Sri Pedasingu Paresh Kumar

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF I

CLASS:: CHINTALAPUDI

Present:- Sri P.Paresh Kumar, Special Judicial Magistrate of I Class (Mobile) -cum-III Additional Junior Civil Judge, Eluru. FAC Junior Civil Judge-cum- Judicial Magistrate of I Class, Chintalapudi

Friday, this the 31st day of March, 2023

C.C.No.46 of 2023

Between :

State: Represented by Sub Inspector of Special Enforcement Bureau, Chintalapudi. …Complainant.

and

1.Dondapatla Pani, S/o Bujji, 24 years, Brahmana, R/o Satyanarayanapeta village, Eluru mandal.

2.Peeka Nagaraju, S/o Galebu, 44 years, Mala, R/o Lingaraogudem village, Eluru Mandal.… Accused 1 and 2

This case coming on this day for final hearing before me in the presence of A.P.P. for the State and of Sri K.Manikyala Rao, Advocate for the accused 1 and 2, and on hearing both sides arguments and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub Inspector, Special Enforcement Bureau, Chintalapudi, filed charge sheet in Cr.No.302/2020 for the offence punishable U/sec.34(a) of

A.P.Excise Act against the accused 1 and 2.

2. The case of the prosecution in brief is that on 13.5.2020 at 9.00 p.m.,

P.W.1-B.Narasimha Rao, Incharge Sub Inspector, P&E, Chintalpudi along with staff conducting excise raids at Raghavapuram village found accused is in possession of 1.Old Tavern Fine Whisky 180 ml-3 bottles, 2.Hyderabad Blue

Super Whisky 180 ml-11 bottles, 3.Donald Deluxe Whisky 180 ml-7 bottles, 4.Aristocrat Premium Reserve Whisky 180ml-10 bottles, 5. Donald Deluxe

Whisky 90 ml -15 bottles, Total 46 non duty paid liquor bottles. In the 2 circumstances the P.W.1 proceeded under special report and arresting the accused, seized the property and motor cycle under the confession of accused and drawn each brand one bottle as sample bottles under cover of special report by affixing identify slips and brought them to Police Station.

Basing on the special report, PW.1 registered FIR in Cr.No.302/2020, for the offence punishable U/s 34(a) of A.P.Excise Act and produced the accused

before the court for judicial remand. The sample sent for chemical

examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy

Commissioner. After completion of investigation, L.W.3-P.Balaji, Sub-Inspector of Police, P&ESI, Chintalapudi filed charge sheet.

3. The case was taken on file for the offence punishable U/sec. 34(a) of

A.P.Excise Act against accused. On appearance of the accused copies of the documents were furnished to the accused as required U/sec. 207 Cr.P.C.

4. The accused was examined U/sec. 239 Cr.P.C. the accused denied the prosecution case. As there are sufficient grounds to proceed a charge U/sec.

34(a) of A.P.Excise Act was framed against the accused. The charge was read over and explained to the accused in Telugu for which accused pleaded not guilty and claimed to be tried.

5. During the course of trial, on behalf of prosecution, PW1 examined and got marked Ex.P.1 to Ex.P5 and M.Os.1 to 5 are marked.

6. After completion of the trial, the accused was examined U/sec.313

Cr.P.C. The incriminating material found in the prosecution evidence is read over and explained to the accused in Telugu. The accused denied the same and did not choose to adduce any Defence evidence.

7. Heard the arguments of both sides. Perused the material on record.

8. Point for determination is:

3

Whether the prosecution has proved the guilt of the accused for the offence U/Sec. 34(a) of A.P.Excise Act?

9. POINT:

P.W.1-B.Narasimha Rao, the then incharge Sub Inspector, Prohibition and Excise, Chintalapudi deposed that on 13.5.2020 at 9.00 p.m., while he along with his staff conducting excise raids at Raghavapuram village found the accused is in possession of 1.Old Tavern Fine Whisky 180 ml-3 bottles, 2.Hyderabad Blue Super Whisky 180 ml-11 bottles, 3.Donald Deluxe Whisky 180 ml-7 bottles, 4.Aristocrat Premium Reserve Whisky 180ml-10 bottles, 5.

Donald Deluxe Whisky 90 ml -15 bottles, Total 46 non duty paid liquor bottles.

