Smt S.C.Kamala

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I-CLASS,

MOBILE COURT :: ONGOLE.

Present :: Smt. S.C. Kamala, Judl. Magistrate of I Class, Spl. Mobile Court, Ongole.

Tuesday, this the 11 th day of January, 2022

Calendar Case No. 2132 of 2021

Between:

The State, represented by Sub-Inspector of Police,

Maddipadu Police Station.... Complainant

Vs.

Dokka Timothi @ Bharath @ Diselodu, S/o Chinna Ankaiah, age 21 years, SC Madiga by caste, Kolachanakota Village, Maddipadu Mandal. Driver of tractor

bearing No. AP 03 TD 2372 and trolley No. AP 27 TZ 1831 ... Accused

This case coming on 06-01-2022 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the Complainant and of

Sri L. Koteswara Rao, Advocate for the accused 1 to 4 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub Inspector of Police, Maddipadu police station has filed charge sheet against the accused in Cr. No.165/2021 for the offences punishable u/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act, 1957 and Sec.3 of P.D.P.P. Act.

2.The case of the prosecution in brief is that on 06.08.2021, at about 9.00 P.M., Lw.1-M. Sunil Babu and his staff caught holded the accused who was transporting the sand in a tractor bearing No. AP 03 TD 2372 and trolley bearing

No. AP 27 TZ 1831 near Sivalayam, Kolachanakota village and during enquiry of

Lw.1-M. Sunil Babu the accused revealed his name and identity particulars and further confessed that he is transporting the sand without license or permit to transport the sand. Then Lw.1-M. Sunil Babu seized the tractor bearing No. AP 03 TD 2372 and trolley bearing No. AP 27 TZ 1831 from the custody of the accused under cover of special report.

Basing on the special report, Lw.8-T. Venkateswarlu, Head Constable, registered the case and investigated into. During the course of investigation, investigating officer examined and recorded the statements of witnesses, recorded the confession statements of accused in the presence of Lw.6-B.

Ramanujamma and Lw.7-T. Narasimha Rao under cover of confession mahazar and served 41(A) Cr.P.C notices on the accused. On 28.08.2021, Lw.8-T.

Venkateswarlu, Head Constable, got released the vehicle as per the orders of this

Hon’ble Court and conducted auction of the sand and in the said auction one

Pamidi Mohan purchased the sand for an amount of Rs.1,050/- under the cover of auction mahazar and the said amount was remitted in State Bank of India through CFMS challan No. 51177548232021. On receiving certificate issued by

Lw.6-B. Ramanujamma, V.R.O., and on completion of investigation, Lw.9-Y.

Nagaraju, Sub Inspector of Police, got filed charge sheet against the accused.

Thereby, the accused has committed the offences U/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act.

3.The case was taken on file for the offences U/Sec.379 of I.P.C.,

Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act against accused.

4.After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C were furnished to him.

5.The accused was examined u/Sec.239 Cr.P.C. and the charges for the offences U/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act were framed against the accused and the contents are read over and explained to him, for which he pleaded not guilty and claimed to be tried.

6.In pursuance of the case of the prosecution, the prosecution has examined Pws.1 to 8 and got marked Exs.P1 to P18, M.O.1. The learned A.P.P has given up the evidence of Y. Nagaraju (Lw.9).

7. After the closure of the prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C. and the incriminating material was read over and explained to him and he has denied the same and reported no defence evidence.

8.Arguments Heard.

The learned A.P.P. has submitted before this Court that the oral evidence of PWs.1 to 8 coupled with Ex.P1 to Ex.P18, M.O.1 is sufficient to prove the guilt of the accused beyond all reasonable doubt and requested to convict the accused in the interest of justice.

It is the contention of the learned counsel for the accused that accused did not commit any offences and police got filed the present case against him for statistical purpose and requested to acquit the accused in the interest of justice.

9. Now the point that arises for determination is “ whether the

prosecution could bring home the guilt of the accused beyond all

reasonable doubt for the offences u/Sec.379 IPC, Sec.21(ii) of MMDR Act

and Sec.3 of PDPP Act?”

10.To prove the offence under Section.379 I.P.C., Sec.21(ii) of M.M.D.R.

Act, Sec.3 of P.D.P.P. Act, the prosecution has to establish that the accused 1 to 3 dishonestly extracts sand, gravel and other minerals from the river which is the property of the states, out of the states possession, without consent, constitute an offence of theft, mischief causing damage to the public property.

