Rokkam Varalakshmi

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

AT SOMPETA

PRESENT: Kum. ROKKAM VARALAKSHMI,

ADDITIONAL JUNIOR CIVIL JUDGE, SOMPETA.

(FAC) PRL. JUNIOR CIVIL JUDGE, SOMPETA.

Monday this the 27th day of November, 2017.

O.S.No.57/1989

Between :

Smt. Agunna Damayanthi, W/o Aggunna Dalibandu, aged 45 years, Residing at Bellupatia village, Mandasa Mandal, Srikakulam Dist.

...Plaintiff

And

1. Vandaru Sreeramulu, S/o Appanna, aged 40 years, Resident of Pothrakonda village, Sompeta Mandalam, Srikakulam District.

2. Vandaru Domburu, S/o Appanna, aged about 55 years, -do-.

3. Vandaru Appanna, S/o not known, aged 80 years, -do-.

4. Vandaru Himamsu, S/o Appanna, aged 48 years, B.E. Deputy Divisional Engineer, (Electrical) Officers colony, Seetammadara, Visakhapatnam.

5. Vandaru Santayya, S/o Appanna, aged 45 years, Deputy Registrar, Andhra University, Waltair.

6. Komma Janakamma, W/o Bheema Rao, aged 42 years, Resding at Kodanda Rama Street, Tekkali village, Tekkali Mandal.

...Defendants

This suit is coming before me for hearing in the presence of Sri. M. Dharama Rao, learned counsel for the plaintiff and Sri. D.Nanda Gopala Rao, learned counsel for the defendant and having heard and stood over consideration the court delivers the following:

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

This suit is being filed by the plaintiff for permanent injunction simpliciter restraining the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff from the plaint schedule property.

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Brief averments of the plaint are as follows:

1.The plaint schedule property was purchased by the plaintiff and Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered a sale deed date 23-01-1971 for an extent of 34.65 cents from this property the shares of the Gokarla Appanna and the plaintiff were separated, the plaintiff is in possession of the said property. The plaint schedule property was allotted to the share of Gokarla

Appanna and plaintiff. The plaint schedule property is treated and recognized and the share of the plaintiff by other partners. The other purchasers were kept their property jointly with a view to separate at a point of the time. The plaintiff reclaimed the land and made it fit for cultivation, the cashew nut and mango trees and other fruit plants were grown up . The plaintiff is paying taxe regularly to the Government. The revenue records also maintained by the revenue officials in the name of the plaintiff. The R.O.R.

pass book was issued in the name of the plaintiff. The defendants have no right in the plaint schedule property, they also admitted that the plaintiff is the owner of the plaint schedule property. The defendants are making preparation to trespass into the plaint schedule property and to cause wrongful loss to the plaintiff. The plaintiff being a house wife is not capable to protect the property from the hands of the defendants filed this suit seeking permanent injunction against the defendants hence this suit.

2.The defendants filed written statement submitted that the defendants are Harizans and they are not powerful persons in their village the plaint schedule property belongs to

Binnala Padmanadham it was purchased by him under registered sale deed date 20-01- 1971 from the land mortgage Bank, Sompeta he was in possession till 1989, later he executed possessory agreement on dated 10-04-1989, and delivered possession of the land to the defendants, this defendants with an intention to purchase a suit land and other 3 lands from Binnala Padmanabham for Rs. 65,280/- paid advance of Rs.5,000/-. He executed possessory agreement and delivered the land. The defendants are in possession and enjoyment of the said land after execution. The plaintiff has neither title nor possession over the plaint schedule land, and moreover plaintiff’s husband with an intention to take revenge against the defendants falsely filed this suit. The 3rd defendant is in actual possession of the land, and the suit is liable to be dismissed with exemplary costs.

3.Basing on the above pleadings the following issues were framed by my Ld. Predecessor

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief ?

4. Heard the both sides and perused the record.

5.In support of the claim the plaintiff her husband got examined himself as Pw-1, (Agguna Dalibhandu) and also examined Pw-2 Puriya Rasmaswamy PW-3 Jalasutrapu

Bholoku, PW.4- Seela Narayana and PW.5- Agguna Appanna, marked Exhibits A.1 to

A.15, Ex.A.1 to Ex.A.4 are the tax receipts Ex.A.5 to A.7 are certified copies of the tax receipts, Ex.A.8 is the certified copy of the No.2 Adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401, Ex.A.9 is the certified copy of the R.O.R.

pass book containing 3 pages, Ex.A.10 is the certified copy of the statement scheduled

before land ceiling tribunal, Tekkali, by Binnala Padmanabham, Ex.A11 is the certified

copy of the declaration filed by B. Padmanabham before land ceiling,Tekkali Ex.A.12- is the relinquishment deed executed by Gokarla Appanna infavour of the plaintiffs on 10.08.1975. Ex.A.13 is the certified copy of the Decree and Judgment in O.S. 24/1989 on the file of the subordinate Judge’s Court, (Now Senior Civil Judge’s Court). Ex.A.14 is the certified copy of the decree and Judgment in O.S.59/1993 on the file of the 4

Subordinate Judge’s Court, ( Senior Civil Judge’s Court). And Ex.A.15 is the R.O.R pass book issued in the name of the plaintiff by the Tahsildar, Mandasa marked. The defendant to support his case got examined himself as Dw-1- Vandara Santhayya and

DW-2- Binnala Eswarao and got marked Ex.B1 to B.15, Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971, Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham, Ex.B.3: is Extract of the original sale deed filed in O.S.

07/93, Ex.B.4: is Extract of the original sale deeds filed in O.S. 07/93, Ex.B.5: is Extract of the original sale deed filed in O.S. 07/93, Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses),

Ex.B.7: is suit register extract of O.S.19/1977, Ex.B.8: is the certified copy of the pattadar pass book, Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398, Ex.B.10 is tax receipt. Ex.B.10 to Ex.B.15 tax receipts issued in the name of family members.

6. ISSUE No.1:

This is a suit filed by the plaintiff for permanent injunction to restrain the defendants not to interfere with the enjoyment of the suit schedule property. As per the contention of the plaintiff the suit schedule property was purchased by Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna in the year 1971 under a registered sale deed with an extent of 34 acres. The plaintiff and Gokarla Appanna were separated from the remaining. And Gokarla Appanna relinquished his share by executing relinquish deed. From that day onwards the plaintiff is in possession and enjoyment of the suit schedule property by planting the cashew, coconut and mango trees in the plaint schedule property.

7.To prove the said contentionPW.1 (Agguna Dalibhandu) examined in chief on behalf of his wife she is none other than the plaintiff in this suit. The extent of plaint 5 schedule is 13.05 cents it is a garden consisting with cashew, coconut and mango trees it was made up by him in the year 1975, about 34 acres land was purchased by the plaintiff, Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna and

Mallipeddi Vajram from co-operative land mortgage Bank, Sompeta under a registered sale deed dated 23-01-1971 which includes the plaint schedule property. In the year 1975 the share of his wife and Gokarla Appanna who is his brother-in-law was separated from the 34.00 cents and possession was delivered to them. Since then have been absolutely enjoying the suit schedule property. The remaining 3 shares were continuing in joint enjoyment, paying taxes to the Government to the plaint schedule property from the year 1975. Ex.A.1 to A.15 were marked. Binnala Padmanabham and the defendants have no right to interfere with the suit schedule property.

8.In his cross examination PW.1 stated that he do not remember whether the property was purchased jointly or not and also stated he did not file the sale deed, dated 23-01-1971 along with the suit. He admitted that he did not see the sale deed, and further admitted the sale deed was executed in the name of Binnala Padmanabham, but he denied the suggestion that the said Padmanabham had paid entire sale consideration and got registered in his name. He admitted that he do not have any paper to show that the plaint schedule property had jointly purchased. He stated that he filed the documents to show that his property and Gokarla Appanna property was separated from the other property, but he did not file any document to show that the property was given by

Binnala Padmanabham. He denied the suggestion that he never in possession and enjoyment of the suit schedule property and managed the revenue people to create the said documents, as he worked as Samithi president for 5 years. He denied the suggestion given that Binnala Padmanabham was in possession since 1971 and that in the years 1981 a possessory agreement was executed in favour of the D.3 and delivered 6 the possession. He further stated he do not know whether Binnala Padmanabham executed sale deed in favour of his wife and his children. Witness admitted in Ex.B.1 the names of Agguna Damayanthi, Bendalam Ramurthy Naidu, Mallipeddi Vagram and

Gokarla Appanna were not there, and further admitted they are not the parties to the land ceiling proceedings. He had not mentioned the date of Ex. A.12 in the written statement filed by plaintiff, (D.2) in OS 24 of 1989 on the filed of Sub-Court, Sompeta. He was present at the time of execution of Ex.A.12, the stamp was purchased in the year 1973 but Ex.A.12 executed in the year 1975.

9.PW.2- Puriya Ramaswamy in his chief examination he deposed that he know the plaintiff and plaint schedule property consisting of cashew and mango trees with an extent of 13 acers. Binnala Padmanabham, Bendalam Ramamurthy Naidu,

Gokarla Appanna, Mallipeddi Vajram and plaintiff jointly purchased the suit land and some other lands in the name of Binnala Padmanabham in the auction conducted by the land mortgage Bank, Sompeta about 13 acers of land towards shares of the plaintiff and

Gokarlla Appanna with a surveyor and given to the plaintiff. Plaintiff removed the bushes and shurbs and made it fit for cultivation by planting cashew and mango trees in the year 1975. Since from that that date the plaintiff is in possession and enjoyment of the suit schedule property 13 acres, but he can not say the survey number and patta number. He did not file any document to show that he is having lands near the suit schedule property. Further stated he do not know whether the 5 persons who jointly purchased the from the Bank doing joint business or not. He had not participated the auction was conducted by Bank, But auction was confirmed in the name of Binnala

Padmanabham for an extent of 13 acres after that he was inducted into possession of the land. He denied the suggestion, no surveyor was come and survey the land, he do not know whether Binnala Padmanabham sold away acres 20 on the southern site of the 7 schedule to the wife of D.4. He denied the suggestion that Binnala Padmanabham was executed a possessory agreement in favour of D.3, before the said sale in favour of wife of D.4 and wife and children of D.5.He denied the suggestion that the plaintiff never in possession and enjoyment of suit schedule property and family of the D.5 is in possession and enjoyment of the suit schedule property.

10.PW.3 Jalasutrapu Bhuloku he is the adjacent land owner of the suit schedule property he stated that he know the plaintiff and PW.1 the plaint schedule property is about 12 or 13 acres consisting of cashew and mango trees the plaintiff and PW.1 has been cultivating since 25 or 30 years. The property was purchased by 5 or 6 persons. In his cross examination he stated that I do not know the patta number and survey number but the lands situated in Srirampuram village. He do not know whether the plaintiff purchased the scheduled property or not but he know the enjoyment of the plaintiff. I was worked in the said land as coolie for removal of bushes. He denied the suggestion that D.4 and his family numbers are cultivating the southern land and also he denied that D.3 possess a possessory agreement for entire property of suit schedule.

11.PW.4 Seela Narayana in his chief examination he stated he know the plaintiff, PW.1 and Gokarla Appanna. He know the plaint schedule property with an extent of 13 acres is cultivating by PW.1 and plaintiff since 25 years at Srirampuram

Village. He own one acre of land in the northern side of suit schedule property, on the western side there a road, Eastern side water channel. He do not know who is the owner of south side. Plaintiff has been paying tax to the Government. since 10 years. In his cross examination he stated he do not know to whom the property belongs to but now it belongs to plaintiff. He do not know how the plaintiff acquired the suit schedule property, he do not know the owner of the land situated in southern boundary, he do not know who is D.3, he do not know whether Padmanabham handed over the schedule D.3.

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He denied the suggestion that the plaintiff never in possession and enjoyment of the suit schedule property.

12.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna.

He know the plaint schedule property and the possession and enjoyment of the plaintiff.

The plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff. Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that Gokarla Appanna along with some others purchased the plaint schedule property in LM Bank auction. The sale deed was executed in the name of Binnala

Padmanabham, Gokarla Appanna was not obtained separate document. Boundaries East:

Water channel, South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

13.The evidence of defendants Vandara Santhayya examined in chief as DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as

Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in

Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10-04- 1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 9 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

14.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha

Himansu under Ex.B.2 to B.5. Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5. We alienated 20 cents of land to Vandara Hemalatha 10

Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to Agguna Damayanthi, Gokarla Appanna, Mallepeddi

Vajram and Bendalam Ramamurthy Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

15.PW.1 is the husband of plaintiff herein, he was examined on behalf of his wife, he stated plaint schedule property had been purchased by plaintiff, Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered sale deed dated 23-01-1971 for an extent of 34.65 cents in auction held by Mortgage Bank, Sompeta. After that plaintiff and Gokarla Appanna separated from remaining three others Gokarla Appanna relinquished his right over his share and executed Ex.A.12 unregistered relinquishment deed from that day onwards plaintiff is in possession and enjoyment of plaint schedule property reclaiming the said land and planted cashew nut plants, coconut plants, mango plaints. To prove the contention of plaintiff got examined PW.2 to Pw.5 and got marked Ex.A.1 to 11

A.15. PW.2 during his chief examination he stated 5 persons namely plaintiff,

Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna purchased the plaint schedule property in the name of Binnala Padmanabham since purchasing of the said land plaintiff in the possession and enjoyment of the plaint schedule property. During cross examination he stated he do not know whether 5 persons jointly purchased the said property, but the auction was confirmed in the name of Binnala Padmanabhan, he inducted into 30 acres of land, further he stated there was no written partition between plaintiff and Binnala

Padmanabham. As per his evidence it shows he do not know how the plaintiff acquired the plaint schedule property.

16.PW.3 stated that the plaintiff is in possession and enjoyment of the property, but he do not know how she acquired the same, he stated he worked as labour at the time of reclaiming the plaint schedule property. He is the adjacent owner of plaint schedule property, as per his evidence nowhere mentioned the survey number and extent of his land instead of he simply stated he is the adjacent owner of the plaint schedule property, in the absence of the said details it can not be considered as he is the adjacent owner of plaint schedule property. But he is the

Eastern side owner of plaint schedule property as per his evidence.

17.PW.3 is Eastern side of owner of plaint schedule property he own one acre of land, but he also not gave any particulars of his land. He denied the suggestion that plaintiff is not in possession and enjoyment of the plaint schedule property.

18.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna. He know the plaint schedule property and the possession and enjoyment of the plaintiff. The 12 plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff.

Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by

Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that

Gokarla Appanna along with some others purchased the plaint schedule property in LM

Bank auction. The sale deed was executed in the name of Binnala Padmanabham,

Gokarla Appanna was not obtained separate document. Boundaries East: Water channel,

South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

19.DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10- 04-1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala 13

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

20.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna

Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha Himansu under Ex.B.2 to B.5.

Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5.

We alienated 20 cents of land to Vandara Hemalatha Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement 14 total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to

Agguna Damayanthi, Gokarla Appanna, Mallepeddi Vajram and Bendalam Ramamurthy

Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

21.To prove the possession of plaintiff filed Ex.A.1 to A15. Ex.A.1 to A.7 are tax receipts contained the survey number 164, but the survey number of plaint schedule property is ½, Ex.A.8 is the Adangal copy it was carefully perused and found the names of the all the purchasers were mentioned it means all are in joint possession. Ex.a.9 is certified copy of ROR issued in favour of Aggunna

Damayanthi for Survey Number 1.2 along with Gokarla Appanna, carefully perused the document found no Khata number and no year of issuance of ROR.