He drawn each brand one bottle as sample total five bottles, affixed identity slips, arrested the accused and handed over the case property along with the accused to Prohibition and Excise Station, Chintalapudi. PW.1 registered as a case in Cr.No.302/2020 under Ex.P1 FIR, Ex.P2 special report, letter of advice under Ex.P3, Ex.P4 is destruction proceedings, received Chemical analyst report under Ex.P5. M.Os.1 to 5 are the sample bottles. After completion of investigation, L.W.3-P.Balaji, P&ESI, Chintalapudi filed charge sheet. He served

Section 41-A Cr.P.C., notice on accused.

10.P.W.1 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators.

11.The learned counsel for the accused contended that no independent witnesses are examined by the prosecution except the interested Prohibition constable and Excise Sub-Inspector. It is further contended that the

Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of Cr.P.C. while conducting search and seizure.

The learned counsel for the accused pointed out that the complainant in this case himself investigated the case resulting into prejudice to the accused.

4

12.Coming to the first contention of the Defence it is rightly pointed out by the Defence that in the present case except the interested Prohibition &

Excise officials no independent witnesses were examined by the prosecution.

The Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence Act. Admittedly no independent witness is examined by the prosecution to prove its case and the alleged confession and recovery.

13.The learned Defence counsel draw the attention of this court to the several discrepancies found in the prosecution evidence. Apart from this the evidence of PW1 reveals that no sincere effort was made by him to secure any independent person. It is rightly pointed out by the learned Defence counsel that in absence of any independent evidence the testimony of the

Excise police i.e. PW1 cannot be acted upon. It is further contention of the

Defence that the P.W.1 failed to follow the prescribed procedure as contemplated U/sec. 100(4) Cr.P.C. It is the evidence of P.W.1 that the learned counsel for the accused rightly pointed out that the P.W.1 failed to give the details of the persons whom they approached to act as mediators.

14.As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area. Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed U/sec.100 (4) Cr.P.C., As per the Sec 100 (4) of Cr.P.C. when the independent mediators in that locality are not available or not come forward, the Excise officials has to record the same and 5 issue an order in writing as prescribed under law. It is clear from the record that though the scene of offence is not an isolated area the Excise officials adopted no such procedure. Thus, the entire procedure vitiates the case.

15.It is further contention of the Defence that as per the evidence of the prosecution, P.W.1 is the complainant and he conducted the entire investigation. It is P.W.1, who detected the offence, seized the contraband, drawn the sample prepared the special report, arrested the accused, sent the sample to analysis and destructed the contraband. Hence it is clear that the entire proceedings in this case were taken up by P.W.1 alone. It is an established principle of law that the person who is a complainant in a case should not be allowed as an Investigating Officer in such case the investigation certainly prejudices the accused and impartial investigation is doubtful. I found there is some force in the contention of the Defence. It is clear that the complainant cannot be acted as an Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful. The above stated authorities are relevant in the present case in hand.

16.From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

17.The prosecution failed to connect the M.Os.1 to 5 are the sample bottle and the seized contraband with the accused. Therefore, there is no cogent 6 and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

18.In the result, the accused 1 and 2 are found not guilty for the offence punishable U/sec.34(a) of A.P Excise Act, therefore, they are acquitted

U/s.248 (1) Cr.P.C. The non-valuable case property M.Os.1 to 5 i.e the sample bottles shall be destroyed after appeal time is over. The bail bonds of the accused 1 and 2 and that of their sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 31st day of March, 2023.

Sd/- P.Paresh Kumar

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 :B.Narasimha Rao, Incharge Sub Inspector, P&E, Chintalapudi.

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR

Ex.P.2:-Special report

Ex.P.3:-Letter of advice

Ex.P.4:-Destruction proceedings.

Ex.P.5-Analysis report

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle of ID liquor

M.O.2 : Sample Bottle of ID liquor 7

M.O.3 : Sample Bottle of ID liquor

M.O.4 : Sample Bottle of ID liquor

M.O.5 : Sample Bottle of ID liquor

Sd/- P.Paresh Kumar

III AJFCM, Eluru

FAC J.F.C.M.,C.T.P.

8

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:46 of 2023 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaintApprehensioReleaseCommence-Close of trialSentence or reportn ofon bailment of trialof Order accused 13.5.202013.5.2020––3.3.20233.3.202331.3.2023

Explanation for delay: --NIL--

Cr.No.:: 302/2020 of SEB Chintalapludi

Complainant : Sub Inspector of Police, SEB Chintalapudi.

Offence : Under section 34(a) of A.P.Excise Act

Name of the accused:

1.Dondapatla Pani, S/o Bujji, 24 years, Brahmana, R/o Satyanarayanapeta village, Eluru mandal.

