Ms Prasanna Lakshmi Moru

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 1

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE: CHIRALA

Present: Sri S.Srinivas, I-Additional Junior Civil Judge-cum- I-Additional Judicial Magistrate of First Class, Chirala.

Monday, the 15th day of October, 2018

Calendar Case No.97 of 2016

Between:

Yenumula Venkata Babu, S/o Suryanarayana, age 55 years, Hindu, Business, R/o Prasanagaram, Kothapet village, Vetapalem Mandal. …Complainant -: And :-

Appana Narendhra Kumar, S/o Kumara Swamy, aged about 50 years, Hindu, Electrician, R/o Door No.17-20-3, C/o Potti Venkateswarlu, Near Satyanarayana Swamy Temple, Chirala, Chirala Mandal.… Accused

The case coming on 09.10.2018 for final hearing before me in the presence of Sri B.Srinivasulu, Advocate for complainant and of Sri G.Ramesh Babu, Advocate for accused and having stood over for consideration till this day, the court delivered the following:

// J U D G M E N T //

01.This complaint filed by the complainant against the accused under Sec.138 of N.I. Act.

02.The brief averment of the complaint are as follows:-

Accused borrowed an amount of Rs.1,00,000/- from the complainant on 26.01.2015. He got executed a pronote in his favour agreeing to repay the said debt at 24 % P.A. Accused failed to repay the amount and on repeated demands on behalf of the complainant he issued a

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 2 cheque bearing No.378714, Dt:25.11.2015 for a sum of Rs.70,000/- drawn on

Vijaya Bank, Chirala Branch towards part satisfaction. Complainant presented the same for collection before State Bank of India, Chirala which was returned dis-honoured with endorsement “Funds insufficient” in the account of the accused. Complainant got issued a legal notice to the accused intimating the factum of dis-honour of cheque and the said notice was got returned by the accused with false endorsement. Accused failed to pay the amount, complainant waited with fond hope that accused may pay the amount. Finally, the complainant filed this complaint against the accused.

With these submissions prays to punish the accused according to law.

03.This case was taken on file under Sec.138 of N.I.Act against the accused.

04.On receiving the notice in this case, accused appeared, on that copies furnished to him u/s 207 Cr.P.C.

05. The accused examined u/s 251 Cr.P.C, read over and explained the accusation in Telugu for the offence under Sec.138 of N.I.Act, for which she pleaded not guilty and claimed to be tried.

06.During the course of trial complainant himself got examined

P.W.1 and marked Exs.P.1 to P.6. No witnesses examined and no documents marked on behalf of accused.

07.After closure of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C., read over and explained the

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 3 incriminating material appearing against her in the evidence of complainant, for which she denied and stated no defence witnesses.

08.Heard both the sides.

09.The points for determination are:-

Whether the complainant proved the guilt of the accused under Sec.138 of N.I.Act beyond all reasonable doubt ?

10.The learned counsel for the complainant submitted his arguments that in this case accused borrowed a sum of Rs.1,00,000/- from the complainant and proving the said borrowal he executed a pronote in his favour. Even after repeated demands failed to pay the borrowed amount of

Rs.1,00,000/- and issued a cheque for Rs.70,000/- towards part payment.

The said cheque was presented before State Bank of India, Chirala for collection and it was dishonoured for want of sufficient funds in the account of accused. The pronote clearly shows existence of legally enforceable debt between him and the accused. Complainant got issued statutory legal notice and the same was served on the accused, but, failed to give any reply and also not paid any amount. The entire initial burden of complainant discharged by him and accused failed to rebut the same. With theses submissions prays to punish the accused according to law.

11.On the other hand the learned counsel for the accused submitted that the alleged witnesses to the pronote ie., T.Ramesh and G.Srinivasulu were not examined by the complainant to prove Ex.P.1 pronote.

Complainant is in the habit of running finance business by collecting monthly

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 4 interest basis and accused got acquaintance with the complainant at wine shop as per the version of complainant. Complainant simply deposed that he do not know the attestor and scribe of the pronote. It means without knowledge of the complainant the alleged pronote came to light which is a highly doubtful one. There is no existence of legally enforceable debt between complainant and the accused. The signature on Ex.P.6 not at all relates to accused and one A.Raghu received the same an unknown person to the accused. It means no statutory legal notice served on the accused personally in this case. In such circumstances complainant failed to comply the provisions of NI Act which are mandatory and accused is entitled for acquittal.

12.Complainant himself filed his chief affidavit with similar contents as that of his complaint averments. Exs.P.1 to P.6 marked on behalf of the complainant. In the cross-examination he deposed that he is not having any avocation. Previously he lent amounts to acquainted persons on monthly income collection basis. He denied the suggestion that he use to collect daily interest on finance business. He denied the suggestion that he is in the habit collecting empty pronote and cheques as security from the needy public. He added to say the persons who approached him for amounts themselves will handover pronote and cheques. He is not an income tax assesses. He filed 4 to 5 cases of similar nature before this Hon’ble Court.

He do not know T.Ramesh and D.Srinivas who were brought by accused and

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 5 not observed whether they used different pens. He cannot say the number of the cheque. There is no endorsement on the back side of the pronote.

The signature reflect on Ex.P.6 was in Telugu, as such he do not know whether it belongs to accused or not. He denied the suggestion that even after discharge of the debt he created pronote and cheque and filed this case with a view to grab the amount. He got acquaintance with the accused at a wine shops to which place he use to visit occasionally. He denied the suggestion that accused never borrowed any such huge amount from him and he created false pronote and cheque with the help of T.Ramesh and

D.Srinivas. He denied the suggestion that no legal notice served on accused which is mandatory, as such this complaint is not at all maintainable.

13.POINT :-

On observing the evidence of P.W.1 both chief and cross, it was clear that pronote under Ex.P.1 was executed by accused. As per version of accused he handed over blank pronote. But the complainant denied the said suggestion. Eventhough the colour of ink in Ex.P.1 pronote was in blue colour, but, at body of the pronote reflecting with thick blue, whereas the signature of the borrowal reflects in a light blue colour. The signature of the attestor reflecting in another type of blue colour, whereas the signature of scribe reflecting in different blue colour. Whatever may be the colour of the ink as contended by the learned counsel for accused, but all they used blue ink pen only.

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 6

14.Another contention raised by the learned counsel for accused is that statutory legal notice not received by accused personally.

Acknowledgment under Ex.P.6 reflects for A.Narendra Kumar, A.Raghu signed. It means complainant send statutory legal notice to the address of accused and one A.Raghu received the said notice. The address mentioned in the Ex.P.6 acknowledgment reflecting in the same lines relating to the address of the accused in original complaint. Accused received summons in this case and appeared before this Court. It means the service of statutory legal notice on the accused under Ex.P.6 seems to be proper and the contention of the learned counsel for the accused cannot be given much weight on that aspect.

15.At one point of time the learned counsel for the accused contending that the complainant being money lending business man use to take empty pronotes and cheques from the borrowers. Complainant deposed that when the borrower shown interest to hand over pronote and cheque he use to take the same. Once the Ex.P.1 transaction clearly brought on record through the version of the complainant it will be taken as a strengthy ground on part of the complainant that there exists legally enforceable debt between him and the accused.

