Rajyalakshmi S ADM

AJFCM 1 (C.C.66/2021)

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

HINDUPUR

Present: Smt S. Rajyalakshmi,

Additional Judicial Magistrate of Fist Class, Hindupur.

Friday, the 09th day of February, 2024.

CALENDER CASE No. 66 of 2021.

Between:-

The State: Sub – Inspector of Police, Parigi Police Station. (Cr.No.230/2020). … Complainant

And

R. Narashimha Murthy S/o Late Narasappa, age 32 years, R/o Jangalapalli Village, Parigi Mandal, Now R/o Muddireddypalli, Hindupur Town. … Accused

This case is coming on 31-01-2024 before me for final hearing in the presence of the learned Assistant Public Prosecutor for complainant and of Sri. P. Uday Simha Reddy, Advocate for Accused, upon hearing both sides, upon perusing the record 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 Police, Parigi Police Station, filed charge sheet in

Crime No.230/2020 alleging that the accused has committed the offence punishable under section 34 (a) of A.P. Excise Amendment Act-2020.

2.The prosecution in a nut shell as set out in the Charge sheet is stated as follows:

On 09.07.2020 at 5.00 P.M on receiving credible information with regard to illegally transporting and selling of Karnataka state Made liquor out skirts of

Honnampalli Village, Parigi Mandal, L.W.1 and 2 conducting vehicle checking and

they found one person came on his Honda Shine Motor Cycle bearing No.KA-64-H- 6060 by possession bag from Dommathimarry Road of Karnataka State, and on seeing the police the said person escaped from the place, meanwhile the police caught hold the said person and verified the plastic bag and found 48-Old Tavern

Whiskey 180-ml each tetra packets which are Karnataka Made. L.W.1 asked said persons to produce any valid license or permit from the AP Government for transporting and selling the liquor packets from Karnataka State in order to sell them in AP State. On such enquiry accused failed to produce valid license or permit.

Then L.W.1 seized the illicit liquor and vehicle from the accused possession under cover of Police Proceedings. Basing on the strength of the Police Proceedings L.W.3,

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registered a case in Cr.No.230/2020 under section 34 (a) of A.P Excise Act, 2020, of

Parigi PS and started into investigation it. During the course of investigation L.W.3 on 10.07.2020 arrested the accused and sent him Judicial remand.

During the course of investigation, L.W.3 forwarded the sample to the

Chemical Examiner, Govt., Regional Special Enforcement Bureau Laboratory,

Chittoor for chemical analysis purpose. The chemical examiner examined the sample and opined that “The sample is Indian Made Liquor”, and issued report vide in C.E.

No.979/2020 S.No.13285, dt.03.08.2020. Later L.W.3 P. Sreenivasulu, Sub-Inspector of Parigi PS, verified the investigation and filed charge sheet against the accused.

3. After receiving the charge sheet and other material, the Prl.

Judl. Magistrate of First Class, Hindupur took cognizance of case was taken for the offence punishable under section 34(a) of Excise Act 2020 against the accused.

4.The accused appeared before this Court on receipt of

Summons and copies of documents are supplied to him as required under

Section 207 Cr.P.C.

5.The accused was examined under Section 239 Cr.P.C. for the offence under Section 34(a) of A.P. Excise Act, 2020 and this Court explained the contents in Charge sheet in Telugu, for which, he denied the allegations and pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case got examined P.Ws.1 and 2. P.W.1 is the Police Constable, P.W.2 is the ASI of Police. Ex.P1 is the Police Proceedings. Ex.P.2 is the F.I.R. Ex.P.3 is the RFSL Report.

7.After closure of evidence on the side of Prosecution, the accused was examined under section 313 Cr.P.C., explaining the incriminating circumstances appearing against him in the evidence of

Prosecution witnesses, for which, he denied the same and reported no defence evidence.

8.Heard both sides. Perused the material available on record.

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9. Now the point that arises for determination is:

“Whether the prosecution could prove the guilt of the accused for the charge under section 34 (a) of the A.P. Excise Act.2020, beyond reasonable doubt?” POINT:-

10.P.W.1 S. Dadavali, PC :- He deposed that on 9-07-2020 at about 5-00 P.M, he along with L.W.1 went to the Honnamapalli village of Parigi mandal, there they found one person coming on two wheeler from

Karnataka state by carrying one black bag, on seeing them the said person tried to ran away, on instructions of L.W.1, he and other staff members chased and caught hold the said persons and produced before

L.W.1. Then L.W.1 enquired the said person on such enquiry the said person reveals his identity as accused this case and he also confessed that he is illegal transporting the Karnataka state liquor, on such information

L.W.1 interrogated L.W.1 seized the Karnataka liquor 48 – Old Tavern whiskey 180 ml tetra packets and also observed the two wheeler Honda

Motor bike bearing No.KA-64-H-6060, after informing the grounds arrest

L.W.1 arrested the accused and seized above contraband along with motor bike and drawn the sample packet for chemical analysis purpose under cover of Police proceedings dt.9.07.2020, after completion of all formulates they brought the Accused along with the case property to the police station. During the cross examination P.W.1 stated that the they did not mentioned the exactly location of place of arrest in Ex.P.1 and they did not obtained any photo of the scene of offence and also they did not produced the case property before the Court. P.W.1 denied the suggestion that the accused no way concerned to this case and also they never went to the scene of offence and they filed false case against the accused for statistical purpose.

11.P.W.2 K. Shaik Shavali, ASI of Police:- He deposed that on 09.07.2020 at about 05:00 P.M, he along with their staff and excise officials went to Sand check post at the outskirts of Honnampalli village and conducted vehicle check about the information of illegal transport of liquor. In the meantime they found accused coming on two wheeler bearing No.KA64-H-6060 from Honnampalli village and on seeing them, he skulk away away from that place, PW1 caught hold of accused and

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produced before LW3. Then, LW3 interrogated the accused, on such enquiry, he revealed his identity particular as accused also confessed that he is illegally transporting Karnataka state liquor, on such confession,

LW3 searched the bag which was in possession of accused containing 48 –

Old Tavern whiskey packets each 180 ml of Karnataka State liquor. The accused did not shown any valid license and receipts from the above said liquor, after that LW3 drawn one sample packet from the above said seized property for chemical analysis purpose. Then, LW3 informing the grounds of arrest, LW3 arrested the accused and seized the contraband and the above said vehicle under cover of police proceedings. Then, he along with LW3 signed on it, after completion of the proceedings they brought the accused along with the case property to the police station.

Ex.P.1 is the police proceedings. Later, LW3 basing on Ex.P1 he registered a case as in Cr. No. 230/2020 for offence u/s. 34(a) of AP Excise Act, Ex.P2 is the FIR, after that, LW3 forwarded Accused to Judicial custody. Later,

LW3 sent a sample to chemical examiner, Chittoor for chemical analysis purpose on 01-08-2020. On 03-08-2020 LW3 received analysis report opined that the sample is Indian Made Liquor under Ex. P3 is Analysis report, after completion of investigation, LW3 filed charge sheet against the accused in this case. During the course of investigation P.W.2 stated that they did not prepared any rough sketch of the scene of offence and they did not mentioned the batch numbers, serial and manufacture date of the seized contraband and also P.W.2 stated that he drafted the police proceedings but he did not sign on it. P.W.2 denied the suggestion that they filed the present case against the accused only for statistical purpose.

12. To prove the charge U/Sec.34(a) of A.P. Excise Act-2020 the prosecution must prove that the accused either imported or exported, transported, manufactured, collected or possessed or sale of intoxication and he is in the possession of intoxicants more than the permissible quantity.

13.The Learned APP contended that the P.W.1 and 2 are the official witnesses and P.W.1 has seized the liquor packets from the

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possession of the accused and hence their evidence is sufficient to convict the accused and hence prayed the Court to convict the accused.

14. The counsel for the accused contended that the police foisted the above case against the accused for statistical purpose by preparing the entire record at the police station. The Learned counsel for the accused further contended that P.W.1 and 2 have not secured the presence of two independent mediators of the said locality at the time of the alleged seizure and further contended that P.W.1 and 2 are failed to follow

Sec.100(4) of Cr.P.C mandatory provision. The non-compliance of the statutory procedure laid down by the law has caused injustice to the accused. Hence the accused is entitled for acquittal.

15.For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) and (5) of Cr.P.C. as follows:

100. Persons in charge of closed place to allow search:-

(4) Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no

such inhabitant of the said locality is available or is willing to

be a witness to the search, to attend and witness the search

and may issue an order in writing to them or any of them so to

do.

(5) The search shall be made in their presence, and a list of

all things seized in the course of such search and of the places in

which they are respectively found shall be prepared by such

officer or other person and signed by such witnesses; but no

person witnessing a search under this section shall be required to

attend the Court as a witness of the search unless especially

summoned by it.

16.'Yeduru Sreenivasul Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down that:-

“ When the search and seizure are taken place in a

busy locality and none have come forward to act as a punch

w i t n e ss , t he p ol i c e s hou l d ha v e re s ort t o s e c t i on . 1 00 ( 4 ) of

Cr.P.C and should pass a 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 sustained.”