2.Peeka Nagaraju, S/o Galebu, 44 years, Mala, R/o Lingaraogudem village, Eluru Mandal.

Finding: accused 1 and 2 are found not guilty.

Sentence or Order of the Court:-

In the result, the accused 1 and 2 are found not guilty for the offence punishable U/sec. 34(a) of A.P Excise Act, therefore, they are acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.Os.1 to 5 i.e the sample bottles shall be destroyed after appeal time is over. The bail bonds of the accused 1 and 2 and that of their sureties, if any, shall be in force for a period of six months only as per section 437A of Cr.P.C.

Sd/- P.Paresh Kumar

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

Copy submitted to:

The Hon’ble I Addl. District & Sessions Judge, West Godavari, Eluru 9

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF I

CLASS:: CHINTALAPUDI Present:- Sri P.Paresh Kumar, Special Judicial Magistrate of I Class (Mobile) -cum-III Additional Junior Civil Judge, Eluru. Junior Civil Judge-cum- Judicial Magistrate of I Class, Chintalapudi

Friday, this the 31st day of March, 2023.

C.C.No.43 of 2023

Between :

State: Represented by Sub-Inspector of Police, Special Enforcement Bureau, Chintalapudi. …Complainant.

and

Pamarthi Srinivasa Rao S/o Yedukondalu, 40years, Gowda, Kovvurugudem, Chintalapudi Village and Mandal, W.G.Dt.,.

… Accused

This case coming on this day for final hearing before me in the presence of A.P.P. for the State and Sri K.Appaiah, Advocate for accused and on hearing arguments and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Special Enforcement Bureau, Chintalapudi, filed charge sheet in Cr.No.53/2020 for the offence punishable U/sec.34(a) of A.P.

Excise Act against the accused.

2.The case of the prosecution in brief is that on 06.02.2020 at 10.00pm

P.W.2- B. Narasimha Rao, in-charge P&ESI, Chintalapudi along with P.W.1/V. Priya

Darshini, Mahila Constable of Chintalapudi and his staff conducting route watch at

Chintalapudi village found accused is in possession of 1) Mansion House XO

Brandy of 180ml of 48 bottles of Non Duty Paid Liquor. In the circumstances the

P.W.2 drafted special report and P.W.1 arrested the accused, seized the property under the confession of accused and drawn one sample bottle under cover of mediators report by affixing identify slips and brought him to Police Station.

Basing on the mediators report, PW2 registered FIR in Cr.No.53/2020, for the offence punishable U/s 34(a) of A.P. Excise Act and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining 2 contraband was destroyed as per the directions of the Deputy Commissioner. After completion of investigation, L.W.6/P. Balaji, Sub-Inspector of Police, SEB,

Chintalapudi filed charge sheet.

3.The case was taken on file for the offence punishable U/sec. 34(a) of

A.P.Excise Act against accused. On appearance of the accused copies of the documents were furnished to the accused as required U/sec. 207 Cr.P.C.

4.The accused was examined U/sec. 239 Cr.P.C. the accused denied the prosecution case. As there are sufficient grounds to proceed a charge U/sec. 34(a) of A.P. Excise Act was framed against the accused. The charge was read over and explained to the accused in Telugu for which accused pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of prosecution, PW1 and 2 were examined and got marked Ex.P.1 to Ex.P5 and M.O.1 is marked.

6.After completion of the trial, the accused was examined

U/sec.313 Cr.P.C. The incriminating material found in the prosecution evidence is read over and explained to the accused in Telugu. The accused denied the same and did not choose to adduce any Defence evidence.

7.Heard the arguments of both sides. Perused the material on record.

8.Point for determination is:

Whether the prosecution has proved the guilt of the accused for the offence U/Sec. 34(a) of A.P.Excise Act?

9. POINT:

P.W.1- V. Priya Darshini, Mahila Constable, Chintalapudi, on 06.02.2020 at 10.00a.m., she received a phone call from Excise office to attend at main road opposite to Government Hospital, Chintalapudi for vehicle inspection. Accordingly she went to the scene of offence. P.W.2 noticed that accused carrying a gunny bag on Splendor motor vehicle. On suspecision excise police stopped accused and on enquiry accused revealed his identity as Pamarthi Srinivas and other details. Police searched the gunny 3 bag and found 180ml 48 Mansion House liquor bottles. For that effect, I drafted Ex.P.2 mediators report and obtained signatures of police, accused, L.W.2/ Puppala Sujatha,

GMSK constable, Chintalapudi and I also signed on it. P.W.2 taken into custody of accused along with seized property.