16.The documents filed by the complainant under Exs.P.1 to P.6 clearly connects the accused to the case on hand for the offence under

Sec.138 of N.I.Act as it was convincingly proved by the complainant that

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 7

Ex.P.1 executed by accused in his favour while borrowing amount of

Rs.1,00,000/-. Accused himself issued cheque in question under Ex.P.2 which was dishonoured. Subsequently Exs.P.3 to P.6 came on to light in a sequential manner attracting the ingredients of Sec.138 of N.I.Act. At another point of time accused admitting about hand overing empty pronote and cheque to the complainant. Once the documents in question under

Exs.P.1 and P.2 admitted by accused either in written mode or in blank mode it can be safely concluded that they were handed over by accused for the purpose of discharging legally enforceable debt exists in between them.

The same was decided in a case reported in between I.C.D.S Limited Vs.

Beena Shabeer and another Dt:12.08.2002, wherein it was held by

Hon’ble Apex Court that Where any cheque was issued and which was in

possession of the complainant it must be deemed that the same was issued for discharge of the loan amount and initial burden of complainant about existence of legally enforceable debt deemed to be fulfilled. Eventough accused tried well to dispose the complainant version, but she failed to explain about existence of Ex.P.1 in the possession of complainant which is a clear document.

17.The version of complainant in toto both chief and cross- examination coupled with Exs.P.1 to P.6 proves that accused borrowed amounts from the complainant to a tune of Rs.1,00,000/- each covered under

Ex.P.1 and issued Ex.P2 in his favour for discharging of the said amount

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 8 which was dis-honoured for want of sufficient funds and also not given any reply to the Ex.P.5 statutory legal notice leading to proving the entire ingredients of Section 138 of N.I.Act by the complainant in the manner of discharging his burden of proof. On the other hand accused failed to rebut his presumption and he is liable for punishment under Sec.138 of N.I.Act.

Complainant proved the guilt of accused beyond all reasonable doubt for the offence under Sec.138 of N.I.Act.

16. In the result, the accused is found guilty for the offence under

Sec.138 of N.I.Act and he is convicted under Sec.255 (2) Cr.P.C..

Typed to my dictation to the shorthand writer, corrected and

pronounced by me in open Court, this the 15th day of October, 2018.

I-Additional Junior Civil Judge-cum- I-Additional Judicial Magistrate of First Class, Chirala

Accused is produced on execution of NBW on 29.10.2018. For hearing the quantum of sentence:-

Heard the accused with regard to quantum of sentence, for which he stated that matter is compromised and prays to show mercy.

Complainant already present and reporting that matter was compromised.

On observing the facts and circumstances of the case, this court observes that imposing simple fine itself is sufficient. Hence, accused is sentenced to pay fine of Rs.1000/- in case of default of payment of fine he shall undergo simple imprisonment for one month. The accused is informed about his right

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 9 to appeal, for which he stated that he has got means to prefer an appeal by engaging a counsel.

Dictated to the shorthand writer, transcribed by her, corrected and

pronounced by me in open Court, this the 29th day of October, 2018.

I-Additional Junior Civil Judge-cum- I-Additional Judicial Magistrate of First Class, Chirala // APPENDIX OF EVIDENCE // -:WITNESSES EXAMINED:-

FOR COMPLAINANT FOR DEFENCE

PW.1: Yenumala Venkata Babu - None - // DOCUMENTS MARKED //

FOR COMPLAINANT

Ex.P.1/ Promissory note executed by accused in favour of the complainant

dt:26.01.2015

Ex.P.2/ Cheque bearing No. 378714, Dt:25.11.2015 Ex.P.3/ Memo Dt:30.11.2015 issued by State Bank of India, Chirala Branch Ex.P4/Cheque return memo Dt:30.11.2015 issued by State Bank of India, Chirala Branch Ex.P5/Office copy of lawyer notice Dt:16.12.2015 got issued by complainant to the accused Ex.P6/Served Acknowledgment card Dt:19.02.2015 addressed to the accused

FOR DEFENCE:--NIL- // MATERIAL OBJECTS MARKED // -NIL-

I-A.J.C.J-cum- I-A.J.F.C.M, Chirala

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 10

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE::CHIRALA

CALENDAR IN C.C.No.97 of 2016

Date of offence:30.11.2015 Date of complaint : 13.01.2016 Date of appearance of accused: 23.05.2017 Date of release of accused: 23.05.2017 Date of commencement of trial:24.03.2018 Date of closure of trial:18.09.2018 Date of Judgment:15.10.2018

Between:

Yenumula Venkata Babu, S/o Suryanarayana, age 55 years, Hindu, Business, R/o Prasanagaram, Kothapet village, Vetapalem Mandal. …Complainant -: And :-

Appana Narendhra Kumar, S/o Kumara Swamy, aged about 50 years, Hindu, Electrician, R/o Door No.17-20-3, C/o Potti Venkateswarlu, Near Satyanarayana Swamy Temple, Chirala, Chirala Mandal.… Accused

Offence: u/Sec.138 of NI Act. Plea of accused:Pleaded not guilty Finding of the Court:Found guilty

Sentence or Order: In the result, the accused is found guilty for the offence under Sec.138 of N.I.Act and she is convicted under Sec.255 (2) Cr.P.C. On 29.10.2018 accused is produced on execution of NBW. For hearing the quantum of sentence:- Heard the accused with regard to quantum of sentence, for which he stated that matter is compromised and prays to show mercy. Complainant already present and reporting that matter was compromised. On observing the facts and circumstances of the case, this court observes that imposing simple fine itself is sufficient. Hence, accused is sentenced to pay fine of Rs.1000/- in case of default of payment of fine he shall undergo simple imprisonment for one month. The accused is informed about his right to appeal, for which he stated that he has got means to prefer an appeal by engaging a counsel.

C.C.No.97/2016

I- A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 11

Explanation for delay:-

This case was taken on file against the accused u/Sec.138 of NI Act.

On appearance of accused before this court, copies of documents were furnished u/Sec. 207 Cr.P.C. Accused was examined u/Sec.251 Cr.P.C for the accusation made against him for the offence under section 138 of NI Act, read over and explained to him in Telugu for which they pleaded not guilty and claimed to be tried. On 24.03.2018 trial was commenced and concluded on 18.09.2018, during trial PW.1 was examined and got marked Exs.P1 to P6 and complainant side evidence was closed. On 19.09.2018, accused was examined under Section 313 Cr.P.C., for the incriminating evidence found against him, for which, he denied the same and reported no defence evidence. Arguments heard on both the sides. On 15.10.2018 Judgment

pronounced. Hence the delay. On 29.10.2018 accused was produced on

execution of NBW. Heard the accused with regard to quantum of sentence, for which he stated that matter is compromised and prays to show mercy.

Complainant already present and reporting that matter was compromised.

On observing the facts and circumstances of the case, this court observes that imposing simple fine itself is sufficient. Hence, accused is sentenced to pay fine of Rs.1000/- in case of default of payment of fine he shall undergo simple imprisonment for one month. The accused is informed about his right to appeal, for which he stated that he has got means to prefer an appeal by engaging a counsel.

I-Additional Junior Civil Judge-cum- I-Additional Judicial Magistrate of First Class, Chirala

Copy submitted to: The Hon’ble I-Additional District & Sessions Judge, Ongole.

Note :- Accused is paid fine amount of Rs.1000/- (Rupees one thousand only) on 29.10.2018.

1

C.C.110/2022 AJMFC Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-

I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS: CHIRALA

Present: Ms.M.Prasanna lakshmi I-Additional Junior Civil Judge- cum- I-Addl. Judl. Magistrate of First Class, Chirala.

Tuesday, this the 12th day of April, 2022.

Calendar Case No.110/2022

Cr. No.51/2019 of Proh. & Excise Station, Chirala.