But PW.1 was stated ROR was issued in the name of his wife/plaintiff and they are regularly paying tax to Government. PW.1 failed to state that to what survey number they are paying tax. The plaint schedule survey number is different from survey number mentioned in Ex.A.1 to A.7, Ex.A.1 to A.9 not correlated each other Ex.A.10 is the statement given by the Binnala Padmanabham before Land

Ceiling Tribunal he stated he along with 4 members purchased from the land

Mortgage Bank in extent of 30 acres i.e. Ex.A.10 and A.11. A.13 and 14 are the subsequent copies of this suit.

22.A.13 is certified copy of Decree and Judgment in O.S.24/1989 on the file of 15 the Subordinate Judge’s Court. This suit filed for partition by Bendalam Ramurthy

Naidu, Malipeddi Vajram against Binnala Padnabhamm, Agguna Damayanthi and to there the same was allowed by allotting their respective shares, the date of the decree and judgment of this suit is 3rd September, 1996, originally the main suit

O.S. 57/89 filed on 20th April, 1989 so Ex.A.13 is subsequent document to this

suit.

23.Ex.A.14 is certified copy of Decree and Judgment in O.S.59/1993 on the file of the Subordinate Judge’s Court. This suit filed for declaration of title and recover of possession filed by Vandara Saradhavi and others against Agguna Dalibandu and others the same was dismissed, the date of the decree and judgment of this suit is 17th June, 2004, originally the main suit O.S. 57/89 filed on 20th April, 1989 so

Ex.A.14 is subsequent document to this suit. Hence from the above observations

Ex.A.13 and 14 are not relevant documents to this suit.

24.Ex.A.15 is ROR Pass Book issued infavour of plaintiff in the year 2016 so this document is also subsequent document to this suit. Ex.A.10 and A.11 also filed subsequent filing of this suit the plaintiff filed only the documents Ex.A.1 to

A.9 at the time of filing of this suit and also the PW.1 is silent about the document to show that plait schedule property was purchased by them jointly in an auction.

But DW.1 filed the said document the same is marked as Ex.B.1. PW.1 admitted that he never seen the Ex.B.1 and no where mentioned Ex.B.1 is in whose possession. PW.1 simply stated that plaint schedule was purchased in auction without giving any details of auction i.e., date of auction and whose property was purchased by them in said auction.

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25.Ex.a.12 is unregistered relinquishment deed which was alleged to deed executed by Gokarla Appanna in the favour of plaintiff is not a valied document in the eye of Law as per the Section 17 of Regisration Act. Moreover it was executed in the year 1973 but completed in the year 1975. One of the attester of this document was examined as PW.5. He stated that Ex.A.12 was executed at the house of plaintiff at the the time of execution he questioned the executant i.e.,

Gokarla Appanna as why he is relinquishing his right over his share and giving to plaintiff, the answer was given by the executant is that plaintiff is his brother’s daughter, but PW.5 stated Gokarala Appanna have one son. It means instead of giving his share to his son he gave it to the plaintiff, the reasons for relinquishment is not mentioned.

26.The oral evidence of witnesses to be supported with the documentary evidence PW.3 and PW.4 are the Eastern side and Northern side owners of plaint schedule property both submitted that plaintiff is in possession and enjoyment of the plaint schedule property. But their evidence not supported with documentary evidence. Plaintiff not at all chose to examine any one of the purchasers to prove that the plaint schedule property was purchased by them jointly in an auction.

27.On the other hand the defendant strongly contending that Binnala

Padmanabham had purchased an extent of 34.60 cents which included plaint schedule property in the year 1971, to show that to filed Ex.B.1 certified copy of the extract of sale deed dated 20-01-1971. Ex.B.2 to B.5 are the certified copies of sale deeds executed by Binnala Padmanabham. Ex.B.7 is the suit register extract of O.S.19/77, Ex.B.8 is certified copy of pattadar Pass book issued in the name of 17

Binnala Padmanabham. Ex.B.10 to B.15 are tax receipts issued in the name of family members of DW.1. Ex.B.9 is cash receipt issued in the name of vendor for faslis 1395 to 1398.

28.Now it is not the issue to decide whether the defendants purchased the property or not, but the main issue in this suit is whether the plaintiff is in possession of the plaint schedule property at the time of filing of this suit is not.

Plaintiff to prove her possession filed Ex.A.1 to A.9 and other documents Ex.A.10 to A.15 all the documents are filed subsequent filing of this suit, but A.1 to A.9 not correlated to each other to prove the possession of the plaintiff and moreover how the plaintiff acquired the plaint schedule is silent no document was filed and further relinquishment deed is not a valid document in the eye of Law. Basing on the observations made supra the plaintiff failed to prove her possession over the plaint schedule property hence this suit is dismissed without costs.

29. Issue No.2:

In the result, this suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in the Open court on this the 27th day of November, 2017.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

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APPENDIX OF EVIDENCE

Witness Examined

On behalf of the Plaintiff:

Pw.1: Agguna Dalibhandu

Pw.2: Piriya Ramaswami

PW.3: Jalasutrapu Bholoku

PW.4:Seela Narayana

PW.5: Agguna Appanna

On behalf of the Defendant :

DW.1: Vandara Santhayya

DW.2: Binnala Eswararao

On behalf of the Plaintiff :

Ex.A.1: is the Tax receipt

Ex.A.2: is the Tax receipt

Ex.A.3: is the Tax receipt

Ex.A.4: is the Tax receipt

Ex.A.5: is the certified copies of the tax receipt

Ex.A.6: is the certified copies of the tax receipt

Ex.A.7: is the certified copies of the tax receipt

Ex.A.8: is the certified copy of the No.2 adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401

Ex.A.9: is the certified copy of the R.O.R. Pass book containing 3 pages.

Ex.A.10: is the certified copy of the statement schedule before land celing tribunal, Tekkali, by Binnal Padmanabham

Ex.A.11: is the is the certified copy of the declaration filed by B. Padmanabham

before land cellig, Tekkali

Ex.A.12: is the relinquishment deed executed by Gokarla Appanna

Ex.A.13: is the certified copy of the Decree and Judgment in O.S 24/1989 on the file of the subordinate Judge’s Court. (Now Senior Civil Judge’s Court)

Ex.A.14: is the certified copy of the decree and Judgment in O.S. 59/1993 on the file of the Subordinate Judge’s Court, (Senior Civil Judge’s Court)

Ex.A.15: is the R.O.R pass book issued in the name of the plaintiff by the 19

Tahsildar, Mandasa

On behalf of the Defendant :

Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971

Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham.

Ex.B.3: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.4: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.5: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses)

Ex.B.7: is suit register extract of O.S.19/1977

Ex.B.8: is the certified copy of the pattadar pass book.

Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398.

Ex.B.10 is tax receipt issued in the name of our family members.

Ex.B.11is tax receipt issued in the name of our family members.

Ex.B.12 is tax receipt issued in the name of our family members.

Ex.B.13 is tax receipt issued in the name of our family members.

Ex.B.14 is tax receipt issued in the name of our family members.

Ex.B.15 is tax receipt issued in the name of our family members.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

AT SOMPETA

PRESENT: Kum. ROKKAM VARALAKSHMI,

ADDITIONAL JUNIOR CIVIL JUDGE, SOMPETA.

(FAC) PRL. JUNIOR CIVIL JUDGE, SOMPETA.

Monday this the 27th day of November, 2017.

O.S.No.57/1989

Between :

Smt. Agunna Damayanthi, W/o Aggunna Dalibandu, aged 45 years, Residing at Bellupatia village, Mandasa Mandal, Srikakulam Dist.

...Plaintiff

And

1. Vandaru Sreeramulu, S/o Appanna, aged 40 years, Resident of Pothrakonda village, Sompeta Mandalam, Srikakulam District.

2. Vandaru Domburu, S/o Appanna, aged about 55 years, -do-.

3. Vandaru Appanna, S/o not known, aged 80 years, -do-.

4. Vandaru Himamsu, S/o Appanna, aged 48 years, B.E. Deputy Divisional Engineer, (Electrical) Officers colony, Seetammadara, Visakhapatnam.

5. Vandaru Santayya, S/o Appanna, aged 45 years, Deputy Registrar, Andhra University, Waltair.

6. Komma Janakamma, W/o Bheema Rao, aged 42 years, Resding at Kodanda Rama Street, Tekkali village, Tekkali Mandal.

...Defendants

This suit is coming before me for hearing in the presence of Sri. M. Dharama Rao, learned counsel for the plaintiff and Sri. D.Nanda Gopala Rao, learned counsel for the defendant and having heard and stood over consideration the court delivers the following:

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

This suit is being filed by the plaintiff for permanent injunction simpliciter restraining the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff from the plaint schedule property.

2

Brief averments of the plaint are as follows:

1.The plaint schedule property was purchased by the plaintiff and Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered a sale deed date 23-01-1971 for an extent of 34.65 cents from this property the shares of the Gokarla Appanna and the plaintiff were separated, the plaintiff is in possession of the said property. The plaint schedule property was allotted to the share of Gokarla

Appanna and plaintiff. The plaint schedule property is treated and recognized and the share of the plaintiff by other partners. The other purchasers were kept their property jointly with a view to separate at a point of the time. The plaintiff reclaimed the land and made it fit for cultivation, the cashew nut and mango trees and other fruit plants were grown up . The plaintiff is paying taxe regularly to the Government. The revenue records also maintained by the revenue officials in the name of the plaintiff. The R.O.R.

pass book was issued in the name of the plaintiff. The defendants have no right in the plaint schedule property, they also admitted that the plaintiff is the owner of the plaint schedule property. The defendants are making preparation to trespass into the plaint schedule property and to cause wrongful loss to the plaintiff. The plaintiff being a house wife is not capable to protect the property from the hands of the defendants filed this suit seeking permanent injunction against the defendants hence this suit.

2.The defendants filed written statement submitted that the defendants are Harizans and they are not powerful persons in their village the plaint schedule property belongs to

Binnala Padmanadham it was purchased by him under registered sale deed date 20-01- 1971 from the land mortgage Bank, Sompeta he was in possession till 1989, later he executed possessory agreement on dated 10-04-1989, and delivered possession of the land to the defendants, this defendants with an intention to purchase a suit land and other 3 lands from Binnala Padmanabham for Rs. 65,280/- paid advance of Rs.5,000/-. He executed possessory agreement and delivered the land. The defendants are in possession and enjoyment of the said land after execution. The plaintiff has neither title nor possession over the plaint schedule land, and moreover plaintiff’s husband with an intention to take revenge against the defendants falsely filed this suit. The 3rd defendant is in actual possession of the land, and the suit is liable to be dismissed with exemplary costs.

3.Basing on the above pleadings the following issues were framed by my Ld. Predecessor

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief ?

4. Heard the both sides and perused the record.

5.In support of the claim the plaintiff her husband got examined himself as Pw-1, (Agguna Dalibhandu) and also examined Pw-2 Puriya Rasmaswamy PW-3 Jalasutrapu

Bholoku, PW.4- Seela Narayana and PW.5- Agguna Appanna, marked Exhibits A.1 to

A.15, Ex.A.1 to Ex.A.4 are the tax receipts Ex.A.5 to A.7 are certified copies of the tax receipts, Ex.A.8 is the certified copy of the No.2 Adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401, Ex.A.9 is the certified copy of the R.O.R.

pass book containing 3 pages, Ex.A.10 is the certified copy of the statement scheduled

before land ceiling tribunal, Tekkali, by Binnala Padmanabham, Ex.A11 is the certified

copy of the declaration filed by B. Padmanabham before land ceiling,Tekkali Ex.A.12- is the relinquishment deed executed by Gokarla Appanna infavour of the plaintiffs on 10.08.1975. Ex.A.13 is the certified copy of the Decree and Judgment in O.S. 24/1989 on the file of the subordinate Judge’s Court, (Now Senior Civil Judge’s Court). Ex.A.14 is the certified copy of the decree and Judgment in O.S.59/1993 on the file of the 4

Subordinate Judge’s Court, ( Senior Civil Judge’s Court). And Ex.A.15 is the R.O.R pass book issued in the name of the plaintiff by the Tahsildar, Mandasa marked. The defendant to support his case got examined himself as Dw-1- Vandara Santhayya and

DW-2- Binnala Eswarao and got marked Ex.B1 to B.15, Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971, Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham, Ex.B.3: is Extract of the original sale deed filed in O.S.

07/93, Ex.B.4: is Extract of the original sale deeds filed in O.S. 07/93, Ex.B.5: is Extract of the original sale deed filed in O.S. 07/93, Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses),

Ex.B.7: is suit register extract of O.S.19/1977, Ex.B.8: is the certified copy of the pattadar pass book, Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398, Ex.B.10 is tax receipt. Ex.B.10 to Ex.B.15 tax receipts issued in the name of family members.

6. ISSUE No.1:

This is a suit filed by the plaintiff for permanent injunction to restrain the defendants not to interfere with the enjoyment of the suit schedule property. As per the contention of the plaintiff the suit schedule property was purchased by Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna in the year 1971 under a registered sale deed with an extent of 34 acres. The plaintiff and Gokarla Appanna were separated from the remaining. And Gokarla Appanna relinquished his share by executing relinquish deed. From that day onwards the plaintiff is in possession and enjoyment of the suit schedule property by planting the cashew, coconut and mango trees in the plaint schedule property.

7.To prove the said contentionPW.1 (Agguna Dalibhandu) examined in chief on behalf of his wife she is none other than the plaintiff in this suit. The extent of plaint 5 schedule is 13.05 cents it is a garden consisting with cashew, coconut and mango trees it was made up by him in the year 1975, about 34 acres land was purchased by the plaintiff, Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna and

Mallipeddi Vajram from co-operative land mortgage Bank, Sompeta under a registered sale deed dated 23-01-1971 which includes the plaint schedule property. In the year 1975 the share of his wife and Gokarla Appanna who is his brother-in-law was separated from the 34.00 cents and possession was delivered to them. Since then have been absolutely enjoying the suit schedule property. The remaining 3 shares were continuing in joint enjoyment, paying taxes to the Government to the plaint schedule property from the year 1975. Ex.A.1 to A.15 were marked. Binnala Padmanabham and the defendants have no right to interfere with the suit schedule property.

8.In his cross examination PW.1 stated that he do not remember whether the property was purchased jointly or not and also stated he did not file the sale deed, dated 23-01-1971 along with the suit. He admitted that he did not see the sale deed, and further admitted the sale deed was executed in the name of Binnala Padmanabham, but he denied the suggestion that the said Padmanabham had paid entire sale consideration and got registered in his name. He admitted that he do not have any paper to show that the plaint schedule property had jointly purchased. He stated that he filed the documents to show that his property and Gokarla Appanna property was separated from the other property, but he did not file any document to show that the property was given by

Binnala Padmanabham. He denied the suggestion that he never in possession and enjoyment of the suit schedule property and managed the revenue people to create the said documents, as he worked as Samithi president for 5 years. He denied the suggestion given that Binnala Padmanabham was in possession since 1971 and that in the years 1981 a possessory agreement was executed in favour of the D.3 and delivered 6 the possession. He further stated he do not know whether Binnala Padmanabham executed sale deed in favour of his wife and his children. Witness admitted in Ex.B.1 the names of Agguna Damayanthi, Bendalam Ramurthy Naidu, Mallipeddi Vagram and

Gokarla Appanna were not there, and further admitted they are not the parties to the land ceiling proceedings. He had not mentioned the date of Ex. A.12 in the written statement filed by plaintiff, (D.2) in OS 24 of 1989 on the filed of Sub-Court, Sompeta. He was present at the time of execution of Ex.A.12, the stamp was purchased in the year 1973 but Ex.A.12 executed in the year 1975.

