P.paresh Kumar

CALENDER AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS : : PADERU

Date of offence : 20-09-2018

Date of Occurrence Report : 20-09-2018

Date of apprehension of accused : 20-09-2018

Date of accused released on bail : 20-09-2018

Date of commencement of trial : 28-03-2019

Date of closure of trial : 04-04-2019

Date of sentence or order of court : 18-04-2019

Explanation for delay and remarks : No delay

Calender and Case Number : 49/2019

Crime Number : 248/2018

Name and address of the Complainant :

State Represented by The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu

Name and address of the accused :

A1. Gemmili Bujjibabu, S/o. Late Bheemanna, Aged 35 years, Thamarapalli Village, Paderu Mandal, Visakhapatnam.

A2. Korra Krishnaveni, W/o. Late Mangaraju, Aged 35 years, Kandhamamidi Village, Paderu Mandal, Visakhapatnam.

Section of Law :

Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Finding of the Court :

Accused No.1 and 2 are found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

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Sentence or Order of the Court :

Accused No.1 and 2 are acquitted under section 248(1) of The Criminal Procedure

Code,1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act, 1995.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

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IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, PADERU

Present:- P. Paresh Kumar

Judicial Magistrate of First Class, Araku

(FAC) Judicial Magistrate of First Class, Paderu

Thursday, this the 18th day of April, 2019

CC.NO.49/2019

Between:-

State Represented by The Prohibition and Excise Inspector, Prohibition

and Excise Station, Paderu .... Complainant

And :

A1. Gemmili Bujjibabu, S/o. Late Bheemanna, Aged 35 years, Thamarapalli Village, Paderu Mandal, Visakhapatnam.

A2. Korra Krishnaveni, W/o. Late Mangaraju, Aged 35 years, Kandhamamidi Village, Paderu Mandal, Visakhapatnam.

.... Accused No.1 and 2

This case is coming before me for final hearing on 04-04-2019 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri

G.Venkata Ramana, Advocate Legal aid counsel for accused and having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu has LW.4 (K. Indira Devi) filed a charge sheet against the accused in Crime

Number.248/2018 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

2. The brief facts of the charge sheet as follows ….

That on 20-09-2018 at about 10.30 AM during the course of patrolling conducting by LW.3 (G.Maa Raju) along with his staff LW.1 (D.M. Gowri Sankar),

LW.2 (M.S.Naidu) at Thamarapalli village of Paderu Mandal, found accused No.1 and 2 coming with each one black plastic cane with their right hand opposite to the staff and tried to escape on seeing the raid party. On suspicion LW.3 (G.Maa

Raju) with the help of his staff detained accused No.1 and 2 and when questioned by LW.3 (G. Maa Raju) A1 and A2 stated with fear that the plastic canes contained

ID Liquor. Then LW.3 (G. Maa Raju) sent LW.1 (D.M.Gowri Sankar) for securing mediators. LW.1 (D.M.Gowri Sankar) returned after some time and stated that no willing mediators were available. On verification by LW.3 (G. Maa Raju) found each one 05 liters of ID Liquor and totally 10 liters of ID liquor. On further interrogation, accused No.1 and 2 revealed their identity and also stated that the said property was purchased the ID Liquor from unknown person at lowest price for resale it in their village to highest price for their livelihood. Then LW.3 (G. Maa Raju) drawn ID liquor into two 180 ML glass bottles from the canes as sample to send the same to chemical analysis. Seized the property and sealed the sample bottles and the canes after affixing the identification slip duly signed by the staff and thumb impression of accused No.1 and 2. Then LW.3 (G. Maa Raju) arrested accused

No.1 and 2 after explaining the reasons for their arrest under the cover of occurrence report drafted at the scene of offence and the same was also informed to their relatives and brought the case records, seized property and accused No.1 and 2 to the Prohibition and Excise Station, Paderu and LW.3 (G. Maa Raju) registered the case in Cr.No.248/2018 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act,1995 and LW.3 (G. Maa Raju) sent the seized sample bottles to the Chemical Examiner, Government Regional Laboratory of

Prohibition and Excise, Visakhapatnam for analysis and Chemical Examiner after examination opined in his report that sample at S.N.16791 and 16792 are illicitly distilled liquor, it is unfit for human consumption and injurious to health vide

C.E.No.1827/2018, dt.28.09.18 and after completion of investigation, LW.4 (K.

Indira Devi) filed charge sheet against accused No.1 and 2 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

3. On perusal of the material available on record, cognizance was taken for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 5 1995 against the accused No.1 and 2. On appearance of accused No.1 and 2

before this Court, the relevant copies of documents were furnished to them as

required under section 207 of The Criminal Procedure Code, 1973.

4. Then, accused No.1 and 2 were examined under section 239 of The Criminal

Procedure Code, 1973 and they denied guilty of offence. Hence, a charge for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, has been framed and charge was read over and explained to the accused

No.1 and 2 in Telugu, for which they pleaded not guilty and claimed to be tried and the case has been posted for trial.

5. Then prosecution has examined P.W.1 and P.W.2 and got marked Ex.P1 to

Ex.P3 and the evidence of remaining witnesses was given up by learned Assistant

Public Prosecutor and accordingly prosecution evidence was closed.

6. Then, accused No.1 and 2 were examined under section 313 of The Criminal

Procedure Code, 1973 and incriminating materials in the prosecution evidence is explained to the accused No.1 and 2 and they denied the prosecution evidence as false.

7. When the accused No.1 and 2 are questioned, they reported that no defence evidence and accordingly defence side evidence was closed.

8. Heard the arguments of learned Assistant Public Prosecutor for the prosecution and the counsel for accused.

9. Now the points that arises for consideration are -----

A) Whether the prosecution has proved the seizure of 05 liters of ID liquor each from the possession of accused No.1 and 2, beyond all reasonable doubt or not?

B) Whether the prosecution has proved the guilty of accused No.1 and 2 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995, beyond all reasonable doubt?

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10. POINT NO.A : Whether the prosecution has proved the seizure of

05 liters of ID liquor each from the possession of accused No.1 and 2

beyond all reasonable doubt ? POINT NO.B : Whether the prosecution

has proved the guilty of accused No.1 and 2 for the offence under

section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995 beyond all

reasonable doubt ?

In the instant case, P.W.1 deposed that on 20.09.2018 at about 10.30 AM at

Thamarapalli Village of Paderu Mandal, while conducting patrolling by him along with staff, found two male and female persons coming with each one black plastic cane with their right hand opposite to the staff and then they stopped their with the help of staff when they tried to escape in confusion and then he instructed

LW.1 (D.M.Gowri Sankar) for bringing mediators and then he requested five to six persons to act as mediators at Thamarapalli village but they did not come forward to act as mediators and he reported the same to him and then he examined the said property and then he found black plastic canes containing 05 Liters of ID

Liquor each one totally 10 liters of ID liquor and then he drawn sample in two bottles containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused No.1 and 2 revealed that they purchased the said liquor from an unknown person at low cost and same was brought for sale at their resident village so as to eke out their livelihood and then he explained accused No.1 and 2 about the offence and arrested accused No.1 and 2 and seized 05 liters of ID liquor under the cover of an occurrence report and then he registered the occurrence report as a case in crime number 248/2018 for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused No.1 and 2 and directed accused No.1 and 2 to attend before the court as and when directed and then he send the seized samples to chemical examined for chemical analysis and chemical examiner opined in his report vide C.E.No.1827/2018, dated 28.09.2018 that the samples at S.Nos.16791 and 16792 are illicitly distilled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.4 (K. Indira Devi) his Inspector of Police.

PW.2 deposed that she verified investigation conducted by L.W.3 (G. Maa Raju) and after the completion of investigation filed the charge sheet against accused

No.1 and 2 for the offence punishable under section 7(A) r/w 8(e) of A.P.

Prohibition Act.