Between: The State: The Proh. & Excise Inspector, Chirala. …Complainant

And

1. Purimitla Venkata Rao, S/o Bangaraiah, 45 years, Nowkarnama holder M/s.Ushodaya Wines, GS No.100/2017-19, Kadavakuduru R/o Chinnaganjam Mandal.

2. Bellam Murali, S/o Gopala Rao, 40 years, M/s. Ushodaya Wines, GSL No.100/2017-19, Kadavakuduru, R/o Uppugundur Village, Naguluppalapadu Mandal.… Accused 1 & 2

The case is coming on 12.04.2022 for hearing before me in the presence of Assistant Public Prosecutor Grade-II for the State-complainant and Sri K.V.Subrahmanyam, Advocate for accused and having stood over for consideration till this day, the court delivered the following:

// J U D G M E N T //

1.The Prohibition & Excise Inspector, Chirala has filed charge sheet in Cr.

No.51/2019 against the accused, for the offence U/s.41 of A.P. Excise Act.

2.The brief facts of the charge sheet are as follows:-

(i)On 23.03.2019, as per the instructions from Deputy Commissioner of

Prohibition and Excise, Ongole and Assistant Commissioner of Prohibition and

Excise, Ongole, LW.4 – P.Ramesh Babu, P&E Inspector, Chirala alongwith LWs.1 to 3 and other staff proceeded to Kadavakuduru and inspected M/s. Ushodaya

Wines, Gs No.100/2017-19 at about 4.00 PM, found A1 present in the shop and conducting business. On demand, A1 produced R1 & R2 registers and license copy alongwith Nowkarnama and he failed to produce Inspection books as the

2

C.C.110/2022 AJMFC Court, Chirala existing inspection book leaves have already been filled, no new inspection book is available and verified the permit room, found various brands of liquor and beer cartons i.e., total 343 cartons of liquor and 29 cartons of beer duty paid liquor bottles. On enquiry, Nowkarnama holder/A1 stated that the said stocks belongs to same A4 shop due to non availability of place in the A4 shop, he kept

IML & Beer cartons in the permit room of the said A4 shop. LW.4 informed the nowkarnama holder/A1 that the IML & beer are not supposed to store in the permit room. The permit room is only meant to allow the consumption of liquor.

LW.4 booked the case against the A4 shop and seized the above liquor and beer cartons for violating the Rule 35 of AP Excise Act (Grant of license of selling by shop & conditions of license) Rules, 2012. The entire stock kept in the same place and seized and sealed the permit room. On verification, LW.4 found 2643 liquor bottles of various brands and 115 bottles of beer bottles of various brands in the A4 shop premises, arrested the A1 duly informing the grounds of arrest under cover of special report drafted on the spot.

(ii)LW.4 registered the above special report as FIR in Cr. No.51/2019 u/s.41 of

AP Excise Act and released the nowkarnama holder/A1 on bail. During the course of investigation, on 24.03.2019, LW.4 submitted preliminary report to the Proh.

& Excise Superintendent, Ongole. Basing on the report and as per Rule 44(4) (Grant of license of selling by shop and conditions of license) Rules 2012, the

Proh. & Excise Superintendent, Ongole has initiated the action against the A4 shop U/s.31(1)(b) of AP Excise Act Rule, 57 of AP Excise Act and suspended the license of selling by shop and conditions of license Rules and suspended the license of M/s.Ushodaya Wines, G.S. No.100/2017-19, Kadavakuduru Village of

P&E Station, Chirala vide RC No.48/2019/A3, dt.23.03.2019. The licensee/A2 filed a representation that he is ready to pay compounding fee and the case by treating it as a first mistake and A2 also proceeded to Hon’ble High Court of

Andhra Pradesh and filed WP No.4320/2019 to set aside the proceedings vide Rc

No.48/2019/A3, dt.23-03-2019 of P&E Superintendent, Ongole. On 08.04.2019,

3

C.C.110/2022 AJMFC Court, Chirala the Hon’ble High Court of A.P. disposing the WP No.4320/2019 and given directions to the Commissioner of Proh. & Excise, AP to consider the compounding proposals submitted by licensee/A2.

(iii)As per the orders of the Hon’ble High Court of AP, the Commissioner of

Proh. & Excise, AP Vijayawada compounded Departmental action for Rs.2 lakhs u/s.47(1) AP Excise Act, 1968 without prejudice to the criminal proceedings pending in the respective court in Cr No.51/2019 against the licensee and others treating it as first offence and stocks seized in this case is released to the A2 on payment of value thereof U/s.47 of AP Excise Act, 1968. Hence, the Proh. &

Excise Superintendent, Ongole issued revocation orders of suspension of license on 08.05.2019 and released the stocks to the licensee. Since the departmental action only was compounded, the licensee was added as A2 in this case as “every act of the authorized agent or servant shall be deemed to be an act of the licensee”. LW.4 issued notice U/s.41A CrPC to the A2 on 10-07-2019 for compliance, he complied the same. LW.4 released the A2 on bail. After completion of investigation, LW.4 filed charge sheet against A1 & A2.

3.This case was taken on file U/s.41 of A.P. Excise Act against the A1 & A2.

4.On appearance of the A1 & A2, copies furnished under sec.207 Cr.P.C.

5. A1 & A2 were examined under Sec.239 Cr.P.C, read over and explained the accusation in Telugu, after framing charge under Sec.240 Cr.P.C for the offence U/s.41 of A.P. Excise Act, they pleaded not guilty and claimed to be tried.

6.During the course of trial, prosecution examined PWs.1 & 2 and marked

Exs.P1 & P2.

7.After closure of the prosecution side evidence, A1 & A2 were examined

U/s.313 Cr.P.C, read over and explained the incriminating material appearing against them in Telugu for which they denied and stated no defence witness.

8.Heard both the sides.

9.Now the point for consideration is

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C.C.110/2022 AJMFC Court, Chirala

(i) Whether the prosecution proved the guilt of the accused 1 & 2 for the offence U/s.41 of A.P Excise beyond all reasonable doubt ?

(ii) Whether the payment of compounding fee amounts to acquittal ?

10.The learned A.P.P submitted his arguments that on behalf of prosecution, PWs.1 & 2 were examined and Exs.P1 & P2 were marked. The evidence of PWs.1 & 2 corroborated with each other about the seizure of case property from the shop of A2 and arrest of A1 under the cover of special report/Ex.P1 itself is sufficient to prove the ingredients of Section 41 of AP

Excise Act. A2 paid compounding fee for revoking the suspension of licence, it is departmental action, the payment of compounding fee does not compound the offence and initiating criminal proceedings against the accused as the penal action. It was proved by the prosecution that the accused committed offence under section 41 of AP Excise Act, A1 & A2 are liable for punishment and prays to punish the accused according to law.

11.The learned counsel for accused submitted his arguments that no independent mediators were examined by prosecution. They failed to secure local independent mediators for the alleged arrest and seizure. The learned counsel for the accused 1 & 2 submitted that, on the request of accused, the licensee was compounded departmental action for Rs.2,00,000/-, on payment of compounding fee there should not be any criminal proceedings against the accused. But still the criminal proceedings were initiated by attracting double jeopardy. Hence, this case is not at all maintainable. In support of his contention, the accused 1 & 2 are entitled for acquittal.