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17.In S.Babu Saheb @ Babu Vs. The State of A.P. Rep.by Public

Prosecutor,throughProh.&Excise P.S.2010(1)ALT (Crl.) 32, 2009 (4)

APLJ 57 it was held as follows:-

Excise – Conviction – Section 8 (b) (ii) of the A.P. Prohibition

Act– Magistrate convicted Appellant for offence punishable under

Section 34 (a) of A.P. Excise Act – Additional Judicial Magistrate

dismissed the Appeal filed by Appellant – Hence, this Appeal –

Whether, conviction of the accused on the evidence of P.Ws.1 and 2 –

Held, When excise officials were entrusted with investigation of

cognizable offence, they become equal to police officials – When, once

they become equal to police officials, confession recorded by them in

proceedings become inadmissible – Therefore, seizure panchanama

was hit by Sections 25, 27 of Indian Evidence Act, 1872 and Section

161 of Cr.P.C. However, provisions of Section 100 (4) Cr.P.C. were not

followed by Excise Officials while seizing polythene could containing

I.D. Liquor – Evidence let in by prosecution must create confidence

and must be reliable – Since, no efforts were made to take

independent mediator, it appeared that it was not desirable to convict

the accused on the evidence of P.Ws.1 & 2– Therefore, conviction and

sentence passed against Petitioner – Accused could not sustain –

Petition allowed.

20. In 2006(1) ALD(Crl) 254 (AP) in Gajamker Narayana Vs

State of A.P. Wherein the Hon'ble high court held that Section 100(4)

of Cr.P.C. lays down that before making a search the officer or other

person about to make it shall call one or two more independent and

respectable inhabitants of the locality in which the place to be

searched is situated or of any other locality if not such inhabitant

of the said locality is available or is willing to be a witness to the

search, to attend the witness the search and may issue an order in

writing to them or any of them so to do. The court further held that if

the excise officials while seizing do not follow the mandatory

procedure contemplated under the section 100(4) of Cr.P.C. the

seizure is itself illegal.

From the above said legal position, it is settled law that excise officer must follow the procedure while seizing the above said packets as the police officer. In view of the above stated decisions the investigating officer has to secure the presence of two independent mediators at the time of seizing the contraband from the possession of the accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators. Coming to the aspect of the manner, in which search and seizure was conducted as per the provisions of A.P. Excise Act, 2020 there is no separate procedure under the act conducting search and seizure in a particular manner. In the absence of any such statutory provision in the said act, the Investigating Officer shall have to follow the general procedure provided under the code of Criminal Procedure, 1973. As per Sec.100 Cr.P.C. whenever the Investigating Officer entitled to conduct search and seizure, he has to variable adhere to the procedure contemplated under the Code.

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18. On perusal of the record, during the cross examination P.Ws.1 and 2 stated that the scene of offence is a busy area. P.W.1 had categorically stated that P.W.1 did not ask the persons present at the scene of the offence to act as mediators. On perusal of the record, P.W.1 did not give any reasons in the Police Proceedings for not issuing notices to the persons at the scene of offence to act as mediators and did not put-forth any reasonable explanation for not securing the persons in the village as mediators. P.W.1 never deposed before the Court that no persons are available at the place where the accused was apprehended and did not depose before the Court that none were present at the scene of the offence. It is not the case of the prosecution that no persons were available at the scene of the offence. So, non-examining of local inhabitants by the investigating officer while apprehending the accused casts a serious doubt on the case of the prosecution and the seizure is itself illegal. So, the investigating officer had utterly failed to follow the procedure contemplated under the section 100(4) of Cr.P.C.

19. At this juncture it is pertinent to refer a decision made in 1994 (2) ALT

(Crl. P.69 (AP) Botcha Raju VS State Rep. By the Inspector of Police,

Vizianagaram Rural Circle. Where in it was held that the conviction cannot be given basing on the sole evidence of the police officer without corroboration by disinterested witnesses. Hence even though P.W.1 and 2 deposed their evidence against the accused, the same shall not be taken into consideration without corroboration by the independent witness. Thus this Court doubts as to the veracity of the evidence deposed by P.W.1 and 2 and considers it not to be safe to rely on the sole testimony of P.W.1 and 2 who are the official witnesses. The prosecution also failed in marking the material objects during the time of trial which creates a doubt about the arrest and seizure of the case property from the possession of the accused. Hence, the prosecution has failed to prove its case against the accused person for the offence punishable under Section U/sec.34 (a) of A.P. Excise Act, 2020 beyond all reasonable doubt. Hence, the point is answered against the prosecution.

20.In the light of the above discussion it is highly unsafe to record the conviction of the accused for the offence U/s.34 (a) of A.P. Excise Act and hence the accused is entitled for acquittal.

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21.IN THE RESULT, the accused is found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer G-III, pronounced by me in the open Court on this the 09 th day of February, 2024.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE:

P.W.1 : S. Dadavali. --NONE-- P.W.2 : K. Shaikshavali.

DOCUMENTS MARKED FOR PROSECUTION

Ex.P1 :- Police Proceedings. Ex.P.2 :- F.I.R. Ex.P.3 :- RFSL Report.

DOCUMENTS MARKED FOR DEFENCE

--Nil--

MATERIAL OBJECTS MARKED

--Nil--

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

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CALENDAR AND JUDGMENT

DISTRICT OF ANANTHAPURAMU

CALENDAR OF CASE TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT

HINDUPUR

Date of Date of Appre- Date of Date of Date of Date of sentence

offence report or hension of released commence- close of of order

complaint accused on bail ment of trial trial 1234567 09.07.20 09.07.20 10.07.2020 23.07.20 15.03.2023 31.01.24 09.02.2024

Explanation of delay and remarks:- This case was taken on file on 24.12.2020. On 14.02.2023 accused was examined under Section 239 Cr.P.C. During the course of trial, PW.1 and 2 are examined and marked Exs.P1 to P3. On 09.02.2024 accused was examined U/s.313 Cr.P.C, he denied the same and reported no defence evidence. Heard both sides. Judgment pronounced on 09.02.2024. Hence, the delay.

JUDGMENT IN CALENDAR CASE NUMBER 66/2021 IN CRIME NUMBER 230/2020 OF PARIGI PS, ON THE FILE OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT HINDUPUR.

COMPLAINANT PARIGI POLICE STATION.

Name of the Accused Father’s Name Religion Sex /Age Calling Village Mandal

R. Narashimha Murthy S/o Late Narasappa, age 32 years, R/o Jangalapalli Village, Parigi Mandal, Now R/o Muddireddypalli, Hindupur Town.

OFFENCEUnder Sec.34 (a) of A.P Excise Act, 1968.

FINDINGAccused found not guilty.

IN THE RESULT, the accused found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted

SENTENCE

U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Copy submitted to:

The Hon’ble II Additional District & Sessions Judge, Hindupur.

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

HINDUPUR

Present: Smt S. Rajyalakshmi,

Additional Judicial Magistrate of Fist Class, Hindupur.

Friday, the 09th day of February, 2024.

CALENDER CASE No. 114 of 2023.

Between:-

The State: Sub – Inspector of Police, Parigi Police Station. (Cr.No.301/2020). … Complainant

And

1. S.V. Govinda Reddy S/o S. Venkata Reddy, age 45 years, D.No.27-8-1359, Muddireddypalli Village, Hindupur Town.

2. B. Ramanjinappa S/o M. Mallaiah, age 47 years, Muddireddypalli Village, Hindupur Town. … Accused

This case is coming on 09-02-2024 before me for final hearing in the presence of the learned Assistant Public Prosecutor for complainant and of Sri. A. Gopala Krishna, Advocate for Accused No.1 and 2, upon hearing both sides, upon perusing the record 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 Police, Parigi Police Station, filed charge sheet in

Crime No.301/2020 alleging that the accused No.1 and 2 have committed the offence punishable under section 34 (a) of A.P. Excise Amendment Act-2020.

2.The prosecution in a nut shell as set out in the Charge sheet is stated as follows:

On 29.09.2020 at 2.30 A.M on receiving credible information with regard to illegally transporting and selling of Karnataka state Made liquor and reached

Dhanapura Cross situated on Madakasira-Hindupur road Parigi Mandal, L.W.1 and 2 conducting vehicle checking and they found two persons came on their Hero Passion

Pro Motor Cycle bearing No.AP-02-AP-4399 by possession bag from Madakasira

Road, and on seeing the police the said persons escaped from the place, meanwhile the police caught hold the said persons and verified the plastic bag and found 71-

Old Tavern Whiskey 180-ml each tetra packets which are Karnataka Made. L.W.1 asked said persons to produce any valid license or permit from the AP Government for transporting and selling the liquor packets from Karnataka State in order to sell them in AP State. On such enquiry accused failed to produce valid license or permit.