9.PW.2- Puriya Ramaswamy in his chief examination he deposed that he know the plaintiff and plaint schedule property consisting of cashew and mango trees with an extent of 13 acers. Binnala Padmanabham, Bendalam Ramamurthy Naidu,

Gokarla Appanna, Mallipeddi Vajram and plaintiff jointly purchased the suit land and some other lands in the name of Binnala Padmanabham in the auction conducted by the land mortgage Bank, Sompeta about 13 acers of land towards shares of the plaintiff and

Gokarlla Appanna with a surveyor and given to the plaintiff. Plaintiff removed the bushes and shurbs and made it fit for cultivation by planting cashew and mango trees in the year 1975. Since from that that date the plaintiff is in possession and enjoyment of the suit schedule property 13 acres, but he can not say the survey number and patta number. He did not file any document to show that he is having lands near the suit schedule property. Further stated he do not know whether the 5 persons who jointly purchased the from the Bank doing joint business or not. He had not participated the auction was conducted by Bank, But auction was confirmed in the name of Binnala

Padmanabham for an extent of 13 acres after that he was inducted into possession of the land. He denied the suggestion, no surveyor was come and survey the land, he do not know whether Binnala Padmanabham sold away acres 20 on the southern site of the 7 schedule to the wife of D.4. He denied the suggestion that Binnala Padmanabham was executed a possessory agreement in favour of D.3, before the said sale in favour of wife of D.4 and wife and children of D.5.He denied the suggestion that the plaintiff never in possession and enjoyment of suit schedule property and family of the D.5 is in possession and enjoyment of the suit schedule property.

10.PW.3 Jalasutrapu Bhuloku he is the adjacent land owner of the suit schedule property he stated that he know the plaintiff and PW.1 the plaint schedule property is about 12 or 13 acres consisting of cashew and mango trees the plaintiff and PW.1 has been cultivating since 25 or 30 years. The property was purchased by 5 or 6 persons. In his cross examination he stated that I do not know the patta number and survey number but the lands situated in Srirampuram village. He do not know whether the plaintiff purchased the scheduled property or not but he know the enjoyment of the plaintiff. I was worked in the said land as coolie for removal of bushes. He denied the suggestion that D.4 and his family numbers are cultivating the southern land and also he denied that D.3 possess a possessory agreement for entire property of suit schedule.

11.PW.4 Seela Narayana in his chief examination he stated he know the plaintiff, PW.1 and Gokarla Appanna. He know the plaint schedule property with an extent of 13 acres is cultivating by PW.1 and plaintiff since 25 years at Srirampuram

Village. He own one acre of land in the northern side of suit schedule property, on the western side there a road, Eastern side water channel. He do not know who is the owner of south side. Plaintiff has been paying tax to the Government. since 10 years. In his cross examination he stated he do not know to whom the property belongs to but now it belongs to plaintiff. He do not know how the plaintiff acquired the suit schedule property, he do not know the owner of the land situated in southern boundary, he do not know who is D.3, he do not know whether Padmanabham handed over the schedule D.3.

8

He denied the suggestion that the plaintiff never in possession and enjoyment of the suit schedule property.

12.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna.

He know the plaint schedule property and the possession and enjoyment of the plaintiff.

The plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff. Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that Gokarla Appanna along with some others purchased the plaint schedule property in LM Bank auction. The sale deed was executed in the name of Binnala

Padmanabham, Gokarla Appanna was not obtained separate document. Boundaries East:

Water channel, South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

13.The evidence of defendants Vandara Santhayya examined in chief as DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as

Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in

Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10-04- 1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 9 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

14.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha

Himansu under Ex.B.2 to B.5. Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5. We alienated 20 cents of land to Vandara Hemalatha 10

Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to Agguna Damayanthi, Gokarla Appanna, Mallepeddi

Vajram and Bendalam Ramamurthy Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

15.PW.1 is the husband of plaintiff herein, he was examined on behalf of his wife, he stated plaint schedule property had been purchased by plaintiff, Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered sale deed dated 23-01-1971 for an extent of 34.65 cents in auction held by Mortgage Bank, Sompeta. After that plaintiff and Gokarla Appanna separated from remaining three others Gokarla Appanna relinquished his right over his share and executed Ex.A.12 unregistered relinquishment deed from that day onwards plaintiff is in possession and enjoyment of plaint schedule property reclaiming the said land and planted cashew nut plants, coconut plants, mango plaints. To prove the contention of plaintiff got examined PW.2 to Pw.5 and got marked Ex.A.1 to 11

A.15. PW.2 during his chief examination he stated 5 persons namely plaintiff,

Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna purchased the plaint schedule property in the name of Binnala Padmanabham since purchasing of the said land plaintiff in the possession and enjoyment of the plaint schedule property. During cross examination he stated he do not know whether 5 persons jointly purchased the said property, but the auction was confirmed in the name of Binnala Padmanabhan, he inducted into 30 acres of land, further he stated there was no written partition between plaintiff and Binnala

Padmanabham. As per his evidence it shows he do not know how the plaintiff acquired the plaint schedule property.

16.PW.3 stated that the plaintiff is in possession and enjoyment of the property, but he do not know how she acquired the same, he stated he worked as labour at the time of reclaiming the plaint schedule property. He is the adjacent owner of plaint schedule property, as per his evidence nowhere mentioned the survey number and extent of his land instead of he simply stated he is the adjacent owner of the plaint schedule property, in the absence of the said details it can not be considered as he is the adjacent owner of plaint schedule property. But he is the

Eastern side owner of plaint schedule property as per his evidence.

17.PW.3 is Eastern side of owner of plaint schedule property he own one acre of land, but he also not gave any particulars of his land. He denied the suggestion that plaintiff is not in possession and enjoyment of the plaint schedule property.

18.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna. He know the plaint schedule property and the possession and enjoyment of the plaintiff. The 12 plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff.

Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by

Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that

Gokarla Appanna along with some others purchased the plaint schedule property in LM

Bank auction. The sale deed was executed in the name of Binnala Padmanabham,

Gokarla Appanna was not obtained separate document. Boundaries East: Water channel,

South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

19.DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10- 04-1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala 13

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

20.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna

Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha Himansu under Ex.B.2 to B.5.

Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5.

We alienated 20 cents of land to Vandara Hemalatha Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement 14 total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to

Agguna Damayanthi, Gokarla Appanna, Mallepeddi Vajram and Bendalam Ramamurthy

Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

21.To prove the possession of plaintiff filed Ex.A.1 to A15. Ex.A.1 to A.7 are tax receipts contained the survey number 164, but the survey number of plaint schedule property is ½, Ex.A.8 is the Adangal copy it was carefully perused and found the names of the all the purchasers were mentioned it means all are in joint possession. Ex.a.9 is certified copy of ROR issued in favour of Aggunna

Damayanthi for Survey Number 1.2 along with Gokarla Appanna, carefully perused the document found no Khata number and no year of issuance of ROR.

But PW.1 was stated ROR was issued in the name of his wife/plaintiff and they are regularly paying tax to Government. PW.1 failed to state that to what survey number they are paying tax. The plaint schedule survey number is different from survey number mentioned in Ex.A.1 to A.7, Ex.A.1 to A.9 not correlated each other Ex.A.10 is the statement given by the Binnala Padmanabham before Land

Ceiling Tribunal he stated he along with 4 members purchased from the land

Mortgage Bank in extent of 30 acres i.e. Ex.A.10 and A.11. A.13 and 14 are the subsequent copies of this suit.

22.A.13 is certified copy of Decree and Judgment in O.S.24/1989 on the file of 15 the Subordinate Judge’s Court. This suit filed for partition by Bendalam Ramurthy

Naidu, Malipeddi Vajram against Binnala Padnabhamm, Agguna Damayanthi and to there the same was allowed by allotting their respective shares, the date of the decree and judgment of this suit is 3rd September, 1996, originally the main suit

O.S. 57/89 filed on 20th April, 1989 so Ex.A.13 is subsequent document to this

suit.

23.Ex.A.14 is certified copy of Decree and Judgment in O.S.59/1993 on the file of the Subordinate Judge’s Court. This suit filed for declaration of title and recover of possession filed by Vandara Saradhavi and others against Agguna Dalibandu and others the same was dismissed, the date of the decree and judgment of this suit is 17th June, 2004, originally the main suit O.S. 57/89 filed on 20th April, 1989 so

Ex.A.14 is subsequent document to this suit. Hence from the above observations

Ex.A.13 and 14 are not relevant documents to this suit.

24.Ex.A.15 is ROR Pass Book issued infavour of plaintiff in the year 2016 so this document is also subsequent document to this suit. Ex.A.10 and A.11 also filed subsequent filing of this suit the plaintiff filed only the documents Ex.A.1 to

A.9 at the time of filing of this suit and also the PW.1 is silent about the document to show that plait schedule property was purchased by them jointly in an auction.

But DW.1 filed the said document the same is marked as Ex.B.1. PW.1 admitted that he never seen the Ex.B.1 and no where mentioned Ex.B.1 is in whose possession. PW.1 simply stated that plaint schedule was purchased in auction without giving any details of auction i.e., date of auction and whose property was purchased by them in said auction.

16

25.Ex.a.12 is unregistered relinquishment deed which was alleged to deed executed by Gokarla Appanna in the favour of plaintiff is not a valied document in the eye of Law as per the Section 17 of Regisration Act. Moreover it was executed in the year 1973 but completed in the year 1975. One of the attester of this document was examined as PW.5. He stated that Ex.A.12 was executed at the house of plaintiff at the the time of execution he questioned the executant i.e.,

Gokarla Appanna as why he is relinquishing his right over his share and giving to plaintiff, the answer was given by the executant is that plaintiff is his brother’s daughter, but PW.5 stated Gokarala Appanna have one son. It means instead of giving his share to his son he gave it to the plaintiff, the reasons for relinquishment is not mentioned.

26.The oral evidence of witnesses to be supported with the documentary evidence PW.3 and PW.4 are the Eastern side and Northern side owners of plaint schedule property both submitted that plaintiff is in possession and enjoyment of the plaint schedule property. But their evidence not supported with documentary evidence. Plaintiff not at all chose to examine any one of the purchasers to prove that the plaint schedule property was purchased by them jointly in an auction.

27.On the other hand the defendant strongly contending that Binnala

Padmanabham had purchased an extent of 34.60 cents which included plaint schedule property in the year 1971, to show that to filed Ex.B.1 certified copy of the extract of sale deed dated 20-01-1971. Ex.B.2 to B.5 are the certified copies of sale deeds executed by Binnala Padmanabham. Ex.B.7 is the suit register extract of O.S.19/77, Ex.B.8 is certified copy of pattadar Pass book issued in the name of 17

Binnala Padmanabham. Ex.B.10 to B.15 are tax receipts issued in the name of family members of DW.1. Ex.B.9 is cash receipt issued in the name of vendor for faslis 1395 to 1398.

28.Now it is not the issue to decide whether the defendants purchased the property or not, but the main issue in this suit is whether the plaintiff is in possession of the plaint schedule property at the time of filing of this suit is not.

Plaintiff to prove her possession filed Ex.A.1 to A.9 and other documents Ex.A.10 to A.15 all the documents are filed subsequent filing of this suit, but A.1 to A.9 not correlated to each other to prove the possession of the plaintiff and moreover how the plaintiff acquired the plaint schedule is silent no document was filed and further relinquishment deed is not a valid document in the eye of Law. Basing on the observations made supra the plaintiff failed to prove her possession over the plaint schedule property hence this suit is dismissed without costs.

29. Issue No.2:

In the result, this suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in the Open court on this the 27th day of November, 2017.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

18

APPENDIX OF EVIDENCE

Witness Examined

On behalf of the Plaintiff:

Pw.1: Agguna Dalibhandu

Pw.2: Piriya Ramaswami

PW.3: Jalasutrapu Bholoku

PW.4:Seela Narayana

PW.5: Agguna Appanna

On behalf of the Defendant :

DW.1: Vandara Santhayya

DW.2: Binnala Eswararao

On behalf of the Plaintiff :

Ex.A.1: is the Tax receipt

Ex.A.2: is the Tax receipt

Ex.A.3: is the Tax receipt

Ex.A.4: is the Tax receipt

Ex.A.5: is the certified copies of the tax receipt

Ex.A.6: is the certified copies of the tax receipt

Ex.A.7: is the certified copies of the tax receipt

Ex.A.8: is the certified copy of the No.2 adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401

Ex.A.9: is the certified copy of the R.O.R. Pass book containing 3 pages.

Ex.A.10: is the certified copy of the statement schedule before land celing tribunal, Tekkali, by Binnal Padmanabham

Ex.A.11: is the is the certified copy of the declaration filed by B. Padmanabham

before land cellig, Tekkali

Ex.A.12: is the relinquishment deed executed by Gokarla Appanna

Ex.A.13: is the certified copy of the Decree and Judgment in O.S 24/1989 on the file of the subordinate Judge’s Court. (Now Senior Civil Judge’s Court)

Ex.A.14: is the certified copy of the decree and Judgment in O.S. 59/1993 on the file of the Subordinate Judge’s Court, (Senior Civil Judge’s Court)

Ex.A.15: is the R.O.R pass book issued in the name of the plaintiff by the 19

Tahsildar, Mandasa

On behalf of the Defendant :

Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971

Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham.

Ex.B.3: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.4: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.5: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses)

Ex.B.7: is suit register extract of O.S.19/1977

Ex.B.8: is the certified copy of the pattadar pass book.

Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398.

Ex.B.10 is tax receipt issued in the name of our family members.

Ex.B.11is tax receipt issued in the name of our family members.

Ex.B.12 is tax receipt issued in the name of our family members.

Ex.B.13 is tax receipt issued in the name of our family members.

Ex.B.14 is tax receipt issued in the name of our family members.

Ex.B.15 is tax receipt issued in the name of our family members.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS AT SOMPETA

Present : Kum Rokkam Varalakshmi Addl. Judicial Magistrate of First Class, Sompeta.

Thursday this the 3rd day of May, 2018

C.C.NO. 08/2017

Between :

State Represented by Food Safety Officer, Division-II, Srikakulam District, Srikakulam.

......Complainant

And :

Kondasani Kurma Rao, S/o Brahmaiah, aged 36 years, Proprietor of M/s Sao Ram Parlour, Main Road, Sompeta village and Mandal, Srikakulam District.

…....... Accused

This case is coming on 26-04-2018 for final hearing before me in the presence of Learned Assistant Public Prosecutor Sri. M. Adinarayana for

State and of Learned Sri D. Joga Rao Advocate for the Accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

The Food Safety Officer, Division-II, Srikakulam District filed complaint against the accused for Under Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and Punishable Under

Section 59(i) of Food Safety Standards Act, 2006.