12. POINT No.1 :-

(i)The evidence available on record is PWs.1 & 2 i.e the police officials, who arrested the accused and seized the case property examined as PWs.1 &

2. They failed to produce the documents before the court, proving that the

5

C.C.110/2022 AJMFC Court, Chirala

A1 is nowkarnama holder and A2 is licensee. The excise police officials filed the charge sheet after two years of registration of FIR, even though knowing that the punishment for the offence U/s.41 of AP Excise Act is maximum 6 months. It was also not clear that accused were arrested in the presence of any independent mediators. Ex.P1 is nothing but special report drafted by the police themselves about the alleged arrest of the A1 and seizure of the property. Without the supporting evidence of any independent witnesses in the manner of mediator, the sole testimony of police officials cannot be taken as a trustworthy one.

(ii)A2 was compounded to pay fee of Rs.2,00,000/- as a departmental action for revoking the suspension of licence and further stated that he initiated the criminal proceedings as per the instructions of Proh. & Excise

Superintendent, Ongole. But, no documentary proof was adduced to show that the investigating officer received directions from Proh. & Excise

Superintendent, Ongole for initiating the criminal proceedings against the accused. The non-support of any independent mediator evidence creates doubt about the commission of offence by the accused.

13. POINT No.2 :-

(i) As per Section 47 Sub Section 2 of A.P. Excise Act “on the payment by the person a sum of money or value or both as the case may be. In accordance with proviso sub section (1) or 47 (A), such person, if in custody shall be set at liberty and all the property seized, may be released and no proceeding shall be instituted or continued against such person in any criminal court. The acceptance of compensation shall be deemed to amount to an acquittal and in no case any further proceedings taken against such person or property with reference to same act”.

6

C.C.110/2022 AJMFC Court, Chirala

(ii) This section clearly states that the acceptance of compounding fee by accused, the moment compounding fee is accepted the criminal proceedings that were initiated to be stopped. So, in view of the payment of compounding fee, no proceedings to be initiated or continued against the accused 1 and 2.

Hence, accused 1 and 2 are acquitted.

14.In the result, A1 & A2 are found not guilty for the offence under sec.41 of A.P. Excise Act and hence they are acquitted of the same under

Sec.248(1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, this the 12 th day of April, 2022.

Sd/- M.Prasanna Lakshmi

I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala.

// APPENDIX OF EVIDENCE //

-:WITNESSES EXAMINED:-

FOR PROSECUTION FOR DEFENCE

PW.1: P.Ramesh Babu, P&E Inspector, Chirala. - None- PW.2: Md.Hassim, P&E Head Constable, Chirala.

// DOCUMENTS MARKED //

FOR PROSECUTION FOR DEFENCE

Ex.P1: Special Report Ex.P2: Original FIR---- NIL ----

// MATERIAL OBJECTS MARKED //

Nil

Ild/- M.P.L I-A.J.C.J-cum- I-A.J.F.C.M, Chirala.

Copy submitted to: The Hon’ble I-Additional District &Sessions Judge, Ongole.

// True Copy //

7

C.C.110/2022 AJMFC Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-

I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS: CHIRALA

CALENDAR IN CC No.110 of 2022

Date of offence:23.03.2019 Date of report: 23.03.2019 Date of apprehension of accused: 22.03.2022 Date of release of accused: 12.04.2022 Date of commencement of trial:23.03.2022 Date of closure of trial:30.03.2022 Date of Judgment:12.04.2022

Between: The State: The Proh. & Excise Inspector, Chirala.…Complainant

And

1. Purimitla Venkata Rao, S/o Bangaraiah, 45 years, Nowkarnama holder M/s.Ushodaya Wines, GS No.100/2017-19, Kadavakuduru R/o Chinnaganjam Mandal.

2. Bellam Murali, S/o Gopala Rao, 40 years, M/s. Ushodaya Wines, GSL No.100/2017-19, Kadavakuduru, R/o Uppugundur Village, Naguluppalapadu Mandal. … Accused 1 & 2

Offence: U/S.41 of A.P. Excise Act Plea of accused: Pleaded not guilty Finding of the Court: Found not guilty

Sentence or Order

In the result, A1 & A2 are found not guilty for the offence under sec.41 of A.P. Excise Act and hence they are acquitted of the same under

Sec.248(1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C.

Explanation for delay:-

This case was taken on file against the accused 1 & 2 for the offence under Sec.41 of A.P. Excise Act. On appearance of accused 1 & 2 on 22.03.2022,

before this court, copies of documents were furnished u/Sec.207 Cr.P.C. A1 & A2

were examined under Sec.239 Cr.P.C read over and explained the accusation in

Telugu for the offence under Section 41 of A.P. Excise Act, after framing charge under Sec.240 Cr.P.C, for which they pleaded not guilty and claimed to be tried.

The trial was commenced on 22.03.2022 and concluded on 30.03.2022, during trial PWs.1 & 2 were examined and got marked Exs.P1 & P2 and prosecution side evidence was closed. After closure of prosecution evidence, accused was

8

C.C.110/2022 AJMFC Court, Chirala examined under Section 313 Cr.P.C., for the incriminating evidence found against them, for which, they denied the same and stated no defence witnesses.

Arguments heard on both the sides. On 12.04.2022, Judgment pronounced.

Hence the delay.

Sd/- M.Prasanna Lakshmi

I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala. Copy submitted to: The Hon’ble I-Additional District &Sessions Judge, Ongole.

// True Copy //

I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

Present: Ms.M.Prasanna Lakshmi, I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First , Chirala.

Friday, the 28th day of June, 2019

Calendar Case No. 19 of 2019

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Gampala Appa Rao, S/o Koralaiah, Age 67 years, Caste by Oda Balija, Occ:Cooli, R/o Y.S.R.Colony, Vodarevu, Chirala Rural Mandal.… Accused

This is case is coming on 26-06-2019 for hearing before me in the presence of Assistant Public Prosecutor, Grade-II for the state-complainant and Sri B.Amruth Kumar, Advocate for accused and having stood over for consideration till this day, the court delivered the following:

// J U D G M E N T //

01.The Sub-Inspector of Police, Prohibition and Excise, Chirala filed a chargesheet in Cr.No.22/2018 for the offence under Sec.7A r/w 8 (e) of A.P.Prohibition

Act against the accused.

02.The brief averments of the chargesheet are as follows:-

On 30.01.2018 at about 8.30 A.M as per the instructions of the Prohibition and Excise Superintendent, Ongole, S.Pulla Rao, Proh. & Excise Constable, Chirala (L.W.1), G.Vasudeva Reddy, Proh. & Excise Head Constable, Chirala (L.W.2)

Ch.Sreenivasulu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) and A.Joshi Babu,

Proh. & Excise Sub-Inspector, Chirala (L.W.4) and other staff left the station while conducting raids for Prohibition and Excise crimes and reached the scene of offence situated near Anjaneyaswami statue, Vodarevu, Chirala Rural Mandal at about 5-00 P.M and found the accused in possession of one white color plastic Can in his right hand. On suspicion A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.4) detained him with the help of his staff and sent S.Pulla Rao (L.W.1) for secure mediators, but in vain.

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

Then, A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.4) examined the Can it is one 10 liters capacity White Plastic Can containing 10 liters of I.D.Arrack and drawn sample of 180 ml I.D.arrack from the Can into 180 ml clean and dry bottle for the purpose of Chmeical Analysis. Sealed and seized the sample bottle and Can and affixed identity slips. A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.4) arrested the accused after informing the grounds of arrest under cover of special report drafted on the spot. Later, A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.4) registered the above special report as Cr.No.22/2018 under Section 7-A r/w 8 (e) of

A.P.P.Act. During the course of investigation A.Joshi Babu, Proh. & Excise Sub-

Inspector, Chirala (L.W.4) sent the sample bottle for chemical examiner, Guntur through the Hon’ble Court in C.P.R.No.53/2018. The analyst opined that the sample is ‘ILLICIT

DISTILLED ARRACK, NOT FIT FOR HUMAN CONSUMPTION”. A.Joshi Babu, Proh. &

Excise Sub-Inspector, Chirala (L.W.4) sent the remaining case property with white plastic

Can to the Deputy Commissioner of Prohibition and Excise, Ongole for confiscation proposals. After completion of investigation, A.Joshi Babu, Proh. & Excise Sub-Inspector,

Chirala (L.W.4) laid charge sheet.