Then L.W.1 seized the illicit liquor and vehicle from the accused possession under

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cover of Police Proceedings. Basing on the strength of the Police Proceedings L.W.3, registered a case in Cr.No.301/2020 under section 34 (a) of A.P Excise Act, 2020, of

Parigi PS and started into investigation it. During the course of investigation L.W.3 on the same day arrested the accused and sent them Judicial remand.

During the course of investigation, L.W.1 forwarded the sample to the

Chemical Examiner, Govt., Regional Special Enforcement Bureau Laboratory,

Chittoor for chemical analysis purpose. The chemical examiner examined the sample and opined that “The sample is Indian Made Liquor”, and issued report vide in C.E.

No.1871/2020 S.No.23794, dt.17.12.2020. On the requisition of L.W.4\SI of Police, the Superintendent of Police, Ananthapuramu has issued order vide C.No.79/SEB-

SSS/2022, dt.20.07.2022 for destruction of case property. Later L.W.4 K. Narendra,

Sub-Inspector of Parigi PS, verified the investigation and filed charge sheet against the accused.

3. After receiving the charge sheet and other material, the Prl.

Judl. Magistrate of First Class, Hindupur took cognizance of case was taken for the offence punishable under section 34(a) of Excise Act 2020 against the accused No.1 and 2.

4.The accused No.1 and 2 appeared before this Court on receipt of Summons and copies of documents are supplied to them as required under Section 207 Cr.P.C.

5.The accused No.1 and 2 were examined under Section 239

Cr.P.C. for the offence under Section 34(a) of A.P. Excise Act, 2020 and this Court explained the contents in Charge sheet in Telugu, for which, they denied the allegations and pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case got examined P.Ws.1 and 2 and exhibits marked Ex.P.1 to P.5. P.W.1 is the Retired ASI of Police,

P.W.2 is the SI of Police. Ex.P1 is the Police Proceedings. Ex.P.2 is the F.I.R.

Ex.P.3 is the RFSL Report. Ex.P.4 is the Destruction Proceedings. Ex.P.5 is the Destruction Panchanama.

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7.After closure of evidence on the side of Prosecution, the accused were examined under section 313 Cr.P.C., explaining the incriminating circumstances appearing against them in the evidence of

Prosecution witnesses, for which, they denied the same and reported no defence evidence.

8.Heard both sides. Perused the material available on record.

9. Now the point that arises for determination is:

“Whether the prosecution could prove the guilt of the accused for the charge under section 34 (a) of the A.P. Excise Act.2020, beyond reasonable doubt?”

POINT:-

10.P.W.1 P. Srinivasulu, SI of Police :- He deposed that on 29-09- 2020 at about 4:30 AM, he received information about illegal transportation of liquor. Immediately, he along with his staff went to

Dhanapuram cross road at the outskirts of Dhanapuram village, Parigi

Mandal and conducted vehicle check. In the meantime they found accused A1 and A2 coming by motor cycle bearing No. AP02AP4399 from

Madakasira and on seeing them, they skulk away away from that place, he along with LW2 caught hold of accused. Then, he interrogated the accused No.1 and 2, on such enquiry, they revealed their identity particular as accused No. 1 and 2 and also confessed that they are illegally transporting Karnataka state liquor, on such confession, he searched the bag which was in possession of accused containing 71 – Old Tavern

Whisky each 180 ml of Karnataka State liquor. The accused No. 1 and 2 did not shown any valid license and receipts from the above said liquor, after that he drawn one sample packet from the above said seized property for chemical analysis purpose. Then after informing the grounds of arrest, he arrested the accused and seized the contraband under cover of police proceedings i.e., Ex.P1., after completion of the proceedings he brought the accused along with the case property to the police station.

Later he handed over CD file to LW3. During the cross examination

P.W.1 stated that the they did not prepared any rough sketch of scene of offence and they did not mentioned the batch number, serial numbers

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and manufacture dates of seized contraband and P.W.1 further stated that he drafted the police proceedings but he did not sign on it. P.W.1 denied the suggestion that the accused no way concerned to this case and also they never went to the scene of offence and they filed false case against the accused for statistical purpose.

11.P.W.2 M. Jayalatha, ASI of Police:- She deposed that she know accused No.1 and 2 and she received CD file from PW1. During the course of investigation, she forwarded the accused to the Court for judicial remand. Basing on Ex.P1, he registered a case as in Cr.No.301/2020 for offence U/s.34(a) of AP Excise Act, Ex.P2 is the FIR., after that, LW4 sent a sample to chemical examiner, Chittoor. Later, she received analysis report opined that the sample is Wine. Ex.P3 is the analysis report.

Subsequently, LW4 received orders from Superintendent of Police,

Anantapur for destroying the remaining case property along with panchayatinama. Ex. P4 is the destruction proceedings and Ex. P5 is the destruction panchanama. After completion of investigation, LW4, SI of

Police filed charge sheet in this case against the accused. During the course of investigation P.W.2 stated that they did not prepared any rough sketch of the scene of offence and they did not mentioned the batch numbers, serial and manufacture date of the seized contraband and also

P.W.2 stated that she drafted the police proceedings but she did not sign on it. P.W.2 denied the suggestion that they filed the present case against the accused only for statistical purpose.

12. To prove the charge U/Sec.34(a) of A.P. Excise Act-2020 the prosecution must prove that the accused either imported or exported, transported, manufactured, collected or possessed or sale of intoxication and he is in the possession of intoxicants more than the permissible quantity.

13.The Learned APP contended that the P.W.1 and 2 are the official witnesses and P.W.1 has seized the liquor packets from the possession of the accused and hence their evidence is sufficient to convict the accused and hence prayed the Court to convict the accused.

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14. The counsel for the accused contended that the police foisted the above case against the accused for statistical purpose by preparing the entire record at the police station. The Learned counsel for the accused further contended that P.W.1 and 2 have not secured the presence of two independent mediators of the said locality at the time of the alleged seizure and further contended that P.W.1 and 2 are failed to follow

Sec.100(4) of Cr.P.C mandatory provision. The non-compliance of the statutory procedure laid down by the law has caused injustice to the accused. Hence the accused is entitled for acquittal.

15.For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) and (5) of Cr.P.C. as follows:

100. Persons in charge of closed place to allow search:-

(4) Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no

such inhabitant of the said locality is available or is willing to

be a witness to the search, to attend and witness the search

and may issue an order in writing to them or any of them so to

do.

(5) The search shall be made in their presence, and a list of

all things seized in the course of such search and of the places in

which they are respectively found shall be prepared by such

officer or other person and signed by such witnesses; but no

person witnessing a search under this section shall be required to

attend the Court as a witness of the search unless especially

summoned by it.

16.'Yeduru Sreenivasul Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down that:-

“ When the search and seizure are taken place in a

busy locality and none have come forward to act as a punch

w i t n e ss , t he p ol i c e s hou l d ha v e re s ort t o s e c t i on . 1 00 ( 4 ) of

Cr.P.C and should pass a 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 sustained.” 17.In S.Babu Saheb @ Babu Vs. The State of A.P. Rep.by Public

Prosecutor,throughProh.&Excise P.S.2010(1)ALT (Crl.) 32, 2009 (4)

APLJ 57 it was held as follows:-

Dt.09.02.2024

AJFCM 6 (C.C.114/2023)

Excise – Conviction – Section 8 (b) (ii) of the A.P. Prohibition

Act– Magistrate convicted Appellant for offence punishable under

Section 34 (a) of A.P. Excise Act – Additional Judicial Magistrate

dismissed the Appeal filed by Appellant – Hence, this Appeal –

Whether, conviction of the accused on the evidence of P.Ws.1 and 2 –

Held, When excise officials were entrusted with investigation of

cognizable offence, they become equal to police officials – When, once

they become equal to police officials, confession recorded by them in

proceedings become inadmissible – Therefore, seizure panchanama

was hit by Sections 25, 27 of Indian Evidence Act, 1872 and Section

161 of Cr.P.C. However, provisions of Section 100 (4) Cr.P.C. were not

followed by Excise Officials while seizing polythene could containing

I.D. Liquor – Evidence let in by prosecution must create confidence

and must be reliable – Since, no efforts were made to take

independent mediator, it appeared that it was not desirable to convict

the accused on the evidence of P.Ws.1 & 2– Therefore, conviction and

sentence passed against Petitioner – Accused could not sustain –

Petition allowed.

20. In 2006(1) ALD(Crl) 254 (AP) in Gajamker Narayana Vs

State of A.P. Wherein the Hon'ble high court held that Section 100(4)

of Cr.P.C. lays down that before making a search the officer or other

person about to make it shall call one or two more independent and

respectable inhabitants of the locality in which the place to be

searched is situated or of any other locality if not such inhabitant

of the said locality is available or is willing to be a witness to the

search, to attend the witness the search and may issue an order in

writing to them or any of them so to do. The court further held that if

the excise officials while seizing do not follow the mandatory

procedure contemplated under the section 100(4) of Cr.P.C. the

seizure is itself illegal.