10. P.W.1/B. Narasimha Rao, In-charge SEB Sub Inspector of Police, chintalapudi deposed that on 06.02.2020 at 10.00p.m., at Chintalapudi village found accused is in possession of 1)

Mansion House XO Brandy of 180ml of 48 bottles, of IML without heals and that he issued F.I.R., under Ex.P.1, seized the liquor under special report under Ex.P.2, Ex.P.3 letter of advice, Ex.P.4 destruction proceedings and received chemical analysis report under Ex.P.5 and M.O.1 is sample bottle. After completion of investigation L.W.6/P.

Balaji, Sub Inspector of Police filed charge sheet.

11. P.W.1 in her cross examination that she don’t remember from which number she received phone call of Excise department; that she can’t say the exact time to reach the scene of offence and that at the request of police officials she drafted mediators report.

P.W.2 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence. None of her personnel are signed on the special report.

12. The learned counsel for the accused contended that no independent witnesses are examined by the prosecution except the interested Prohibition constable and Excise Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of

Cr.P.C. while conducting search and seizure. The learned counsel for the accused pointed out that the complainant in this case himself investigated the case resulting into prejudice to the accused.

13. Coming to the first contention of the Defence it is rightly pointed out by the Defence that in the present case except the interested Prohibition & 4

Excise officials no independent witnesses were examined by the prosecution. The

Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec.

25 and Sec. 26 of Indian Evidence Act. Admittedly no independent witness is examined by the prosecution to prove its case and the alleged confession and recovery.

14. The learned Defence counsel draw the attention of this court to the several discrepancies found in the prosecution evidence. Apart from this the evidence of PW1 reveals that no sincere effort was made by him to secure any independent person. It is rightly pointed out by the learned Defence counsel that in absence of any independent evidence the testimony of the Excise police i.e.

PW1 cannot be acted upon. It is further contention of the Defence that the P.W.1 failed to follow the prescribed procedure as contemplated U/sec. 100(4) Cr.P.C. It is the evidence of P.W.1 that the learned counsel for the accused rightly pointed out that the P.W.1 failed to give the details of the persons whom they approached to act as mediators.

15. As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area. Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed U/sec.100 (4) Cr.P.C., As per the Sec 100 (4) of

Cr.P.C. when the independent mediators in that locality are not available or not come forward, the Excise officials has to record the same and issue an order in writing as prescribed under law. It is clear from the record that though the scene of offence is not an isolated area the Excise officials adopted no such 5 procedure. Thus, the entire procedure vitiates the case.

16. It is further contention of the Defence that as per the evidence of the prosecution, P.W.1 is the complainant and he conducted the entire investigation. It is P.W.1, who detected the offence, seized the contraband, drawn the sample prepared the special report, arrested the accused, sent the sample to analysis and destructed the contraband. Hence it is clear that the entire proceedings in this case were taken up by P.W.1 alone. It is an established principle of law that the person who is a complainant in a case should not be allowed as an Investigating

Officer in such case the investigation certainly prejudices the accused and impartial investigation is doubtful. I found there is some force in the contention of the Defence. It is clear that the complainant cannot be acted as an Investigating

Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful. The above stated authorities are relevant in the present case in hand.

17. From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

18. The prosecution failed to connect the M.O.1 is the sample bottle and the seized contraband with the accused. Therefore, there is no cogent and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

19. In the result, the accused is found not guilty for the offence punishable U/sec. 34(a) of A.P Excise Act 2020, therefore, the accused is acquitted 6

U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 24th day of March, 2023.

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 : V. Priya Darshini, Mahila Constable.

P.W.2: B. Srinivasa Rao, In-charge Sub Inspector, Proh & Excise, Chintalapudi.

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR Ex.P.2:-Special report Ex.P.3:-Letter of advice Ex.P.4:-Destruction proceedings Analysis report. Ex.P5 -

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle.

III AJFCM, Eluru

FAC J.F.C.M.,C.T.P.

7

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:43 of 2023 ON THE FILE OF JUDICIAL

MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaint or Apprehension Release Commence-Close of trialSentence of reportof accusedon bailment of trialOrder 06.02.202006.02.202003.03.202310.03.202331.03.2023 - -

Explanation for delay: --NIL--

Cr.No.:: 53/2020 of SEB, Chintalapudi P.S

Complainant : Sub Inspector of Police, SEB, Chintalapudi P.S

Offence : Under section 34(a) of A.P. Excise Act

Name of the accused:

Pamarthi Srinivasa Rao S/o Yedukondalu, 40years, Gowda, Kovvurugudem, Chintalapudi Village and Mandal, W.G.Dt.,.