03.Case taken on file under sec.7 A r/w 8 (e) of A.P.P.Act against the sole accused.

04.On appearance of the accused copies furnished under sec.207 Cr.P.C.

05.Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 7 A r/w 8 (e) of A.P.P.Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried.

06.During the course of trial prosecution examined P.Ws.1 to 3 and marked

Exs.P.1 to P.4 and M.O.1.

07.After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses.

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

08.Heard both the sides.

09.Now the point for consideration is

Whether the prosecution proved the guilt of the accused for the offence under sec. 7 A r/w 8 (e) of A.P.P.Act beyond all reasonable doubt ?

10.The learned A.P.P submitted his arguments that on behalf of prosecution

P.Ws.1 to 3 were examined and Exs.P.1 to P.4 and M.O.1 were marked. The evidence of P.Ws.1 and 2 corroborated with each other about the seizure of the 10 liters of

I.D.Arrack from the accused under the cover of special report/Ex.P.1 itself is sufficient to prove the ingredients of Section 7 A r/w 8 (e) of A.P.P.Act, it was proved by the prosecution that the accused committed offence under section 7-A r/w 8 (e) of A.P.P.Act accused is liable for punishment and prays to punish him according to law.

11.The learned counsel for the accused submitted his arguments that the scene of offence is busy locality. They stated that they asked some persons to act as mediators at the scene of offence, but no one came forward. They also admitted that they did not serve any written notices upon the local persons asking them to act as mediators. In the absence of any written notice by the police their version cannot be believable. More over the time mentioned in the Ex.P.1 is different from the time stated by P.Ws.1 and 2. Accused did not commit the offence and the excise officials foisted this case falsely against the accused only for the statistical purpose. Accused is innocent. Hence accused is entitled for acquittal and prays to acquit the accused.

12.POINT :-

On behalf of the prosecution P.ws.1 to 3 who are excise officials were examined.

P.Ws.1 to 3 evidence corroborated each other regarding visiting the scene of offence, finding the accused in possession of I.D.Arrack, seizing the I.D.Arrack, drafting of special report and arrest of accused. P.Ws.1 to 3 stated that they reached the scene of offence at 5-00 P.M. P.Ws.2 and 3 did not mention when they started at their station to proceed to the scene of offence. But, P.W.1 stated that they started at 5-00 P.M from the police station. But, as per chargesheet, they started at 8-30 A.M from the police station. It is

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala fatal to the prosecution case. P.W.1 stated that it took 10 minutes to reach the scene of offence from the station. P.W.1 also admitted that he did not ask the local people to act as mediators. But the other witness deposed that they have asked the local people to act as mediators. There is a contradiction in this regard in the evidence of P.Ws.1 to 3.

P.W.1 also stated in his chief, signature of P.W.3 and thumb impression of accused were contained on identity slips. P.Ws.2 and 3 stated in their chief-examination, the identity slips containing the signatures of accused and P.W.3 were affixed to sample and other contraband. As per Ex.P.1 thumb impression of accused appeared on it. So, there is also contradiction regarding the thumb impression of accused. So, there are contradictions regarding the time they started at police station, thumb impression of the accused on identity slips, asking the local people to act as mediators. In these circumstances it creates a doubt about the occurrence of the offence and proceedings of the excise officials. P.W.3 admitted that they did not serve any notice to local people to act as mediators. As per judgment of Hon’ble High Court of A.P. in Yeduru Srinivasu

Reddy Vs. State of A.P. reported in 2002 (1) ALD Criminal 347 A.P., wherein it was held that “when the search and seizure taken place in a busy locality and none were come forward to act as punch witness, the police should have resorted to Section 100 (4) of Cr.P.C and should have pass it written order. Therefore in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators cannot be believed and relied upon. Therefore the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustainable”.

Without the supporting evidence of any independent witnesses in the manner of mediator the sole testimony of police officials cannot be taken as a trustworthy one. Definitely the provisions of Section 25 of Indian Evidence Act failed to follow by prosecution and the evidence adduced by prosecution both oral and documentary evidence is insufficient to attract ingredients of section 7 (A) r/w 8 (e) of A.P.P.Act. Even special report does not contain the individual persons with whom investigating agency tried to secure as mediators. Without presence of any mediator, arrest of the accused and alleged confession before police cannot be taken as a trustworthy evidence. As per the judgment

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala in between Mudavath Mothia Vs. State of A.P reported in 2005 (1) ALD (NOC) 52, in which the Hon’ble High Court of A.P held that “the excise officials once entrusted with the investigation they become the police officials and the confession recorded by them in the proceedings is inadmissible”.

P.W.3 himself is the person who drafted Ex.P.1 special report, who arrested the accused, who lifted the sample and done the remaining part of investigation. In continuation that he himself laid chargesheet against the accused. As per the judgment in between Gurazala Ramesh and others Vs. State of A.P. reported in 2003 (1) ALD (Crl.) 13 (A.P), in which their lord ship held that “in the cases where the complainant, the investigating officer and the officer who filed chargeseheet are the one, then the convictions and sentences imposed in such cases are not sustainable “.

Non-supporting, evidence by the side of independent mediators, it is not safe to rely upon the evidence of the P.ws.1 to 3 who are the excise officials, this court comes to conclusion that the prosecution failed to prove the guilt of the accused. Accused is entitled for acquittal.

13.In the result, accused is found not guilty for the offence under sec. 7-A r/w 8 (e) of A.P.P.Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C.

The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open Court, this the 28 th day of June, 2019.

Sd/- M.Prasanna Lakshmi

I-Additional Junior Civil Judge-cum- I- Addl. Judl. Magistrate of First Class, Chirala

// APPENDIX OF EVIDENCE //

-:WITNESSES EXAMINED:-

FOR PROSECUTION FOR DEFENCE

P.W.1-S.Pulla Rao,Proh. & Excise Constable, Chirala -NONE- P.W.2-G.Vasudeva Reddy, Proh. & Excise Head Constable, Chirala P.W.3-A.Joshi Babu, Prohibition and Excise Sub-Inspector, Chirala

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

// DOCUMENTS MARKED //

FOR PROSECUTION FOR DEFENCE

Ex.P1/ Special report--NIL-- Ex.P2/ First Information Report Ex.P3/Letter of advice Ex.P4/Analysis report // MATERIAL OBJECTS MARKED // M.O.1 : Sample bottle

Ild/- M.P.L I-A.J.C.J-cum- I-A.J.F.C.M, Chirala // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.19 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

CALENDAR IN C.C.No.19 of 2019

Date of offence prior to:30.01.2018 Date of report: 30.01.2018 Date of apprehension of accused: 30.01.2018 Date of release of accused: 01.02.2018 Date of commencement of trial: 25.04.2019 Date of closure of trial: 19.06.2019 Date of Judgment: 28.06.2019

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Gampala Appa Rao, S/o Koralaiah, Age 67 years, Caste by Oda Balija, Occ:Cooli, R/o Y.S.R.Colony, Vodarevu, Chirala Rural Mandal.… Accused

Offence:u/Sec.7 A r/w 8 (e) of A.P.P.Act Plea of accused:Pleaded not guilty Finding of the Court:Found not guilty Sentence or Order: In the result, accused is found not guilty for the offence under sec. 7 A r/w 8 (e) of A.P.P.Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time. Explanation for delay:- This case was taken on file for the offence U/Sec.7 A r/w 8 (e) of A.P.P.Act against the accused. On appearance of accused before this court, copies of documents furnished as contemplated under Sec.207 of the Code of Criminal Procedure. Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 7 A r/w 8 (e) of A.P.P.Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried. The trial was commenced on 25.04.2019 and concluded on 19.06.2019, during trial P.Ws.1 to 3 were examined and got marked Exs.P1 to P4 and M.O.1 prosecution evidence was closed. After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses. Heard arguments on both the sides. On 28.06.2019, Judgment pronounced. Hence the delay.