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In order to prove the seizure of 05 liters of ID Liquor each from the possession of accused No.1 and 2, the prosecution has examined P.W.1 and P.W.2. In the instant case, P.W1 deposed that on 20.09.2018 at about 10.30 AM at Thamarapalli Village of Paderu Mandal, while conducting patrolling by him along with staff, found two male and female persons coming with each one black plastic cane with their right hand opposite to the staff and then they stopped their with the help of staff when they tried to escape in confusion and then he instructed LW.1 (D.M.Gowri Sankar) for bringing mediators and then he requested five to six persons to act as media- tors at Thamarapalli village but they did not come forward to act as mediators and he reported the same to him and then he examined the said property and then he found black plastic canes containing 05 Liters of ID Liquor each one totally 10 liters of ID liquor and then he drawn sample in two bottles containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused No.1 and 2 revealed that they purchased the said liquor from an unknown person at low cost and same was brought for sale at their resident vil- lage so as to eke out their livelihood and then he explained accused No.1 and 2 about the offence and arrested accused No.1 and 2 and seized 05 liters of ID liquor under the cover of an occurrence report and then he registered the occur- rence report as a case in crime number 248/2018 for the offence punishable un- der section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused No.1 and 2 and directed accused No.1 and 2 to attend before the court as and when directed and then he send the seized sam- ples to chemical examined for chemical analysis and chemical examiner opined in his report vide C.E.No.1827/2018, dated 28.09.2018 that the samples at

S.Nos.16791 and 16792 are illicitly distilled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.4 (K. Indira Devi) his Inspector of Police. On perusal of case record and evidence of

P.W.1, this Court found that the scene of offence situated at Thamarapalli village of Paderu Mandal and which is a village area and excise police could bring media- tors from said village and also police could examine any independent witnesses at the scene of offence. But, in the instant case police has failed to seized the ID

Liquor in the presence of mediators and also failed to examine any independent 8 witnesses at the scene of offence for proving that accused no.1 and 2 have pos- sessed ID liquor illegally at the time of incident. Further, P.W.1 admitted in his cross examination that he did not mention in Ex.P1 report about the names of per- sons whom they tried to bring as mediators and he also admitted that he did not make inquiry at any village with a view to know the names of persons from whom accused No.1 and 2 bought the property. Further, prosecution has failed to examine (D.M. Gowri Sankar) (L.W.1) who tried to bring as mediators in this case and also P.W.1 admitted in his cross examination that he did not give any notice in writing to any person to act as mediators. Hence, this Court is of opinion that if the excise police would have really tried for mediators, they would have men- tioned the names of said mediators in Ex.P1 report. Further, if said mediators would have really did not come forward to act as mediators, the excise police has to give notices in writing to said mediators as contemplated in Section 100(4) of

The Code of Criminal Procedure,1973. It is evident on record that excise police did not give any notices in writing to the said mediators. Hence, it is admitted fact from the evidence of prosecution witnesses that ID liquor was not seized in the presence of mediators. It is a healthy practice which leads to cleaner investigation and proper seizure that if the seizure is made in the presence of independent wit- nesses. I hold that the evidence of P.W.1 is not believable in-respect of his efforts for bringing mediators by deputing his staff as he failed to mention the names of persons whom they tried to bring as mediators and also the scene of offence is a busy locality area but he could not secure mediators. It is settled Law that in the absence of independent testimony, evidence of excise officials can not be replied upon as they are interested witnesses, and their evidence runs in a routine man- ner. Hence, the evidence of P.W.1 and P.W.2 are not believable in the absence of independent evidence. Hence, I am of opinion that the seizure of ten liters of ID

Liquor from the possession accused No.1 and 2 are doubtful. Therefore, the prosecution has failed to prove the seizure of ID Liquor from the possession ac- cused No.1 and 2, beyond all reasonable doubt. Accordingly I answered Point (A).

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11. POINT NO.B : Whether the prosecution has proved the guilty of ac-

cused No.1 and 2 for the offence punishable under section 7(A) r/w 8(e)

of Andhra Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the present case , P.W.1 deposed that accused No.1 and 2 revealed on enquiry that they have purchased said ID liquor from unknown person at low cost from hill area and same was brought for sale at their resident village so as to eke out their livelihood but the prosecution has failed to examine any person in said hill area for establishing about the source from which accused No.1 and 2 brought said ID liquor and also failed to examine any witnesses residing in the native vil- lage of accused No.1 and 2 for knowing that whether accused No.1 and 2 are do- ing business of buying and selling ID liquor or not. Further, it is admitted fact that

P.W.1 did not prepare any observation report of the scene of offence and rough sketch of the scene of offence, though the failure of preparation of observation report and rough sketch of the scene of offence is not fatal to the prosecution case but it was error on the part of investigation officer. Further, P.W.1 is excise police person who is highly interested witness to the prosecution case and his evi- dence can not be considered without any independent witnesses. Further, P.W.1 received the report from the Examiner of Prohibition and Excise Laboratory and the report disclosed that the samples which sent to the laboratory are illicitly dis- tilled liquor and unfit for human consumption and injurious to health. But P.W.1 has not cited the examiner of prohibition and excise laboratory as a witness in the charge sheet and the prosecution did not examine the said expert of prohibi- tion and excise laboratory by proving that the said expert examined the samples bottles and gave report. The seizure of ID liquor from the possession of accused

No.1 and 2 are doubtful and also some doubts arise in the evidence of prosecution witnesses with regard to why P.W.1 did not examine any independent witnesses at the scene of offence though scene of offence is a busy locality area and why

P.W.1 did not make any inquiry at any village during investigation with a view to determine the name of person from whom accused No.1 and 2 have brought the said ID liquor and also why P.W.1 did not make any inquiry at native village of ac- cused No.1 and 2 with a view to determine that whether accused No.1 and 2 are 10 doing business of selling and buying ID liquor or not and benefits of said doubts are extended to accused No.1 and 2. Hence, I hold that there is no sufficient incriminating evidence was adduced by the prosecution for the proof of guilty of accused No.1 and 2. Hence, prosecution has failed to prove the guilty of ac- cused No.1 and 2 for the offence punishable under section 7(A) r/w 8(e) of A.P Pro- hibition Act 1995, beyond all reasonable doubt. I answered the Point No.B.

12. In the result, accused No.1 and 2 are found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Hence, accused No.1 and 2 are acquitted under section 248(1) of The Criminal

Procedure Code, 1973 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995. The Unmarked two sample bottles are destroyed after expiry of appeal time.

Dictated by me and typed by my typist, corrected and pronounced by me in the

open Court on this the 18th day of April, 2019.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

Appendix of Evidence Witnesses Examined:

For Prosecution : P.W.1 : (G. Maa Raju) P.W.2 : (K. Indira Devi) For Defence : Nil Exhibits Marked : For Prosecution: Ex.P1 (occurrence Report) Ex.P2 (Printed First Information Report) Ex.P3 (Laboratory report) For Defence: Nil Material Objects: For Prosecution : Nil For Defence : Nil

Judicial Magistrate of First Class/Araku,

(FAC) Judicial Magistrate of First Class/Paderu.

CALENDER AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS : : PADERU

Date of offence : 01-09-2018

Date of Occurrence Report : 01-09-2018

Date of apprehension of accused : 01-09-2018

Date of accused released on bail : 01-09-2018

Date of commencement of trial : 28-03-2019

Date of closure of trial : 04-04-2019

Date of sentence or order of court : 18-04-2019

Explanation for delay and remarks : No delay

Calender and Case Number : 33/2019

Crime Number : 229/2018

Name and address of the Complainant :

State Represented by The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu

Name and address of the accused :

Badnaini Naga Subramanyam, S/o. Balayya, Aged 27 years, Sundruputtu Village, Paderu Mandal, Visakhapatnam.

Section of Law :

Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

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Finding of the Court :

Accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Sentence or Order of the Court :

Accused is acquitted under section 248(1) of The Criminal Procedure Code,1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

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IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, PADERU

Present:- P. Paresh Kumar

Judicial Magistrate of First Class, Araku

(FAC) Judicial Magistrate of First Class, Paderu

Thursday, this the 18th day of April, 2019

CC.NO.57/2019

Between:-

State Represented by The Prohibition and Excise Inspector, Prohibition

and Excise Station, Paderu .... Complainant

And :

Badnaini Naga Subramanyam, S/o. Balayya, Aged 27 years, Sundruputtu Village, Paderu Mandal, Visakhapatnam.

.... Accused

This case is coming before me for final hearing on 04-04-2019 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri

G.Venkata Ramana, Advocate Legal aid counsel for accused and having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu has LW.5 (K. Indira Devi) filed a charge sheet against the accused in Crime

Number.229/2018 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

2. The brief facts of the charge sheet as follows ….

That on 01-09-2018 at about 10.30 AM as per the instructions of the

Prohibition and Excise Superintendent, Anakapalli during the course of patrolling conducting by LW.3 (A. Rajyalakshmi) along with his staff LW.1 (Md. Ibraheem) and

LW.2 (K. Naidu Babu) at Sundruputtu village limits of Paderu Mandal, found 4 accused coming with one white polythene cane with his right hand opposite to the staff and tried to escape on seeing the raid party. On suspicion LW.3 (A.