1. The brief averments of the case of the Complainant as set out in the Complaint in nutshell is as follows:-

On 24.02.2015 at about 1.00 p.m., L.W.1-M.A.Kareemulla along with his office sub-ordinate L.W.4-S.Dhanunjaya Rao, Office of the Gazetted Food Inspector, Srikakulam District and enter into

Proprietor of M/s Sai Ram Parlour, Main Road, Sompeta village and

Mandal, Srikakulam District. for inspection. At that time the Accused is

Kondasani Kurma Rao, S/o Brahmaiah, aged 36 years, Proprietor of

M/s Sao Ram Parlour, Main Road, Sompeta village and Mandal,

Srikakulam District, was present in the parlour and transacting the business i.e., monitoring preparation and sale of food items in the parlour to the public for human consumption. On enquiry of the

Accused revealed that he is proprietor of the parlour. Then the L.W.1-

M.A.Kareemulla disclosed his indentity to accused and called and secured the presence of witnesses by name L.W.3-Maddi Deva, S/o

Bisambar, aged 32 years, resident of Jalagaputtika village, Kaviti

Mandal, Srikakulam District, and L.W.4-S.Dhanunjaya Rao, Office subordinate, of The Gazetted Food Inspector, Srikakulam District, who accepted to act as mediators for the process followed. In the presence of witnesses L.W.1-M.A.Kareemulla inspected and found stock of

Mutton Curry (Prepared Food) in the parlour is prepared and selling to the public for human consumption. Then L.W.1-M.A.Kareemulla suspected quality of the Mutton Curry i.e., to be Adulterated. Then the

L.W.1-M.A.Kareemulla asked the accused to sell 800 gms of Mutton

Curry i.e, to be 2 kgs , then the Accused sold 800 grms of Rs, 800/- (Rupees Eight hundred only) and the L.W.1-M.A.Kareemulla paid its cost of Rs.800/- and purchased 800 gms. of Mutton Curry and obtained cash receipt from the Accused, on which both the L.W.3-Maddi Deva and L.W.4-S.Dhanunjaya Rao attested. Then and there the L.W.1-

M.A.Kareemulla issued Form VA Notice to the Accused informing his intension that the purchased Mutton Curry (Prepared food) is sending to the Food analyst, State Food Laboratory, Nahcaram Hyderabad A.P.

for analysis and obtained acknowledgement of accused, L.W.3-Maddi

Deva and L.W.4-S.Dhanunjaya Rao . Then the L.W.1-M.A.Kareemulla divided the purchased Mutton Curry into four equal parts i.e., 200 grms each, and transferred them into four clean, dry and empty plastic jars and added 2.0 ml of formalene each jar and their screw caps were tightened air tightly fastened with sealing wax. The label bearing Code

No.B 001/01560/2015 and other details of the Food samples were affixed on the four jars of the samples. The four jars were wrapped separately with thick brown paper and ends of the brown paper were folded inside neatly and affixed by means of gum. The paper slip bearing Code No.B 001/01560/2015 issued with seal and signature by the Food Safety Designated Officer Srikakulam District were pasted separately on the four sample jars in such a manner that the paper-slip goes round completely from bottom to top of the jars and obtained signature of the Accused on the four sample jars in such a manner that both paper-slip and brown paper carry a part of signature. Each part separately tied with strong twine thread above and across the sample jar and affixed four seals one at top, one at bottom and either sides of the sample packet by covering knots. Then the L.W.1-M.A.Kareemulla drafted meditor report then and there the witnesses L.W.3-Maddi Deva and L.W.4-S.Dhanunjaya Rao signed on the mediator report in attestation of the facts, accused as well as the Food Safety Officer (L.W.1-M.A.Kareemulla) signed on the mediator report.

2.On 25.02.2015 the L.W.1-M.A.Kareemulla sent on part of the sample in a sealed packet along with a copy of Form VI

Memorandum contains with specimen impression of the seal used to seal the sample jar to the Food analyst, State Food Laboratory,

Nacharam, Hyderabad A.P in a sealed packet by registred parcel receipt No.CA8058783351 In dated 25.02.2012 under intimation to the food Safety Designated Officer, Srikakulam District, on the same day i.e., a copy of form VI Memorandum with specimen impression of the seal used to seal the jar was also sent separately to the food analyst,

State Food Laboratory, Nacharam, A.P., Hyderabad in a sealed cover by Registered post with acknowledgement due vide No.RN966209584

IN dated 25.02.2015. The remaining three parts of the samples, along with three copies of the form VI memorandum, in a sealed packet were handed over to the Food Safety Designated Officer, Srikakulam District on 25.02.2015 personally and obtained acknowledgement.

3.On Food Safety Designated Officer, Srikakulam District received analyst Report in form B No.266/2014-15 dated 11.03.2015 from the Food analyst, State Food Laboratory, Nacharam, A.P.,

Hyderabad and forwarded the same was to the Food Safety Officer and the same received on the Food Analyst opined in the Analysis

Report that the sample contains Added synthetic colour. Hence it is unsafe.

4.The Food Safety Designated Officer, Srikakulam district sent a copy of analysis Report of Mutton Curry (Prepared Food) in

Form B along with covering letter dated 16.03.2015 to the food

Business operator, Kondasani Kurma Rao, Sompeta Village & Mandal

Srikakulam District on 16.03.2015 and also given opportunity to make an appeal before the Food Safety Designated Officer within thirty (30) days from date of receipt of the report in Form VIII for sending of other part of the sample to referral laboratory under section 46 (4) of Food

Safety Standards Act, 2006. The Food Business operator made an appeal before the Food Safety designated Officer in Form VIII for sending of other part of the sample to the Referral Laboratory. The

Food Safety Designated Officer, Srikakulam District sent other part of the Sample to Referral Laboratory, Kolkata. The Director, Central Food

Laboratory, Kolkata opined on analysis that the sample faling under

Regulation No. 2.12 of Food Safety and Standards (Food Products and

Food Additive) Regulation, 2011 and found non conforming as per the parameters tested above, since the sample shows presence of

Monosodium Glutamate (MSG) in it. Hence the sample is Unsafe

Under Section 3 (1) (zz) (v) of Food Safety and Standards Act, 2006 vide certificate No.G.14-4/DO/2015 (pt.1)-534, dated 30.06.2015.

5.On 28.03.2015 the Food Safety Officer (L.W.1-

M.A.Kareemulla) submitted Detailed Report of the sample along with annexure and relevant documents to the Food Safety Designated

Officer, Srikakulam District for necessary orders.

6.On the Food Safety Designated Officer submitted Detailed

Report of the sample along with annexure and relevant documents to the Commissioner of Food Safety, Andhra Pradesh, Hyderabad for necessary orders.

7.The Commissioner of Food Safety having satisfied that there is a prima facie case of sale unsafe Mutton Curry (Prepared

Food) and in excrcise of the powers conferred Under Section 36(2) (e) of Food Safety and Standards Act, 2006 r/w G.O.Rt.No.549 HM & FW (L1) Department, dated 04.04.02012 and in the Public interest accorded written consent Vide Rc.No.567/FI/2014-15, dated 20.08.2015 to the L.W.2-K.Kurmanayakulu the food safety Officer,

Srikakulam district to launch prosecution against the Accused for the offence committed before Hon'ble Court of the Additional Judicial

Magistrate of 1st Class, Sompeta, Srikakulam District for the offence of

sale of unsafe Mutton Curry (Prepared Food) Under Section (prepared food) Under Section 3(1) (zz) (v), 26(2) (i), 27(1) of Food Safety and

Standards Act, 2006; and Punishable Under Section 59(i) of Food

Safety and Standards Act, 2006 and the rules there under amended upto date.

8.Hence, Complainant filing this complaint and pray the

Hon'ble Court of Additional Judicial Magistrate of 1st Class, Sompeta,

Srikakulam District may try the case and punish the Accused for the above offence of sale of unsafe Mutton Curry (Prepared Food) under the law.

9.Cognizance was taken by the court for the offences punishable Under Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety

Standards Act, 2006 and Punishable Under Section 59(i) of Food

Safety Standards Act, 2006 against the accused by the Judicial

Magistrate of 1st Class Court, Sompeta. On appearance of the

accused the copies of documents as contemplated U/sec. 207 Cr.P.C were furnished to him. The court read over and explained the substance of the accusation made out for the offences Under Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and

Punishable Under Section 59(i) of Food Safety Standards Act, 2006.

against the accused by examining him U/sec. 251 Cr.P.C, in Telugu, for which they pleaded not guilty and claimed to be tried.

Subsequently the case was transferred to this court as per order of the

Hon'ble District Judge, Srikakulam in Dis.No.5426, Dt: 18.10.2016 and

re-numbered as 08/2017 and again summons were issued to the accused.

10. In support of the case of the prosecution, the prosecution has examined P.W.1 and P.W.2 and got marked Exs.P1 and P16 and

PW1/M.A.Kareemula and PW2/ K.Kurmanayakulu is the witness to speak the details of his inspection, lifting of samples etc., they are witness to speak about attesting panchanama.

11. On Closure of prosecution evidence and on perusing the evidence of P.W 1 and P.W.2 are the accused was examined U/s 313

Cr.P.C. explaining the incriminating material in the evidence of P.W 1 and P.W.2 for which the accused denied the same and reported defence evidence.

12. Heard both sides.

13.The learned APP argued that the prosecution had followed all the procedure as laid down in the Act and also in accordance with the specified rules there under and it being the evidence that has to be based on technical and analysis reports, coupled with the evidence of

Pws. 1 and 2 the prosecution proved the guilt of the accused and as such to punish the accused for the offence made out in the complaint and during reply arguments, the learned Asst. Public Prosecutor further argued that PW1 inspected the shop of accused on 24.02.2015, PW2 inspected the shop of accused on 28.03.2015 in the capacity of Food

Safety Officer of Srikakulam District and as such he is a competent person to inspect and lift the sample as per the Act and as PW1 asked accused to secured the independent witness and inspected the same in his presence and lifted the sample of Mutton Curry and sent the same for analysis and the he followed the procedure laid down Under

Section.38(7) of Food Safety and Standards Act 2006 and the PW1 recorded in Panchanama that he had taken the sample of Mutton Curry into clean, dry and empty plastic jars and added 2 ml of Formalene to each jar hence the question of sterilization does not applicable and the contention of non-maintainability of analysis of DGHS method is not maintainable and the accused is liable for punishment for sale and distribution of Unsafe Mutton Curry and the sample sent by PW1 was analyzed by the Food Analyst and delivered the Analysis report in a prescribed proforma and the Commissioner of Food Safety Appoints the Designated Officers U/s.36(1) r/w 2.1.2 of FSS Act 2006 had given acknowledgment for receiving 2nd, 3rd and 4th part of samples from the

Food Safety Officer are sufficient and thereby the Food Safety Officer,

Srikakulam District had completely followed the procedure laid down under the Food Safety and Standards Act 2006, Rules and Regulations 2011 and there is no violation of the procedure of the Act and the points raised by the learned Defence are not maintainable and as such, the accused is entitled for conviction and prayed to convict the accused according to law.

The learned counsel for accused argued that PW1 not visited the Sai Ram Parlour of the accused and not lifted any sample from the

Parlour of the accused, and also argued that the complainant not verified any documents pertaining to the Parlour. Further argued that there is a difference between and Analyst Report in form-B bearing No.

1174/2015-16, dated 09.03.2016 of the Food Analyst SFL, A.P.,

Hyderabad. /Ex.P.12 and Copy of the Referral Food laboratory Report No.

14-4/DO/2015(pt.1)-534, dated 30.06.2015/Ex.P.14 which was visited by the PW1. Hence accused is not guilty for the offence under FSSAct, and is liable to be acquittal.

(1) Whether the Food samples are seized from the possession of accused ?

(2) Whether PW1 lifted the samples as per rules and forwarded the same for Food Analysis?

(3) Whether the accused can be considered as a Food Business Operator under this Act?

(4) Whether the accused manufactured, sold or stored or distributed the food in this case which is unsafe? 26(2)(i) (5) Whether the accused being a manufacturer/ packer/ wholesaler /distributor/ seller of an article of food which does not meant the requirements of this act ? 27 (1) (6)Whether the prosecution could be able to bring home the guilt of he accused beyond all reasonable doubts?

To prove the case of prosecution, out of the witnesses

examined by prosecution:

12. PW1 / M.A.Kareemulla, the Food Safety Officer deposed

before this court that they were appointed as Food Safety Officer vide

G.O.Ms.No. 243, HM & FW(L1) dated 25.8.2011/ Ex.P.1, Copy of

Proc.RC.No.1127/FI/2013, H.M. & F.W.(L1) Department, dated 19.07.2013, regarding notification of Food Safety Designated Officer/Ex.P.2 and Copy of

Gazette Notification of G.O.Ms.No.101 H.M. &F.W (L1) Department, dated 16.01.2013 regarding notification of Commissioner of Food Safety, A.P.

Hyderabad/Ex.P.3 and that on 24.02.2015 at about 1.00 p.m., he along with his Office Subordinate S. Dhanunjaya Rao, inspected Sai Ram

Parlour of Main Road, Sompeta at that time of their visit Accused was present and doing the business then PW1 disclosed his identity as

Food Safety Officer, during inspection, PW1 suspected Mutton Curry , found about 2 Kgs. Of the same. PW1 ascertained from Accused that the Mutton Curry is kept for sale for human consumption, and then

PW1 suspected the quality of the said Mutton Curry to be unsafe/substandard and purchased 800gms from the above said stock and paid Rs.800/- towards its cost and obtained Cash Receipt, dated 24.02.2015/Ex.P.4 and Copy of form-VA notice, dated 24.02.2015/Ex.P.5 notice to Accused disclosing his intention to take the sample of Mutton Curry for sending for analysis to Food Analyst,

Hyderabad and then PW1 divided the purchased Mutton Curry into four parts i.e., each part put them in a clean, dry, empty plastic jar and added 2.0 ml of formalene in each jar and their screw caps were tightened air tightly fastened with sealing wax. The label bearing Code

No. B 001/01560/2015, dated 24.02.2015/Ex.P6 on each sample container and then each sample container was wrapped separately with thick brown paper and the ends were neatly folded in and affixed with gum and also affixed a per slip bearing Code No. B 001/01560/2015, dated 26.03.2015/Ex.P.15 of Food Safety Designated

Officer around each sample container affixed with gum and then PW1 further secured each sample container with twine both above and across and affixed four specimen impression seals duly covering the knotted end and obtained the signatures of the Accused and

LW2/K.Kurmanayakulu as per Rule 2.4.1(7) to (9) of the Food Safety and Standards Rules 2011. Then PW1 prepared a panchanama/Ex.P7 for the proceedings taken place in lifting samples and read over the contents of panchanama to Accused in the presence of LW2 and the same were attested by them and on 14.12.2015, PW1 sent one part of sample along with Form VI memorandum with specimen impression seal/Ex.P8 and also a separate copy of Form VI memorandum in a sealed cover to the Food Analyst, Hyderabad vide Copy of postal receipt of Registered Parcel No.RPA CA 807455082 IN dated 20.02.2016 dispatch of one part of the sample along with form VI memorandum to the Food Analyst, Hyderabad in a sealed packet/ExP9 and Postal receipt of Registered Post Acknowledgement Due No. RLAD A RN 991964871 IN dated 20.02.2016 dispatch of copy form VI memorandum, with impression seal of Food Safety Officer separately to the Food Analyst, in a sealed cover /Ex.P10 respectively as per Rule 2.4.1(i)&(11) of FSS Rules, 2011 and on the same day, the other 2nd, 3rd and 4th parts of samples are deposited with the Food Safety

Designated Officer as per Rule 2.4.1(10)(ii) and (iii) of Rules under acknowledgement/Ex.P11 and Intimation letter to the FBO to make an appeal before Designated Officer, dated 16.03.2015 by register post vide No. RLAD RN 966228230 In dated 18.03.2015/Ex.P12 in the report, it is opined that the sample contains added synthetic colour.

Hence it is unsafe and on 16.03.2015, Intimation letter to the FBO to make an appeal before Designated Officer, dated 16.03.2015 by register post vide No. RLAD RN 966228230 In dated 18.03.2015/Ex.P13 to Accused by Registered Post with Copy of the

Referral Food laboratory Report No. 14-4/DO/2015(pt.1)-534, dated 30.06.2015 /Ex.P14.

13.He further deposed that on 30.03.2016, the Food Safety

Designated Officer submitted a Copy of Detailed Report vide letter No.