11.PW1, S.I. of Police, SEB, JD team, Ongole, deposed in his evidence on 06-08-2021, at about 8.30 P.M., Inspector, SEB, JD Team received credible information with regard to illegal transportation of sand. Then immediately on the instructions of the Inspector, himself along with PW.2 and Lw.3-Sk. Shakeel started from the station in their motorcycles and reached Sivalayam,

Kolasanakota village by 9.00 P.M. and started checking of vehicles and observed

M.O.1 loaded with sand proceeding towards Maddipadu from Gundlakamma vaagu and on suspicion they stopped the said tractor nearly 3 tones of sand and during his enquiry accused revealed his name and identity particulars and further confessed that he is transporting the sand from Gundlakamma vaagu without any license or receipt in order to sell the same to some unknown persons at

Maddipadu for their own profit and he also further confessed that M.O.1 stands in the name of Thimothi. Then he took the custody of accused on informing him the transporting of sand in tractor without license or receipt is an offence and seized the tractor bearing No. AP 03 TD 2372/trolley AP 27 TZ 1831/M.O.1 under the cover of special report which was scribed by PW.2 on his dictation at the scene of offence itself and then they went to Maddipadu police station and handed over the accused and property in the police station.

12.PW.2, the SPO, SEB, Ongole, deposed in his evidence in his evidence that on 06-08-2021, at about 8.00 P.M., Inspector, SEB, JD Team received credible information with regard to illegal transportation of sand. Immediately on the instructions of the Inspector, himself, PW.1 and Lw.3-Sk. Shakeel started from the station in their motorcycles and reached Sivalayam temple, Kolasanakota village by 9.00 P.M. and started checking of vehicles and observed a tractor loaded with sand proceeding towards Maddipadu from Gundlakamma vaagu and on suspicion PW.1 stopped the said tractor nearly 3 tones of sand and during enquiry by PW.1, accused revealed his name and identity particulars and further confessed that he is transporting the sand from Gundlakamma vaagu without any license or receipt in order to sell the same to some unknown persons at

Maddipadu for his own profit and also further confessed said tractor stands in the name of his father. Then PW.1 took the custody of accused on informing him the transporting of sand in tractor without license or receipt is an offence and seized

M.O.1 under the cover of special report and then they went to Maddipadu police station and handed over the accused and property in the police station.

13.PW.3, the SPO, SEB, Ongole, supported and corroborated the evidence of PW.1 and PW.2 in all aspects.

14.PW.4 deposed in his evidence that he do not know anything about the facts of this case and police did not examine me.

As PW.4 did not support the case of prosecution, he was cross- examined by the learned A.P.P. and Ex.P2 is marked during her cross- examination.

15.PW.5, V.R.O. of Kolasanakota Village, has stated in her evidence that on 06-08-2021, at about 9.10 A.M., she received a phone call from Maddipadu police station who requested her to come to the police station along with V.R.A. of

Kolasanakota as they are in the custody of a tractor. Then she went to the

Maddipadu police station along with Lw.7-T. Narasimha Rao within 10 minutes and observed the accused in the police station and police informed them that accused is transporting the sand illegally in his tractor and he belongs to her village and requested her to enquire him. At their request she enquired accused and during her enquiry accused revealed his name and identity particulars and further confessed that he is transporting the sand illegally from a tractor which stands in his name for his livelihood and also enquired whether he obtained any permission from the revenue officials or not, for which accused confessed that he has no license or permit to transport the sand and he was caught holded by the police at

Sivalayam centre, Kolasanakota village. The same was recorded by the police under a cover of mahazarnama and she identified her signature in the mahazarnama. She also further deposed before this Court that on 06.08.2021 at about 10.00 P.M. she signed in some blank papers and identified her signatures in scene observation mahazarnama and certificate.

16.PW.6, V.R.A. of Kolasanakota Village, has stated in his evidence that at about few months back he received a phone call from the police who instructed him to come to the Maddipadu police station and at their request, he went to the police station and signed in drafted papers and he do not know the contents of it.

Then the witness is confronted with the signatures found in the confession mahazar, scene observation mahazar and auction proceedings and he admitted his signatures and the same were marked as Exs.P7 to P9.

As PW.6 did not support the case of prosecution he was cross- examined by the learned A.P.P. and even though he was cross-examined nothing was elicited in favour of prosecution.

17.PW.7, Head Constable of Maddipadu police station, in his evidence has stated that on 06.08.2021, at about 10.00 P.M., while he was acting as S.H.O. of

Maddipadu P.S., PW.1 came to the police station and presented. Ex.P1 and produced accused and case property. Basing on Ex.P1 he registered a case in Cr.