Rajyalakshmi) with the help of his staff detained accused and when questioned by

LW.3 (A. Rajyalakshmi) accused stated with fear that the polythene cane contained ID Liquor. Then LW.3 (A. Rajyalakshmi) sent LW.1 (Md. Ibraheem) for securing mediators. LW.1 (Md.Ibraheem) returned after some time and stated that no willing mediators were available. On verification by LW.3 (A. Rajyalakshmi) found 05 liters of ID Liquor. On further interrogation, accused revealed his identity and also stated that the said property was purchased the ID Liquor from unknown person at lowest price for resale it in his village to highest price for his livelihood.

Then LW.3 (A. Rajyalakshmi) drawn ID liquor into 180 ML glass bottle from the cane as sample to send the same to chemical analysis. Seized the property and sealed the sample bottle and the cane after affixing the identification slip duly signed by the staff and thumb impression of accused. Then LW.3 (A.

Rajyalakshmi) arrested the accused after explaining the reasons for his arrest under the cover of occurrence report drafted at the scene of offence and the same was also informed to his relatives and brought the case records, seized property and accused to the Prohibition and Excise Station, Paderu and LW.4 (G.Ch.V.

Ramana Rao) registered the case in Cr.No.229/2018 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act,1995 and LW.4 (G.Ch.V.Ramana

Rao) sent the seized sample bottle to the Chemical Examiner, Government

Regional Laboratory of Prohibition and Excise, Visakhapatnam for analysis and

Chemical Examiner after examination opined in his report that sample at

S.N.16776 is illicitly distilled liquor, it is unfit for human consumption and injurious to health vide C.E.No.1827/2018, dt.28.09.18 and after completion of investigation, LW.5 (K. Indira Devi) filed charge sheet against accused for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

3. On perusal of the material available on record, cognizance was taken for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 against the accused. On appearance of accused before this Court, the 5 relevant copies of documents were furnished to him as required under section 207 of The Criminal Procedure Code, 1973.

4. Then, accused was examined under section 239 of The Criminal Procedure

Code, 1973 and he denied guilty of offence. Hence, a charge for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, has been framed and charge was read over and explained to the accused in

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

5. Then prosecution has examined P.W.1 to P.W.3 and got marked Ex.P1 to Ex.P3 and the evidence of remaining witnesses was given up by learned Assistant Public

Prosecutor and accordingly prosecution evidence was closed.

6. Then, accused was examined under section 313 of The Criminal Procedure

Code, 1973 and incriminating materials in the prosecution evidence is explained to the accused and he denied the prosecution evidence as false.

7. When the accused is questioned, he reported that no defence evidence and accordingly defence side evidence was closed.

8. Heard the arguments of learned Assistant Public Prosecutor for the prosecution and the counsel for accused.

9. Now the points that arises for consideration are -----

A) Whether the prosecution has proved the seizure of 05 liters of ID liquor from the possession of accused, beyond all reasonable doubt or not?

B) Whether the prosecution has proved the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995, beyond all reasonable doubt?

6

10. POINT NO.A : Whether the prosecution has proved the seizure of

05 liters of ID liquor from the possession of accused beyond all

reasonable doubt ? POINT NO.B : Whether the prosecution has proved

the guilty of accused for the offence under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the instant case, P.W.1 deposed that on 01.09.2018 at about 10.30 AM, as per the instructions of the Prohibition and Excise Superintendent, Anakapalli at

Sundruputtu village limits of Paderu Mandal, while conducting patrolling by her along with staff, found one male person coming with one white polythene cane with his right hand opposite to the staff and then they stopped him with the help of staff when he tried to escape in confusion and then she instructed LW.1 (Md.

Ibraheem) for bringing mediators and then he requested five to six persons to act as mediators at Sundruputtu village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found polythene cane containing 05 Liters of ID Liquor and then she drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that he purchased the said liquor from an unknown person at low cost and same was brought for sale at his resident village so as to eke out his livelihood and then she explained accused about the offence and arrested accused and seized 05 liters of ID liquor under the cover of an occurrence report and then she handed over accused, case file and seized ID Liquor to SI of Police

Prohibition and Excise Station, Paderu.

PW.2 deposed that LW.3 (A. Rajya Lakshmi) handed over to him the seized ID liquor and one sample bottle and case file and one accused person and then he registered the occurrence report as a case in crime number 229/2018 for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused and directed accused to attend before the court as and when directed and then he send the seized samples to chemical examined for chemical analysis and chemical examiner opined in his report vide C.E.No.1827/2018, dated 28.09.2018 that the samples at

S.No.16776 is illicitly distilled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.5 (K. Indira Devi) his Inspector of Police.

PW.3 deposed that she verified investigation conducted by L.W.4 (G.Ch.V. Ramana

Rao) and after the completion of investigation filed the charge sheet against the accused for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition

Act.

7

In order to prove the seizure of 05 liters of ID Liquor from the possession of ac- cused, the prosecution has examined P.W.1 to P.W.3. In the instant case, P.W1 de- posed that on 01.09.2018 at about 10.30 AM, as per the instructions of the Prohi- bition and Excise Superintendent, Anakapalli at Sundruputtu village limits of

Paderu Mandal, while conducting patrolling by her along with staff, found one male person coming with one white polythene cane with his right hand opposite to the staff and then they stopped him with the help of staff when he tried to es- cape in confusion and then she instructed LW.1 (Md. Ibraheem) for bringing medi- ators and then he requested five to six persons to act as mediators at Sundruput- tu village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found poly- thene cane containing 05 Liters of ID Liquor and then she drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that he purchased the said liquor from an unknown person at low cost and same was brought for sale at his resident village so as to eke out his livelihood and then she explained accused about the offence and arrested accused and seized 05 liters of ID liquor under the cover of an occurrence report and then she handed over accused, case file and seized ID Liquor to SI of Police Prohibition and Excise Station, Paderu. On perusal of case record and evidence of P.W.1, this Court found that the scene of offence situated at Sundruputtu village of Paderu Mandal and which is a village area and excise police could bring mediators from said village and also police could ex- amine any independent witnesses at the scene of offence. But, in the instant case police has failed to seized the ID Liquor in the presence of mediators and also failed to examine any independent witnesses at the scene of offence for proving that accused has possessed ID liquor illegally at the time of incident. Fur- ther, P.W.1 admitted in her cross examination that she did not mention in Ex.P1 re- port about the names of persons whom they tried to bring as mediators and she also admitted that she did not make inquiry at any village with a view to know the names of persons from whom accused bought the property. Further, prosecution has failed to examine (Md. Ibraheem) (L.W.1) who tried to bring as mediators in this case and also P.W.1 admitted in her cross examination that she did not give 8 any notice in writing to any person to act as mediators. Hence, this Court is of opinion that if the excise police would have really tried for mediators, they would have mentioned the names of said mediators in Ex.P1 report. Further, if said me- diators would have really did not come forward to act as mediators, the ex- cise police has to give notices in writing to said mediators as contemplated in Sec- tion 100(4) of The Code of Criminal Procedure,1973. It is evident on record that excise police did not give any notices in writing to the said mediators. Hence, it is admitted fact from the evidence of prosecution witnesses that ID liquor was not seized in the presence of mediators. It is a healthy practice which leads to cleaner investigation and proper seizure that if the seizure is made in the presence of in- dependent witnesses. I hold that the evidence of P.W.1 is not believable in-respect of her efforts for bringing mediators by deputing her staff as she failed to mention the names of persons whom they tried to bring as mediators and also the scene of offence is a busy locality area but he could not secure mediators. It is settled Law that in the absence of independent testimony, evidence of excise officials can not be replied upon as they are interested witnesses, and their evidence runs in a rou- tine manner. Hence, the evidence of P.W.1 to P.W.3 are not believable in the ab- sence of independent evidence. Hence, I am of opinion that the seizure of 05 liters of ID Liquor from the possession accused is doubtful. Therefore, the prosecu- tion has failed to prove the seizure of ID Liquor from the possession accused, beyond all reasonable doubt. Accordingly I answered Point (A).