From the above said legal position, it is settled law that excise officer must follow the procedure while seizing the above said packets as the police officer. In view of the above stated decisions the investigating officer has to secure the presence of two independent mediators at the time of seizing the contraband from the possession of the accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators. Coming to the aspect of the manner, in which search and seizure was conducted as per the provisions of A.P. Excise Act, 2020 there is no separate procedure under the act conducting search and seizure in a particular manner. In the absence of any such statutory provision in the said act, the Investigating Officer shall have to follow the general procedure provided under the code of Criminal Procedure, 1973. As per Sec.100 Cr.P.C. whenever the Investigating Officer entitled to conduct search and seizure, he has to variable adhere to the procedure contemplated under the Code.

Dt.09.02.2024

AJFCM 7 (C.C.114/2023)

18. On perusal of the record, during the cross examination P.Ws.1 and 2 stated that the scene of offence is a busy area. P.W.1 had categorically stated that P.W.1 did not ask the persons present at the scene of the offence to act as mediators. On perusal of the record, P.W.1 did not give any reasons in the Police Proceedings for not issuing notices to the persons at the scene of offence to act as mediators and did not put-forth any reasonable explanation for not securing the persons in the village as mediators. P.W.1 never deposed before the Court that no persons are available at the place where the accused No.1 and 2 were apprehended and did not depose before the Court that none were present at the scene of the offence. It is not the case of the prosecution that no persons were available at the scene of the offence. So, non-examining of local inhabitants by the investigating officer while apprehending the accused casts a serious doubt on the case of the prosecution and the seizure is itself illegal. So, the investigating officer had utterly failed to follow the procedure contemplated under the section 100(4) of Cr.P.C.

19. At this juncture it is pertinent to refer a decision made in 1994 (2) ALT

(Crl. P.69 (AP) Botcha Raju VS State Rep. By the Inspector of Police,

Vizianagaram Rural Circle. Where in it was held that the conviction cannot be given basing on the sole evidence of the police officer without corroboration by disinterested witnesses. Hence even though P.W.1 and 2 deposed their evidence against the accused, the same shall not be taken into consideration without corroboration by the independent witness. Thus this Court doubts as to the veracity of the evidence deposed by P.W.1 and 2 and considers it not to be safe to rely on the sole testimony of P.W.1 and 2 who are the official witnesses. The prosecution also failed in marking the material objects during the time of trial which creates a doubt about the arrest and seizure of the case property from the possession of the accused. Hence, the prosecution has failed to prove its case against the accused person for the offence punishable under Section U/sec.34 (a) of A.P. Excise Act, 2020 beyond all reasonable doubt. Hence, the point is answered against the prosecution.

20.In the light of the above discussion it is highly unsafe to record the conviction of the accused No.1 and 2 for the offence U/s.34 (a) of A.P.

Excise Act and hence the accused No.1 and 2 are entitled for acquittal.

Dt.09.02.2024

AJFCM 8 (C.C.114/2023)

21.IN THE RESULT, the accused No.1 and 2 are found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and they are acquitted U/sec.248(1) of Cr.P.C. and they are set at liberty. The bail bonds of accused No.1 and 2 and their sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer G-III, pronounced by me in the open Court on this the 09 th day of February, 2024.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE:

P.W.1 : P. Srinivasulu. --NONE-- P.W.2 : M. Jayalatha.

DOCUMENTS MARKED FOR PROSECUTION

Ex.P1 :- Police Proceedings. Ex.P.2 :- F.I.R. Ex.P.3 :- RFSL Report. Ex.P.4 :- Destruction Proceedings. Ex.P.5 :- Destruction Panchanama.

DOCUMENTS MARKED FOR DEFENCE

--Nil--

MATERIAL OBJECTS MARKED

--Nil--

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Dt.09.02.2024

AJFCM 9 (C.C.114/2023)

CALENDAR AND JUDGMENT

DISTRICT OF ANANTHAPURAMU

CALENDAR OF CASE TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT

HINDUPUR

Date of Date of Appre- Date of Date of Date of Date of sentence

offence report or hension of released commence- close of of order

complaint accused on bail ment of trial trial 1234567 29.09.20 29.09.20 29.09.2020 01.10.20 31.01.2024 31.01.24 09.02.2024

Explanation of delay and remarks:- This case was taken on file on 30.12.2022. On 02.11.2023 accused were examined under Section 239 Cr.P.C. During the course of trial, PW.1 and 2 are examined and marked Exs.P1 to P5. On 09.02.2024 accused were examined U/s.313 Cr.P.C, they denied the same and reported no defence evidence. Heard both sides. Judgment pronounced on 09.02.2024. Hence, the delay.

JUDGMENT IN CALENDAR CASE NUMBER 114/2023 IN CRIME NUMBER 301/2020 OF PARIGI PS, ON THE FILE OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT

HINDUPUR.

COMPLAINANT PARIGI POLICE STATION.

Name of the Accused Father’s Name Religion Sex /Age Calling Village Mandal

1. S.V. Govinda Reddy S/o S. Venkata Reddy, age 45 years, D.No.27-8-1359, Muddireddypalli Village, Hindupur Town.

2. B. Ramanjinappa S/o M. Mallaiah, age 47 years, Muddireddypalli Village, Hindupur Town.

OFFENCEUnder Sec.34 (a) of A.P Excise Act, 1968.

FINDINGAccused found not guilty.

IN THE RESULT, the accused found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted

SENTENCE

U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Copy submitted to:

The Hon’ble II Additional District & Sessions Judge, Hindupur.

Dt.09.02.2024

AJFCM 1 (C.C.64/2021)

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

HINDUPUR

Present: Smt S. Rajyalakshmi,

Additional Judicial Magistrate of First Class, Hindupur.

Friday, the 09th day of February, 2024.

CALENDER CASE No. 64 of 2021.

Between:-

The State: Sub – Inspector of Police, Parigi Police Station. (Cr.No.223/2020). … Complainant

And

T. Naresh S/o Late T. Venkatesh, age 36 years, Muddireddypalli Village, Parigi Mandal. … Accused

This case is coming on 31-01-2024 before me for final hearing in the presence of the learned Assistant Public Prosecutor for complainant and of Sri. K. Jayaram, Advocate for Accused, upon hearing both sides, upon perusing the record 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 Police, Parigi Police Station, filed charge sheet in

Crime No.223/2020 alleging that the accused has committed the offence punishable under section 34 (a) of A.P. Excise Amendment Act-2020.

2.The prosecution in a nut shell as set out in the Charge sheet is stated as follows:

On 03.07.2020 at 5.30 P.M on receiving credible information with regard to illegally transporting and selling of Karnataka state Made liquor out skirts of

Honnampalli Village, Parigi Mandal, L.W.1 and 2 conducting vehicle checking and

they found one person came on his Suziki Access 125 Motor Cycle bearing No.AP-39-

DE-8480 by possession bag from Dommathimarry Road of Karnataka State, and on seeing the police the said person escaped from the place, meanwhile the police caught hold the said person and verified the plastic bag and found 145-Old Tavern

Whiskey 180-ml each tetra packets which are Karnataka Made. L.W.1 asked said persons to produce any valid license or permit from the AP Government for transporting and selling the liquor packets from Karnataka State in order to sell them in AP State. On such enquiry accused failed to produce valid license or permit.

Then L.W.1 seized the illicit liquor and vehicle from the accused possession under cover of Police Proceedings. Basing on the strength of the Police Proceedings L.W.3,

Dt.09.02.2024

AJFCM 2 (C.C.64/2021)

registered a case in Cr.No.223/2020 under section 34 (a) of A.P Excise Act, 2020, of

Parigi PS and started into investigation it. During the course of investigation L.W.3 on the same day arrested the accused and sent him Judicial remand.

During the course of investigation, L.W.3 forwarded the sample to the

Chemical Examiner, Govt., Regional Special Enforcement Bureau Laboratory,

Chittoor for chemical analysis purpose. The chemical examiner examined the sample and opined that “The sample is Indian Made Liquor”, and issued report vide in C.E.

No.979/2020 S.No.13276, dt.03.08.2020. Later L.W.3 P. Sreenivasulu, Sub-Inspector of Parigi PS, verified the investigation and filed charge sheet against the accused.

3. After receiving the charge sheet and other material, the Prl.

Judl. Magistrate of First Class, Hindupur took cognizance of case was taken for the offence punishable under section 34(a) of Excise Act 2020 against the accused.

4.The accused appeared before this Court on receipt of

Summons and copies of documents are supplied to him as required under

Section 207 Cr.P.C.

5.The accused was examined under Section 239 Cr.P.C. for the offence under Section 34(a) of A.P. Excise Act, 2020 and this Court explained the contents in Charge sheet in Telugu, for which, he denied the allegations and pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case got examined P.Ws.1 and 2 and exhibits marked as Ex.P.1 to P.5. P.W.1 is the Police Constable,

P.W.2 is the ASI of Police. Ex.P1 is the Police Proceedings. Ex.P.2 is the

F.I.R. Ex.P.3 is the RFSL Report. Ex.P.4 is the Destruction Proceedings.

Ex.P.5 is the Destruction Panchanama.