No. 165/2021, for the offences u/Sec.420, 379 of I.P.C., Sec. 21 (ii) of M.M.D.R.

Act and Sec. 3 of P.D.P.P. Act and got issued FIR to all concerned officers and examined and recorded the statements of PW.1 to PW.3 in the police station itself.

He also further deposed before this Court that he secured the presence of PW.5 and PW.6 in the police station and in their presence he recorded the confession statement of the accused and left the scene of offence along with PW.5, PW.6 and accused which is situated at Sivalayam, Kolasanakota village and drafted rough sketch and then he left to Gundlakamma vaagu, Kolasanakota in the presence of mediators and drafted scene observation mahazar and rough sketch at the scene of offence and PW.5 got issued certificate with regard to the land in which the accused dug the sand stating the said land is a Government land and then he returned to the station along with the accused and served Sec. 41(A) Cr.P.C.

notice on the accused directing him to appear before the police station or before the Court as and when called and required and after obtaining permission from the Hon’ble Court. He conducted auction on the seized sand in the premises of the police station in the presence of PW.5 and PW.6 and one Dokka China Ankaiah purchased the sand in the said auction for an amount of Rs.1,050/- under the cover of auction mahazar and he remitted the amount of Rs.1,050/- in State Bank of India vide Challan No. 51177548232021 and produced Ex.P17 before the

Hon’ble Court and handed over M.O.1 to the accused as per order of this Hon’ble

Court and further investigation was done by Lw.9-Y. Nagaraju. Lw.9-Y. Nagaraju verified the investigation done by him and found it on correct lines and got filed a charge sheet against the accused.

18.PW.8 in his evidence has stated that he know PW.4 and accused as accused is one of his villager and he also further deposed before this Court that he do not know the facts of this case and police did not examine him.

As PW.8 did not support the case of prosecution, he was cross- examined by the learned A.P.P. and Ex.P18 is marked during her cross- examination.

19.Whether the prosecution was able to prove the guilt of the accused

for the offence punishable Sec.21(ii) of Mines & Minerals Development &

Regulation Act, 1957?

In order to prove the guilt of the accused 1 to 3 for the above offence, the prosecution has to prove that the accused 1 to 3 dishonestly committed theft of sand, gravels or minerals from the Paleru vaagu and transporting the same in

M.O.1 and M.O.2.

On perusal of the Mines & Minerals Development and Regulation Act, 1957 it clearly shows that as per section 22 of MMDR Act, no Court shall take cognizance for any offence under this act or any rules made there under except upon the complainant in writing made by a person authorized in this behalf by the

Central Government or the State Government. In order to institute prosecution under MMDR Act, it is incumbent on the prosecution to prove that authorized person only got filed the complaint U/Sec.22 and after proof of such authorization only, the complaint made by such authority will obtain sanctity for consideration

U/Sec.190 Cr.P.C. So, for prosecution of offence for contravention of any rule under MMDR Act, the proof of authorization held by a person making complaint by the State or Central Government, shall be the condition precedent or else the proceedings shall lapse for non-compliance of Sec.22 of MMDR Act. In this regard,

I also rely upon the principle laid down in the decision held by Honourable

Supreme Court of India in Crl.Appeal 1920 of 2019 Kanwarpal Singh

Vs.State of Uttar Pradesh and another reported on December 18, 2019.

In the said decision, the Supreme court categorically held that” the prosecution and cognizance U/Sec.21 (ii) of Mines and Regulation Act is not be valid and justified in the absence of authorization and upholding cognizance of the offence taken by the Magistrate U/Sec.379 IPC and Sec.3 of PDPP Act.

In this present case on hand, no authorization was obtained from the police officials prior to the filing of the complaint under MMDR Act as such, the available evidence on record not even be looked into with regard to the offence punishable

U/Sec.21(ii) of MMDR Act. Hence, no offence is made out U/Sec.21(ii) of MMDR

Act. This point is answered in favour of the accused 1 to 3 and against the prosecution.

20. Whether the prosecution was able to prove the guilt of the accused for the offence U/s 379 IPC and Section 3 of PDPP Act?

In order to prove the offence under section 379 of I.P.C., the prosecution has to prove that the accused intending to take dishonestly the sand from the Government land without the consent of the Government and moved the property in order to such taking they said to commit theft.

