnesses, there is no other independent evidence on record to show the checking of police to the accused. As such, PW.2 failed to follow the provision as contemplated USec.100(4) Cr.P.C. though there is a ample opportunity for him to secure any independent mediator in the locality of //9// scene of offence. But he did not move his little finger in that angle. As per the evidence of PW.1, the one of the mediator who accompanied PW.2 to the scene of offence along with some other police personnel. But the name of PW.2 and another mediator was not reflected in Ex.P1. The very contention of accused is that at the instance of excise police, PW.1 and other mediator signed on Ex.P1. In the absence of any positive evidence on record I find force in the contention of the accused. There is every possibility for PW.1 and another mediator to put their signatures in the police station to honour the request of the police. As such, this

Court is not inclined to believe the evidence of PW.1 with regard to the seizure of entire contraband from the accused.

j) It is an admitted fact that the scene of offence was situated in a busy locality. There is every possibility for PW.2 to secure any independent mediator at the scene of offence. But PW.2 did not make any such attempt to believe the version of prosecution. There is every possibility for PW.2 to obtain the signatures of PW.1. As per the evidence of PW.1, PW.2 was drafted Ex.P1 mediator report. But it was not reflected the name of PW.2. It also creates a doubt in the mind of the court who drafted Ex.P1 mediator report. All the referred circumstances clearly goes to show that the visit of PWs.1 and 2 along with other staff to the scene of offence is doubtful. There is no positive evidence before this court that the contraband was seized from the possession of accused in the scene of offence as stated by the prosecution. As such I am not believe the evidence of PWs.1 and 2 with regard seizure of contraband from the possession of accused. Accordingly, point No.1 is answered.

11. POINT No.2

a) Further the other allegation of prosecution is that accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sell the said liquor bottle. The police didn’t examine any person to whom the accused sold the liquor bottle. It is an admitted fact that no measurements or any vehicle was seized from the //10// possession of accused at the scene of offence. Moreover Ex.P1 is also silent with regard to seizure of any amount from the possession of accused towards the sale proceeds of liquor bottles at the time of seizure of Mos.1 along with contraband.

It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence it cannot be said that the said MOs.1 is in possession of accused for the purpose of selling the same in open market.

Without producing cogent evidence it is not proper to believe the evidence of prosecution to convict Accused for the offence U/Sec.34(1)(i) of AP Excise Act.

Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of accused. After evaluating the entire evidence on record, this Court is also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. I have gone through the above referred decision. Our lordships categorically discussed with regard to this effect of case of prosecution for non complying of the provisions under Sec.55 of

AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, I am not believe the evidence of prosecution witnesses to punish accused for the offence U/Sec.34(1)(i) of AP

Excise Act. Viewed from any angle the prosecution failed to prove the guilt of

Accused beyond all reasonable doubt for the offence U/Sec.34(1)(i) of AP Excise

Act, 2020. As such the benefit of doubt certainly goes in favour of accused.

Accordingly, point No.2 is answered.

12. POINT No.3 :

In view of the answers to point Nos.1 and 2, Accused is entitled for acquittal.

13.In the result, Accused is found not guilty of the offence punishable

U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted //11//

U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in Open Court, the 4th day of October, 2024.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence PW.1: Ratnala Krishna Rao, (VRONone PW.2: S. Balaraju, S.I of Police

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1: Mediators report. --Nil— Ex.P2: Original FIR, dt. 12-01-2024. Ex.P3: Letter of advise, dt. 22-01-2024 Ex.P4: Chemical Analysis Report, dt. 16-02-2024.

MATERIAL OBJECTS

MO.s 1 : One Sample Bottles

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta // True Copy //

Judicial Magistrate of First Class

Ichapuram

(FAC) Additional Judicial Magistrate of First Class

Sompeta

//12//

CALENDAR AND JUDGMENT

Calendar Cases tried by the Additional Judl. Magistrate of 1st Class, Sompeta.

Date of Offence :12-01-2024

Date of Complaint or Report :12-01-2024

Date of Apprehension of accused :12-01-2024

Date of Release on U/sec 41-A CrPC :12-01-2024

Date of Commencement of trial:08-07-2024

Date of Close of trial:01-10-2024

Date of Sentence or order:04-10-2024

Explanation for delay:----

Name of the complainant:State represented by the Sub

Inspector of Police Kanchili PS

Crime No.: 07/2024

Calendar and Judgment in C.C.No.78/2024 on the file of

Additional Judl. Magistrate of 1 st Class Court, Sompeta.

Name and Address:Voona Nageswara Rao, S/o late Mallayya, age 52 years, R/o Main Road, J.L. Kota Village, of the accused Kanchili Mandal, Srikakulam District Offence:- :U/s. 34(1)(i) of A.P. Excise Amendment, Act 2020 (Imports, Exports, Transports, Manufactures, Collects or Possesses or Sells any intoxicant shall on conviction be punished) Finding:-:Not guilty.

Sentence or order:- In the result, Accused is found not guilty of the off ence punishable U/Sec.34(1)(i) of AP Excise Act, 2020. Accordingly, accused is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of accused shall in force for a period of six months under Sec. 437-A Cr.P.C., The case property i.e., MOs.1 is ordered to be destroyed after expiry of appeal time.

SD/- P. Paresh Kumar

Judicial Magistrate of First Class

Ichapuram (FAC) Additional Judicial Magistrate of First Class Sompeta

Copy to The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam. // True Copy // //13//