7.After closure of evidence on the side of Prosecution, the accused was examined under section 313 Cr.P.C., explaining the incriminating circumstances appearing against him in the evidence of

Prosecution witnesses, for which, he denied the same and reported no defence evidence.

Dt.09.02.2024

AJFCM 3 (C.C.64/2021)

8.Heard both sides. Perused the material available on record.

9. Now the point that arises for determination is:

“Whether the prosecution could prove the guilt of the accused for the charge under section 34 (a) of the A.P. Excise Act.2020, beyond reasonable doubt?”

POINT:-

10.P.W.1 K. Shaikshavali, ASI of Police :- He deposed that on 03.07.2020 at about 05:30 P.M, he along with LW2 and excise officials went to the outskirts of Honnampalli village, Parigi Mandal and conducted vehicle check about the information of illegal transport of liquor. In the meantime they found accused coming by two wheeler bearing no. AP 39 BE 8480 from Thommidipalli road side and on seeing them, he skulk away away from that place., he along with LW2 caught hold of accused. Then, he interrogated the accused, on such enquiry, he revealed his identity particular as accused and also confessed that he is illegally transporting Karnataka state liquor, on such confession, he searched the bag which was in possession of accused containing 145 –

Old Tavern Whisky each 180 ml of Karnataka State liquor. The accused did not shown any valid license and receipts from the above said liquor, after that he drawn one sample packet from the above said seized property for chemical analysis purpose. Then after informing the grounds of arrest, he arrested the accused and seized the contraband under cover of police proceedings i.e., Ex.P1, after completion of the proceedings he brought the accused along with the case property to the police station. Later he handed over CD file to LW3 and he conducted further investigation in this case. During the cross examination P.W.1 stated that the they did not prepared any rough sketch of scene of offence and they did not mentioned the batch number, serial numbers and manufacture dates of seized contraband and P.W.1 further stated that he drafted the police proceedings but he did not sign on it. P.W.1 denied the suggestion that the accused no way concerned to this case and also they never went to the scene of offence and they filed false case against the accused for statistical purpose.

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AJFCM 4 (C.C.64/2021)

11.P.W.2 P. Srinivasulu, SI of Police:- He deposed that on he know the accused and he received CD file from PW1 and found it on correct lines done by PW1. During the course of investigation, he forwarded accused to the Hon’ble court for judicial custody. Basing, on Ex.P1, he registered a crime in Cr.No.223/2020 u/s. 34(a) of AP Excise Act and 8(b)

(ii) of AP Prohibition act. Ex.P2 is FIR, after that, he sent a sample to chemical examiner, Chittoor. Later, he received analysis report opined that the sample is Indian made liquor. Ex.P3 is the analysis report. Ex.P4 is the destruction proceedings and Ex.P5 is the destruction panchanama.

After completion of investigation, he filed charge sheet in this case against the accused. During the course of examination of P.W.2 stated that they did not prepared any rough sketch of the scene of offence and they did not mentioned the batch numbers, serial and manufacture date of the seized contraband and also P.W.2 stated that he drafted the police proceedings but he did not sign on it. P.W.2 denied the suggestion that they filed the present case against the accused only for statistical purpose.

12. To prove the charge U/Sec.34(a) of A.P. Excise Act-2020 the prosecution must prove that the accused either imported or exported, transported, manufactured, collected or possessed or sale of intoxication and he is in the possession of intoxicants more than the permissible quantity.

13.The Learned APP contended that the P.W.1 and 2 are the official witnesses and P.W.1 has seized the liquor packets from the possession of the accused and hence their evidence is sufficient to convict the accused and hence prayed the Court to convict the accused.

14. The counsel for the accused contended that the police foisted the above case against the accused for statistical purpose by preparing the entire record at the police station. The Learned counsel for the accused further contended that P.W.1 and 2 have not secured the presence of two independent mediators of the said locality at the time of the alleged seizure and further contended that P.W.1 and 2 are failed to follow

Sec.100(4) of Cr.P.C mandatory provision. The non-compliance of the

Dt.09.02.2024

AJFCM 5 (C.C.64/2021)

statutory procedure laid down by the law has caused injustice to the accused. Hence the accused is entitled for acquittal.

15.For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) and (5) of Cr.P.C. as follows:

100. Persons in charge of closed place to allow search:-

(4) Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no

such inhabitant of the said locality is available or is willing to

be a witness to the search, to attend and witness the search

and may issue an order in writing to them or any of them so to

do.

(5) The search shall be made in their presence, and a list of

all things seized in the course of such search and of the places in

which they are respectively found shall be prepared by such

officer or other person and signed by such witnesses; but no

person witnessing a search under this section shall be required to

attend the Court as a witness of the search unless especially

summoned by it.

16.'Yeduru Sreenivasul Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down that:-

“ When the search and seizure are taken place in a

busy locality and none have come forward to act as a punch

w i t n e ss , t he p ol i c e s hou l d ha v e re s ort t o s e c t i on . 1 00 ( 4 ) of

Cr.P.C and should pass a 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 sustained.” 17.In S.Babu Saheb @ Babu Vs. The State of A.P. Rep.by Public

Prosecutor,throughProh.&Excise P.S.2010(1)ALT (Crl.) 32, 2009 (4)

APLJ 57 it was held as follows:-

Excise – Conviction – Section 8 (b) (ii) of the A.P.

Prohibition Act– Magistrate convicted Appellant for offence

punishable under Section 34 (a) of A.P. Excise Act – Additional

Judicial Magistrate dismissed the Appeal filed by Appellant –

Hence, this Appeal – Whether, conviction of the accused on the

evidence of P.Ws.1 and 2 – Held, When excise officials were

entrusted with investigation of cognizable offence, they

Dt.09.02.2024

AJFCM 6 (C.C.64/2021)

become equal to police officials – When, once they become

equal to police officials, confession recorded by them in

proceedings become inadmissible – Therefore, seizure

panchanama was hit by Sections 25, 27 of Indian Evidence Act,

1872 and Section 161 of Cr.P.C. However, provisions of Section

100 (4) Cr.P.C. were not followed by Excise Officials while seizing

polythene could containing I.D. Liquor – Evidence let in by

prosecution must create confidence and must be reliable –

Since, no efforts were made to take independent mediator, it

appeared that it was not desirable to convict the accused on the

evidence of P.Ws.1 & 2– Therefore, conviction and sentence

passed against Petitioner – Accused could not sustain –

Petition allowed.

20. In 2006(1) ALD(Crl) 254 (AP) in Gajamker Narayana

Vs State of A.P. Wherein the Hon'ble high court held that

Section 100(4) of Cr.P.C. lays down that before making a search

the officer or other person about to make it shall call one or

two more independent and respectable inhabitants of the

locality in which the place to be searched is situated or of any

other locality if not such inhabitant of the said locality is

available or is willing to be a witness to the search, to attend

the witness the search and may issue an order in writing to them

or any of them so to do. The court further held that if the excise

officials while seizing do not follow the mandatory procedure

contemplated under the section 100(4) of Cr.P.C. the seizure

is itself illegal.

From the above said legal position, it is settled law that excise officer must follow the procedure while seizing the above said packets as the police officer. In view of the above stated decisions the investigating officer has to secure the presence of two independent mediators at the time of seizing the contraband from the possession of the accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators. Coming to the aspect of the manner, in which search and seizure was conducted as per the provisions of A.P. Excise Act, 2020 there is no separate procedure under the act conducting search and seizure in a particular manner. In the absence of any such statutory provision in the said act, the Investigating Officer shall have to follow the general procedure provided under the code of Criminal Procedure, 1973. As per Sec.100 Cr.P.C. whenever the Investigating Officer entitled to conduct search and seizure, he has to variable adhere to the procedure contemplated under the Code.

Dt.09.02.2024

AJFCM 7 (C.C.64/2021)

18. On perusal of the record, during the cross examination P.Ws.1 and 2 stated that the scene of offence is a busy area. P.W.1 had categorically stated that P.W.1 did not ask the persons present at the scene of the offence to act as mediators. On perusal of the record, P.W.1 did not give any reasons in the Police Proceedings for not issuing notices to the persons at the scene of offence to act as mediators and did not put-forth any reasonable explanation for not securing the persons in the village as mediators. P.W.1 never deposed before the Court that no persons are available at the place where the accused was apprehended and did not depose before the Court that none were present at the scene of the offence. It is not the case of the prosecution that no persons were available at the scene of the offence. So, non-examining of local inhabitants by the investigating officer while apprehending the accused casts a serious doubt on the case of the prosecution and the seizure is itself illegal. So, the investigating officer had utterly failed to follow the procedure contemplated under the section 100(4) of Cr.P.C.