In order to prove the offence under section 3 of PDPP Act, the prosecution has to prove that the accused by loading and transport the sand (or) sand gravels from Gundlakamma vaagu thereby, committed mischief in respect of the public property.

21.According to PW.1 on 06.08.2021, at about 8.30 P.M., as per the instructions of the Inspector, SEB, JD team, he started from SEB station along with PW.2 and PW.3 in their motorcycles and reached Sivalayam, Kolasanakota village by 9.00 P.M. and started checking of vehicles and observed M.O.1 loaded with sand weighing about three tons which was proceeding towards Maddipadu from Gundlakamma vaagu and during his enquiry accused revealed his name and identity particulars and further confessed that he is transporting the sand without any license or receipt then on informing him the transportation of sand in M.O.1 without any license or receipt is an offence he seized M.O.1 loaded with sand from the custody of accused under cover of Ex.P1.

22.PW.2 and PW.3 the SPOs of SEB, JD team, supported and corroborated the evidence of PW.1 in all aspects.

23.It is the contention of the prosecution that SEB officials try to secure mediators prior to drafting procedure of Ex.P1 as they could not secure mediators they drafted Ex.P1. PW.1 in his cross-examination has stated that he sent PW.3 to secure mediators but it was in vain. PW.2 and PW.3 in their cross-examination had stated that they did not try to secure mediators. Further, PW.1 also admitted that he did not mention in Ex.P1 that he try to secure mediators. The above evidence on record shows that PW.1 not even made any attempt to secure mediators, for the best reasons known to him.

24.Securing of mediators is a mandate U/Sec.100(4) Cr.P.C and the object of Sec.100(4) Cr.P.C is search and seizure must be conducted in the presence of two respectable local inhabitants and but Ex.P1 shows that PW.1 not even made an attempt to secure mediators and further they did not assign any reasons for not securing mediators as such basing on the oral testimony of

PW.1 and PW.2 without any corroboration from independent witnesses is not useful to the case of the prosecution.

25.In this regard, it is pertinent to mention here the relevant citation of the Honourable Supreme Court in this aspect in the case of State Vs.Arun reported in AIR 2003 SC 801 in which it has held that “ when there are no independent witnesses from locality, prosecution has to offer reasonable explanation for non-securing the mediators. Non-examining of independent mediators is a fatal to the prosecution version and such procedure drafted even cannot be considered in view of the bar under section 25 and 27 of Indian

Evidence Act. As per section 25, 27 of Indian Evidence Act any confession made

before Police Officer is inadmissible except to that extent which leads discovery of

any new fact.

But in the present case the police did not disclose any new fact basing on alleged confessional statement as such the alleged confessional statement which was said to be recorded under Ex.P1 by PW.1 cannot be looked into and as such it is hit by Section 25 of Indian Evidence Act.

26.PW.1 admitted that there are residential houses near to the scene of offence and there are public in Kolasanakota village. PW.7 also admitted the same in his cross-examination. Further no reason was assigned for not securing mediators even though there are armful opportunities to secure mediators.

27.PW.4 and PW.8 the independent witnesses did not support the case of prosecution and hence their evidence is not useful to the case of prosecution.

28.As per the evidence of PW.5 she enquired the accused in the police station and accused confessed before her in the police station that he was caught hold by the police while he was transporting sand in M.O.1 and thereafter police recovered the same under Ex.P1 and further she also signed in the blank papers in the police station itself.

29.PW.6 another mediator did not support the case of prosecution and he is simply stated at about few months back he went to the police station and at their request he signed in drafted papers in the police station itself. Hence, his evidence is not useful to them.

30.Except PW.7 none of the witnesses supported the case of prosecution with regard to drafting of scene observation mahazar and issuance of certificate

Ex.P15 by V.R.O. stating that the land which was dug by the accused is a

Government land. As per the evidence of PW.7 accused did not accompany him to the place of digging, then how he identified the place of digging in the absence of accused. Hence, the evidence of PW.7 with regard to drafting of Ex.P13 is not believable.

31.Further, as per the prosecution version PW.5 herself got issued Ex.P15 stating that the land in which the accused dug the sand is the Government land.

But as per the evidence of PW.5, she signed in blank papers as such the evidence of PW.5 with regard to issuance of Ex.P15 is not believable.

32.On perusal of the entire evidence on record, there are several lacunas and infirmities in the evidence of PW.1 to PW.3, PW.5 and thus their evidence cannot be looked into due to lack of corroboration from independent witnesses.

This point is answered in favour of accused.