Sd/- M.Prasanna Lakshmi

I- Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala Copy submitted to: The Hon’ble I-Additional District & Sessions Judge, Ongole // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

Present: Ms.M.Prasanna Lakshmi, I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First , Chirala.

Friday, the 28th day of June, 2019

Calendar Case No. 46 of 2019

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Chinnapothula Sai, S/o Srinu (late), age 21 years, Caste by Yerukula, Occ:Cooli, R/o Y.S.R.Colony, Vodarevu, Chirala Rural Mandal.… Accused

This is case is coming on 26-06-2019 for hearing before me in the presence of Assistant Public Prosecutor, Grade-II for the state-complainant and Sri A.S.N.V.V.Prasad, Advocate for accused and having stood over for consideration till this day, the court delivered the following:

// J U D G M E N T //

01.The Sub-Inspector of Police, Prohibition and Excise, Chirala filed a chargesheet in Cr.No.98/2018 for the offence under Sec.7A r/w 8 (e) of A.P.Prohibition

Act against the accused.

02.The brief averments of the chargesheet are as follows:-

On 08.07.2018 at about 9.00 A.M as per the instructions of the Prohibition and Excise Inspector, Chirala, S.Pulla Rao, Proh. & Excise Constable, Chirala (L.W.1),

G.Vasudeva Reddy, Proh. & Excise Head Constable, Chirala (L.W.2) and A.Joshi Babu,

Proh. & Excise Sub-Inspector, Chirala (L.W.3) and other staff left the station while conducting raids for Prohibition and Excise crimes and reached the scene of offence situated at left side margin of Epurupalem to Vetapalem By-pass road, Near Epurupalem

Drinage bridge, Audinarayanapuram, Chirala Rural Mandal at about 10-30 A.M and found the accused in possession of one bag in his right hand. On suspicion A.Joshi

Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) detained him with the help of his staff and examined the bag, it is containing 5 liters of I.D.Arrack and drawn sample of

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala 180 ml I.D from the Can into 180 ml clean and dry bottle for the purpose of Chemical

Analysis. Sealed and seized the sample bottle and Can and affixed identity slips.

A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) arrested the accused after informing the grounds of arrest under cover of special report drafted on the spot. Later,

A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) registered the above special report as Cr.No.98/2018 under Section 7-A r/w 8 (e) of A.P.P.Act. During the course of investigation A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) sent the sample bottle for chemical examiner, Guntur through the Hon’ble Court in

C.P.R.No.173/2018. The analyst opined that the sample is ‘ILLICIT DISTILLED

ARRACK, NOT FIT FOR HUMAN CONSUMPTION”. A.Joshi Babu, Proh. & Excise

Sub-Inspector, Chirala (L.W.3) sent the remaining case property with white plastic Can to the Deputy Commissioner of Prohibition and Excise, Ongole for confiscation proposals.

After completion of investigation, A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) laid charge sheet.

03.Case taken on file under sec.7 A r/w 8 (e) of A.P.P.Act against the sole accused.

04.On appearance of the accused copies furnished under sec.207 Cr.P.C.

05.Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 7 A r/w 8 (e) of A.P.P.Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried.

06.During the course of trial prosecution examined P.Ws.1 to 3 and marked

Exs.P.1 to P.4 and M.O.1.

07.After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses.

08.Heard both the sides.

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

09.Now the point for consideration is

Whether the prosecution proved the guilt of the accused for the offence under sec. 7 A r/w 8 (e) of A.P.P.Act beyond all reasonable doubt ?

10.The learned A.P.P submitted his arguments that on behalf of prosecution

P.Ws.1 to 3 were examined and Exs.P.1 to P.4 and M.O.1 were marked. The evidence of P.Ws.1 and 2 corroborated with each other about the seizure of the 10 liters of

I.D.Arrack from the accused under the cover of special report/Ex.P.1 itself is sufficient to prove the ingredients of Section 7 A r/w 8 (e) of A.P.P.Act, it was proved by the prosecution that the accused committed offence under section 7-A r/w 8 (e) of A.P.P.Act accused is liable for punishment and prays to punish him according to law.

11.The learned counsel for the accused submitted his arguments that the scene of offence is busy locality. They stated that they asked some persons to act as mediators at the scene of offence, but no one came forward. They also admitted that they did not serve any written notices upon the local persons asking them to act as mediators. In the absence of any written notice by the police their version cannot be believable. More over the time mentioned in the Ex.P.1 is different from the time stated by P.Ws.1 and 2. Accused did not commit the offence and the excise officials foisted this case falsely against the accused only for the statistical purpose. Accused is innocent. Hence accused is entitled for acquittal and prays to acquit the accused.

12.POINT :-

P.Ws.1 to 3 were examined on behalf of prosecution. P.Ws.1 to 3 are excise officials. No independent mediator was examined. P.ws.1 to 3’s evidence corroborated in aspects of visiting the scene of offence, finding the accused in possession of I.D.Arrack, seizing the sample and other contraband, arrest of the accused and drafting special report. They stated that they tried to secure mediators, but no one came forward. In Ex.P.1 it was stated that P.W.1 was sent to the village of Eepurupalem to secure mediators, but he returned and stated no person came forward to act as mediators. It was not mentioned in Ex.P.1 or in their evidence to whom they have

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala asked, how many persons they have asked and in which places they went to secure mediators. It was also not mentioned by them whether any notices were served on the local people to act as mediators. As per judgment of Hon’ble High Court of A.P. in

Yeduru Srinivasu Reddy Vs. State of A.P. reported in 2002 (1) ALD Criminal 347

A.P., wherein it was held that “when the search and seizure taken place in a busy locality and none were come forward to act as punch witness, the police should have resorted to Section 100 (4) of Cr.P.C and should have pass it written order. Therefore in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators cannot be believed and relied upon. Therefore the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustainable”.

P.W.3 admitted that there is check post very near to the scene of offence, but they did not try to secure the person from the check post. It was not explained by them why they did not try to secure the check post person. It creates a doubt whether the excise officials have really tried to secure mediators.

Without the supporting evidence of any independent witnesses in the manner of mediator the sole testimony of police officials cannot be taken as a trustworthy one.

Definitely the provisions of Section 25 of Indian Evidence Act failed to follow by prosecution and the evidence adduced by prosecution both oral and documentary evidence is insufficient to attract ingredients of section 7 (A) r/w 8 (e) of A.P.P.Act. Even special report does not contain the individual persons with whom investigating agency tried to secure as mediators. Without presence of any mediator, arrest of the accused and alleged confession before police cannot be taken as a trustworthy evidence. As per the judgment in between Mudavath Mothia Vs. State of A.P reported in 2005 (1) ALD (NOC) 52, in which the Hon’ble High Court of A.P held that “the excise officials once entrusted with the investigation they become the police officials and the confession recorded by them in the proceedings is inadmissible”.