19. At this juncture it is pertinent to refer a decision made in 1994 (2) ALT

(Crl. P.69 (AP) Botcha Raju VS State Rep. By the Inspector of Police,

Vizianagaram Rural Circle. Where in it was held that the conviction cannot be given basing on the sole evidence of the police officer without corroboration by disinterested witnesses. Hence even though P.W.1 and 2 deposed their evidence against the accused, the same shall not be taken into consideration without corroboration by the independent witness. Thus this Court doubts as to the veracity of the evidence deposed by P.W.1 and 2 and considers it not to be safe to rely on the sole testimony of P.W.1 and 2 who are the official witnesses. The prosecution also failed in marking the material objects during the time of trial which creates a doubt about the arrest and seizure of the case property from the possession of the accused. Hence, the prosecution has failed to prove its case against the accused person for the offence punishable under Section U/sec.34 (a) of A.P. Excise Act, 2020 beyond all reasonable doubt. Hence, the point is answered against the prosecution.

20.In the light of the above discussion it is highly unsafe to record the conviction of the accused for the offence U/s.34 (a) of A.P. Excise Act and hence the accused is entitled for acquittal.

Dt.09.02.2024

AJFCM 8 (C.C.64/2021)

21.IN THE RESULT, the accused is found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer G-III, pronounced by me in the open Court on this the 09 th day of February, 2024.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE:

P.W.1 : K. Shaikshavali. --NONE-- P.W.2 : P. Srinivasulu.

DOCUMENTS MARKED FOR PROSECUTION

Ex.P1 :- Police Proceedings. Ex.P.2 :- F.I.R. Ex.P.3 :- RFSL Report. Ex.P.4 :- Destruction Proceedings. Ex.P.5 :- Destruction Panchanama.

DOCUMENTS MARKED FOR DEFENCE

--Nil--

MATERIAL OBJECTS MARKED

--Nil--

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Dt.09.02.2024

AJFCM 9 (C.C.64/2021)

CALENDAR AND JUDGMENT

DISTRICT OF ANANTHAPURAMU

CALENDAR OF CASE TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT

HINDUPUR

Date of Date of Appre- Date of Date of Date of Date of sentence

offence report or hension of released commence- close of of order

complaint accused on bail ment of trial trial 1234567 03.07.20 03.07.20 03.07.2020 13.07.20 25.01.2024 31.01.24 09.02.2024

Explanation of delay and remarks:- This case was taken on file on 04.01.2021. On 14.18.11.2022 accused was examined under Section 239 Cr.P.C. During the course of trial, PW.1 and 2 are examined and marked Exs.P1 to P5. On 09.02.2024 accused was examined U/s.313 Cr.P.C, he denied the same and reported no defence evidence. Heard both sides. Judgment pronounced on 09.02.2024. Hence, the delay.

JUDGMENT IN CALENDAR CASE NUMBER 64/2021 IN CRIME NUMBER 223/2020 OF PARIGI PS, ON THE FILE OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT HINDUPUR.

COMPLAINANT PARIGI POLICE STATION.

Name of the Accused Father’s Name Religion Sex /Age Calling Village Mandal

T. Naresh S/o Late T. Venkatesh, age 36 years, Muddireddypalli Village, Parigi Mandal.

OFFENCEUnder Sec.34 (a) of A.P Excise Act, 1968.

FINDINGAccused found not guilty.

IN THE RESULT, the accused found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted

SENTENCE

U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Copy submitted to:

The Hon’ble II Additional District & Sessions Judge, Hindupur.

Dt.09.02.2024

AJFCM 1 (C.C.179/2023)

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

HINDUPUR

Present: Smt S. Rajyalakshmi,

Additional Judicial Magistrate of Fist Class, Hindupur.

Friday, the 09th day of February, 2024.

CALENDER CASE No. 179 of 2023.

Between:-

The State: Sub – Inspector of Police, Parigi Police Station. (Cr.No.33/2021). … Complainant

And

Harijana Prabhakar S/o Thadakappagari Kurlappa, age 32 years, R/o D.No.1-272, SC Colony, Manesamudram Village, Hindupur Mandal. … Accused

This case is coming on 09-02-2024 before me for final hearing in the presence of the learned Assistant Public Prosecutor for complainant and of Sri. K. Jayaram, Advocate for Accused, upon hearing both sides, upon perusing the record 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 Police, Parigi Police Station, filed charge sheet in

Crime No.33/2021 alleging that the accused has committed the offence punishable under section 34 (a) of A.P. Excise Amendment Act-2020.

2.The prosecution in a nut shell as set out in the Charge sheet is stated as follows:

On 28.01.2021 at 8.30 A.M on receiving credible information with regard to illegally transporting and selling of Karnataka state Made liquor out skirts of

Honnampalli Village, Parigi Mandal, L.W.1 and 2 conducting vehicle checking and

they found one person came on his TVS XL 100 Motor Cycle bearing No.AP-02-BF- 0710 by possession bag from Madhugiri Road of Karnataka State, and on seeing the police the said person escaped from the place, meanwhile the police caught hold the said person and verified the plastic bag and found 360-Haywards Cheers Whiskey 90- ml each tetra packets which are Karnataka Made. L.W.1 asked said person to produce any valid license or permit from the AP Government for transporting and selling the liquor packets from Karnataka State in order to sell them in AP State. On such enquiry accused failed to produce valid license or permit. Then L.W.1 seized the illicit liquor and vehicle from the accused possession under cover of Police Proceedings.

Basing on the strength of the Police Proceedings L.W.3, registered a case in

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Cr.No.33/2021 under section 34 (a) of A.P Excise Act, 2020, of Parigi PS and started into investigation it. During the course of investigation L.W.3 on the same day arrested the accused and sent him Judicial remand.

During the course of investigation, L.W.3 forwarded the sample to the

Chemical Examiner, Govt., Regional Special Enforcement Bureau Laboratory,

Chittoor for chemical analysis purpose. The chemical examiner examined the sample and opined that “The sample is Indian Made Liquor”, and issued report vide in C.E.

No.513/2021 S.No.6288, dt.26.04.2021. On the requisition of L.W.4\SI of Police, the

Superintendent of Police, Ananthapuramu has issued order vide

C.No.79/SEB-SSS/2022, dt.20.07.2022 for destruction of case property. Later L.W.4 K.

Narendra, Sub-Inspector of Parigi PS, verified the investigation and filed charge sheet against the accused.

3. After receiving the charge sheet and other material, the Prl.

Judl. Magistrate of First Class, Hindupur took cognizance of case was taken for the offence punishable under section 34(a) of Excise Act 2020 against the accused.

4.The accused appeared before this Court on receipt of

Summons and copies of documents are supplied to him as required under

Section 207 Cr.P.C.

5.The accused was examined under Section 239 Cr.P.C. for the offence under Section 34(a) of A.P. Excise Act, 2020 and this Court explained the contents in Charge sheet in Telugu, for which, he denied the allegations and pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case got examined P.Ws.1 and 2 and exhibits marked Ex.P.1 to P.5. P.W.1 is the Retired ASI of Police,

P.W.2 is the SI of Police. Ex.P1 is the Police Proceedings. Ex.P.2 is the F.I.R.

Ex.P.3 is the RFSL Report. Ex.P.4 is the Destruction Proceedings. Ex.P.5 is the Destruction Panchanama.

7.After closure of evidence on the side of Prosecution, the accused was examined under section 313 Cr.P.C., explaining the

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incriminating circumstances appearing against him in the evidence of

Prosecution witnesses, for which, he denied the same and reported no defence evidence.

8.Heard both sides. Perused the material available on record.

9. Now the point that arises for determination is:

“Whether the prosecution could prove the guilt of the accused for the charge under section 34 (a) of the A.P. Excise Act.2020, beyond reasonable doubt?” POINT:-

10.P.W.1 K. Pailappa, Retired ASI of Police :- He deposed that on 28.01.2021 at about 08:30 A.M, he along with his staff and Excise Officials went to Sand Check Post, outskirts of Cherlopalli village. In the meantime they found accused coming on a two wheeler TVS XL Super bearing

No.AP.02.DF.0710 by holding a bag and on seeing the police personnel, he skulk away away from that place, their staff caught hold of accused and produced before him. Then, he interrogated the accused, on such enquiry, he revealed his identity particulars as accused and also confessed that he purchased 360 Haywards cheers whiskey each 90 ml of

Karnataka State Liquor. The accused did not shown any valid license and receipts from the above said liquor, after completion of the police proceedings, he brought the accused along with the case property to the police station, he got prepared police proceedings under Ex.P.1. Later he handed over CD file and the accused along with case property to LW.3/SI of Police for further investigation in this case. During the cross examination P.W.1 stated that the they did not prepared any rough sketch of scene of offence and they did not mentioned the batch number, serial numbers and manufacture dates of seized contraband and P.W.1 further stated that he drafted the police proceedings but he did not sign on it. P.W.1 denied the suggestion that the accused no way concerned to this case and also they never went to the scene of offence and they filed false case against the accused for statistical purpose.

11.P.W.2 P. Srinivasulu, SI of Police:- He deposed that he know the accused and he received CD file from PW1 and found it on correct lines done by PW1. During the course of investigation, he forwarded to

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the Court for judicial remand. Basing on Ex.P1, he registered a case as in

Cr. No.33/2021 for offence u/s. 34(a) of AP Excise Act. Ex.P2 is the FIR, after that, he sent a sample to chemical examiner, Chittoor. Later, he received analysis report opined that the sample is Wine. Ex.P3 is the analysis report. Subsequently, LW4 received orders from Superintendent of Police, Anantapuramu for destroying the remaining case property along with panchayatinama. Ex.P4 is the destruction proceedings and

Ex.P5 is the destruction panchanama. After completion of investigation,

LW4, SI of Police filed charge sheet in this case against the accused.