B001/01560/2015, dated 26.03.2015 to the Commissioner Food Safety

Hyderabad /Ex.P15 the Food Safety Designated Officer also submitted final report after expiry of one month appeal time to the Commissioner of Food Safety, A.P., Hyderabad and requested to issue sanction for filing complaint against Accused the FSDO Copy of Written Consent

RC.NO.567/F1/2014-15, dated 20.08.2015 from the Commissioner of

Food Safety, A.P., Hyderabad/Ex.P16 for sanction of prosecution against the Accused for the offences committed Under Section 3(1)(zz)

(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and

Punishable Under Section 59(i) of Food Safety Standards Act, 2006 and the same was communicated to Food Safety Designated Officer and later upon the directions given by Food Safety Designated Officer,

Complainant prepared charge sheet and filed before this Court.

14.During cross examination P.W.1, he admitted that if

Monosodium glutamate is used in high quantity it is unsafe, if used in small quantity it is substandard, and also admitted that the percentage of Monosodium was not mentioned in Ex.P.14, and there is a difference between Ex.P.12 and Ex.P.14, lastly the defence counsel gave self serving suggesstions.

15.During cross examination of PW2, he deposed received prosecution order from Food Safety Designated Officer he filed complainant against the Accused before Judicial Magistrate of 1st class Court, Sompeta. Finally, the self serving suggestion was given.

16.To adjudicate the case on hand, the evidence of Pw.1 and

P.W.2 coupled with the documentary evidence of Ex.P1 to P16 is to be looked into. As per the evidence of Pw.1 and P.W.2 coupled with the documentary evidences of Ex.P4 to P7, P15 and P.16, it is evident that

PW1 held inspection of Sai Ram Parlour of the accused and there lifted the Mutton Curry in the presence of accused and also in the presence of LW3, who was who acted as a mediator for ExP7. Thus basing on the above observations, it can be safely concluded that the food sample in question was seized from Sai Ram Parlour in the presence of the Accused.

17.With regard to sending the lifted sample for analyst, the contentions of the Learned Defence is that the containers were not sterilized and as such there is every possibility of obtaining negative result against accused, for which the Prosecution replied that they kept the same in clean, dry and empty plastic jars and as such the question of sterilization does not applicable.

18.To decide the same, during the cross examination of PW1, he stated he lifted the sample divided into four equal parts and kept it in a empty plastic jars by adding 2 ml formalene to each one of the sample and one sample was send by him to the Food analyst,

Nacharam, Hyderabad and the remaining samples were in the custody of Designated Officer and received ExP12 from Analyst.

19. As seen from the record the samples were lifted on 02.06.2016 is of DGHS and the said analysis report was sent to the accused through Registered Post along with acknowledgement and the intention of the prosecution to file a complaint against him, for which the accused preferred appeal and the sample was send to referral laboratory Ex.P.14 is the report. Basing on the above observations

PW1 lifted the sample and the same was send to the Food Analyst and also he handed over the remaining three samples to Designated

Officer, Srikakulam.

20. There is no doubt with regard to the capacity of accused being the Food Business Operator, but for fixing the responsibility coupled with liability, it is to be taken into consideration that when observed both in lifting and sending the samples for analysis were as per provisions under the Act, it is safe to conclude that the accused violated the rules and regulations under the Act, being the Food

Business Operator.

21.As per the section 3(1): In this Act, unless the context otherwise requires,- (zz) Unsafe Food means an article of Food whose nature, substance or quality is so affected as to render with injurious to health, (v) Import means bringing into India any article of food by land, sea or air. 26(2) No Food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food. (i) Which is Unsafe; or 27(1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet requirements of this act and the rules and regulations made thereunder, the accused is selling the Mutton Curry, which is unsafe as per Ex.P.12 and Ex.P.14 and further the present case is purely can be decided on technical grounds, not on factual grounds. ExP1 to P16 are reliable documents it established that the PW1 visited the Sai Ram

Parlour , and lifted the Mutton Curry in the presence of the accused and paid price for that, obtained receipt and issued VA notice to the accused all these documents contained the signature of the accused, but the accused not at any stage denied his signature on those documents, it impliedly shows that PW1 completed his proceedings in the presence of accused. It is desirable to answer the point that the difference in reports Ex.P.12 and Ex.P.14, there is a difference in colour not in the standard so, the objection regarding colour does not arise.

22. However, keeping in view of all the above comprehensive discussions and observations, the seized samples were proved unsafe which were seized from the possession of accused, this Court come to a conclusion that the accused is liable for punishment.

23.Thus, in the result, this Court is convicting the accused, as the prosecution proved their case beyond all reasonable doubts and as such the Accused was found guilty of offences punishable Under

Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and Punishable Under Section 59(i) of Food Safety Standards Act, 2006 and as such, the Accused is convicted Under Section.255(2)

Code of Criminal Procedure, 1973 office is directed to forward the copy of the judgment to the authorities of complainant.

Dictated to typist, typed by her and corrected and

pronounced by me in the open court on this 3rd day of May, 2018.

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy//

Upon questioning about the sentence accused pleaded he is only the bread winner of his family and entire family depended on him, and further pleaded he sustained loss in his business, and prayed for taking lenient view. Taking into consideration of his plea the accused is convicted Under Section 255(2) of Code of Criminal

Procedure, 1973 for the offence punishable Under Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and Punishable

Under Section 59(i) of Food Safety Standards Act, 2006. He shall undergo simple imprisonment for one month and shall pay fine of Rs.

25,000/- indefault of said payment he shall undergo simple imprisonment for 1 month.

No remand period to give set off Under Section 428 Cr.P.C.

The office is directed to prepare conviction Warrant accordingly and supply free copy of Judgment to the Learned Counsel of the accused forthwith and obtain acknowledgement. The accused is explained his right of appeal against this judgment before the Hon’ble Sessions

Court, Srikakulam, and as to his right of free legal aid. Unmarked property if any shall be destroyed after appeal time is over.

Pronounced by me in the open court dated this the 3rd day

of May, 2018.

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy//

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1/dt:03.04.2018: M.A.Kareemulla ---None/Nil--

PW2/dt:03.04.2018: K.Kurmanayakulu

EXHIBITS MARKED FOR PROSECUTION:

Ex.P.1Copy of Gazette Notification of G.O.Ms.No.243 H.M & F.W(L1) Department, dated 25.08.2011 regarding notification of Sri K.Kurmanayakulu, as Food Safety Officer.

Ex.P.2Copy of Proc.RC.No.1127/FI/2013, H.M. & F.W.(L1) Department, dated 19.07.2013, regarding notification of Food Safety Designated Officer.

Ex.P.3Copy of Gazette Notification of G.O.Ms.No.101 H.M. &F.W (L1) Department, dated 16.01.2013 regarding notification of Commissioner of Food Safety, A.P. Hyderabad.

Ex.P.4Cash Receipt, dated 24.02.2015

Ex.P.5Copy of form-VA notice, dated 24.02.2015

Ex.P.6Copy of label on the sample container, dated 24.02.2015

Ex.P.7Mediator Report, dated 24.02.2015

Ex.P.8Copy of form-VI memorandum, dated 20.02.2015.

Ex.P.9Copy of postal receipt of Registered Parcel No.RPA CA 807455082 IN

dated 20.02.2016 dispatch of one part of the sample along with form VI

memorandum to the Food Analyst, Hyderabad in a sealed packet.

Ex.P.10 Postal receipt of Registered Post Acknowledgement Due No. RLAD A RN 991964871 IN dated 20.02.2016 dispatch of copy form VI memorandum, with impression seal of Food Safety Officer separately to the Food Analyst, in a sealed cover,

Ex.P.11 Copy of Intimation letter to the food Safety Designated Officer, dated along with acknowledgement from FSDO for receipt of three parts of the sample.

Ex.P.12 Analyst Report in form-B bearing No. 1174/2015-16, dated 09.03.2016 of the Food Analyst SFL, A.P., Hyderabad.

Ex.P.13 Intimation letter to the FBO to make an appeal before Designated Officer, dated 16.03.2015 by register post vide No. RLAD RN 966228230 In dated 18.03.2015.

Ex.P.14 Copy of the Referral Food laboratory Report No. 14-4/DO/2015(pt.1)- 534, dated 30.06.2015.

Ex.P.15 Copy of Detailed Report vide letter No. B001/01560/2015, dated 26.03.2015 to the Commissioner Food Safety Hyderabad.

Ex.P.16/Copy of Written Consent RC.NO.567/F1/2014-15, dated 20.08.2015 P.W.2from the Commissioner of Food Safety, A.P., Hyderabad.

Exhibits marked for Defence:

---None/Nil--

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy//

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam.

Calendar of cases tried by the Additional Judicial Magistrate of First

Class, Sompeta.

Date of Report Apprehension Release commence Close of Sentence or on bail trial of Offence of accused ment of trial complaint Order 24.02.2015 24.02.201502.01.2018 Suspended03.04.201818.04.201803.05.2018 the sentence at about 1.00 pm.,

Explanation of delay and remarks: The delay is caused due to non production of witnesses in time by the Prosecution.

Judgment in Calendar Case No.08 of 2017 on the file of the Additional Judicial

Magistrate of First Class, Sompeta. 

Complainant: State Represented by Food Safety Officer, Division-II, Srikakulam District, Srikakulam. . Name ofAge/years F/H's Name Religion CallingResidenceTaluk accused

Kondasani36 years BrahmaiahHinduProprietorSompetaSompeta Kurma of M/s Sai RaoRam Parlour

Offence:PunishableUnder Section Under Section 3(1)(zz)(v), 26 (2)

(i), 27(1) of Food Safety Standards Act, 2006 and Punishable Under Section 59(i) of Food Safety Standards Act, 2006.

Section 3(1):- In this Act, unless the context otherwise requires,- (zz) Unsafe Food means an article of Food whose nature, substance or quality is so affected as to render with injurious to health

(v) Import means bringing into India any article of food by land, sea or air. 26(2) No Food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food. 26(i) Which is Unsafe; or 27(1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet requirements of this act and the rules and regulations made thereunder.

Section 59(i):­Where such failure or contravention does not result in injury, with imprisonment for a term which may extend to 6 months also with fine which may extent to Rs.1,00,000/-(Rupees one lakh only)

Finding : Found Guilty

Sentence/Order :

In the result, this Court is convicting the accused, as the prosecution proved their case beyond all reasonable doubts and as such the Accused was found guilty of offences punishable Under

Section 3(1)(zz)(v), 26 (2) (i), 27(1) of Food Safety Standards Act, 2006 and Punishable Under Section 59(i) of Food Safety Standards Act, 2006 and as such, the Accused is convicted Under Section.255(2)

Code of Criminal Procedure, 1973 office is directed to forward the copy of the judgment to the authorities of complainant.

Upon questioning about the sentence accused pleaded he is only the bread winner of his family and entire family depended on him, and further pleaded he sustained loss in his business, and prayed for taking lenient view. Taking into consideration of his plea the accused is convicted Under Section 255(2) of Code of Criminal Procedure, 1973 for the offence punishable Under Section 3(1)(zz)(v), 26 (2) (i), 27(1) of

Food Safety Standards Act, 2006, and Punishable Under Section 59(i) of Food Safety Standards Act, 2006. He shall undergo simple imprisonment for one month and shall pay fine of Rs. 25,000/- indefault of said payment he shall undergo simple imprisonment for 1 month.

No remand period to give set off Under Section 428 Cr.P.C. The office is directed to prepare conviction Warrnat accordingly and supply free copy of Judgment to the Learned Counsel of the accused forthwith and obtain acknowledgement. The accused is explained his right of appeal against this judgment before the Hon’ble Sessions Court,

Srikakulam, and as to his right of free legal aid. Unmarked property if any shall be destroyed after appeal time is over.

According ordered.

Addl. Judicial Magistrate of First Class

Sompeta.

//True Copy//

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS AT SOMPETA

Present : Kum Rokkam Varalakshmi Addl. Judicial Magistrate of First Class, Sompeta.

Thursday this the 3rd day of April, 2018

C.C.NO. 34/2017

Between :

State Represented by Food Safety Officer, Division-II, Srikakulam District, Srikakulam.

......Complainant

And :

Ippili Babu Rao, S/o Bhaskara Rao, aged 45 years, Proprietor of M/s Sri Venkatadri Kirana Shop, Haripuram village, Mandasa Mandal, Srikakulam District.

…....... Accused

This case is coming on 26-04-2018 for final hearing before me in the presence of Learned Assistant Public Prosecutor Sri. M. Adinarayana for

State and of Learned Sri G.S.Sailendra Advocate for the Accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

The Food Safety Officer, Division-II, Srikakulam District filed complaint against the accused for the offence punishable Under

Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety

Standards (Food Products Standards and Food Additive) Regulation

Act, 2011, Punishable Under Section 59(i) of Food Safety and

Standards Act, 2006.

2

1. The brief averments of the case of the Complainant as set out in the Complaint in nutshell is as follows:-

On 07.10.2015 at about 5.00 p.m., L.W.1-Sri

K.Kurmanayakulu along with his office sub-ordinate L.W.3-

S.Dhanunjaya Rao, Office of the Gazetted Food Inspector, Srikakulam

District enter into Proprietor of M/s Sri Venkatadri Kirana Shop,

Haripuram village, Mandasa Mandal, Srikakulam District for inspection.

At that time the Accused is Ippili Babu Rao, S/o Bhaskara Rao, aged 45 years, Proprietor of M/s Sri Venkatadri Kirana Shop, Haripuram village, Mandasa Mandal, Srikakulam District, was present in the

Kirana Shop and transacting the business i.e., on enquiry the Accused revealed that he is the owner (proprietor) of the said Hotel is selling food articles to the public for human consumption. Then the L.W.1-Sri

K.Kurmanayakulu disclosed his indentity to accused and called one mediator L.W.2-Juttu Rama Rao, S/o late Bheema Rao, aged 45 years,

Haripuram Village, Mandasa Mandal, Srikakulam District, who accepted to act as mediators for the process followed. In the presence of witnesses L.W.2-Juttu Rama Rao. The L.W.1-Sri K.Kurmanayakulu inspected and found stock of 35 kgs Green Gram Dhall, in 4 kgs gunny bag. Then the accused sold 4 kgs Green Gram Dhall each Kg worth of

Rs.100/- for Rs.400/-(Rupees Four hundred only) condition and the

L.W.1-Sri K.Kurmanayakulu paid its cost of Rs.400/- the witness

L.W.2-Juttu Rama Rao and Accused singed on the cash receipt. Then 3 and there the L.W.1-Sri K.Kurmanayakulu issued Form VA Notice to the Accused. The Accused and L.W.2-Juttu Rama Rao signed on Form -VA notice acknowledgement informing his intension that the purchased Green Gram Dhall sent to the Food analyst, State Food

Laboratory, Nacharam, Hyderabad A.P for analysis purpose. Then the

L.W.1-Sri K.Kurmanayakulu divided the purchased Green Gram Dhall into four equal parts and placed them into four clean, dry, empty, plastic jars (i.e., one kg Green Gram Dhall in each jar) and their screw caps were tightened air tightly fastened with sealing wax. The label bearing

Code No.001-DII/03871/2015 and other details of the Food samples were affixed on the four jars of the samples. The four sample jars were wrapped with thick brown paper separately ends of the brown paper were folded inside neatly and affixed by means of gum. The paper slip bearing Code No.001-DII/003871/2015 issued with seal and signature by the Food Safety Designated Officer, Srikakulam District were pasted on the four sample jars in such a manner that the paper-slip goes round completely from bottom to top of the jars and obtained signatures of the Accused on the four sample jars in such a manner that both paper-slip and brown paper carry a part of signature. Each part separately tied with strong twine thread above and across the sample jar and affixed four seals one at top, one at bottom and two on either sides of the sample packets by covering knots. Then the L.W.1-

Sri K.Kurmanayakulu drafted mediator report then and there. The

Accused signed on the mediator report in attestation of the facts, and 4 as well as the Food Safety Officer L.W.1-Sri K.Kurmanayakulu and

L.W.2-Juttu Rama Rao signed on the mediator report.