IN THE RESULT:

33.In view of the above foregoing discussion, it clearly shows that the prosecution miserably failed to prove the guilt of the accused for the offences punishable u/Sec.379 of IPC, Sec.21(ii) of MMDR Act and Sec.3 of PDPP Act.

34.In the result, accused is found not guilty for the offences u/Sec.379 of

I.P.C., Section 21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act and accordingly, he is acquitted u/Sec.248(1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months from the date of this Judgment as per section 437-A of the Criminal Procedure Code. M.O.1 which was given to the interim custody to its registered owners will become absolute after expiry of the appeal time.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, on this the 11 th day of January, 2022.

Sd/- S.C. Kamala /-

Judicial Magistrate of I Class,

Spl. Mobile Court, Ongole.

MEMO OF EVIDENCE

Witnesses examined

For Prosecution: For Defence: Nil

PW.1: M. Sunil Babu

PW.2: K. Kishore

PW.3: Sk. Shakeel

PW.4: N. Suresh

PW.5: B. Ramanujamma

PW.6: T. Narasimha Rao

PW.7: T. Venkateswarlu

PW.8: G. Chandra Mohan

Exhibits marked

For Prosecution:

Ex.P1: Special Report

Ex.P2: 161(3) Cr.P.C. statement of PW.4

Ex.P3: Signature of PW.5 in confession statement of the accused dt:06.08.2021 at about 10.30 A.M.

Ex.P4: Signature of PW.5 in Scene observation mahazar dt:07.08.2021 at about 10.00 A.M.

Ex.P5: Signature of PW.5 in auction proceedings dt:28.08.2021, at about 10.00

A.M.

Ex.P6: Signature of PW.5 in certificate

Ex.P7: Signature of PW.6 in confession statement of the accused dt:06.08.2021 at about 10.30 A.M.

Ex.P8: Signature of PW.6 in Scene observation mahazar dt:07.08.2021 at about 10.00 A.M.

Ex.P9: Signature of PW.6 in auction proceedings mahazar dt:28.08.2021 at about 10.00 A.M.

Ex.P10: F.I.R. in Cr. No. 165/2021

Ex.P11: Confession statement of accused

Ex.P12: Rough sketch

Ex.P13: Scene observation mahazarnama

Ex.P14: Rough sketch

Ex.P15: Certificate issued by the V.R.O.

Ex.P16: Auction mahazarnama, Dt:28.08.2021 at 10.00 A.M.

Ex.P17: Challan No.51177548232021

Ex.P18: 161(3) Cr.P.C. statement of PW.8

For Defence: Nil

Material Objects Marked:

M.O.1 : Tractor bearing No. AP 03 TD 2372 and trailer bearing No. AP 27 TZ 1831

Sd/- S.C. Kamala /-

Judicial Magistrate of I Class,

Spl. Mobile Court, Ongole.

// True copy //

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

CALENDAR & JUDGMENT IN C.C.NO. 2132 of 2021

1. Date of offence: 06-08-2021

2. Date of report/complaint: 07-08-2021

3. Date of apprehension of appearance : 25-10-2021 of accused

4. Date of release of accused on bail : --

5. Date of commencement of trial: 09-11-2021

6. Date of close of trial: 06-01-2022

7. Date of Judgment: 11-01-2022

8. Complainant: Sub-Inspector of Police,

Maddipadu P.S. (Cr. No.165/2021)

9. Description of Accused:

Dokka Timothi @ Bharath @ Diselodu, S/o Chinna Ankaiah, age 21 years, SC Madiga by caste, Kolachanakota Village, Maddipadu Mandal. Driver of tractor bearing No. AP 03 TD 2372 and trolley No. AP 27 TZ 1831

10. Offence: U/Sec.379 of IPC, Sec.21(ii) of

MMDR Act, Sec.3 of PDPP Act

11. Plea of Accused: Not guilty

12. Finding of the Court: Found not guilty

13. Sentence or Order:In the result, accused is found not guilty for the offences u/Sec.379 of I.P.C., Section 21(ii) of M.M.D.R. Act and Sec.3 of

P.D.P.P. Act and accordingly, he is acquitted u/Sec.248(1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months from the date of this

Judgment as per section 437-A of the Criminal Procedure Code. M.O.1 which was given to the interim custody to its registered owners will become absolute after expiry of the appeal time.