During the course of investigation P.W.2 stated that they did not prepared any rough sketch of the scene of offence and they did not mentioned the batch numbers, serial and manufacture date of the seized contraband and also P.W.2 stated that he drafted the police proceedings but he did not sign on it. P.W.2 denied the suggestion that they filed the present case against the accused only for statistical purpose.

12. To prove the charge U/Sec.34(a) of A.P. Excise Act-2020 the prosecution must prove that the accused either imported or exported, transported, manufactured, collected or possessed or sale of intoxication and he is in the possession of intoxicants more than the permissible quantity.

13.The Learned APP contended that the P.W.1 and 2 are the official witnesses and P.W.1 has seized the liquor packets from the possession of the accused and hence their evidence is sufficient to convict the accused and hence prayed the Court to convict the accused.

14. The counsel for the accused contended that the police foisted the above case against the accused for statistical purpose by preparing the entire record at the police station. The Learned counsel for the accused further contended that P.W.1 and 2 have not secured the presence of two independent mediators of the said locality at the time of the alleged seizure and further contended that P.W.1 and 2 are failed to follow

Sec.100(4) of Cr.P.C mandatory provision. The non-compliance of the statutory procedure laid down by the law has caused injustice to the accused. Hence the accused is entitled for acquittal.

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15.For better appreciation of rival contentions it is useful to reproduce sec. 100 (4) and (5) of Cr.P.C. as follows:

100. Persons in charge of closed place to allow search:-

(4) Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no

such inhabitant of the said locality is available or is willing to

be a witness to the search, to attend and witness the search

and may issue an order in writing to them or any of them so to

do.

(5) The search shall be made in their presence, and a list of

all things seized in the course of such search and of the places in

which they are respectively found shall be prepared by such

officer or other person and signed by such witnesses; but no

person witnessing a search under this section shall be required to

attend the Court as a witness of the search unless especially

summoned by it.

16.'Yeduru Sreenivasul Reddy Vs State of A.P which was reported in 2002(1) ALD(Crl.)347(A.P)' laid down that:-

“ When the search and seizure are taken place in a

busy locality and none have come forward to act as a punch

w i t n e ss , t he p ol i c e s hou l d ha v e re s ort t o s e c t i on . 1 00 ( 4 ) of

Cr.P.C and should pass a 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 sustained.” 17.In S.Babu Saheb @ Babu Vs. The State of A.P. Rep.by Public

Prosecutor,throughProh.&Excise P.S.2010(1)ALT (Crl.) 32, 2009 (4)

APLJ 57 it was held as follows:-

Excise – Conviction – Section 8 (b) (ii) of the A.P. Prohibition

Act– Magistrate convicted Appellant for offence punishable under

Section 34 (a) of A.P. Excise Act – Additional Judicial Magistrate

dismissed the Appeal filed by Appellant – Hence, this Appeal –

Whether, conviction of the accused on the evidence of P.Ws.1 and 2 –

Held, When excise officials were entrusted with investigation of

cognizable offence, they become equal to police officials – When, once

they become equal to police officials, confession recorded by them in

proceedings become inadmissible – Therefore, seizure panchanama

was hit by Sections 25, 27 of Indian Evidence Act, 1872 and Section

161 of Cr.P.C. However, provisions of Section 100 (4) Cr.P.C. were not

followed by Excise Officials while seizing polythene could containing

I.D. Liquor – Evidence let in by prosecution must create confidence

and must be reliable – Since, no efforts were made to take

independent mediator, it appeared that it was not desirable to convict

the accused on the evidence of P.Ws.1 & 2– Therefore, conviction and

sentence passed against Petitioner – Accused could not sustain –

Petition allowed.

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20. In 2006(1) ALD(Crl) 254 (AP) in Gajamker Narayana Vs

State of A.P. Wherein the Hon'ble high court held that Section 100(4)

of Cr.P.C. lays down that before making a search the officer or other

person about to make it shall call one or two more independent and

respectable inhabitants of the locality in which the place to be

searched is situated or of any other locality if not such inhabitant

of the said locality is available or is willing to be a witness to the

search, to attend the witness the search and may issue an order in

writing to them or any of them so to do. The court further held that if

the excise officials while seizing do not follow the mandatory

procedure contemplated under the section 100(4) of Cr.P.C. the

seizure is itself illegal.

From the above said legal position, it is settled law that excise officer must follow the procedure while seizing the above said packets as the police officer. In view of the above stated decisions the investigating officer has to secure the presence of two independent mediators at the time of seizing the contraband from the possession of the accused. If he fails to do so, he has to state the reasons for not securing the presence of mediators. Coming to the aspect of the manner, in which search and seizure was conducted as per the provisions of A.P. Excise Act, 2020 there is no separate procedure under the act conducting search and seizure in a particular manner. In the absence of any such statutory provision in the said act, the Investigating Officer shall have to follow the general procedure provided under the code of Criminal Procedure, 1973. As per Sec.100 Cr.P.C. whenever the Investigating Officer entitled to conduct search and seizure, he has to variable adhere to the procedure contemplated under the Code.

18. On perusal of the record, during the cross examination P.Ws.1 and 2 stated that the scene of offence is a busy area. P.W.1 had categorically stated that P.W.1 did not ask the persons present at the scene of the offence to act as mediators. On perusal of the record, P.W.1 did not give any reasons in the Police Proceedings for not issuing notices to the persons at the scene of offence to act as mediators and did not put-forth any reasonable explanation for not securing the persons in the village as mediators. P.W.1 never deposed before the Court that no persons are available at the place where the accused was apprehended and did not depose before the Court that none were present at the scene of the offence. It is not the case of the prosecution that no persons were available at the scene of the offence. So, non-examining of local inhabitants by the investigating officer while apprehending the accused

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casts a serious doubt on the case of the prosecution and the seizure is itself illegal. So, the investigating officer had utterly failed to follow the procedure contemplated under the section 100(4) of Cr.P.C.

19. At this juncture it is pertinent to refer a decision made in 1994 (2) ALT

(Crl. P.69 (AP) Botcha Raju VS State Rep. By the Inspector of Police,

Vizianagaram Rural Circle. Where in it was held that the conviction cannot be given basing on the sole evidence of the police officer without corroboration by disinterested witnesses. Hence even though P.W.1 and 2 deposed their evidence against the accused, the same shall not be taken into consideration without corroboration by the independent witness. Thus this Court doubts as to the veracity of the evidence deposed by P.W.1 and 2 and considers it not to be safe to rely on the sole testimony of P.W.1 and 2 who are the official witnesses. The prosecution also failed in marking the material objects during the time of trial which creates a doubt about the arrest and seizure of the case property from the possession of the accused. Hence, the prosecution has failed to prove its case against the accused person for the offence punishable under Section U/sec.34 (a) of A.P. Excise Act, 2020 beyond all reasonable doubt. Hence, the point is answered against the prosecution.

20.In the light of the above discussion it is highly unsafe to record the conviction of the accused for the offence U/s.34 (a) of A.P. Excise Act and hence the accused is entitled for acquittal.

21.IN THE RESULT, the accused is found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer G-III, pronounced by me in the open Court on this the 09 th day of February, 2024.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE:

P.W.1 : K. Pailappa. --NONE-- P.W.2 : P. Srinivasulu.

DOCUMENTS MARKED FOR PROSECUTION

Ex.P1 :- Police Proceedings. Ex.P.2 :- F.I.R. Ex.P.3 :- RFSL Report. Ex.P.4 :- Destruction Proceedings. Ex.P.5 :- Destruction Panchanama.

DOCUMENTS MARKED FOR DEFENCE

--Nil--

MATERIAL OBJECTS MARKED

--Nil--

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

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AJFCM 9 (C.C.179/2023)

CALENDAR AND JUDGMENT

DISTRICT OF ANANTHAPURAMU

CALENDAR OF CASE TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT

HINDUPUR

Date of Date of Appre- Date of Date of Date of Date of sentence

offence report or hension of released commence- close of of order

complaint accused on bail ment of trial trial 1234567 28.01.21 28.01.21 28.01.2021 02.02.21 29.01.2024 31.01.24 09.02.2024

Explanation of delay and remarks:- This case was taken on file on 27.12.2022. On 11.09.2023 accused was examined under Section 239 Cr.P.C. During the course of trial, PW.1 and 2 are examined and marked Exs.P1 to P5. On 09.02.2024 accused was examined U/s.313 Cr.P.C, he denied the same and reported no defence evidence. Heard both sides. Judgment pronounced on 09.02.2024. Hence, the delay.

JUDGMENT IN CALENDAR CASE NUMBER 179/2023 IN CRIME NUMBER 33/2021 OF PARIGI PS, ON THE FILE OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS AT HINDUPUR.