Sentence or Order of the Court:-

In the result, the accused is found not guilty for the offence punishable U/sec. 34(a) of A.P Excise Act 2020, therefore, the accused is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C. s

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

Copy submitted to:

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

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF I

CLASS:: CHINTALAPUDI.

Present:- Sri P.Paresh Kumar, Special Judicial Magistrate of I Class (Mobile) -cum-III Additional Junior Civil Judge, Eluru. Junior Civil Judge-cum- Judicial Magistrate of I Class, Chintalapudi

Friday, this the 31st day of March, 2023.

C.C.No.47 of 2023

Between :

State: Represented by Sub-Inspector of Police, Special Enforcement Bureau, Chintalapudi. …Complainant.

and

A.1- Bhukya Sakru S/o Banna, 35years, Lambadi, R/o Krishnapuram Village, T.Narsapuram Mandal.

A.2- Bhukya Pothuraju S/o Ramadasu, 32years, Lambadi, R/o Krishnapuram Village, T.Narsapuram Mandal.

… Accused

This case coming on this day for final hearing before me in the presence of A.P.P. for the State and Sri L. Ashok, Advocate for accused and on hearing arguments and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Special Enforcement Bureau, Chintalapudi, filed charge sheet in Cr.No.100/2020 for the offence punishable U/sec.7(A) r/w 8(e) of A.P.

Prohibtion (Amendment) Act 2020, against accused no.1 and 2.

2. The case of the prosecution in brief is that on 02.03.2020 at 07.30pm, P.W.1- G.

Srinivasa Rao, IN-charge Sub Inspector, Pro & Excise, Chintalapudi along with his staff conducting excise raids at Krishnapuram village, found accused no.1 and 2 are in possession of 20liters of ID Liquor. In the circumstances the P.W.1 proceeded under special report and arresting the accused no.1 and 2, seized the property under the confession of accused no.1 and 2 and drawn sample of 300ml of I.D.Liquor under cover of special report by affixing identify slips and brought him to Police Station.

Basing on the special report, P.W.1- G. Srinivasa Rao, IN-charge Sub-Inspector,

Prohibition and Excise, Chintalapudi registered FIR in Cr.No.100/2020, for the offence 2 punishable U/s 7(A) r/w 8(e) of A.P.P. Act and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy Commissioner. After completion of investigation, LW.3-

P. Balaji, Sub-Inspector of Police, SEB, Chintalapudi filed charge sheet.

3. The case was taken on file for the offence punishable U/sec. 7(A) r/w 8(e) of

A.P. Prohibition Act, against accused. On appearance of the accused copies of the documents were furnished to the accused as required U/sec. 207 Cr.P.C.

4. The accused 1 and 2 were examined U/sec. 239 Cr.P.C. the accused denied the prosecution case. As there are sufficient grounds to proceed a charge U/sec. 7(A) r/w 8(e) of A.P.Prohibiton Act was framed against the accused. The charge was read over and explained to the accused in Telugu for which accused pleaded not guilty and claimed to be tried.

5. During the course of trial, on behalf of prosecution, PW1 examined and got marked Ex.P.1 to Ex.P5 and M.O.1 is marked.

6. After completion of the trial, the accused was examined

U/sec.313 Cr.P.C. The incriminating material found in the prosecution evidence is read over and explained to the accused 1 and 2 in Telugu. The accused 1 and 2 denied the same and did not choose to adduce any Defence evidence.

7. Heard the arguments of both sides. Perused the material on record.

8. Point for determination is:

Whether the prosecution has proved the guilt of the accused for the offence U/Sec. 7(A) r/w 8(e) of A.P.Prohibition Act?

9. POINT:

P.W.1- P.W.1- G. Srinivasa Rao, IN-charge Sub-Inspector, Prohibition and Excise,

Chintalapudi deposed that on 02.03.2020 at 07.30pm, while he along with his staff conducting excise raids at Krishnapuram village, found the accused no.1 and 2 are in 3 possession of 20liters of ID Liquor. He drawn 300 ml sample of ID liquor, affixed identity slips, arrested the accused no.1 and 2 and handed over the case property along with the accused to Prohibition and Excise Station, Chintalapudi. PW.1/ P.W.1- G.

