AJMFC,KPM FAIR
APCH9
IN THE COURT OF THE ADDL.JUDICIAL MAGISTRATE OF I CLASS:: KUPPAM
Present: Sri P.Varun Teja
Addl. Judicial Magistrate of First Class, Kuppam
FAC/Prl. Civil Judge (Jr.Division),Kuppam.
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The Prohibition and Excise Inspector, Prohibition and Excise Station, Kuppam
1.P.Sampath, aged about 27 years, S/o Perumal, R/o Chinnaboggupalli village, Kuppam Mandal, Chittoor district.
2.M.Kuppaswamy, aged about 37 years, S/o M.kanakappa, r/o D.No.5-70, Chinnaboggupalli village, H/o Vasanadu, Kuppam Mandal, Chittoor District.
This case is come up before me for hearing on 10.04.2026 in the presence of , the learned Assistant Public Prosecutor for complainant and of y, Advocate for the Accused, upon hearing both sides, upon perusing the record and having stood over for consideration till this day, this Court delivered the following:-
The Prohibition and Excise Inspector, Prohibition and Excise Station, Kuppam, has laid charge sheet against the accused in Cr.No.111/2024 under section 7 read with 8(b)(i) of A.P. Prohibition Act.
On 17.04.2024 at about 06.30 a.m. the LW5/Enforcement Inspector along with
PW3, Lw.3 and two other constables and PW1 and Pw.2. at, Venkatapuram cross situated on Gudupalle to Sanganapalli bus route of Gudupalli mandal. At that time two male persons coming in a two wheeler with possession of one white colour bag between them.
On seeing police, they tried to escape. Immediately, they caught hold him andLW5/
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EnforcementInspectorenquiredinthepresenceofPW1andPW2abouttheir whereabouts and also why they are trying to escape, to which one person revealed his name as P. Sampath, aged 27 years, resident of Chinnaboggupally. He further stated that they are having possession of NDPL Liquor and due to fear of police they tried to escape.
Further LW5/Enforcement Inspector verified the plastic bag in the presence of PW1 and
PW2 and found 480 tetra packets of Original Choice Deluxe Whiskey 90ml and when asked about the contraband they stated that they purchased it from Bisaanatham wine
Shops, with intent to sell the same at higher prices in their local villages and further LW5/
Enforcement Inspectorverified the vehicle and found it is Bajaj Platina 100 bearing registration number TN 14 P8460 and further LW5/Enforcement Inspector enquired the other person of the vehicle and he revealed his name as M. Kuppuswamy, resident of
Chinnaboggupally and he reiterated the same said by A1. Further, LW5/Enforcement
Inspector prepared panchanama in the presence of PW1 and PW2 written by Lw3/Head
Constable and LW5/Enforcement Inspector lifted two samples from the contraband for chemical analysis and later LW5/Enforcement Inspector arrested the accused 1 and 2 and seized the contraband and crime vehicle and brought to the police station in the presence of PW1 and PW2 and registered a case in crime number.111 of 2024 under Section 7 read with 8 B(b) (i) of AP Prohibition Act and forward the A1 and A2 to court for judicial custody.
Later, LW5/Enforcement Inspector received chemical analysis report from LW6/Chemical
Examiner on 08.07.2024 with the opinion that the samples are Indian liquor. Later LW5/
Enforcement Inspectorsent proposals to Deputy Commissioner, Special Enforcement
Bureau,Anantapurforconfiscationofremainingcontrabandandreceived acknowledgment.After completion of investigation the Lw.8/ Prohibition and Excise
Inspector, Kuppam filed charge sheet against the accused 1 and 2 for the offence punishable under section 7 read with 8(b)(i) of A.P. Prohibition Act.
This court took cognizance of the offence punishable under section 7 read with 8(b)(i) of A.P. Prohibition Act.
On appearance of the accused 1 and 2 before this court, they were furnished with the copies of documents as required under section 230 B.N.S.S.
The accused 1 and 2 were examined under section 262 BNSS and after hearing both sides, a charge for the offence punishable under section 7 read with 8(b)(i) of A.P. Prohibition Act was framed against the accused 1 and 2, read over and explained to the accused in Telugu, for which they understood the same, pleaded not guilty and claimed to be tried.
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To prove the case of prosecution Pw.1 to Pw.4 were examined. Ex.P-1 to P- 5 were marked. M.O.1 and M.O. 2 are marked.The learned A.P.P has given up the evidence of Lw.3, 6 and 7.