P.W.3 himself is the person who drafted Ex.P.1 special report, who arrested the accused, who lifted the sample and done the remaining part of investigation. In continuation that he himself laid chargesheet against the accused. As per the judgment

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala in between Gurazala Ramesh and others Vs. State of A.P. reported in 2003 (1) ALD (Crl.) 13 (A.P), in which their lord ship held that “in the cases where the complainant, the investigating officer and the officer who filed chargeseheet are the one, then the convictions and sentences imposed in such cases are not sustainable “.

Non-supporting, evidence by the side of independent mediators, it is not safe to rely upon the evidence of the P.ws.1 to 3 who are the excise officials, this court comes to conclusion that the prosecution failed to prove the guilt of the accused. Accused is entitled for acquittal.

13.In the result, accused is found not guilty for the offence under sec. 7-A r/w 8 (e) of A.P.P.Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C.

The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open Court, this the 28 th day of June, 2019.

Sd/- M.Prasanna Lakshmi

I-Additional Junior Civil Judge-cum- I- Addl. Judl. Magistrate of First Class, Chirala

// APPENDIX OF EVIDENCE //

-:WITNESSES EXAMINED:-

FOR PROSECUTION FOR DEFENCE

P.W.1-S.Pulla Rao,Proh. & Excise Constable, Chirala -NONE- P.W.2-G.Vasudeva Reddy, Proh. & Excise Head Constable, Chirala P.W.3-A.Joshi Babu, Prohibition and Excise Sub-Inspector, Chirala

// DOCUMENTS MARKED //

FOR PROSECUTION FOR DEFENCE

Ex.P1/ Special report--NIL-- Ex.P2/ First Information Report Ex.P3/Letter of advice Ex.P4/Analysis report // MATERIAL OBJECTS MARKED // M.O.1 : Sample bottle Ild/- M.P.L I-A.J.C.J-cum- I-A.J.F.C.M, Chirala // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.46 of 2019

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

CALENDAR IN C.C.No.46 of 2019

Date of offence prior to:08.07.2018 Date of report: 08.07.2018 Date of apprehension of accused: 08.07.2018 Date of release of accused: 10.07.2018 Date of commencement of trial: 02.05.2019 Date of closure of trial: 19.06.2019 Date of Judgment: 28.06.2019

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Chinnapothula Sai, S/o Srinu (late), age 21 years, Caste by Yerukula, Occ:Cooli, R/o Y.S.R.Colony, Vodarevu, Chirala Rural Mandal.… Accused

Offence:u/Sec.7 A r/w 8 (e) of A.P.P.Act Plea of accused:Pleaded not guilty Finding of the Court:Found not guilty Sentence or Order: In the result, accused is found not guilty for the offence under sec. 7 A r/w 8 (e) of A.P.P.Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time. Explanation for delay:- This case was taken on file for the offence U/Sec.7 A r/w 8 (e) of A.P.P.Act against the accused. On appearance of accused before this court, copies of documents furnished as contemplated under Sec.207 of the Code of Criminal Procedure. Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 7 A r/w 8 (e) of A.P.P.Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried. The trial was commenced on 02.05.2019 and concluded on 19.06.2019, during trial P.Ws.1 to 3 were examined and got marked Exs.P1 to P4 and M.O.1 prosecution evidence was closed. After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses. Heard arguments on both the sides. On 28.06.2019, Judgment pronounced. Hence the delay.

Sd/- M.Prasanna Lakshmi

I- Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala Copy submitted to: The Hon’ble I-Additional District & Sessions Judge, Ongole // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

Present: Ms.M.Prasanna Lakshmi, I-Additional Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First , Chirala.

Friday, the 28th day of June, 2019

Calendar Case No. 595 of 2018

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Syed Jani Basha, S/o Khasim, age 40 years, Caste by Muslim, Occ:Cooli, R/o Chinnaganjam … Accused

This is case is coming on 26-06-2019 for hearing before me in the presence of Assistant Public Prosecutor, Grade-II for the state-complainant and Sri Ch.Suresh, Advocate for accused and having stood over for consideration till this day, the court delivered the following:

// J U D G M E N T //

01.The Sub-Inspector of Police, Prohibition and Excise, Chirala filed a chargesheet in Cr.No.39/2018 for the offence under Sec.34 (a) of A.P.Excise Act against the accused.

02.The brief averments of the chargesheet are as follows:-

On 15.02.2018 as per the instructions of the Prohibition and excise

Superintendent, Ongole, Y.V.Chandra Sekhar, Proh. & Excise Constable, Chirala (L.W.1), P.M.Vali, Proh. & Excise Head Constable, Chirala (L.W.2) and A.Joshi Babu,

Proh. & Excise Sub-Inspector, Chirala (I/c P & EI) (L.W.3) and other staff left Chirala

Prohibition and Excise station at about 8.30 A.M and raided suspected places and reached the scene of offence situated at Ambedkar Centre, Chinnaganjam village and

Mandal at about 7.00 P.M they found the accused in possession of one black color plastic cover in his right hand. On suspicion, A.Joshi Babu, Proh. & Excise Sub-

Inspector, Chirala (L.W.3) detained the accused with the help of staff and sent

Y.V.Chandra Sekhar (L.W.1) for secure mediators, but in vain. Then, A.Joshi Babu,

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

Proh. & Excise Sub-Inspector, Chirala (L.W.3) examined the black plastic cover, found 10 bottles of Old Tavern Whisky each 180 ml duty paid liquor bottles and took one bottle of Old Tavern Whisky 180 ml as sample from the above bottles for the purpose of

Chemical Analysis. Sealed and seized the sample bottle and remaining liquor bottles with black Plastic cover and affixed identity slips and arrested the accused after informing the grounds of arrest under cover of special report drafted on the spot. A.Joshi

Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) registered the above special report as Cr.No.39/2018 under Section 34 (A) of A.P.Excise Act and sent the accused to judicial remand. During the course of investigation A.Joshi Babu, Proh. & Excise Sub-

Inspector, Chirala (L.W.3) sent the sample bottle for Chemical Examiner, Guntur throught he Hon’ble Court in C.P.R.No.57/2018. The analyst opined that the samples are ‘INDIAN LIQUOR”. A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) sent the remaining case property with white cloth hand bag to the Deputy Commissioner of

Prohibition and Excise, Ongole for confiscation proposals. After completion of investigation,A.Joshi Babu, Proh. & Excise Sub-Inspector, Chirala (L.W.3) filed chargesheet against the accused for the offence under Sec.34 (A) of A.P.Excise Act.

03.Case taken on file under sec.34 (A) of A.P.Excise Act against the sole accused.

04.On appearance of the accused copies furnished under sec.207 Cr.P.C.

05.Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 34 (A) of A.P.Excise Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried.

06.During the course of trial prosecution examined P.Ws.1 to 3 and marked

Exs.P.1 to P.4 and M.O.1.

07.After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses.

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

08.Heard both the sides.

09.Now the point for consideration is

Whether the prosecution proved the guilt of the accused for the offence under sec. 34 (A) of A.P.Excise Act beyond all reasonable doubt ?