2. L.W.1-Sri K.Kurmanayakulu sent one part of the sample in a sealed packet along with a copy of Form VI memorandum contains with specimen impression seal to the Food analyst, State Food

Laboratory, Nacharam, A.P., Hyderabad in a sealed packet by registered parcel receipt No.RPA CA 006370004 IN dated 08.10.2015 and Form-VI memorandum with specimen impression seal separately vide separately vide postal receipt no. R LAD A RN 052561064 IN

dated 08.10.2015. The remaining three parts of the samples, along

with three copies of the form VI memorandum, in a sealed packet were handed over to the Food Safety Designated Officer, Srikakulam District on 08.10.2015 personally and obtained acknowledgement.

3.On 26.10.2015 the Food Safety Designated Officer,

Srikakulam District received analyst Report in form B No.700/2015-16,

dated 19.10.2015 from the Food analyst, State Food Laboratory,

Nacharam, Andhra Pradesh, Hyderabad and forwared the same to the

Food Safety Officer and the same was forwarded to L.W.1-Sri

K.Kurmanayakulu. The Food Analyst opined that the sample contains added synthetic colour. Hence it is unsafe.

5

4.The Food Safety Designated Officer, Srikakulam District sent a copy of analysis Report of Red Gram Dhall along with covering letter tot he Food Business operator Ippili Babu Rao, S/o Bhaskara

Rao, aged 45 years, Proprietor of M/s Sri Venkatadri Kirana Shop,

Haripuram village, Mandasa Mandal, Srikakulam District, by Registered post vide postal receipt no. RLAD RN 979097365 IN dated 27.10.2015 give an opportunity to make an appeal the Food Safety Designated

Officer within thirty (30) days from date of receipt of the report and intimation letter for sending or other part of the sample to referral laboratory under section 46 (4) of Food Safety Standards Act, 2006.

But they have not appealed before the Food Safety Designated Officer, for referral Laboratory.

5.The Food Safety Officer L.W.1-Sri K.Kurmanayakulu sent the Detailed Report tot he Commissioner of Food Safety having satisfied that there is a prima facie case of sale of unsafe Red Gram

Dhall and in exercise of the powers conferred Under Section 30(2) (e) of Food Safety and Standards Act, 2006 in the public interest accorded

Food Safety Designated Officer received prosecution vide

Rc.No.3176/FI/2015 dated 26.12.2015 to launch prosecution against

the Accused for the offence committed before the Judicial Magistrate of

First Class Court, Sompeta, Srikakulam District for the offence of sale

of unsafe Green Gram Dhall committed Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety Standards (Food 6

Products Standards and Food Additive) Regulation Act, 2011,

Punishable Under Section 59(i) of Food Safety and Standards Act, 2006 against and the Rules there under amended upto date.

6.Cognizance was taken by the court for the offences punishable Under Section Under Section 3(1)(zz)(iii), 26 (2) (i) r/w

Section 3.1.2 (1) (6) of Food Safety Standards (Food Products

Standards and Food Additive) Regulation Act, 2011, Punishable Under

Section 59(i) of Food Safety and Standards Act, 2006, against the accused by the Judicial Magistrate of 1st Class Court, Sompeta.

Subsequently the case was transferred to this court as per order of the

Hon'ble District Judge, Srikakulam in Dis.No.5426, Dt: 18.10.2016 and

re-numbered as 34/2016 and again summons were issued to the accused. On appearance of the accused the copies of documents as contemplated U/sec. 207 Cr.P.C were furnished to him. The court read over and explained the substance of the accusation made out for the offences Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety Standards (Food Products Standards and Food

Additive) Regulation Act, 2011, Punishable Under Section 59(i) of Food

Safety and Standards Act, 2006 against the accused by examining him U/sec. 251 Cr.P.C, in Telugu, for which they pleaded not guilty and claimed to be tried.

7

7. In support of the case of the prosecution, the prosecution has examined P.W.1 and got marked Exs.P1 to P16 and PW1/

K.Kurmanayakulu is the witness to speak the details of his inspection, lifting of samples etc., he is witness to speak about attesting panchanama.

8. On Closure of prosecution evidence and on perusing the evidence of P.W 1 is the accused was examined U/s 313 Cr.P.C.

explaining the incriminating material in the evidence of P.W 1 for which the accused denied the same and reported defence evidence.

9. Heard both sides.

10.The learned APP argued that the prosecution had followed all the procedure as laid down in the Act and also in accordance with the specified rules there under and it being the evidence that has to be based on technical and analysis reports, coupled with the evidence of

Pw.1 the prosecution proved the guilt of the accused and as such to punish the accused for the offence made out in the complaint and during reply arguments, the learned Assistant Public Prosecutor further argued that PW1 inspected the shop of accused on 07.10.2015 at about 5.00 p.m., in the capacity of Food Safety Officer of Srikakulam and as such he is a competent person to inspect and seize the same as per the Act and as PW1 secured the independent witness and 8 inspected the same in his presence and lifted the sample of Green

Gram Dall and sent the same for analysis and the and PW1 recorded in Panchanama that he had taken the sample of Green Gram Dall into clean, dry and empty containers and hence the question of sterilization does not applicable and the contention of non-maintainability of analysis of DGHS method is not maintainable and all the accused are liable for punishment for sale and distribution of Unsafe Green Gram

Dall and the sample sent by PW1 was analyzed by the Food Analyst and delivered the Analysis report in a prescribed proforma and the

Commissioner of Food Safety Appoints the Designated Officers

U/s.36(1) r/w 2.1.2 of FSS Act 2006. The Designated Officer had given acknowledgment for receiving 4 parts of samples from the Food Safety

Officer are sufficient and thereby the Food Safety Officer, Srikakulam had completely followed the procedure laid down under the Food

Safety and Standards Act 2006, Rules and Regulations 2011 and there is no violation of the procedure of the Act and the points raised by the learned Defence are not maintainable and as such, the accused is entitled for conviction and prayed to convict the accused according to law.

11.The learned counsel for accused argued that PW1 not verified any documents or any receipt books of Accused shop, and further PW1 not verified from the accused that from whom he purchased Green Gram Dal, and further raised a point that the report 9 of the analyst is the sample contained Tetrezine, but the Tetrazine is soluble in water the people uses Green Gram Dal after washing it in water, and also it is permitted in Rules of Food Safety and Standards

Act. So, the Tetrazine is permitted one, hence the accused shall be acquitted.

12. Perused the record and now the points for determination are:

(1) Whether the Food samples are seized from the possession of accused ?

(2) Whether PW1 lifted the samples as per rules and forwarded the same for Food Analysis?

(3) Whether the accused can be considered as a Food Business Operator under this Act?

(4) Whether the accused manufactured, sold or stored or distributed the food in this case which is unsafe? 26(2)(i) (5)Whether the accused being a manufacturer/ packer/ wholesaler /distributor/ seller of an article of food which does not meant the requirements of this act ? 27 (1) (6)Whether the prosecution could be able to bring home the guilt of the accused beyond all reasonable doubts?

To prove the case of prosecution, out of the witnesses examined by prosecution:

13. PW1 / K.Kurmanaikulu, the Food Safety Officer deposed

before this court that he was appointed as Food Safety Officer vide

G.O.Ms.No. 243, HM &FW(L1) Department dated 25.8.2011/ Ex.P.1 and that on 17.10.2015 at about 5.00 p.m., he along with his Office 10

Subordinate S. Dhanunjaya Rao, inspected Hotel Venkatadrai Kirana

Shop Haripuram village in Mandasa mandal, Srikakulam District at that time of their visit Accused was present and doing the business then

PW1 disclosed his identity as Food Safety Officer, during inspection,

PW1 suspected Green Gram Dhall, found about 35 Kg. of the same.

PW1 ascertained from Accused that the Green Gram Dhall is kept for sale for human consumption, and then PW1 suspected the quality of the said Pomegranate to be unsafe/substandard and purchased 4 Kgs from the above said stock and paid Rs.400/- towards its cost and obtained Cash Receipt, dated 07.10.2015./Ex.P4 from Accused and then PW1 served Copy of form-VA notice, dated 07.10.2015/Ex.P5 notice to Accused disclosing his intention to take the sample of

Pomegranate for sending for analysis to Food Analyst, Hyderabad and then PW1 divided the purchased Green Gram Dal into four parts i.e., each part put them in a clean, dry, empty plastic jars with screw caps were tightened air tightly fastened with sealing wax and closed the mouths with lid and affixed a label bearing code no.001-DII 03871/2015/Ex.P6 on each sample container and then each sample container was wrapped separately with thick brown paper and the ends were neatly folded in and affixed with gum an also affixed a paper slip bearing Code 001-DII 03871/2015 of Food Safety Designated Officer around each sample container affixed with gum and then PW1 further secured each sample container with twine both above and across and affixed four specimen impression seals duly covering the knotted end 11 and obtained the signatures of the Accused and LW2 as per Rule 2.4.1(7) to (9) of the Food Safety and Standards Rules 2011 then PW1 prepared a panchanama, dated 07.10.2015/Ex.P7 for the proceedings taken place in lifting samples and read over the contents of panchanama to Accused in the presence of LW2 and the same were attested by them and on 07.10.2015, PW1 sent one part of sample along with Form VI memorandum with specimen impression seal,

dated 08.10.2015/Ex.P8 and also a separate copy of Form VI

memorandum in a sealed cover to the Food Analyst, Hyderabad vide postal receipt No.RPA CA.006370004 IN dated 08.10.2015/ExP9 and

RN052561064 IN dated 08.10.2015/Ex.P10 respectively as per Rule 2.4.1(i)&(11) of FSS Rules, 2011 and on the same day, the other 2nd, 3rd and 4th parts of samples are deposited with the Food Safety

Designated Officer,. dated 08.10.2015 with acknowledgement from

Food Safety Designated Officer, for receipt of three parts of the sample /Ex.P11 and Analyst Report in form-B bearing No.700/2015-16, dated 19.10.2015 of the Food Analyst SFL, A.P., Hyderabad/Ex.P.12 in the report, it is opined that the sample contains added Synthetic Colour,

Hence it is Unsafe in the regulation 2.3.1 of Food Safety and

Standards (contaminants, toxins and residues) Regulations, 2011 hence it is unsafe. Issued Intimation letter to the Food Business operator to make an appeal before Designated Officer, dated 27.10.2015 u/s 46(4)/Ex.P13 to Accused by Registered Post with acknowledgement, vide Postal receipt vide No. RLAD RN 979097365 12

IN, dated 27.10.2015 /Ex.P14 and the report is also served to Food

Safety Officer and the accused person had not opted to send the samples to the Referral Food Laboratory, Kolkata for further analysis.

14.He further deposed that on 01.12.2015, the FSDO submitted a detailed report/Ex.P15 to the Commissioner of Food

Safety, A.P., Hyderabad the Food Safety Designated Officer

Prosecution order received Rc.No.3176/F1/2015, dated 26.12.2015 /Ex.P16 for sanction of prosecution against the Accused for the offences committed Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety Standards (Food Products Standards and

Food Additive) Regulation Act, 2011, Punishable Under Section 59(i) of

Food Safety and Standards Act, 2006, and the same was communicated to Food Safety Designated Officer and later upon the directions given by Food Safety Designated Officer, Complainant prepared charge sheet and filed before this Court.

15.Defence counsel Cross examined PW1 at length, the contention of the Defence counsel is that Tetrazine is a synthetic food colour, and the Green Gram Dhall will be used after washing, and the

Tetrazine is soluble in water further he posed the questions to PW1 about his visit to the shop, and lifting of Green Gram Dhall and further gave self serving suggestion.

13

16.The PW1 followed the procedure provided under this code this case is purely based on the technical aspect. The PW1 proved his case by submitting all the required documents, now the burden shifts to accused to prove how the Tetrazine coated Green Gram Dhall is safe, and also how he can say that after washing Green Gram Dhall the

Tetrazine is souble in water and consumption of Dal in safe. To say that

PW1 and Learned Counsel of Accused are not competent persons. So his point cannot be considered. And further producing the diary of PW1

before the court to prove he visited the shop is not mandatory, the

evidence on record in sufficient to show that PW1 visited the shop and lifted the Green Gram Dal obtained signatures on Ex.P15. Hence the question of PW1 not visited the shop of accused does not arise.

17.To adjudicate the case on hand, the evidence of Pw.1 coupled with the documentary evidence of Ex.P1 to P16 is to be looked into. As per the evidence of Pw.1 coupled with the documentary evidences of Ex.P4 to P7, P15 and P.16, it is evident that PW1 held inspection of Venkatadri Kirana Shop of the accused and there lifted the Green Gram Dal in the presence of accused and the mediator who was not examined, P.W.1 obtained signature of Accused and LW2

Ex.P.7, and also obtained signature of Accused on Ex.P4 and Ex.P.5.

Thus basing on the above observations, it can be safely concluded that the food sample in question was seized from Venkatadri Kirana Shop in the presence of the Accused.

14

18.With regard to sending the lifted sample for analyst, the contentions of the Learned Defence is that the containers were not sterilized and as such there is every possibility of obtaining negative result against accused, for which the Prosecution replied that they kept the same in clean, dry and empty plastic jars and as such the question of sterilization does not applicable.

19.To decide the same, during the cross examination of PW1, he stated he lifted the sample divided into four equal parts and kept them in a empty plastic jars one of the sample was send by him to the

Food analyst, Nacharam, Hyderabad and the remaining samples were in the custody of Designated Officer and received ExP12 from Analyst.

20. As seen from the record the samples were lifted on 26.10.2015 and the analyst report was received on 19.10.2015 and the method of analysis is of DGHS and the said analysis report was sent to the accused through Registered Post along with and the intention of the prosecution to file a complaint against him, for which the accused not responded. As per the material available on record.

Though, it can be presumed that the accused had satisfied with the analyst report, The accused failed to exercise his right to send the sample to referral laboratory even after availing time, it can be presumed accused is aware of the case, and he is ready for trial. It is pertinent to say at this juncture accused have no right to raise a point 15 like PW1 not lifted the sample according to procedure. Basing on the above observations PW1 lifted the sample and the same was send to the Food Analyst and also he handed over the remaining three samples to Designated Officer, Srikakulam.

21. There is no doubt with regard to the capacity of accused being the Food Business Operator, but for fixing the responsibility coupled with liability, it is to be taken into consideration that when observed both in lifting and sending the samples for analysis were as per provisions under the Act, it is safe to conclude that the accused violated the rules and regulations under the Act, being the Food

Business Operator.

23.As per the section 3(1) In this Act, unless the context otherwise requires,- (zz) Unsafe Food means an article of Food whose nature, substance or , Quality is so affected as to render with injurious to health

(iii) By virtue of its UN-hygienic processing or the presence in that

Article of any harmful substance; or. 26(2) No Food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food. 26(i) Which is Unsafe; or under the Food

Safety and Standards Act. The accused stored the Green Gram Dal and further he pointed out that PW1 not filed his diary to show that he visited the Kirana Shop on that day , there is no necessity of filing his diary , the present case is purely can be decided on technical grounds, 16 not on factual grounds. ExP1 to P16 are reliable documents it established that the PW1 visited the Venkatadrai Kirana Shop, and lifted the Green Gram Dal in the presence of the accused and paid price for that, obtained receipt and issued VA notice to the accused all these documents contained the signature of the accused, but the accused not at any stage denied his signature on those documents, it impliedly shows that PW1 completed his proceedings in the presence of accused.

24. However, keeping in view of all the above comprehensive discussions and observations, the seized samples were proved unsafe which were seized from the possession of accused, this Court come to a conclusion that the accused is liable for punishment.