11. POINT NO.B : Whether the prosecution has proved the guilty of ac-

cused for the offence punishable under section 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the present case, P.W.1 deposed that accused revealed on enquiry that he has purchased said ID liquor from unknown person at low cost from hill area and same was brought for sale at his resident village so as to eke out his livelihood but the prosecution has failed to examine any person in said hill area for establishing about the source from which accused brought said ID liquor and also failed to ex amine any witnesses residing in the native village of accused for knowing that whether accused is doing business of buying and selling ID liquor or not. Further, 9 it is admitted fact that P.W.1 did not prepare any observation report of the scene of offence and rough sketch of the scene of offence, though the failure of prepara- tion of observation report and rough sketch of the scene of offence is not fatal to the prosecution case but it was error on the part of investigation officer. Further,

P.W.1 is excise police person who is highly interested witness to the prosecution case and his evidence can not be considered without any independent witnesses.

Further, P.W.2 deposed that he received the report from the Examiner of Prohibi- tion and Excise Laboratory and the report disclosed that the samples which sent to the laboratory are illicitly distilled liquor and unfit for human consumption and injurious to health. But P.W.2 has not cited the examiner of prohibition and excise laboratory as a witness in the charge sheet and the prosecution did not examine the said expert of prohibition and excise laboratory by proving that the said ex- pert examined the samples bottle and gave report. The seizure of ID liquor from the possession of accused is doubtful and also some doubts arise in the evidence of prosecution witnesses with regard to why P.W.1 did not examine any indepen- dent witnesses at the scene of offence though scene of offence is a busy locality area and why PW.1 did not make any inquiry at any village during investigation with a view to determine the name of person from whom accused has brought the said ID liquor and also why P.W.1 did not make any inquiry at native village of ac- cused with a view to determine that whether accused is doing business of selling and buying ID liquor or not and benefits of said doubts are extended to accused.

Hence, I hold that there is no sufficient incriminating evidence was adduced by the prosecution for the proof of guilty of accused. Hence, prosecution has failed to prove the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of A.P Prohibition Act 1995, beyond all reasonable doubt. I answered the

Point No.B.

12. In the result, accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. Hence, accused is acquitted under section 248(1) of The Criminal Procedure Code, 1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition 10

Act, 1995. The Unmarked one sample bottle is destroyed after expiry of appeal time.

Dictated by me and typed by my typist, corrected and pronounced by me in the

open Court on this the 18th day of April, 2019.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

Appendix of Evidence Witnesses Examined:

For Prosecution :

P.W.1 (A. Rajyalakshmi)

P.W.2 (G. Ch. V. Ramana Rao)

P.W.3 (K. Indira Devi)

For Defence : Nil

Exhibits Marked :

For Prosecution:

Ex.P1 (occurrence Report)

Ex.P2 (Printed First Information Report)

Ex.P3 (Laboratory report)

For Defence: Nil

Material Objects:

For Prosecution : Nil

For Defence : Nil

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

CALENDER AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS : : PADERU

Date of offence : 04-07-2018

Date of Occurrence Report : 04-07-2018

Date of apprehension of accused : 04-07-2018

Date of accused released on bail : 04-07-2018

Date of commencement of trial : 28-03-2019

Date of closure of trial : 04-04-2019

Date of sentence or order of court : 18-04-2019

Explanation for delay and remarks : No delay

Calender and Case Number : 40/2019

Crime Number : 187/2018

Name and address of the Complainant :

State Represented by The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu

Name and address of the accused :

Gasadi Punyavathi, W/o. Appanna, Aged 35 years, Rekula Colony, Paderu Village and Mandal, Visakhapatnam.

Section of Law :

Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

2

Finding of the Court :

Accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Sentence or Order of the Court :

Accused is acquitted under section 248(1) of The Criminal Procedure Code,1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

3

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, PADERU

Present:- P. Paresh Kumar

Judicial Magistrate of First Class, Araku

(FAC) Judicial Magistrate of First Class, Paderu

Thursday, this the 18th day of April, 2019

CC.NO.40/2019

Between:-

State Represented by The Prohibition and Excise Inspector, Prohibition

and Excise Station, Paderu .... Complainant

And :

Gasadi Punyavathi, W/o. Appanna, Aged 35 years, Rekula Colony, Paderu Village and Mandal,

Visakhapatnam District. .... Accused

This case is coming before me for final hearing on 04-04-2019 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri

G.Venkata Ramana, Advocate Legal aid counsel for accused and having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu has LW.5 (K. Indira Devi) filed a charge sheet against the accused in Crime

Number.187/2018 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

2. The brief facts of the charge sheet as follows ….

That on 04-07-2018 at about 03.00 PM as per the instructions of the

Prohibition and Excise Superintendent, Anakapalli during the course of patrolling 4 conducting by LW.3 (S. Dharma Rao) along with his staff LW.1 (P. Srinu) and LW.2 (K. Naidu Babu) at Chinthalaveedhi village of Paderu Mandal, found accused coming with one black plastic cane with her right hand opposite to the staff and tried to escape on seeing the raid party. On suspicion LW.3 (S. Dharma Rao) with the help of his staff detained accused and when questioned by LW.3 (S. Dharma

Rao) accused stated with fear that the plastic cane contained ID Liquor. Then LW.3 (S. Dharma Rao) sent LW.1 (P. Srinu) for securing mediators. LW.1 (P. Srinu) returned after some time and stated that no willing mediators were available. On verification by LW.3 (S. Dharma Rao) found 10 liters of ID Liquor. On further interrogation, accused revealed her identity and also stated that the said property was purchased the ID Liquor from unknown person at lowest price for resale it in her village to highest price for her livelihood. Then LW.3 (S. Dharma Rao) drawn

ID liquor into 180 ML glass bottle from the cane as sample to send the same to chemical analysis. Seized the property and sealed the sample bottle and the cane after affixing the identification slip duly signed by the staff and thumb impression of accused. Then LW.3 (S. Dharma Rao) arrested the accused after explaining the reasons for her arrest under the cover of occurrence report drafted at the scene of offence and the same was also informed to her relatives and brought the case records, seized property and accused to the Prohibition and Excise Station, Paderu and LW.4 (G.Ch.V.Ramana Rao) registered the case in Cr.No.187/2018 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act,1995 and

LW.4 (G.Ch.V.Ramana Rao) sent the seized sample bottle to the Chemical

Examiner, Government Regional Laboratory of Prohibition and Excise,

Visakhapatnam for analysis and Chemical Examiner after examination opined in his report that sample at S.N.15759 is illicitly distilled liquor, it is unfit for human consumption and injurious to health vide C.E.No.1695/2018, dt.14.09.18 and after completion of investigation, LW.5 (K. Indira Devi) filed charge sheet against the accused for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh Prohibition

Act, 1995.

3. On perusal of the material available on record, cognizance was taken for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 5 1995 against the accused. On appearance of accused before this Court, the relevant copies of documents were furnished to her as required under section 207 of The Criminal Procedure Code, 1973.

4. Then, accused was examined under section 239 of The Criminal Procedure

Code, 1973 and she denied guilty of offence. Hence, a charge for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, has been framed and charge was read over and explained to the accused in

Telugu, for which she pleaded not guilty and claimed to be tried and the case has been posted for trial.

5. Then prosecution has examined P.W.1 to P.W.3 and got marked Ex.P1 to Ex.P3 and the evidence of remaining witnesses was given up by learned Assistant Public

Prosecutor and accordingly prosecution evidence was closed.

6. Then, accused was examined under section 313 of The Criminal Procedure

Code, 1973 and incriminating materials in the prosecution evidence is explained to the accused and she denied the prosecution evidence as false.

7. When the accused is questioned, she reported that no defence evidence and accordingly defence side evidence was closed.

8. Heard the arguments of learned Assistant Public Prosecutor for the prosecution and the counsel for accused.

9. Now the points that arises for consideration are -----

A) Whether the prosecution has proved the seizure of 10 liters of ID liquor from the possession of accused, beyond all reasonable doubt or not?

B) Whether the prosecution has proved the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995, beyond all reasonable doubt?

6

10. POINT NO.A : Whether the prosecution has proved the seizure of

10 liters of ID liquor from the possession of accused beyond all

reasonable doubt ? POINT NO.B : Whether the prosecution has proved

the guilty of accused for the offence under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the instant case, P.W.1 deposed that on 04.07.2018 at about 03.00 PM as per the instructions of the Prohibition and Excise Superintendent, Anakapalli at

Chinthalaveedhi Village, while conducting patrolling by him along with staff, found one female person and then they stopped accused with the help of staff when accused tried to ran away and then he found said female person having black plastic cane containing 10 Liters of ID Liquor and then he instructed LW.1 (P.Srinu) for bringing mediators and then he requested five to six persons to act as mediators at Chinthalaveedhi village but they did not come forward to act as mediators and he reported the same to him and then he examined the said property and then he found black plastic cane containing 10 Liters of ID Liquor and then he drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident village so as to eke out her livelihood and then he explained accused about the offence and arrested accused and seized 10 liters of ID liquor under the cover of an occurrence report and then he handed over accused, case file and seized ID Liquor to SI of Police Prohibition and Excise Station Paderu.