Srinivasa Rao, IN-charge Sub-Inspector, Prohibition and Excise, Chintalapudi registered as a case in Cr.No.100/2020 and issued Ex.P1 is FIR, under Ex.P2 special report, letter of advice under Ex.P3, Ex.P4 is Destruction proceedings, received Chemical analyst report under Ex.P5. M.O.1 is the sample bottle of I.D.Arrack. After completion of investigation, LW.3/P. Balaji, Sub Inspector of Police, Prohibition and Excise,

Chintalapudi filed charge sheet.

10. P.W.1 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence.

11. The learned counsel for the accused contended that no independent witnesses are examined by the prosecution except the interested Prohibition constable and Excise

Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100(4) of Cr.P.C. while conducting search and seizure. The learned counsel for the accused pointed out that the complainant in this case himself investigated the case resulting into prejudice to the accused.

12. Coming to the first contention of the Defence it is rightly pointed out by the

Defence that in the present case except the interested Prohibition & Excise officials no independent witnesses were examined by the prosecution. The Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence

Act. Admittedly no independent witness is examined by the prosecution to prove its case and the alleged confession and recovery.

13. The learned Defence counsel draw the attention of this court to the several 4 discrepancies found in the prosecution evidence. Apart from this the evidence of PW1 reveals that no sincere effort was made by him to secure any independent person. It is rightly pointed out by the learned Defence counsel that in absence of any independent evidence the testimony of the Excise police i.e. PW1 cannot be acted upon. It is further contention of the Defence that the P.W.1 failed to follow the prescribed procedure as contemplated U/sec. 100(4) Cr.P.C. It is the evidence of P.W.1 that the learned counsel

for the accused rightly pointed out that the P.W.1 failed to give the details of the

persons whom they approached to act as mediators.

14. As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area. Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed

U/sec.100 (4) Cr.P.C., As per the Sec 100 (4) of Cr.P.C. when the independent mediators in that locality are not available or not come forward, the Excise officials has to record the same and issue an order in writing as prescribed under law. It is clear from the record that though the scene of offence is not an isolated area the Excise officials adopted no such procedure. Thus, the entire procedure vitiates the case.

15. It is further contention of the Defence that as per the evidence of the prosecution, P.W.1 is the complainant and he conducted the entire investigation. It is

P.W.1, who detected the offence, seized the contraband, drawn the sample prepared the special report, arrested the accused, sent the sample to analysis and destructed the contraband. Hence it is clear that the entire proceedings in this case were taken up by

P.W.1 alone. It is an established principle of law that the person who is a complainant in a case should not be allowed as an Investigating Officer in such case the investigation certainly prejudices the accused and impartial investigation is doubtful. I found there is some force in the contention of the Defence. It is clear that the 5 complainant cannot be acted as an Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful. The above stated authorities are relevant in the present case in hand.

16. From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

17. The prosecution failed to connect the M.O.1 is the sample bottle of I.D.liquor and the seized contraband with the accused. Therefore, there is no cogent and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

18. In the result, the accused 1 and 2 are found not guilty for the offence punishable

U/sec. 7(A) r/w 8(e) of A.P.Prohibtion Act, therefore, accused 1 and 2 are acquitted

U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle of I.D.

Liquor shall be destroyed after appeal time is over. The bail bonds of the accused no.1 and 2 and that of their sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 31st day of March, 2023.

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

6

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL. P.W.1 :G. Srinivasa Rao, IN-charge, Sub Inspector, Proh & Excise, Chintalapudi.

EXHIBITS MARKED.

Prosecution : Defense: Nil. Ex.P.1:-FIR Ex.P.2:-Special report Ex.P.3:-Letter of advice Ex.P.4:-Destruction proceedings Analysis report. Ex.P5 -

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle of I.D.Liquor

III AJFCM, Eluru

FAC J.F.C.M.,C.T.P.

7

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:47 of 2023 ON THE FILE OF JUDICIAL

MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaint or Apprehension Release Commence-Close of trialSentence of reportof accusedon bailment of trialOrder 02.03.202002.03.2020--03.03.202324.03.202331.03.2023

Explanation for delay: --NIL--

Cr.No.:: 100/2020 of SEB, Chintalapudi P.S

Complainant : Sub Inspector of Police, SEB, Chintalapudi P.S

Offence : Under section 7(A) r/w 8(e) of A.P. Prohibition Act

Name of the accused:

A.1- Bhukya Sakru S/o Banna, 35years, Lambadi, R/o Krishnapuram Village, T.Narsapuram Mandal.