25.Thus, in the result, this Court is convicting the accused, as the prosecution proved their case beyond all reasonable doubts and as such the Accused was found guilty of offences punishable Under

Section 3(1) (zz) (iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food

Safety Standards (Food Products Standards and Food Additive)

Regulation Act, 2011, Punishable Under Section 59(i) of Food Safety and Standards Act, 2006, and as such, the Accused is convicted 17

Under Section.255(2) Code of Criminal Procedure, 1973 Office is directed to forward the copy of the judgment to the authorities of complainant.

Dictated to typist, typed by her and corrected and

pronounced by me in the open court on this 3rd day of April, 2018.

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy//

Upon questioning the accused on sentence he pleaded that he is a petty shop vendor, the entire family depended on him, his father paralysis patient and prayed to take a lenient view. Upon considering the plea of the accused he is convicted Under Section 255(2) Code of

Criminal Procedure, 1973 for the offiecne Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Regulation 3.1.2 (1) (6) of Food Safety Standards (Food

Products Standards and Food Additive) Regulation Act, 2011.

Punishable Under Section 59(i) of Food Safety and Standards Act, 2006.

18

He shall undergo simple imprisonment for the period of one month and shall also liable to pay fine Rs. 25,000/- in default of said payment he shall undergo simple imprisonment for the period of one month.

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy//

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1:dt/16.04.2018:K.Kurmanayakulu ---None/Nil--

EXHIBITS MARKED FOR PROSECUTION:

Ex.P.1Copy of Gazette Notification of G.O.Ms.No.243 H.M & F.W(L1) Department, dated 25.08.2011 regarding notification of Sri K.Kurmanayakulu, as Food Safety Officer.

Ex.P.2Copy of Proceedings RC.No.1127/FI/2013, H.M. & F.W.(L1) Department, dated 19.07.2013, regarding notification of Food Safety Designated Officer.

Ex.P.3Copy of Gazette Notification of G.O.Ms.No.101 H.M. & F.W (L1) Department, dated 16.01.2013 regarding notification of Commissioner of Food Safety, A.P. Hyderabad.

Ex.P.4Cash Receipt, dated 07.10.2015.

19

Ex.P.5Copy of form-VA notice, dated 07.10.2015.

Ex.P.6Copy of label on the sample container, dated 07.10.2015.

Ex.P.7Mediator Report, dated 07.10.2015

Ex.P.8Copy of form-VI memorandum, dated 08.10.2015.

Ex.P.9Copy of postal receipt of Registered Parcel No.RPA CA 006370004 IN dated 08.10.2015 dispatch of one part of the sample along with form VI memorandum to the Food Analyst, Hyderabad in a sealed packet.

Ex.P.10Postal receipt of Registered Post Acknowledgement Due No. RLAD A RN 052561064 IN dated 08.10.2015 dispatch of copy form VI memorandum, with impression seal of Food Safety Officer separately to the Food Analyst, in a sealed cover.

Ex.P.11Intimation letter to the food Safety Designated Officer, dated 08.10.2015 with acknowledgement from FSDO for receipt of three parts of the sample.

Ex.P.12Analyst Report in form-B bearing No.700/2015-16, dated 19.10.2015 of the Food Analyst SFL, A.P., Hyderabad.

Ex.P.13Intimation letter to the Food Business operator to make an appeal before Designated Officer, dated 27.10.2015 u/s 46(4)

Ex.P.14Postal receipt vide No. RLAD RN 979097365 IN dated 27.10.2015 pertaining intimation letter to the Kirana Shop Owner cum accused. (Ippili BabuRao, Haripuram, Mandasa Mandalam)

Ex.P.15Copy of Detailed Report vide letter No. 001-DII/03871/2015, On 01.12.2015 to the Food Safety Designated Officer, Srikakulam.

Ex.P.16Prosecution order received Rc.No. 3176/F1/2015, dated 26-12- 2015.

Exhibits marked for Defence:

---None/Nil--

Additional Judicial Magistrate of 1st Class,

Sompeta.

//True Copy// 20

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam. 

Calendar of cases tried by the Additional Judicial Magistrate of First

Class, Sompeta.

Date of Report Apprehen Release commence Close of Sentence

Offence or on bail trial of

sion of ment of complaint Order accused trial 07.10.2015 21.06.2016 19.12.2017 Suspended16.04.2018 17.04.2018 03.05.2018 the at 5.00 p.m., sentence

Explanation of delay and remarks: The delay is caused due to non production of witnesses in time by the Prosecution.

Judgment in Calendar Case No.34 of 2017 on the file of the Additional

Judicial Magistrate of First Class, Sompeta. 

Complainant: State Represented by Food Safety Officer, Division­II, Srikakulam District, Srikakulam. .

Name of Age/years F/H's Religion Calling Residence Taluk

accused Name

Ippili Babu45 yearsBhaskaraHinduProprietorHaripuramMandasa RaoRaoof M/s Sri Venkatadri Kirana Shop

Offence:Punishable Offence Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety Standards (Food Products Standards and Food Additive) Regulation Act, 2011. Punishable Under Section 59(i) of Food Safety and Standards Act, 2006.

Section 3(1):­ In this Act, unless the context otherwise requires,­ (zz) Unsafe Food means an article of Food whose nature, substance or Quality is so affected as to render with injurious to health

(iii) By virtue of its UN­hygienic processing or the presence in that Article of any harmful substance; or 26(2) No Food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food.

(i) Which is Unsafe; or 21

Section 59(i):­ Where such failure or contravention does not result in injury, with imprisonment for a term which may extend to 6 months also with fine which may extend to Rs.1,00,000/­ (Rupees one lakh only) 

Finding : Found Guilty Sentence/Order :

In the result, this Court is convicting the accused, as the prosecution proved their case beyond all reasonable doubts and as such the Accused was found guilty of offences punishable Under Section 3(1)(zz)(iii), 26 (2) (i) r/w Section 3.1.2 (1) (6) of Food Safety Standards (Food Products

Standards and Food Additive) Regulation Act, 2011, Punishable Under

Section 59(i) of Food Safety and Standards Act, 2006 and as such, the

Accused is convicted Under Section.255(2) Code of Criminal Procedure, 1973 office is directed to forward the copy of the judgment to the authorities of complainant.

Upon questioning the accused on sentence he pleaded that he is a petty shop vendor, the entire family depended on him, his father paralysis patient and prayed to take a lenient view. Upon considering the plea of the accused he is convicted Under Section 255(2) Code of Criminal

Procedure, 1973 for the offiecne Under Section 3(1)(zz)(iii), 26 (2) (i) r/w

Regulation 3.1.2 (1) (6) of Food Safety Standards (Food Products

Standards and Food Additive) Regulation Act, 2011. Punishable Under

Section 59(i) of Food Safety and Standards Act, 2006. He shall undergo simple imprisonment for the period of one month and shall also liable to pay fine Rs. 25,000/- in default of said payment he shall undergo simple imprisonment for the period of one month.

22

No remand period to give set off Under Section 428 Cr.P.C. The office is directed to prepare conviction Warrnat accordingly and supply free copy of Judgment to the Learned Counsel of the accused forthwith and obtain acknowledgement. The accused is explained his right of appeal against this judgment before the Hon’ble Sessions Court,

Srikakulam, and as to his right of free legal aid. Unmarked property if any shall be destroyed after appeal time is over.

According ordered. 

Addl. Judicial Magistrate of First Class

Sompeta.

//True Copy//

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, SOMPETA.

Present :- Kum R.Varalakshmi,

Additional Judicial Magistrate of First Class, Sompeta.

Friday this the 10th day of February, 2017.

Calendar Case No.37/2015

Between:

The State represented by its Sub Inspector of Police, Kanchili Station House.

…. the Complainant.

And:

01 Gonapa Mohana Rao S/o Ramanamurthy, aged 37 years, Kalinga by caste, B.Gonaputtuga village, Kaviti Mandal, Driver of Bus AP o7T 1399, Srikakulam District; 02 Banju Kodanda Rao, S/o Jagannadha Rao, aged 34 years, Srisaina by caste, Banjuputtuga village,KavitiMandal,Srikakulam District.Driver of Auto AP 30 W 5854.

…. the Accused.

This case coming on 31.01.2017 for final hearing before me in the presence of Sri V.Adinarayana, learned Assistant Public Prosecutor, for The State /complainant and learned Sri Vinay C.Patnaik, Advocate for the accused No.1 and Sri M.Chalapathi Rao, Advocate for the accused No.2 and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

I) The Station House Officer, Kanchili Police station filed charge sheet against the accused Nos 1 and 2 for the offence under section 338 and 337 of the

Indian Penal Code in Crime No.67/2014 of Kanchili Police station.

Upon registering the same, the said FIR being transmitted to this court through P.C 1472 of Kanchili Station House on 12.05.2014 at about 06.00 p.m.,

As per the details noted in the FIR, the occurrence of the offence taken place on 12.05.2014 i.e., on Monday at about 11.25 hours, while the information given to the Station House on 12.05.2014 at 13.00 hours. The F.I.R.

Got registered in accordance with section 154 Cr.P.C.

2

II).The brief case of the prosecution is, that

A.1 is resident of B.Gonaputtuga village of Kaviti Mandal and driver of private bus bearing No. A.P.07 T 1399 and A.2 is resident of Banjuputtuga village of Kaviti Mandal and the driver of Auto AP 30 W 5854. The offence has taken place on BT road of Sompeta to Kaviti near Sudiputtuga Village of Kanchili Mandal

On 12-05-2014 at about 11-25 hours within the limits of Kanchili P.S.and under the jurisdiction of the Honurable Court.

L.W.1 (Intivenuka Sundara Rao) is de-facto complainant and injured,

L.W.2 (Intivenuka Prasanth) is direct witnesses to the occurrence; L.Ws 3 to 31 (Jogi Tarakesam,Paila Neelaveni, Chelluru Janakirao, Gujjala Seshamma, Dugana

Hamsa, Byredla Jejamma, Intivenuka Narasamma, Dugana Rangamma, Talagana

Hemasundara Rao, Talagana Santhamma, Sangaru Aruna,Narthu Kurma Rao,

Talagana Jayamma, Kalla Vasantharao, Duppala Kunni, Gayi Dalamma, Dugana

Rajeswari, Juttu Seshamma, Dugana Ramulamma, Gara Krishna Veni, Joga

Chinnamma, Pulari Seethamma, Vagadi Balamma, Dugana Gopala Rao, Gummadi

Suryam, Kakarla Rangayya, Korukonda Kali,Bommali Laxmi and B. Kanakamma) are direct witnesses to the occurrence and injured; L.Ws 32 to 34 (Pyla Santhu,

Dandapati Revathamma and Arangi Aruna) are direct witnesses to the occurrence, L.Ws 35 and 36 ( Ratnala Krishna rao) are mediators for scene observation; L.W.37 (N.Ramesh) is MVI Ichpuram; L.Ws 38 (R Kiran naice) is

Radiologist; L.W.39 (Dr.S.Rajesh) is Medical Officer; L.W.40 (K.Venkat Suresh) is investigation officer.

On 12-05-2014, at 11.00 hours. A.1 started as driver in the bus AP 07

T 1399 at Gandhi Mandapam, Sompeta in order to go R.Belagam via.

B.Gonapaputtuga village of Kaviti Mandal on the B.T. Road of Sompeta to Kaviti and at about 11.25 hours when reached near Sudiputtuga vilklage of Kanchili

Mandal drove the bus in a rash and negligent manner and at the same time A-2 drove the auto AP 30 W 5854 in the same manner coming in opposite direction.

On seeing this to, avert the collusion of the auto on right rear end of the bus, A-1 lost control on the bus, turned the bus to right side. As a result the bus 3 overturned on left side in the road side pit and the auto rammed to the road side pamyar tree and turned. As a result of which, L.Ws 1,2,3,5,6,11 to 20. 22 to 31 who travelled in the bus were sustained grievous and simple injuries and Lws 4,7 to 10 and 32 to 34 who travelled in the Auto of A-2, among them 4,7 to 10 are sustained simple and grievous injuries.

During the course of investigation, on 12-05-2014, L.W.40 examined

L.Ws 1 to 18 at CHC, Sompeta examined them and recorded their statements.

On the same day at about 16.00 hours L.W.40 visited the scene of offence, observed it in the presence of L.Ws 35 and 36, got drafted the scene observation report, prepared rough sketch and photographed the scene of offence. On the next day; L.W.40 examined L.Ws 19 to 28 at RIMS, Srikakulam, L.Ws 29,30 & 31 at Abhaya and NRI hospitals. Visakhapatnam, examined them and recorded their statements. On 15-054-2014 L.W.40 examined L.Ws 32 to 34 at their residence and recorded their statements.

L.W.40 addressed a letter to L.W.37 for inspecting both the crime vehicles i.e., bus bearing No.AP 07 T 1399 and auto bearing NO. A.P.30 W 5854 issue accident report. On 28-05-2014, L.W.40 arrested A.1 at 09-00 hours and

A.2 at 09.30 hours at Kanchili P.S. and found the A.2 has no valid license, hence added sec 181 of M.V.Act. And sent them for judicial custody on the same day.

L.W.37 inspected pboth crime vehicles i.e., A.P.07 T 1399 and A.P.30 W 5854 and issued accident inspection report, opining that accident was ot occurred due to any mechanical defects of both crime vehicles.

L.W.38 is a Radiologist, rendered treatment to Lws 7,19,20,22,23,24,25,26,27,28,29 and 30, got X-ray and issued opinion. L.W.39 is a Medical officer also given treatment to L.Ws 1,3,4 to 31 and issued wound certificate opined that the injuries S.No.2 of L.W.3 , Sno.2 of L.W.5 S.No.3 of

L.W.22, S.No.2 of L.W.24, S.No.3 of L.W.25 and S.No.3 of L.W.30 are grievous in nature and injuries of L.Ws 1,4,6 to 21, 23,26 to 29 are simple in nature. After completion of investigation L.W.40 laid charge sheet against the both accused.

Investigation disclosed that on 12-05-2014, A.1 drove his bus A.P.07 4

T 1399 in a rash and negligent manner and when he reached near Sudiputtuga village junction at about 11.25 hours while proceeding from Sompeta to

Duganaputtuga and at the same time A.2 drove the auto A.P.30 W 5854 in the same manner while proceeding from Nelavanka village of Kaviti Mandal to

Gopalpuram of Mandasa Mandal and while they managed to avert to collusion of both vehicles, A.1 and A.2 lost control over their vehicles resulting the bus overturned on right side road side pit and the auto dashed against the Palmyra trees on the same direction. As a result of which, 24 passengers in the bus were sustained grievous and simple injuries and while 6 passengers in Auto sustained simple injuries. The driver of bus was sustained simple injuries and the driver of auto escaped un-hurt.

Thus both the accused are liable for punishment under section 338,337 of the Indian Penal Code and A 2 also liable for punishment Under section 181 of M.V.Act.

Hence the charge sheet.

III)On perusal of the charge sheet, the case against accused Nos 1 and 2 was taken on file of this court, under section 338 and 337 of the Indian Penal

Code. Accordingly, summons issued to the accused Nos 1 and 2 by posting the matter to 20.08.2014.

IV.On appearance of the accused Nos 1 and 2, case copies furnished on

Under Section 207 of Cr.P.C. on 20-08-2014.

V.While so, on 09.10.2014, the accused Nos 1 and 2 appeared, and examined under Section 251 Cr.P.C, explained to them the allegation is Telugu language for that they pleaded not guilty and claimed to be tried. Hence, posted for trail.

VI.During the trial, the prosecution examined on its behalf P.Ws 1 to 36;

Exs.P.1 to Ex.P.49 are marked.

VII.After completion of the prosecution case, the accused Nos 1 and 2 got examined under section 313 (1)(b) Cr.P.C., explaining to them the incriminating material, in Telugu, which they denied. No defence evidence reported.