PW.2 deposed that LW.3 (S. Dharma Rao) handed over to him the seized ID liquor and one sample bottle and case file and accused and then he registered the occurrence report as a case in crime number 187/2018 for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused and directed accused to attend before the court as and when directed and then he send the seized samples to chemical examined for chemical analysis and chemical examiner opined in his report vide

C.E.No.1695/2018, dated 14.09.2018 that the samples at serial number 15759 is illicitly distiled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.5 (K. Indira Devi) his Inspector of Police.

PW.3 deposed that she verified investigation conducted by L.W.4 (G.Ch.V. Ramana

Rao) and after the completion of investigation filed the charge sheet against the accused for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition

Act.

7

In order to prove the seizure of 10 liters of ID Liquor from the possession of ac- cused, the prosecution has examined P.W.1 to P.W.3. In the instant case, P.W1 de- posed that on 04.07.2018 at about 03.00 PM as per the instructions of the Prohi- bition and Excise Superintendent, Anakapalli at Chinthalaveedhi Village, while conducting patrolling by him along with staff, found one female person and then they stopped accused with the help of staff when accused tried to ran away and then he found said female person having black plastic cane containing 10 Liters of

ID Liquor and then he instructed LW.1 (P.Srinu) for bringing mediators and then he requested five to six persons to act as mediators at Chinthalaveedhi village but they did not come forward to act as mediators and he reported the same to him and then he examined the said property and then he found black plastic cane con- taining 10 Liters of ID Liquor and then he drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident vil- lage so as to eke out her livelihood and then he explained accused about the of- fence and arrested accused and seized 10 liters of ID liquor under the cover of an occurrence report. On perusal of case record and evidence of P.W.1, this Court found that the scene of offence situated at Chinthalaveedhi village and which is a village area and excise police could bring mediators from said village and also police could examine any independent witnesses at the scene of offence. But, in the instant case police has failed to seized the ID Liquor in the presence of media- tors and also failed to examine any independent witnesses at the scene of offence for proving that accused has possessed ID liquor illegally at the time of incident.

Further, P.W.1 admitted in his cross examination that he did not mention in Ex.P1 report about the names of persons whom they tried to bring as mediators and he also admitted that he did not make inquiry at any village with a view to know the names of persons from whom accused bought the property. Further, prosecution has failed to examine (P.Srinu) (L.W.1) who tried to bring as mediators in this case and also P.W.1 admitted in his cross examination that he did not give any notice in writing to any person to act as mediators. Hence, this Court is of opinion that if 8 the excise police would have really tried for mediators, they would have men- tioned the names of said mediators in Ex.P1 report. Further, if said mediators would have really did not come forward to act as mediators, the excise police has to give notices in writing to said mediators as contemplated in Section 100(4) of

The Code of Criminal Procedure,1973. It is evident on record that excise police did not give any notices in writing to the said mediators. Hence, it is admitted fact from the evidence of prosecution witnesses that ID liquor was not seized in the presence of mediators. It is a healthy practice which leads to cleaner investi- gation and proper seizure that if the seizure is made in the presence of indepen- dent witnesses. I hold that the evidence of P.W.1 is not believable in-respect of his efforts for bringing mediators by deputing his staff as he failed to mention the names of persons whom they tried to bring as mediators and also the scene of of- fence is a busy locality area but he could not secure mediators. It is settled Law that in the absence of independent testimony, evidence of excise officials can not be replied upon as they are interested witnesses, and their evidence runs in a rou- tine manner. Hence, the evidence of P.W.1 to P.W.3 are not believable in the ab- sence of independent evidence. Hence, I am of opinion that the seizure of ten liters of ID Liquor from the possession accused is doubtful. Therefore, the pros- ecution has failed to prove the seizure of ID Liquor from the possession accused, beyond all reasonable doubt. Accordingly I answered Point (A).

11. POINT NO.B : Whether the prosecution has proved the guilty of ac-

cused for the offence punishable under section 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the present case, P.W.1 deposed that accused revealed on enquiry that she has purchased said ID liquor from unknown person at low cost from hill area and same was brought for sale at her resident village so as to eke out her livelihood but the prosecution has failed to examine any person in said hill area for establishing about the source from which accused brought said ID liquor and also failed to ex- amine any witnesses residing in the native village of accused for knowing that 9 whether accused is doing business of buying and selling ID liquor or not. Further, it is admitted fact that P.W.1 did not prepare any observation report of the scene of offence and rough sketch of the scene of offence, though the failure of prepara- tion of observation report and rough sketch of the scene of offence is not fatal to the prosecution case but it was error on the part of investigation officer. Further,

P.W.1 is excise police person who is highly interested witness to the prosecution case and his evidence can not be considered without any independent witnesses.

Further, P.W.2 deposed that he received the report from the Examiner of Prohibi- tion and Excise Laboratory and the report disclosed that the samples which sent to the laboratory are illicitly distilled liquor and unfit for human consumption and injurious to health. But P.W.2 has not cited the examiner of prohibition and excise laboratory as a witness in the charge sheet and the prosecution did not examine the said expert of prohibition and excise laboratory by proving that the said ex- pert examined the samples bottle and gave report. The seizure of ID liquor from the possession of accused is doubtful and also some doubts arise in the evidence of prosecution witnesses with regard to why P.W.1 did not examine any indepen- dent witnesses at the scene of offence though scene of offence is a busy locality area and why PW.1 did not make any inquiry at any village during investigation with a view to determine the name of person from whom accused has brought the said ID liquor and also why P.W.1 did not make any inquiry at native village of accused with a view to determine that whether accused is doing business of sell- ing and buying ID liquor or not and benefits of said doubts are extended to ac- cused. Hence, I hold that there is no sufficient incriminating evidence was ad- duced by the prosecution for the proof of guilty of accused. Hence, prosecu- tion has failed to prove the guilty of accused for the offence punishable under sec- tion 7(A) r/w 8(e) of A.P Prohibition Act 1995, beyond all reasonable doubt. I an- swered the Point No.B.

12. In the result, accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. Hence, accused is acquitted under section 248(1) of The Criminal Procedure Code, 1973 for the 10 offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition

Act, 1995. The Unmarked one sample bottle is destroyed after expiry of appeal time.

Dictated by me and typed by my typist, corrected and pronounced by me in the

open Court on this the 18th day of April, 2019.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

Appendix of Evidence Witnesses Examined:

For Prosecution :

P.W.1 (S. Dharma Rao)

P.W.2 (G. Ch. V. Ramana Rao)

P.W.3 (K. Indira Devi)

For Defence : Nil

Exhibits Marked :

For Prosecution:

Ex.P1 (occurrence Report)

Ex.P2 (Printed First Information Report)

Ex.P3 (Laboratory report)

For Defence: Nil

Material Objects:

For Prosecution : Nil

For Defence : Nil

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

CALENDER AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS : : PADERU

Date of offence : 23-07-2018

Date of Occurrence Report : 23-07-2018

Date of apprehension of accused : 23-07-2018

Date of accused released on bail : 23-07-2018

Date of commencement of trial : 28-03-2019

Date of closure of trial : 04-04-2019

Date of sentence or order of court : 18-04-2019

Explanation for delay and remarks : No delay

Calender and Case Number : 52/2019

Crime Number : 202/2018

Name and address of the Complainant :

State Represented by The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu

Name and address of the accused :

Gunta Lakshmi, W/o. Ramesh, Aged 24 years, Cheruvuveedhi Village, Pedabayalu Mandal, Visakhapatnam.

Section of Law :

Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

2

Finding of the Court :

Accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Sentence or Order of the Court :

Accused is acquitted under section 248(1) of The Criminal Procedure Code,1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

3

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, PADERU

Present:- P. Paresh Kumar

Judicial Magistrate of First Class, Araku

(FAC) Judicial Magistrate of First Class, Paderu

Thursday, this the 18th day of April, 2019

CC.NO.52/2019

Between:-

State Represented by The Prohibition and Excise Inspector, Prohibition

and Excise Station, Paderu .... Complainant

And :

Gunta Lakshmi, W/o. Ramesh, Aged 24 years, Cheruvuveedhi Village, Pedabayalu Mandal, Visakhapatnam.