On closure of prosecution evidence the accused 1 and 2 were examined U/s 251 BNSS for the incriminating material appearing against them in the prosecution evidence by explaining the same in Telugu for which they denied the same and further they stated that they have no defense evidence on their behalf.
Heard both sides. Perused the material on record.
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Prosecution has examined four witnesses to prove its case.
Pw.1- G.Sreenivasulu and Pw.2-P.Sreenivasulu are the independent witnesses examined to prove the seizure of the contraband and arrest of the accused 1 and 2. They deposed in their chief examination that about three years ago the police asked them to sign on a paper and they signed on it. They further deposed that they do not know the contents of the papers. They do not know anything about this case. As the witnesses did not support the prosecution, the learned A.P.P sought permission to treat the witnesses as hostile. In their cross examination, they denied that they were colluded with the accused person, but deposing false to help the accused as such they were declared hostile.
Pw.3 by name M.Uma Maheswaran P & E Police Constable deposed that on 17.04.2024atabout6.30amtheLw.5receivedcredibleinformationregarding transportation of illegal liquor and he along with Pw.1 and 2 and Lw.3 and Lw.5 their staff went to theGuduaplli to Sanganapali bus road for conducting raids. At that timetwo persons travelling in two wheeler with one plastic bag and on seeing police they tried to escape and handed over the Lw.5. The Lw.5 enquired two persons why they are trying to escape. At that time Pw.1 and Pw.2 were present, to which they stated that they are having possession of Karanataka liquor and due to afraid of police they are trying to escape. The
Lw,5 enquired the person and he revealed his name is Sampath r/o Paipalyam and
M.Kuppuswamy r/o Chinnaboggupalli village. The Lw.5 searched the bag and found
Original Choice Deluxe Whisky 480 tetra packets. When Lw.5 asked about the said contraband he stated that he purchased it from Karnataka with intent to sell high prices in local villages.The Lw.5 lifted one sample from the contraband.The Lw.5 prepared
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panchanama and typed by Lw.3 to the dictation of Lw.5. He signed in the panchanama.
The Lw.5 seized the contraband and arrested the accused under the cover of police proceedings and brought to the police station.
In his cross examination he denied the suggestion that the Pw.2 is working as a driver in their station at that time. He deposed that at about 5.00am they started to the scene of offence.At that time election code was there.The scene of offence is 15 km away from their station. The Basanatham is the village in Andhra and from the said village the Karnataka border is 2 km.Near to the scene of offence venkata puram village is there and there number of houses are there. He admitted that in panchanama they did not mention about whom they askedfor acting as mediators.In panchanama they did not mention about the particulars of contraband. He further deposed that crime vehicle is a
Platina vehicle and they did not produce the documents of crime vehicle. The staff caught hold the accused within 50 feets. He further denied the suggestion that the accused did not committed any offence due to election codethe lw.5 filed false case against the accuse and to support him to deposing false.
Pw.4 by name G.Srujan Babu, Circle Inspector deposed the same facts as stated by Pw.3 in his chief examination. He further deposed that he registered the FIR, arrested the accused 1 and 2, prepared panchanama, drawn samples and sent for chemical analysis. After completion of the investigation Lw.7 filed the charge sheet.
In his cross examination deposed that Pw.1 is working as office boy in their station.He denied the suggestion that the Pw.2 is working as a driver in their station at that time.At about 5.00am they started to the scene of offence.The scene of offence is 15 km away from their station. The Bisanatham is the village in
Andhra and from the said village the Karnataka border is 2 km. The staff caught hold the accused within 50 feets.He denied the suggestion that the accused did not committed any offence due to election codethe Lw.5 filed false case against the accuse and to support him to deposing false.
He admitted that at that time, the election code was in force. In Exhibit P3, they did not mention about the accused who purchased the contraband at late hours and brought to the Andhra border at that time. In Karnataka, the wine shops will be opened from 11.00 to 10.00 p.m.They did not secure the crime vehicle documents and filed
before this court. At the scene of offence there are nearly 150 residential houses and
shops and establishments. In the scene of offence, they did not secure any independent persons to act as mediators as they secured already PW1 and PW2. In Exhibit P3, they
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did not mention the full particulars of contraband. In Exhibit P3, it was not mentioned about who drafted the Exhibit P3 and also who prepared it.
The learned APP argued that the prosecution has proved its case by placing sufficient material on record.