A.2- Bhukya Pothuraju S/o Ramadasu, 32years, Lambadi, R/o Krishnapuram Village, T.Narsapuram Mandal.

Sentence or Order of the Court:-

In the result, the accused 1 and 2 are found not guilty for the offence punishable U/sec. 7(A) r/w 8(e) of A.P.Prohibtion Act, therefore, accused 1 and 2 are acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle of I.D. Liquor shall be destroyed after appeal time is over. The bail bonds of the accused no.1 and 2 and that of their sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.s

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

Copy submitted to:

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

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF I

CLASS:: CHINTALAPUDI Present:- Sri P.Paresh Kumar, Special Judicial Magistrate of I Class (Mobile) -cum-III Additional Junior Civil Judge, Eluru. Junior Civil Judge-cum- Judicial Magistrate of I Class, Chintalapudi

Friday, this the 31st day of March, 2023.

C.C.No.44 of 2023

Between :

State: Represented by Sub-Inspector of Police, Special Enforcement Bureau, Chintalapudi. …Complainant.

and

Jakkam Sattaiah, S/o Gaddaiah, 29years, Nayakapodu, R/o Yerraguntapalli Village, Chintalapudi Mandal.

… Accused

This case coming on this day for final hearing before me in the presence of A.P.P. for the State and Sri K. Manikyala Rao, Advocate for accused and on hearing arguments and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Special Enforcement Bureau, Chintalapudi, filed charge sheet in Cr.No.258/2019 for the offence punishable U/sec.7(A) r/w 8(e) of A.P.P Act, against the accused.

2. The case of the prosecution in brief is that on 19.12.2019 at 10.30am,

P.W.1-B. Narasimha Rao, In-charge Sub Inspector, Pro & Excise, Chintalapudi along with his staff conducting excise raids at Yerraguntapalli village found accused is in possession of 20liters of ID Liquor. In the circumstances the P.W.1 proceeded under special report and arresting the accused, seized the property under the confession of accused and drawn samples of 300ml of I.D.Liquor under cover of special report by affixing identify slips and brought him to Police Station. Basing on the special report,

PW.1/B. Narasimha Rao, In-charge Sub-Inspector, Prohibition and Excise, Chintalapudi registered FIR in Cr.No.258/2019, for the offence punishable U/s 7(A) r/w 8(e) of A.P.P.

Act and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and 2 the remaining contraband was destroyed as per the directions of the Deputy

Commissioner. After completion of investigation, L.W.3/Y. Durga Prasad, SEB Sub

Inspector of Police, Chintalapudi filed charge sheet.

3. The case was taken on file for the offence punishable U/sec. 7(A) r/w 8(e) of

A.P. Prohibition Act, against accused. On appearance of the accused copies of the documents were furnished to the accused as required U/sec. 207 Cr.P.C.

4. The accused was examined U/sec. 239 Cr.P.C. the accused denied the prosecution case. As there are sufficient grounds to proceed a charge U/sec. 7(A) r/w 8(e) of A.P.Prohibiton Act was framed against the accused. The charge was read over and explained to the accused in Telugu for which accused pleaded not guilty and claimed to be tried.

5. During the course of trial, on behalf of prosecution, PW1 examined and got marked Ex.P.1 to Ex.5 and M.O.1 is marked.

6. After completion of the trial, the accused was examined

U/sec.313 Cr.P.C. The incriminating material found in the prosecution evidence is read over and explained to the accused in Telugu. The accused denied the same and did not choose to adduce any Defence evidence.

7. Heard the arguments of both sides. Perused the material on record.

8. Point for determination is:

Whether the prosecution has proved the guilt of the accused for the offence U/Sec. 7(A) r/w 8(e) of A.P. Prohibition Act?

9. POINT:

P.W.1-Sri B. Narasimha Rao, In-charge Sub-Inspector, Prohibition and Excise,

Chintalapudi deposed that on 19.12.2019 at 10.30am, while he along with his staff conducting excise raids at Yerraguntapalli village, found the accused is in possession of 20liters of ID Liquor. He drawn 300 ml sample of ID liquor, affixed identity slips, arrested the accused and handed over the case property along with the accused to

Prohibition and Excise Station, Chintalapudi. He registered as a case in Cr.No.258/2019 and issued Ex.P1 is FIR, under Ex.P2 special report, letter of advice under Ex.P3, 3 obtained destruction proceedings under Ex.P.4 and received Chemical analyst report under Ex.P5. M.O.1 is the samples bottle of I.D. Arrack. After completion of investigation, L.W.3/Y. Durga Prasad, SEB Sub Inspector of Police, Chintalapudi filed charge sheet.