10.The learned A.P.P submitted his arguments that on behalf of prosecution

P.Ws.1 to 3 were examined and Exs.P.1 to P.4 and M.O.1 were marked. The evidence of P.Ws.1 to 3 corroborated with each other about the seizure of the liquor bottles from the accused under the cover of special report/Ex.P.1 itself is sufficient to prove the ingredients of Section 34 (A) of A.P.Excise Act, it was proved by the prosecution that the accused committed offence under section 34 (A) of A.P.Excise Act accused is liable for punishment and prays to punish him according to law.

11.The learned counsel for the accused submitted his arguments that the scene of offence is busy locality. They stated that they asked some persons to act as mediators at the scene of offence, but no one came forward. They also admitted that they did not serve any written notices upon the local persons asking them to act as mediators. In the absence of any written notice by the police their version cannot be believable. More over the time mentioned in the Ex.P.1 is different from the time stated by P.W.3. Accused did not commit the offence and the excise officials foisted this case falsely against the accused only for the statistical purpose. Accused is innocent. Hence accused is entitled for acquittal and prays to acquit the accused.

12.POINT :-

(i)On behalf of prosecution P.Ws.1 to 3 were examined. They are excise officials. P.Ws.1 to 3 evidence corroborated with each other about the visiting the scene of offence, finding the accused in possession of liquor bottles, seizing the liquor bottles, drafting special report. They stated that they tried to secure mediators, but reported that no one come forward. They failed to explain whom they asked to act as mediators, how many persons they asked and from which places they visited to secure mediators. It was

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala also not explained whether any notice was served on the local people to act as mediators.

As per judgment of Hon’ble High Court of A.P. in Yeduru Srinivasu Reddy Vs. State of A.P. reported in 2002 (1) ALD Criminal 347 A.P., wherein it was held that “when the search and seizure taken place in a busy locality and none were come forward to act as punch witness, the police should have resorted to Section 100 (4) of Cr.P.C and should have pass it written order. Therefore in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators cannot be believed and relied upon. Therefore the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction cannot be sustainable”.

P.W.2 in his cross-examination admitted that the driver of their vehicle on which they went to the scene of offence is a private person, but they did not ask the driver to act as mediator. They failed to explain what prevented them to make the driver as mediator when the other local people did not come forward to act as mediators. It creates a doubt whether the excise officials have really asked any one to act as mediators.

(ii)Without the supporting evidence of any independent witnesses in the manner of mediator the sole testimony of police officials cannot be taken as a trustworthy one.

Definitely the provisions of Section 25 of Indian Evidence Act failed to follow by prosecution and the evidence adduced by prosecution both oral and documentary evidence is insufficient to attract ingredients of section 34 (A) of A.P.Excise Act. Even special report does not contain the individual persons with whom investigating agency tried to secure as mediators. Without presence of any mediator, arrest of the accused and alleged confession before police cannot be taken as a trustworthy evidence. As per the judgment in between Mudavath Mothia Vs. State of A.P reported in 2005 (1) ALD (NOC) 52, in which the Hon’ble High Court of A.P held that “the excise officials once entrusted with the investigation they become the police officials and the confession recorded by them in the proceedings is inadmissible”.

P.W.3 himself is the person who got drafted Ex.P.1 special report, who arrested the accused, who lifted the sample and done the remaining part of investigation. In

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala continuation that he himself laid chargesheet against the accused. As per the judgment in between Gurazala Ramesh and others Vs. State of A.P. reported in 2003 (1) ALD (Crl.) 13 (A.P), in which their lord ship held that “in the cases where the complainant, the investigating officer and the officer who filed chargeseheet are the one, then the convictions and sentences imposed in such cases are not sustainable “.

Non-supporting, evidence by the side of independent mediators, it is not safe to rely upon the evidence of the P.ws.1 to 3 who are the excise officials, this court comes to conclusion that the prosecution failed to prove the guilt of the accused. Accused is entitled for acquittal.

13.In the result, accused is found not guilty for the offence under sec. 34 (A) of A.P.Excise Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under

Section 437(a) Cr.P.C. M.O.1 ie., sample bottles shall be destroyed after expiry of appeal time.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open Court, this the 28 th day of June, 2019.

Sd/- M.Prasanna Lakshmi

I-Additional Junior Civil Judge-cum- I- Addl. Judl. Magistrate of First Class, Chirala

// APPENDIX OF EVIDENCE //

-:WITNESSES EXAMINED:-

FOR PROSECUTION FOR DEFENCE

P.W.1-Y.V.Chandra Sekhar, Proh. & Excise Constable, Chirala -NONE- P.W.2-P.M.Vali, Proh. & Excise Head Constable, Chirala P.W.3-A.Joshi Babu, Prohibition and Excise Sub-Inspector, Chirala

// DOCUMENTS MARKED //

FOR PROSECUTION FOR DEFENCE

Ex.P1/ Special report--NIL-- Ex.P2/ First Information Report Ex.P3/Letter of advice Ex.P4/Analysis report // MATERIAL OBJECTS MARKED // M.O.1 : Sample bottle Ild/- M.P.L. I-A.J.C.J-cum- I-A.J.F.C.M, Chirala // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala

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C.C.595 of 2018

I-A.J.C.J-cum-I-A.J.F.C.M.Court, Chirala

IN THE COURT OF THE I-ADDITIONAL JUNIOR CIVIL JUDGE-cum-I-ADDL. JUDL.

MAGISTRATE OF FIRST CLASS: CHIRALA

CALENDAR IN C.C.No.595 of 2018

Date of offence prior to:15.02.2018 Date of report: 15.02.2018 Date of apprehension of accused: 15.02.2018 Date of release of accused: 15.02.2018 Date of commencement of trial: 26.04.2019 Date of closure of trial: 19.06.2019 Date of Judgment: 28.06.2019

Between:

State: Prohibition and Excise Sub-Inspector, Chirala …Complainant -: And :- Syed Jani Basha, S/o Khasim, age 40 years, Caste by Muslim, Occ:Cooli, R/o Chinnaganjam … Accused

Offence:u/Sec.34 (A) of A.P.Excise Act Plea of accused:Pleaded not guilty Finding of the Court:Found not guilty

Sentence or Order: In the result, accused is found not guilty for the offence under sec. 34 (A) of A.P.Excise Act and hence he is acquitted of the same under Sec.248 (1) Cr.P.C. The bail bonds executed by the accused shall be in force for a period of six months under Section 437(a) Cr.P.C. M.O.1 ie., sample bottle shall be destroyed after expiry of appeal time. Explanation for delay:- This case was taken on file for the offence U/Sec.34 (A) of A.P.Excise Actagainst the accused. On appearance of accused before this court, copies of documents furnished as contemplated under Sec.207 of the Code of Criminal Procedure. Accused was examined under Sec.239 Cr.P.C read over and explained the accusation in Telugu for the offences under Sec. 34 (A) of A.P.Excise Act after framing charge under Sec.240 Cr.P.C, for which he pleaded not guilty and claimed to be tried. The trial was commenced on 26.04.2019 and concluded on 19.06.2019, during trial P.Ws.1 and 2 were examined and got marked Exs.P1 to P4 and M.O.1 prosecution evidence was closed. After closure of the prosecution side evidence, accused was examined under Sec.313 Cr.P.C, read over and explained the incriminating material appearing against him in Telugu for which he denied and stated no defence witnesses. Heard arguments on both the sides. On 28.06.2019, Judgment pronounced. Hence the delay.

Sd/- M.Prasanna Lakshmi

I- Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala Copy submitted to: The Hon’ble I-Additional District & Sessions Judge, Ongole // True copy //

I-Addl. Junior Civil Judge-cum- I-Addl. Judl. Magistrate of First Class, Chirala