5

VIII.Heard arguments of learned APP and learned defense counsel.

IX.Hence, this matter stood before this court for judgment.

X.Now, the points that would arise for consideration; are, as here in under;

1.Whether the accused Nos 1 and 2 can be found guilty for the offence under sections 338, 337 of the Indian Penal Code ?

2.Whether the prosecution able to establish the guilty mind of accused Nos 1 and 2 for the said offences, beyond all reasonable doubt?

3. whether the accused Nos 1 and 2 can be convicted for the said offences?

4 If so, to what result?

XI) Let this courts proceed to answer point Number 1 I.e.

1.Whether the accused can be found guilty for the offence

under sections 338, 337 of the Indian Penal Code ?

It is the case of the prosecution that the accused Nos 1 and 2 that on 12-05-2014 at about 11.00 A.M the bus bearing Registration No. A.P. 07 T 1399 and the Auto bearing Registration No. A.P 30 W 5854 were colluded with each other and the accident occurred. The bus tilted on the left side and the Auto also tilted on the right side and thereby the passengers in the Bus and Auto were injured. So, the police, Kanchili P.S. filed the charge sheet against the accused for the offences said to have been committed under sections 337 and 338 of the

Indian Penal code.

In this specific allegation the prosecution has to establish that the accused Nos 1 and 2 had driven the said vehicles i.e. Bus bearing No. A.P. 07 T 1399 and Auto bearing Registration No. A.P 30 W 5854 that 1.that the accused was driving the vehicle ?2.He was driving the said vehicle on a public road or way.3.He was driving the vehicle in a rash and negligent manner; and 4.he was driving the vehicle in such a manner so as to endanger human life, or to be likely to cause hurt or injuries.

The evidence of P.W.1 was that the accident happened near 6

Sudiputtuga village of Kanchili Mandal while he was traveling along wroth his son

L.W.2 namely Intivenuka Prasanth aged about 11 years. In his statement he stated that after the accident he admitted into the hospital where he examined by the police and given signature on the written report by the police and also stated along with L.Ws 1 to 30 were injured among that 10 members were referred to

Srikakulam Hospital. In his chief he deposed that he subscribed his signature on the written paper and also deposed he did not given to any report to the police, about accident, he further stated not known the reason for accident.

P.W.2, P.W.6,P.W.9,P.W.10,P.W.15,P.W.24, P.W.32. Witnesses have testified that they became unconscious at the spot after the accident and regained consciousness in the hospital. P.W.3 stated that information given as to accident.

P.Ws 4,12,13,14,25. identified the driver and stated all of the sudden bus tilted and turned to a side but not mentioned the speed of the bus.

P.Ws 5,7,11,16,18,33,34. not known the reason for accident but identified the Auto driver.

P.W.8, P.W.17,P.W.21,P.W.22 explained how the mishap taken place identified the driver of the bus in their cross they stated bus is moving with high speed but they cannot say the velocity with which the bus was moving.

P.Ws.19 and 23 passengers of the bus stated in his chief bus was moving slowly, an Auto came opposite side to the bus to avoid the collision the bus driver took diversion due to that the bus tilted to one side.

P.W.20 passenger of the bus, in his chief examination stated that the bus was moving with high speed an Auto came opposite side the bus driver tried to take diversion the bus fell down to one side. In his cross examination he deposed I did not see the opposite side Auto prior to the accident, I was informed that an Auto came opposite to the bus.

P.W.26., Passengers of an Auto stated that the bus came from opposite side in a rash and negligent manner and dashed the Auto due to this bus tilted to one side. Identified the Auto driver. But failed to state the speed of the 7 vehicles.

P.Ws 27 and 28, passengers of an auto stated that the bus coming from opposite side and dashed the Auto. Not even they mentioned whether the bus is moving with speed or in a slow motion.

P.W.29., stated that bus tilted to aside an Auto situated at the distance of 20 feets from the bus he observed the both vehicles got damaged in front portion. In his cross he stated he cannot say that exact distance between the both vehicles i.e., bus and Auto, he did not mention any skid marks on the road.

P.W.30 being the Motor vehicle Inspector stated that in the accident was not due to mechanical defects.

P.W.36 is the investigating officer stated that on 12-05-2014 he received a phone call about the traffic accident immediately along with his staff rushed to the scence offence and started investigation. In his cross examination he stated he visited the scene of offence after 25 to 30 minutes of information and also stated he came to know that the accident has occurred. His evidence is not corroborated with the chief.

Ex.P 49: Rough sketch; Photographs and Mediator Report clearly shown that the drivers of both the vehicles to avoid the collision in the unavoidable circumstance they took diversion of the vehicles.

On careful perusal of evidence P.Ws 1 to 36 it is evident that the witnesses only concentrated to state that accused Nos 1 and 2 was the drivers of the crime vehicles by the time of accident. But no one stated that the accused

Nos 1 and 2 drove the crime vehicles with rash and negligent manner. In such case this court is no doubt to conclude that the accused Nos 1 and 2 did not drive the crime vehicle either rashly or negligently.

The mere fact that an accident has taken place or some persons have received injuries will not lead to any presumption of rash or negligent act on the part of the accused but will have to be established like any other fact. The injuries so caused is not the determinating factor. In a case under section 337 8 and 338 of the Indian Penal Code there must be a definite finding that the driving was rash or negligent which resulted in the injuries to the victims.

In the case of (Kriti Singh V.State of Assam 2005 (2) GLT 274) explained the rash or negligent act:

The term 'rash' and 'negligence' has not been defined in the code and both the words are not synonyms Rashness is an act done in the hope that no untoward consequence will ensue though the person is aware of the livelihood of such consequence. On the other hand, negligence is acting with the awareness that harmful or mischievous consequences will follow. If a person does an act with utter indifference of the consequence of which he may be conscious, which he hoped may not take place, he is said to be rash. Negligence is failure to take that precaution, which a reasonable and prudent person is expected to take.

In another case Mahadev Prasad Kaushik V.State of UP (2009) 2 scc (cr) 834.;

The term negligence has been defined by the Honourable Supreme

Court, as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do.

Rashnes can be summed up as an act which is reckless or is done in a manner which is dangerous to public life.

In Jitender Singth V state (2012 (1) JCC 7 the H.C. of Delhi acquitted the accused observing that the eye witness cannot tell at what speed the accused was driving the vehicle and only stated that he was driving the vehicle in high speed.

From the above circumstances, it cannot be said with certainty that the accused Nos 1 and 2 has caused the accident on account of rash and negligent act.

In the result, this court find that prosecution has failed to prove its case against the accused beyond all reasonable doubt and both are given benefit of doubt and therefore the accused Nos 1 and 2 are acquitted for the offence 9 punishable under section 337 and 338 of the Indian Penal Code for which they charged.

XII) Let this court Proceed to answer point No.2 . i.e.,

2.Whether, the prosecution able to establish the guilty mind of accused for the said offences, beyond reasonable doubt?

Finding: Negatation . XIII)Let this court Proceed to answer point No.3 . i.e.,

3. Whether, the accused can be convected for the said offences?

Finding: Negation.

XIV) Let this court Proceed to answer point No.4 . i.e., 4 If so, to what result?

In the result, Accused A.1 and A.2. Are acquitted for the offence punishable under section 337 and 338 of the Indian Penal Code. They are acquitted under section 255 (1) of Cr.P.C. The bail bonds of the accused Nos A.1 and A.2 shall be cancelled after lapse of six months.( As per the 437 A of the

Cr.P.C. as amended vide the Amendment Act which came into force on 31-12- 2009. The accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from to day).

File be consigned to record room. The unmarked property if any shall be dealt in accordance with law.

Accordingly Ordered.

Typed to my dictation, directly typed by typist, corrected and

pronounced by me in open Court, this the 10th day of February, 2017.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE;

P.W.1:- Intivenuka Sundara Rao; --NONE-- 10

P.W.2:- Paila Neela Veni; P.W.3:- Dugana Hamsa; P.W.4:- Jogi Tarakesam; P.W.5:- Byredla Jejamma; P.W.6:- Intivenuka Narasamma; P.W.7:- Dugana Rangamma; P.W.8:- Chelluru Janaki Rao; P.W.9:- Gujjala Seshamma; P.W.10:-Talagana Hemasundara Rao; P.W.11:-Sangaru Aruna; P.W.12:-Narthu Kurma Rao; P.W.13:-Kalla Vasantha Rao; P.W.14:-Juttu Seshamma; P.W.15:-Vagadi Balamma; P.W.16:-Duppala Kunni; P.W.17:- Dugana Rajeswari; P.W.18:-Gara Krishnaveni; P.W.19:-Pulari Seethamma; P.W.20:-Dugana Gopala Rao; P.W.21:-Gummadi Suryam; P.W.22:- Kakarla Rangayya; P.W.23:-Korukonda Kali; P.W.24:- Bommali Laxmi; P.W.25:- B.Kankamma; P.W.26:-Dugana Ramulamma; P.W.27:-Pyla Santhu; P.W.28:- Dandapati Revathamma; P.W.29:-Ratnala Krishna Rao; P.W.30:-N.Ramesh, the then Motor Vehicle Inspector, Ichapuram; P.W.31:-Dr.K.Rajesh,the then Civil Assistant Surgeon,CHC, Sompeta; P.W.32:-Gayi Dalamma; P.W.33:-Talangana Santhamma; P.W.34:-Talagana Jayamma; P.W.35:- Dr.R.Kiranmai, the then Civil Assistant Surgeon,CHC, Sompeta; P.W.36:-K.Vankata Suresh the then S.I.of police, Sompeta P.S.

DOCUMENTS MARKED

FOR PROSECUTION: - FOR DEFENCE: - Ex.P.1: Signature of P.W.1 and statement;NIL Ex.P.2: Scene Observation Report; Ex.P.3: Motor Vehicle Inspector Report / dt:28.05.2014; Ex.P.4: Motor Vehicle Inspector Report / dt:28.05.2014; Ex.P.5: Wound certificate of Intivenuka Sundara Rao (P.W.1); Ex.P.6:- Wound certificate of Jogi Tarakesam; (P.W.4); Ex.P.7:- Wound certificate of Paila Neela Veni; (P.W.2); Ex.P.8:- Wound certificate of Chelluru Janaki Rao; (P.W.8); Ex.P.9:- Wound certificate of Gujjala Seshamma; (P.W.9); Ex.P.10:- Wound certificate of PDugana Hamsa ; (P.W.3); Ex.P.11:- Wound certificate of Byredla Jejamma ; (P.W.5); Ex.P.12:- Wound certificate of Intivenuka Narasamma; (P.W.6); Ex.P.13:- Wound certificate of Dugana Rangamma; (P.W.7); Ex.P.14:- Wound certificate of Talagana Hemasundara Rao; (P.W.10); Ex.P.15:- Wound certificate of ; Talangana Santhamma, (P.W.33); Ex.P.16:- Wound certificate of Sangaru Aruna; (P.W.11); Ex.P.17:- Wound certificate of Narthu Kurma Rao; (P.W.12); Ex.P.18:- Wound certificate of Talagana Jayamma, (P.W.34); Ex.P.19:- Wound certificate of Kalla Vasantha Rao, (P.W.13); 11

Ex.P.20:- Wound certificate of Duppala Kunni; (P.W.16); Ex.P.21:- Wound certificate of Gayi Dalamma; (P.W.32); Ex.P.22:- Wound certificate of Dugana Rajeswari, (P.W.17); Ex.P.23:- Wound certificate of Juttu Seshamma; (P.W.14); Ex.P.24:- Wound certificate of Dugana Ramulamma, (P.W.26); Ex.P.25:- Wound certificate of Gara Krishnaveni, (P.W.18); Ex.P.26:- Wound certificate of Jogu Chinnamma, (P.W.31); Ex.P.27:- Wound certificate of Pulari Seethamma, (P.W.19); Ex.P.28:- Wound certificate ofVagadi Balamma, (P.W.15); Ex.P.29:- Wound certificate of Dugana Gopala Rao, (P.W.20); Ex.P.30:- Wound certificate of Gummadi Suryam, (P.W.21); Ex.P.31:- Wound certificate of Kakarla Rangayya, (P.W.22); Ex.P.32:- Wound certificate of Korukonda Kali, (P.W.23); Ex.P.33:- Wound certificate of Bommali Laxmi, (P.W.24); Ex.P.34:- Wound certificate of B.Kankamma, (P.W.25); Ex.P.35:- Wound certificate of Gonapa Mohana Rao, (P.W.31); Ex.P.36:- Dugana Hamesu X-ray opinion copy; Ex.P.37:- Dugana Rajeswari X-ray opinion copy; Ex.P.38:- Juttu Seshamma, X-ray opinion copy; Ex.P.39:- Gara Krishnaveni, X-ray opinion copy; Ex.P.40:- Joga Chinnamma, X-ray opinion copy; Ex.P.40:- Joga Chinnamma, X-ray opinion copy; Ex.P.41:- Pulari Seethamma, X-ray opinion copy; Ex.P.42:- Vogadi Balamma, X-ray opinion copy; Ex.P.43:- Dugana Gopala Rao, X-ray opinion copy; Ex.P.44:- Gummadi Suryam, X-ray opinion copy. Ex.P.45:- K.Rangayya, X-ray opinion copy; Ex.P.46:- Korukonita Kali, X-ray opinion copy; Ex.P.47:- Bommali Laxmi, X-ray opinion copy; Ex.P.48:- Printed F.I.R. In Crime No.67/2014 of Kanchili P.S; Ex.P.49:- Rough sketch.

MATERIAL OBJECTS

−Nil -

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

12

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam.

Calendar of cases tried by the Additional Judicial Magistrate of First Class,

Sompeta.

Date of Offence : 12.05.2014 at 11.25 hours. Report or complaint: 12.05.2014 at 13.00 hours. Apprehension of accused: 28.05.2014 at 09.00 hours. Release on bail: 28.05.2014 commencement of trial:26.02.2015 Close of trial: 31.01.2017 Sentence of Order: 10.02.2017 Explanation of delay and remarks: The delay is caused due to non production of witnesses in time by the prosecution.

Judgment in Calendar Case No.37 of 2015 on the file of the Additional

Judicial Magistrate of First Class, Sompeta.

Complainant: State represented by the Inspector of Police, Kanchili Police Station. Name of Age/years Father's Name Religion Calling ResidenceTaluk accused

A.1.Gonapa Mohana Rao S/o Ramanamurthy, aged 37 years, Kalinga by caste, B.Gonaputtuga village, Kaviti Mandal, Driver of Bus AP o7T 1399, Srikakulam District; A.2 Banju Kodanda Rao, S/o Jagannadha Rao, aged 34 years, Srisaina by caste, Banjuputtuga village, Kaviti Mandal, Srikakulam District.Driver of Auto AP 30 W 5854. Offence :Voluntarily causing grievous hurt by an act which endangers human life etc.,driving or riding on a public way to rashly or negligently as to endanger human life shall be punishable under sections 338 and 337 of the Indian Penal Code.

Finding : Found not guilty.

Sentence/Order :

In the result, Accused A.1 and A.2. Are acquitted for the offence punishable under section 337 and 338 of the Indian Penal Code. They are acquitted under section 255 (1) of Cr.P.C. The bail bonds of the accused Nos A.1 and A.2 shall be cancelled after lapse of six months.( As per the 437 A of the

Cr.P.C. as amended vide the Amendment Act which came into force on 31-12- 2009. The accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from to day).

File be consigned to record room. The unmarked property if any shall be dealt in accordance with law. Accordingly Ordered.

Additional Judicial Magistrate of First Class,

Sompeta. Copy submitted to the Honourable I Additional District and Sessions Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.