.... Accused

This case is coming before me for final hearing on 04-04-2019 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri

G.Venkata Ramana, Advocate Legal aid counsel for accused and having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu has LW.5 (K. Indira Devi) filed a charge sheet against the accused in Crime

Number.202/2018 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

2. The brief facts of the charge sheet as follows ….

That on 23-07-2018 at about 10.30 AM during the course of patrolling conducting by LW.3 (K. Indira Devi) along with his staff LW.1 (E.Srinivasa Rao) and

LW.2 (Sk. Kasim) at Aradakota village of Pedabayalu Mandal, found accused 4 coming with one black plastic cane with her right hand opposite to the staff and tried to escape on seeing the raid party. On suspicion LW.3 (K. Indira Devi) with the help of his staff detained accused and when questioned by LW.3 (K. Indira

Devi) accused stated with fear that the plastic cane contained ID Liquor. Then

LW.3 (K. Indira Devi) sent LW.1 (E. Srinivasa Rao) for securing mediators. LW.1 (E.

Srinivasa Rao) returned after some time and stated that no willing mediators were available. On verification by LW.3 (K. Indira Devi) found 05 liters of ID Liquor. On further interrogation, accused revealed her identity and also stated that the said property was purchased the ID Liquor from unknown person at lowest price for resale it in her village to highest price for her livelihood. Then LW.3 (K. Indira

Devi) drawn ID liquor into 180 ML glass bottle from the cane as sample to send the same to chemical analysis. Seized the property and sealed the sample bottle and the cane after affixing the identification slip duly signed by the staff and thumb impression of accused. Then LW.3 (K. Indira Devi) arrested the accused after explaining the reasons for her arrest under the cover of occurrence report drafted at the scene of offence and the same was also informed to her relatives and brought the case records, seized property and accused to the Prohibition and

Excise Station, Paderu and LW.4 (G.Ch.V.Ramana Rao) registered the case in

Cr.No.202/2018 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act,1995 and LW.4 (G.Ch.V.Ramana Rao) sent the seized sample bottle to the Chemical Examiner, Government Regional Laboratory of Prohibition and

Excise, Visakhapatnam for analysis and Chemical Examiner after examination opined in his report that sample at S.N.15774 is illicitly distilled liquor, it is unfit for human consumption and injurious to health vide C.E.No.1695/2018, dt.14.09.18 and after completion of investigation, LW.5 (K. Indira Devi) filed charge sheet against of accused for the offence punishable u/s 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

3.On perusal of the material available on record, cognizance was taken for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 5 1995 against the accused. On appearance of accused before this Court, the relevant copies of documents were furnished to her as required under section 207 of The Criminal Procedure Code, 1973.

4. Then, accused was examined under section 239 of The Criminal Procedure

Code, 1973 and she denied guilty of offence. Hence, a charge for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, has been framed and charge was read over and explained to the accused in

Telugu, for which she pleaded not guilty and claimed to be tried and the case has been posted for trial.

5. Then prosecution has examined P.W.1 to P.W.3 and got marked Ex.P1 to Ex.P3 and the evidence of remaining witnesses was given up by learned Assistant Public

Prosecutor and accordingly prosecution evidence was closed.

6. Then, accused was examined under section 313 of The Criminal Procedure

Code, 1973 and incriminating materials in the prosecution evidence is explained to the accused and she denied the prosecution evidence as false.

7. When the accused is questioned, she reported that no defence evidence and accordingly defence side evidence was closed.

8. Heard the arguments of learned Assistant Public Prosecutor for the prosecution and the counsel for accused.

9. Now the points that arises for consideration are -----

A) Whether the prosecution has proved the seizure of 05 liters of ID liquor from the possession of accused, beyond all reasonable doubt or not?

B) Whether the prosecution has proved the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995, beyond all reasonable doubt?

6

10. POINT NO.A : Whether the prosecution has proved the seizure of

05 liters of ID liquor from the possession of accused beyond all

reasonable doubt ? POINT NO.B : Whether the prosecution has proved

the guilty of accused for the offence under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the instant case, P.W.1 deposed that on 23.07.2018 at about 10.30 AM, at

Aradakota Village of Pedabayalu Mandal, while conducting patrolling by her along with staff, found one female person coming with one black plastic cane with her right hand opposite to the staff and then they stopped accused with the help of staff when she tried to escape in confusion and then she instructed LW.1 (E.

Srinivasa Rao) for bringing mediators and then he requested five to six persons to act as mediators at Aradakota village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found plastic cane containing 05 Liters of ID Liquor and then she drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident village so as to eke out her livelihood and then she explained accused about the offence and arrested her and seized 05 liters of ID liquor under the cover of an occurrence report and then she handed over accused, case file and seized ID Liquor to SI of Police Prohibition and Excise Station Paderu.

PW.2 deposed that LW.3 (K. Indira Devi) handed over to me the seized ID liquor and one sample bottle and case file and accused and then he registered the occurrence report as a case in crime number 202/2018 for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused and directed accused to attend before the court as and when directed and then he send the seized samples to chemical examined for chemical analysis and chemical examiner opined in his report vide

C.E.No.1695/2018, dated 14.09.2018 that the samples at serial number 15774 is illicitly distiled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.5 (K. Indira Devi) his Inspector of Police.

7

PW.3 deposed that she verified investigation conducted by L.W.4 (G.Ch.V. Ramana

Rao) and after the completion of investigation filed the charge sheet against the accused for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition

Act.

In order to prove the seizure of 05 liters of ID Liquor from the possession of ac- cused, the prosecution has examined P.W.1 to P.W.3. In the instant case, P.W1 de- posed that on 23.07.2018 at about 10.30 AM, at Aradakota Village of Pedabayalu

Mandal, while conducting patrolling by her along with staff, found one female per- son coming with one black plastic cane with her right hand opposite to the staff and then they stopped accused with the help of staff when she tried to escape in confusion and then she instructed LW.1 (E. Srinivasa Rao) for bringing mediators and then he requested five to six persons to act as mediators at Aradakota village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found plastic cane containing 05 Liters of ID Liquor and then she drawn sample in one bottle contain- ing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident vil- lage so as to eke out her livelihood and then she explained accused about the of- fence and arrested her and seized 05 liters of ID liquor under the cover of an oc- currence report and then she handed over accused, case file and seized ID Liquor to SI of Police Prohibition and Excise Station Paderu. On perusal of case record and evidence of P.W.1, this Court found that the scene of offence situated at

Aradakota village of Pedabayalu mandal and which is a village area and excise police could bring mediators from said village and also police could examine any independent witnesses at the scene of offence. But, in the instant case police has failed to seized the ID Liquor in the presence of mediators and also failed to exam- ine any independent witnesses at the scene of offence for proving that accused has possessed ID liquor illegally at the time of incident. Further, P.W.1 admitted in her cross examination that she did not mention in Ex.P1 report about the names 8 of persons whom they tried to bring as mediators and she also admitted that she did not make inquiry at any village with a view to know the names of persons from whom accused bought the property. Further, prosecution has failed to examine (E. Srinivasa Rao) (L.W.1) who tried to bring as mediators in this case and also

P.W.1 admitted in her cross examination that she did not give any notice in writing to any person to act as mediators. Hence, this Court is of opinion that if the excise police would have really tried for mediators, they would have mentioned the names of said mediators in Ex.P1 report. Further, if said mediators would have re- ally did not come forward to act as mediators, the excise police has to give no- tices in writing to said mediators as contemplated in Section 100(4) of The Code of Criminal Procedure,1973. It is evident on record that excise police did not give any notices in writing to the said mediators. Hence, it is admitted fact from the evidence of prosecution witnesses that ID liquor was not seized in the presence of mediators. It is a healthy practice which leads to cleaner investigation and proper seizure that if the seizure is made in the presence of independent witnesses. I hold that the evidence of P.W.1 is not believable in-respect of her efforts for bring- ing mediators by deputing her staff as she failed to mention the names of persons whom they tried to bring as mediators and also the scene of offence is a busy lo- cality area but he could not secure mediators. It is settled Law that in the absence of independent testimony, evidence of excise officials can not be replied upon as they are interested witnesses, and their evidence runs in a routine manner.