On the other hand the counsel for accused argued that the investigating officer has not followed the procedure laid down u/s 100 (4) of Cr.P.C./ 103(4) B.N.S.S at the time of seizure of contraband, as alleged by him. he further argued that without corroboration from independent witnesses, the evidence of PW1 and PW3 who are the Police Officials cannot be taken into consideration.
.To prove its case, the prosecution is relying on the evidence of PW3 and PW4 only who are the police officials. The prosecution did not cite any independent person as witness. the PW4 deposed that on that day of offence about illegal transportation of liquor and the prosecution did not averred any reasons for the said contradictions in between the
PW3 and Pw4 as such the evidence of them cannot be taken into consideration. The alleged search was not done in the presence of two or more independent and respectable inhabitants of the locality. The prosecution did not cite any independent person as a witness. Now the question is whether the evidence of PW3 and PW4 who are the police officials can be relied. In this connection it is necessary to refer the decision of the Hon'ble
High Court of Andhra Pradesh reported in y It is a case wherein the accused committed the offence under Section 8(c) r/w 20 (b)(i) of the Narcotic
Drugs and Psychotropic Substances Act, and the Hon'ble High Court held at paragraph number 9 as follows :
There is no dispute about the proposition that a conviction can be based on the testimony of police witnesses even though no independent witnesses were examined on behalf of the prosecution. However, whether the evidence of police witnesses warrants conviction or not depends upon the facts and circumstances of each case. If really, the circumstances indicate that it was not possible for the arresting police officer to secure the mediators at a given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However, when there is ample opportunity for the police officer to secure the presence of mediators and he
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fails to do so, it can be considered as a lapse on the part of the Investigating agency. In the instant case, the appellants were arrested in a busy locality and on the Christmas Day. The evidence of PWs.3 and 4 clearly indicates that no effort was made by PW3 and 4 to secure any mediators. PW3, the Police Constable stated in his evidence that at the time of arrest of the appellants there were no mediators at all with them and they did not search for any mediators. Whereas PW4, the Inspector of police stated in his evidence that they tried to secure the mediators but nobody was available. The evidence of PW4, the Sub Inspector of Police also indicates that no attempt was made to secure the mediators and he specifically stated that he did not personally go to the bus stand to search for the mediators. Thus, even though there was ample opportunity for
PW4 to secure mediators with the help of police personnel who followed him, he did not make any attempt to secure the presence of the mediators and under these circumstances, it is quite unsafe to place reliance on the evidence of Pws.3 and 4 who are the police witnesses and more particularly, when PW3 and 4 specifically stated in his chief examination itself that there were no mediators with them at all and they also did not search for any mediators.
So, as per the above decision, if the witnesses are police officials and if there is opportunity for them to secure mediators and if they did not make any attempt to secure the presence of the mediators, then it is not safe to place reliance on the evidence of such police officials. In the instant case, as already stated supra, the prosecution is relying only on the evidence of PWs.3 and 4 who are the police officials. Now it is to be seen whether
PWs.3 and 4 have got any opportunity to secure mediators and if yes,whether they made any attempt to secure mediators. According to the prosecution, the search was alleged to have been done at Government Hospital circle, Kuppam Town and both PW3,4 admitted that the said place is a busy area where shops and residential houses are there. When it is so, there is every possibility for PW.4 to secure mediators at the scene of offence.
So, according to PW.4, he made efforts for mediators, but none came forward to act as mediators. Having deposed so, PW.4 did not mention the names of the persons who were asked to act as mediators. Further, when the said persons refused to act as mediators, nothing prevented PW.4 to pass a written order for the purpose of conducting the search
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and seizure. But PW.4 did not pass any written order.In the absence of any such order, the evidence of PW.4 that none came forward to act as mediators cannot be believed and relied upon.The said principle was laid down in a decision reported in
wherein the Hon’ble High Court while referring to Section 100(4) Cr.P.C held as follows:
Therefore, as stated by Pws.3 and 4, at the scene of offence there are nearly 150 residential houses and shops and establishments when no one was willing to act as panch witness, they should have, for the purpose of conducting the search and seizure, passed a written order, so to do.
Therefore, in the absence of any such order, the evidence of PWs.3 to 4 that no one came forward to witness the panchanama, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.