10. P.W.1 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence.

11. The learned counsel for the accused contended that no independent witnesses are examined by the prosecution except the interested Prohibition constable and Excise

Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of Cr.P.C. while conducting search and seizure. The learned counsel for the accused pointed out that the complainant in this case himself investigated the case resulting into prejudice to the accused.

12. Coming to the first contention of the Defence it is rightly pointed out by the

Defence that in the present case except the interested Prohibition & Excise officials no independent witnesses were examined by the prosecution. The Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence

Act. Admittedly no independent witness is examined by the prosecution to prove its case and the alleged confession and recovery.

13. The learned Defence counsel draw the attention of this court to the several discrepancies found in the prosecution evidence. Apart from this the evidence of PW1 reveals that no sincere effort was made by him to secure any independent person. It is rightly pointed out by the learned Defence counsel that in absence of any independent evidence the testimony of the Excise police i.e. PW1 cannot be acted upon. It is further contention of the Defence that the P.W.1 failed to follow the prescribed procedure as contemplated U/sec. 100(4) Cr.P.C. It is the evidence of P.W.1 that the learned counsel

for the accused rightly pointed out that the P.W.1 failed to give the details of the

4 persons whom they approached to act as mediators.

14. As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area. Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed

U/sec.100 (4) Cr.P.C., As per the Sec 100 (4) of Cr.P.C. when the independent mediators in that locality are not available or not come forward, the Excise officials has to record the same and issue an order in writing as prescribed under law. It is clear from the record that though the scene of offence is not an isolated area the Excise officials adopted no such procedure. Thus, the entire procedure vitiates the case.

15. It is further contention of the Defence that as per the evidence of the prosecution, P.W.1 is the complainant and he conducted the entire investigation. It is

P.W.1, who detected the offence, seized the contraband, drawn the sample prepared the special report, arrested the accused, sent the sample to analysis and destructed the contraband. Hence it is clear that the entire proceedings in this case were taken up by

P.W.1 alone. It is an established principle of law that the person who is a complainant in a case should not be allowed as an Investigating Officer in such case the investigation certainly prejudices the accused and impartial investigation is doubtful. I found there is some force in the contention of the Defence. It is clear that the complainant cannot be acted as an Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful. The above stated authorities are relevant in the present case in hand.

16. From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is 5 not safe to rely upon the testimony of P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

17. The prosecution failed to connect the M.O.1 is the sample bottle of I.D.liquor and the seized contraband with the accused. Therefore, there is no cogent and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

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

7(A) r/w 8(e) of A.P. Prohibtion Act, therefore, he is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle of I.D. Liquor shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 31st day of March, 2023.

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 : Sri B. Narasimha Rao,

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR Ex.P.2:-Special report Ex.P.3:-Letter of advice Ex.P.4:-Destruction proceedings Ex.P.5: - Chemical analysis report

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle of I.D.Liquor.

III AJFCM, Eluru

FAC J.F.C.M.,C.T.P.

6

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:44 of 2023 ON THE FILE OF JUDICIAL

MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaint or Apprehension Release Commence-Close of trialSentence of reportof accusedon bailment of trialOrder 19.12.201919.12.201910-11-202118-11-2021 03.03.202310.03.202331.03.2023

Explanation for delay: --NIL--

Cr.No.:: 258/2019 of SEB, Chintalapudi P.S

Complainant : Sub Inspector of Police, SEB, Chintalapudi P.S

Offence : Under section 7(A) r/w 8(e) of A.P.Prohibtion Act

Name of the accused: Jakkam Sattaiah, S/o Gaddaiah, 29years, Nayakapodu, R/o Yerraguntapalli Village, Chintalapudi Mandal.

Sentence or Order of the Court:-

In the result, the accused is found not guilty for the offence punishable U/sec. 7(A) r/w 8(e) of A.P. Prohibtion Act, therefore, he is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.O.1 i.e the sample bottle of I.D. Liquor shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C. s

Spl.Judicial Magistrate of I Class (Mobile), -cum-III Addl. Junior Civil Judge, Eluru. FAC Judicial Magistrate of I Class, Chintalapudi.

Copy submitted to:

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