Hence, the evidence of P.W.1 to P.W.3 are not believable in the absence of inde- pendent evidence. Hence, I am of opinion that the seizure of 05 liters of ID Liquor from the possession accused is doubtful. Therefore, the prosecution has failed to prove the seizure of ID Liquor from the possession accused, beyond all reason- able doubt. Accordingly I answered Point (A).

11. POINT NO.B : Whether the prosecution has proved the guilty of ac-

cused for the offence punishable under section 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

9

In the present case, P.W.1 deposed that accused revealed on enquiry that she has purchased said ID liquor from unknown person at low cost from hill area and same was brought for sale at her resident village so as to eke out her livelihood but the prosecution has failed to examine any person in said hill area for establishing about the source from which accused brought said ID liquor and also failed to ex- amine any witnesses residing in the native village of accused for knowing that whether accused is doing business of buying and selling ID liquor or not. Further, it is admitted fact that P.W.1 did not prepare any observation report of the scene of offence and rough sketch of the scene of offence, though the failure of prepara- tion of observation report and rough sketch of the scene of offence is not fatal to the prosecution case but it was error on the part of investigation officer. Further,

P.W.1 is excise police person who is highly interested witness to the prosecution case and his evidence can not be considered without any independent witnesses.

Further, P.W.2 deposed that he received the report from the Examiner of Prohibi- tion and Excise Laboratory and the report disclosed that the samples which sent to the laboratory are illicitly distilled liquor and unfit for human consumption and injurious to health. But P.W.2 has not cited the examiner of prohibition and excise laboratory as a witness in the charge sheet and the prosecution did not examine the said expert of prohibition and excise laboratory by proving that the said ex- pert examined the samples bottle and gave report. The seizure of ID liquor from the possession of accused is doubtful and also some doubts arise in the evidence of prosecution witnesses with regard to why P.W.1 did not examine any indepen- dent witnesses at the scene of offence though scene of offence is a busy locality area and why PW.1 did not make any inquiry at any village during investigation with a view to determine the name of person from whom accused has brought the said ID liquor and also why P.W.1 did not make any inquiry at native village of ac- cused with a view to determine that whether accused is doing business of selling and buying ID liquor or not and benefits of said doubts are extended to accused.

Hence, I hold that there is no sufficient incriminating evidence was adduced by the prosecution for the proof of guilty of accused. Hence, prosecution has 10 failed to prove the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of A.P Prohibition Act 1995, beyond all reasonable doubt. I answered the

Point No.B.

12. In the result, accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. Hence, accused is acquitted under section 248(1) of The Criminal Procedure Code, 1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition

Act, 1995. The Unmarked one sample bottle is destroyed after expiry of appeal time.

Dictated by me and typed by my typist, corrected and pronounced by me in the

open Court on this the 18th day of April, 2019.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

Appendix of Evidence Witnesses Examined:

For Prosecution : P.W.1 (K. Indira Devi) P.W.2 (G.Ch.V.Ramana Rao) P.W.3 (K. Indira Devi) For Defence : Nil Exhibits Marked : For Prosecution: Ex.P1 (occurrence Report) Ex.P2 (Printed First Information Report) Ex.P3 (Laboratory report) For Defence: Nil Material Objects: For Prosecution : Nil For Defence : Nil

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

CALENDER AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS : : PADERU

Date of offence : 14-09-2018

Date of Occurrence Report : 14-09-2018

Date of apprehension of accused : 14-09-2018

Date of accused released on bail : 14-09-2018

Date of commencement of trial : 28-03-2019

Date of closure of trial : 04-04-2019

Date of sentence or order of court : 18-04-2019

Explanation for delay and remarks : No delay

Calender and Case Number : 48/2019

Crime Number : 244/2018

Name and address of the Complainant :

State Represented by The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu

Name and address of the accused :

Navvula Lakshmi, W/o. Veeraju, Aged 35 years, Gudivadagaddi Colony, Paderu Village and Mandal, Visakhapatnam.

Section of Law :

Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

1

Finding of the Court :

Accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

Sentence or Order of the Court :

Accused is acquitted under section 248(1) of The Criminal Procedure Code,1973 for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

3

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, PADERU

Present:- P. Paresh Kumar

Judicial Magistrate of First Class, Araku

(FAC) Judicial Magistrate of First Class, Paderu

Thursday, this the 18th day of April, 2019

CC.NO.48/2019

Between:-

State Represented by The Prohibition and Excise Inspector, Prohibition

and Excise Station, Paderu .... Complainant

And :

Navvula Lakshmi, W/o. Veeraju, Aged 35 years, Gudivadagaddi Colony, Paderu Village and Mandal,

Visakhapatnam District. .... Accused

This case is coming before me for final hearing on 04-04-2019 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri

G.Venkata Ramana, Advocate Legal aid counsel for accused and having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Inspector, Prohibition and Excise Station, Paderu has LW.5 (K. Indira Devi) filed a charge sheet against the accused in Crime

Number.244/2018 for the offence punishable under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

2. The brief facts of the charge sheet as follows ….

That on 14-09-2018 at about 10.50 AM during the course of patrolling conducting by LW.3 (K. Indira Devi) along with his staff LW.1 (B. Chalam Naidu) 4 and LW.2 (Sk. Kasim) at Gudivadagaddi Colony of Paderu Mandal, found accused coming with one black plastic cane with her right hand opposite to the staff and tried to escape on seeing the raid party. On suspicion LW.3 (K. Indira Devi) with the help of his staff detained the accused and when questioned by LW.3 (K. Indira

Devi) accused stated with fear that the plastic cane contained ID Liquor. Then

LW.3 (K. Indira Devi) sent LW.1 (B. Chalam Naidu) for securing mediators. LW.1 (B.

Chalam Naidu) returned after some time and stated that no willing mediators were available. On verification by LW.3 (K. Indira Devi) found 10 liters of ID Liquor.

On further interrogation, accused revealed her identity and also stated that the said property was purchased the ID Liquor from unknown person at lowest price for resale it in her village to highest price for her livelihood. Then LW.3 (K. Indira

Devi) drawn ID liquor into 180 ML glass bottle from the cane as sample to send the same to chemical analysis. Seized the property and sealed the sample bottle and the cane after affixing the identification slip duly signed by the staff and thumb impression of accused. Then LW.3 (K. Indira Devi) arrested the accused after explaining the reasons for her arrest under the cover of occurrence report drafted at the scene of offence and the same was also informed to her relatives and brought the case records, seized property and accused to the Prohibition and

Excise Station, Paderu and LW.4 (G.Ch.V.Ramana Rao) registered the case in

Cr.No.244/2018 for the offence punishable u/s 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act,1995 and LW.4 (G.Ch.V.Ramana Rao) sent the seized sample bottle to the Chemical Examiner, Government Regional Laboratory of Prohibition and

Excise, Visakhapatnam for analysis and Chemical Examiner after examination opined in his report that sample at S.N.16788 is illicitly distilled liquor, it is unfit for human consumption and injurious to health vide C.E.No.1827/2018, dt.28.09.18 and after completion of investigation, LW.5 (K. Indira Devi) filed charge sheet against the accused for the offence punishable u/s 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act, 1995.

3. On perusal of the material available on record, cognizance was taken for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 5 1995 against the accused. On appearance of accused before this Court, the relevant copies of documents were furnished to her as required under section 207 of The Criminal Procedure Code, 1973.

4. Then, accused was examined under section 239 of The Criminal Procedure

Code, 1973 and she denied guilty of offence. Hence, a charge for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, has been framed and charge was read over and explained to the accused in

Telugu, for which she pleaded not guilty and claimed to be tried and the case has been posted for trial.

5. Then prosecution has examined P.W.1 to P.W.3 and got marked Ex.P1 to Ex.P3 and the evidence of remaining witnesses was given up by learned Assistant Public

Prosecutor and accordingly prosecution evidence was closed.

6. Then, accused was examined under section 313 of The Criminal Procedure

Code, 1973 and incriminating materials in the prosecution evidence is explained to the accused and she denied the prosecution evidence as false.

7. When the accused is questioned, she reported that no defence evidence and accordingly defence side evidence was closed.

8. Heard the arguments of learned Assistant Public Prosecutor for the prosecution and the counsel for accused.

9. Now the points that arises for consideration are -----

A) Whether the prosecution has proved the seizure of 10 liters of ID liquor from the possession of accused, beyond all reasonable doubt or not?

B) Whether the prosecution has proved the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act 1995, beyond all reasonable doubt?