COMPLAINANT PARIGI POLICE STATION.

Name of the Accused Father’s Name Religion Sex /Age Calling Village Mandal

Harijana Prabhakar S/o Thadakappagari Kurlappa, age 32 years, R/o D.No.1-272, SC Colony, Manesamudram Village, Hindupur Mandal.

OFFENCEUnder Sec.34 (a) of A.P Excise Act, 1968.

FINDINGAccused found not guilty.

IN THE RESULT, the accused found not guilty for the offence punishable U/sec.34 (a) of A.P. Excise Act, 2020 and he is acquitted

SENTENCE

U/sec.248(1) of Cr.P.C. and he is set at liberty. The bail bonds of accused and his sureties shall remain in force till six months as per the provisions of section 437-A Cr.P.C. The unmarked seized property if any shall be destroyed after expiry of appeal time.

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

HINDUPUR.

Copy submitted to:

The Hon’ble II Additional District & Sessions Judge, Hindupur.

Dt.09.02.2024

1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE, HINDUPUR,

Present: Smt.S.Rajyalakshmi,

Additional Junior Civil Judge, Hindupur

Thursday, this the 14th day of July’ 2023

O.S. 176/2020

Between :

M/s Vivekananda Auto Finances ®, Parigi Road, Hindupur, Satya Sai District represented by its Managing Partner(working) N.Satyanarayana, S/o N.S.Narayana Setty, aged about 62 years, residing at D.No.7-8-53, Kamsalapeta, Hindupur town and Mandal.

…Plaintiff

And

1) Golla Prabhakar, S/o Late Narappa, aged 50 years, Hindu, Business, D.No.21-8- 278, Teachers Colony, Hindupur town and Mandal.

2) K.S.Zabiulla, S/o K.M.Sadiq, aged 45 years, Muslim, Business, D.No.26-4-3048, Sri Balaji Nagar, Hindupur town and Mandal. …Defendant

This suit came up for final hearing before this court on 28-06-2023 in the presence of Sri K.Satyanarayana, Advocate for the plaintiff and the defendant remained exparte and upon hearing the counsel for the plaintiff and on perusing the material available on record this Court delivered the following:

J U D G M E N T

The suit is filed for recovery of Rs.1,67,750/- (Rupees one lakh sixty seven thousand seven hundred and fifty only) on Hire Purchase Agreement dt.23.12.2016 with interest at 24 % p.a. from the date of suit till realization and costs of the suit.

2.The material averments of the plaint are as follows:-

It is submitted that the plaintiff is a partnership concern registered under the

Registrar of Firms, Hindupur registered as Firm No.18 of 2009 at Hindupur dealing in hire purchase agreements in respect of vehicles. The plaintiff used to purchase vehicles for its customers on identification by its customers.

The defendant No.1 as hirer and defendant No.2 as aguarantor entered into

Hire Purchase agreement with the plaintiff on 23.12.2016 at Hindupur in respect of vehicle bearing registration No.AP.04.V.0575. The hire purchase amount has fixed at 2

Rs.3,75,000/- repayable in thirty monthly installments as detailed in the ‘B’ schedule of H.P.Agreement commencing from 23.01.2017 and the details of hire purchase vehicle is more particularly described in the Hire purchase agreement.

As per the terms and conditions of the H.P.Agreement, the plaintiff is the owner of the H.P.Vehicle and D.1 is the hirer and D.2 is the guarantor. D.1 is holding the suit vehicle on behalf of the owner/plaintiff as trustee during the currency of the agreement. In terms of the agreement, D.1 as hirer and D.2 as guarantor executed the Hire Purchase agreement on 23.12.2016 at Hindupur in favour of the plaintiff and D.1 took delivery of the vehicle along with copy of H.P.Agreement under two separate written acknowledgments on 23.12.2016 including promissory notes of the defendants 1 and 2 separately.

The defendant No.1 was irregular in payment of the installments as stated in the ‘B’ Schedule. The defendant No.1 has paid an amount of Rs.12,500/- on 13.05.2017, Rs.500/- on 13.05.2017, Rs.12,500/- on 30.06.2017, Rs.10,000/- on 06.09.2017, Rs.12,500/- on 09.12.2017, Rs.1,50,000/- on 25.07.2018. Except the above said payments, the defendant No.1 did not make any payment to the plaintiff. Thus, the defendant No.1 is irregular in payment of the Hire purchase agreement installments. Hence, the plaintiff has filed the present suit on the foot of the promissory note and H.P.Agreement against the defendants 1 and 2 and the same is in time.

3.The defendants 1 and 2 remained exparte. Hence, they are set exparte.

4. Basing up on the plaint pleadings the points for consideration is:

1. Whether the suit promissory notes are true, valid and binding on the defendant and the plaintiff is entitled for suit claim ?

2. To what relief ?

5.During the course of trail, plaintiff adduced his oral evidence as PW-1 and marked Ex.A1 to Ex.A.5. Ex.A.1 is original Hire Purchase Agreement executed by the defendants in favour of the plaintiff dt.23.12.2016. Ex.A.2 is promissory note 3 executed by the defendant 1 and 2 dt.23.12.2016. Ex.A.3 is account extract dt.14.12.2018. Ex.A.4 is deed of partnership dt.27.11.2009. Ex.A.5 is acknowledgment of registration of Firm dt.28.05.2009. The defendants did not choose to contest the case and remained exparte.

6. Heard the learned counsel for plaintiff and perused the records available and the evidence.

7. Point No:1 :-

The plaintiff in order to establish his case examined himself as PW1 by filing his chief affidavit which is nothing but replica of plaint PW1 in his chief examination reiterated the contents of the plaint and deposed that the defendant

No.1 as hirer and defendant No.2 as aguarantor entered into Hire Purchase agreement with the plaintiff on 23.12.2016 at Hindupur in respect of vehicle bearing registration No.AP.04.V.0575. The hire purchase amount has fixed at Rs.3,75,000/- repayable in thirty monthly installments as detailed in the ‘B’ schedule of

H.P.Agreement commencing from 23.01.2017 and the details of hire purchase vehicle is more particularly described in the Hire purchase agreement. As per the terms and conditions of the H.P.Agreement, the plaintiff is the owner of the

H.P.Vehicle and D.1 is the hirer and D.2 is the guarantor. D.1 is holding the suit vehicle on behalf of the owner/plaintiff as trustee during the currency of the agreement. In terms of the agreement, D.1 as hirer and D.2 as guarantor executed the Hire Purchase agreement on 23.12.2016 at Hindupur in favour of the plaintiff and D.1 took delivery of the vehicle along with copy of H.P.Agreement under two separate written acknowledgments on 23.12.2016 including promissory notes of the defendants 1 and 2 separately. The defendant No.1 was irregular in payment of the installments as stated in the ‘B’ Schedule. The defendant No.1 has paid an amount of Rs.12,500/- on 13.05.2017, Rs.500/- on 13.05.2017, Rs.12,500/- on 30.06.2017,

Rs.10,000/- on 06.09.2017, Rs.12,500/- on 09.12.2017, Rs.1,50,000/- on 25.07.2018. Except the above said payments, the defendant No.1 did not make any payment to the plaintiff. Thus, the defendant No.1 is irregular in payment of the

Hire purchase agreement installments. Hence, the plaintiff has been claiming an amount of Rs.1,67,750/- being an amount due as per ledge extract and for future 4 interest as per the contract rate i.e. 24 % p.a. from the date of suit till realization and costs of the suit. Inspite of demands, the defendants did not repay the above said amount.

8.On co-joint reading of plaint the oral evidence of PW1 and the documentary evidence available on hand it is well established on record. Further more defendants have not choose to contest the suit of the plaintiff and remained exparte. The evidence of PW1 has remained unchallenged, unrebbuted and controverted.

9.As per above discussion the plaintiff established his case by examining himself as PW1 and established, accordingly this point is answered in favour of plaintiff and against the defendant.

10.Point No.2:-

In the result, the suit is decreed with costs for a sum of

Rs.1,67,750/- (Rupees one lakh sixty seven thousand seven hundred and fifty only) with future interest at 12% p.a. from the date of filing of the suit till the date of decree and thereafter at 6% p.a. till its realization being an amount due as per the ledger extract.

Directly typed to my dictation by the Typist, corrected and pronounced by me in open court, this the 14th day of July’ 2023.

Addl. Junior Civil Judge, Hindupur

Appendix of evidence

Witnesses examined for

Plaintiff: Defendants:

PW.1 : N.Satyanarayana -None-

Exhibits marked for plaintiff

Ex.A.1 is original Hire Purchase Agreement executed by the defendants in favour of the plaintiff dt.23.12.2016.

5

Ex.A.2 is promissory note executed by the defendant 1 and 2 dt.23.12.2016.

Ex.A.3 is account extract dt.14.12.2018.

Ex.A.4 is deed of partnership dt.27.11.2009.

Ex.A.5 is acknowledgment of registration of Firm dt.28.05.2009.

Exhibits marked for defendants

-Nil-

A.J.C.J.,HUP