In the instant case also, as already stated supra, PW.4 did not pass any written order for the purpose of conducting search and seizure.When it is so, in view of the above decision of the Hon’ble High Court, the evidence of PW.4 that none came forward to act as mediators is not believable.It impliedly means that PW.4 did not makeany effortstosecuremediatorsatthesceneofoffence.Whenthere is possibility to secure independent mediators at the scene of offence, PW.4 without securing them and without utilizing their services at the time of search of accused andseizureof property, continuedtheproceedingsunderthecoverofPolice Proceedings. The above circumstances go to show that even though PW.4 got opportunity to secure mediators, he did not make any attempt to secure mediators. When it is so, in view of the above decision of the Hon’ble High Court of A.P. in no reliance can be placed on the evidence of PW.3 and PW.4.Further the said act of
PWs.3 and 4 in not securing independent mediators at the scene of offence makes the search illegal for noncompliance of Section100(4)Cr.P.C.Thesamewaslaid downinadecisionreportedin wherein it was held at paragraph No.5 as follows:
Here, in the case on hand, the accused was found in possession of I. D.
Liquor at Bypass Road, Rangadampally, near Siddipet. The evidence of
PW.1, the Excise Sub Inspector, discloses that there are residential
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houses at a distance of 25 yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of
PW.1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as per the evidence of PW.3, the then
Excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the excise officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW.1 nor that of PW.3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1,panchanama, also does not disclose that any effort was made by excise officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of Section 100 (4) Cr.P.C. are not followed by the excise officials while seizing the plastic can containing I.D. Liquor.
Therefore, the seizure made in this case is illegal.
In the instant case also, the seizure was made in babu Nagar without making any efforts for securing independent mediators of the locality. Hence the seizure made in this case is illegal in view of the above decision of our Hon’ble High Court. The only basis for the prosecution for its case against the accused is their confession before PW2, but the same is hit by Sections 25and26oftheIndianEvidenceActandhence,it cannotbetakeninto consideration.
According to the prosecution, the accused was alleged to have been found in possession of 480 tetra packets of Original Choice Deluxe Whiskey 90ml But, according to the prosecution, only one sample was lifted and the same and after Accused confession they seized the same and sent to the Chemical Examiner, Chittoor who opined that the same as Indian Liquor. When the Chemical Examiner gave opinion about one sample, it applies to that one sample only and it cannot be applied to the remainingpackets.
Further the prosecution did not produce the remainingpackets before the Court.The prosecution has to produce all thepackets and also has to prove that the remaining packets also containliquor.Thesamewaslaiddowninadecisionreported
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in where in it was held at paragraph No.5 as follows:
5. ……… Moreover, only one sample of sachet was produced before the
Court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I.D. liquor and it is not proved In the instant case also, as already stated supra, the prosecution neither produced all the packets nor proved that all the packets contain liquor. Even assuming that the prosecution cannot produce the all alleged contraband which is huge as per their version and they destroyed the remaining contraband after taking permission from the superintendent of police but the same was not even filed along with charge sheet but it was stated in charge sheet.
According to the prosecution the seizure of the sample was made on 08.07.2024
But Ex.P4 Chemical Examiner’s Report reveal that the sample was sent to the Chemical
Examiner on 12.08.2024 It means, there is delay in sending the sample to the Chemical
Examiner. No explanation is coming forth from the prosecution for the said delay. This is another lacuna in the case of the prosecution.
In view of the above discussion, this Court is of the opinion that the prosecution failed to prove the guilt of the accused for the charge under Section Sec. 7 r/w 8 (b) (i) of
A.P. Prohibition Act.
In the result, the accused 1 and 2 are found not guilty for the offence punishable under section 7 read with 8 (b) (i) of A.P. Prohibition Act and the accused 1 and 2 are acquitted under section 271 (1) of B.N.S.S. The bail bonds of the accused shall be in force for 6 months under section 481 B.N.S.S. The M.O.1 i.e., sample of Original Choice Deluxe
Whiskey 90 ml. The M.O.2 i.e., sample of Original Choice Deluxe Whiskey 90 ml shall be destroyed after the expiry of appeal time.
Ty y y III C y C 6 y A 6
Sd/-P.Varun Teja
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PW.1: G.Sreenivasulu
PW.2: P.SreenivasuluNONE
PW.3: M.Uma Maheswaran
PW.4: G.Srujan Kumar
Ex.P1:The signature of Pw.1 in panchanama Ex.P2: The 2ndsignature of Pw.2 in panchanama
Ex.P3: panchanama
Ex P4: FIR.
Ex.P5: Chemical analysis report.
M.O.1:Original Choice Deluxe Whiskey 90 ml.
M.O.2:Original Choice Deluxe Whiskey 90 ml
Sd/-P.Varun Teja
//True copy//
AJMFC, KPM
FAC/JFCM, KPM