6

10. POINT NO.A : Whether the prosecution has proved the seizure of

10 liters of ID liquor from the possession of accused beyond all

reasonable doubt ? POINT NO.B : Whether the prosecution has proved

the guilty of accused for the offence under section 7(A) r/w 8(e) of

Andhra Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the instant case, P.W.1 deposed that on 14.09.2018 at about 10.50 AM, at

Gudivadagaddi Colony, Paderu Village, while conducting patrolling by her along with staff, found one female person coming with one black plastic cane with her right hand opposite to the staff and then they stopped her with the help of staff when she tried to escape in confusion and then she instructed LW.1 (B. Chalam

Naidu) for bringing mediators and then he requested five to six persons to act as mediators at Gudivadagaddi colony, Paderu village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found plastic cane containing 10 Liters of ID Liquor and then she drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident village so as to eke out her livelihood and then she explained accused about the offence and arrested accused and seized 10 liters of ID liquor under the cover of an occurrence report and then she handed over accused, case file and seized ID Liquor to SI of Police

Prohibition and Excise Station, Paderu.

PW.2 deposed that LW.3 (K. Indira Devi) handed over to me the seized ID liquor and one sample bottle and case file and one accused person and then he registered the occurrence report as a case in crime number 244/2018 for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition Act and then he served notice under section 41-A of Cr.P.C to accused and directed accused to attend before the court as and when directed and then he send the seized samples to chemical examined for chemical analysis and chemical examiner opined in his report vide C.E.No.1827/2018, dated 28.09.2018 that the samples at

S.No.16788 is illicitly distiled liquor and the same is unfit for human consumption and then he handed over further investigation in this case to LW.5 (K. Indira Devi) his Inspector of Police.

PW.3 deposed that she verified investigation conducted by L.W.4 (G.Ch.V. Ramana

Rao) and after the completion of investigation filed the charge sheet against the accused for the offence punishable under section 7(A) r/w 8(e) of A.P. Prohibition

Act.

7

In order to prove the seizure of 10 liters of ID Liquor from the possession of ac- cused, the prosecution has examined P.W.1 to P.W.3. In the instant case, P.W1 de- posed that on 14.09.2018 at about 10.50 AM, at Gudivadagaddi Colony, Paderu

Village, while conducting patrolling by her along with staff, found one female per- son coming with one black plastic cane with her right hand opposite to the staff and then they stopped her with the help of staff when she tried to escape in con- fusion and then she instructed LW.1 (B. Chalam Naidu) for bringing mediators and then he requested five to six persons to act as mediators at Gudivadagaddi colony, Paderu village but they did not come forward to act as mediators and he reported the same to her and then she examined the said property and then she found plastic cane containing 10 Liters of ID Liquor and then she drawn sample in one bottle containing 180 ml ID liquor for chemical analysis, affixed identification slips and sealed and on further enquiry, accused revealed that she purchased the said liquor from an unknown person at low cost and same was brought for sale at her resident village so as to eke out her livelihood and then she explained ac- cused about the offence and arrested accused and seized 10 liters of ID liquor un- der the cover of an occurrence report. On perusal of case record and evidence of

P.W.1, this Court found that the scene of offence situated at Gudivadagaddi

Colony, Paderu village and which is a village area and excise police could bring mediators from said village and also police could examine any independent wit- nesses at the scene of offence. But, in the instant case police has failed to seized the ID Liquor in the presence of mediators and also failed to examine any inde- pendent witnesses at the scene of offence for proving that accused has possessed

ID liquor illegally at the time of incident. Further, P.W.1 admitted in her cross ex- amination that she did not mention in Ex.P1 report about the names of persons whom they tried to bring as mediators and she also admitted that she did not make inquiry at any village with a view to know the names of persons from whom accused bought the property. Further, prosecution has failed to examine (B. Cha- lam Naidu)(L.W.1) who tried to bring as mediators in this case and also P.W.1 ad- mitted in her cross examination that she did not give any notice in writing to any person to act as mediators. Hence, this Court is of opinion that if the excise police 8 would have really tried for mediators, they would have mentioned the names of said mediators in Ex.P1 report. Further, if said mediators would have really did not come forward to act as mediators, the excise police has to give notices in writing to said mediators as contemplated in Section 100(4) of The Code of Criminal Pro- cedure,1973. It is evident on record that excise police did not give any notices in writing to the said mediators. Hence, it is admitted fact from the evidence of prosecution witnesses that ID liquor was not seized in the presence of mediators.

It is a healthy practice which leads to cleaner investigation and proper seizure that if the seizure is made in the presence of independent witnesses. I hold that the evidence of P.W.1 is not believable in-respect of her efforts for bringing media- tors by deputing her staff as she failed to mention the names of persons whom they tried to bring as mediators and also the scene of offence is a busy locality area but he could not secure mediators. It is settled Law that in the absence of in- dependent testimony, evidence of excise officials can not be replied upon as they are interested witnesses, and their evidence runs in a routine manner. Hence, the evidence of P.W.1 to P.W.3 are not believable in the absence of independent evi- dence. Hence, I am of opinion that the seizure of ten liters of ID Liquor from the possession accused is doubtful. Therefore, the prosecution has failed to prove the seizure of ID Liquor from the possession accused, beyond all reasonable doubt. Accordingly I answered Point (A).

11. POINT NO.B : Whether the prosecution has proved the guilty of ac-

cused for the offence punishable under section 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act 1995 beyond all reasonable doubt ?

In the present case, P.W.1 deposed that accused revealed on enquiry that she has purchased said ID liquor from unknown person at low cost from hill area and same was brought for sale at her resident village so as to eke out her livelihood but the prosecution has failed to examine any person in said hill area for establishing about the source from which accused brought said ID liquor and also failed to ex- amine any witnesses residing in the native village of accused for knowing that 9 whether accused is doing business of buying and selling ID liquor or not. Further, it is admitted fact that P.W.1 did not prepare any observation report of the scene of offence and rough sketch of the scene of offence, though the failure of prepara- tion of observation report and rough sketch of the scene of offence is not fatal to the prosecution case but it was error on the part of investigation officer. Further,

P.W.1 is excise police person who is highly interested witness to the prosecution case and his evidence can not be considered without any independent witnesses.

Further, P.W.2 deposed that he received the report from the Examiner of Prohibi- tion and Excise Laboratory and the report disclosed that the samples which sent to the laboratory are illicitly distilled liquor and unfit for human consumption and injurious to health. But P.W.2 has not cited the examiner of prohibition and excise laboratory as a witness in the charge sheet and the prosecution did not examine the said expert of prohibition and excise laboratory by proving that the said ex- pert examined the samples bottle and gave report. The seizure of ID liquor from the possession of accused is doubtful and also some doubts arise in the evidence of prosecution witnesses with regard to why P.W.1 did not examine any indepen- dent witnesses at the scene of offence though scene of offence is a busy locality area and why PW.1 did not make any inquiry at any village during investigation with a view to determine the name of person from whom accused has brought the said ID liquor and also why P.W.1 did not make any inquiry at native village of ac- cused with a view to determine that whether accused is doing business of selling and buying ID liquor or not and benefits of said doubts are extended to accused.

Hence, I hold that there is no sufficient incriminating evidence was adduced by the prosecution for the proof of guilty of accused. Hence, prosecution has failed to prove the guilty of accused for the offence punishable under section 7(A) r/w 8(e) of A.P Prohibition Act 1995, beyond all reasonable doubt. I answered the

Point No.B.

12. In the result, accused is found not guilty for the offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. Hence, accused is acquitted under section 248(1) of The Criminal Procedure Code, 1973 for the 10 offence punishable under section 7(A) r/w 8(e) of Andhra Pradesh Prohibition

Act, 1995. The Unmarked one sample bottle is destroyed after expiry of appeal time.

Dictated by me and typed by my typist, corrected and pronounced by me in the

open Court on this the 18th day of April, 2019.

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.

Appendix of Evidence Witnesses Examined:

For Prosecution :

P.W.1 (K. Indira Devi)

P.W.2 (G.Ch.V.Ramana Rao)

P.W.3 (K. Indira Devi)

For Defence : Nil

Exhibits Marked :

For Prosecution:

Ex.P1 (occurrence Report)

Ex.P2 (Printed First Information Report)

Ex.P3 (Laboratory report)

For Defence: Nil

Material Objects:

For Prosecution : Nil

For Defence : Nil

Judicial Magistrate of First Class,

Araku. (FAC) Judicial Magistrate of First Class, Paderu.