14. Fine amount: ---

15. Explanation for the delay:This case was taken on file on 30-09-2021. On 25-10-2021 copies of documents are furnished to accused as required u/sec.207

Cr.P.C. On 05-11-2021 the accused was examined u/Sec.239 of the Cr.P.C and the charges for the offences punishable u/Sec.379 of IPC, Sec.21(ii) of MMDR Act and

Sec.3 of PDPP Act has been framed and the contents are read over and explained to him in Telugu, for which he denied, pleaded not guilty and claimed to be tried.

On behalf of prosecution, PW.1 to PW.8 were examined and Exs.P1 to P18,

M.O.1 were marked, and prosecution side evidence closed. On 21-12-2021 accused was examined u/Sec.313 Cr.P.C explaining the incriminating material available against him, for which he denied and reported no defence evidence. On 06-01-2022 arguments heard. Judgment pronounced in open Court on 11-01-2022. Hence, the delay.

Sd/- S.C. Kamala /-

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

Copy Submitted to:

The Hon'ble I-Addl. District & Sessions Judge, Ongole.

// True copy //

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I-CLASS,

MOBILE COURT :: ONGOLE.

Present :: Smt. S.C. Kamala, Judl. Magistrate of I Class, Spl. Mobile Court, Ongole.

Tuesday, this the 11 th day of January, 2022

Calendar Case No. 2116 of 2021

Between:

The State, represented by Sub-Inspector of Police,

Maddipadu Police Station.... Complainant

Vs.

Swarna Prudhvi Raj, S/o Immaniyelu, age 31 years, SC Mala by caste, Maddiralapadu Village, N.G. Padu Mandal, Driver of lorry bearing No. AP 07 TG

4971 ... Accused

This case coming on 06-01-2022 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the Complainant and of

Sri R. Kesava Rao, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub Inspector of Police, Maddipadu police station has filed charge sheet against the accused in Cr. No.47/2021 for the offences punishable u/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act, 1957, Sec.3 of P.D.P.P. Act.

2.The case of the prosecution in brief is that on 15-03-2021, accused loaded the sand at Polavaram-9 sand reach with the permission vide transit No.

SIAP07TG4971213150916378378, dated:05.03.2021, time: 09:16:37 and unload the same at Addanki village and again he visited the Polavaram-9 sand reach stolen away the sand from the Government sand weighing nearly 25 tons from the Government sand reach in a tipper bearing registration No. AP 07 TG 4971 and transporting the same to Yedugundlapadu sand depot. At about 5.00 P.M.

Lw.1-K. Ramesh while inspecting the tipper he came to know that the accused is transporting the sand illegally for the second time on the same bill and on 2 informing him the transportation of the sand without permit or license is an offence and he seized the tipper loaded with sand from the possession of accused under cover of special report.

Basing on the special report, Lw.6-M. Ramesh, Head Constable, registered the case and investigated into. During the course of investigation, investigating officer examined and recorded the statements of witnesses and served 41(A)

Cr.P.C notices on the accused. Later, he auctioned of the sand for an amount of

Rs.10,500/- and the same was deposited online challan through CFMS

No.41426738952020, dated:19.03.2021 and on 01-04-2021 he handed over the seized vehicle to it registered owner as per the order of this Hon’ble Court. On completion of investigation and on verifying the investigation done by Lw.6-M.

Ramesh, Lw.7-Y. Nagaraju, Sub Inspector of Police, Maddipadu police station got filed the charge sheet against the accused. Thereby, the accused has committed the offences U/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P.

Act.

3.The case was taken on file for the offences U/Sec.379 of I.P.C.,

Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act against the accused.

4.After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C were furnished to him.

5.The accused was examined u/Sec.239 Cr.P.C. and the charges for the offences U/Sec.379 of I.P.C., Sec.21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act were framed against the accused have been framed and the contents are read over and explained to him, for which he pleaded not guilty and claimed to be tried.

6.In pursuance of the case of the prosecution, the prosecution has examined Pws.1 to 5 and got marked Exs.P1 to P6, M.O.1. The learned A.P.P has given up the evidence of M.V. Koteswara Rao (Lw.2) and Y. Nagaraju (Lw.7).

3

7. After the closure of the prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C. and the incriminating material was read over and explained to him and he has denied the same and reported no defence evidence.

8.Arguments Heard.

The learned A.P.P. has submitted before this Court that the oral evidence of PWs.1 to 5 coupled with Ex.P1 to Ex.P6, M.O.1 is sufficient to prove the guilt of the accused beyond all reasonable doubt and requested to convict the accused in the interest of justice.

It is the contention of the learned counsel for the accused that accused did not commit any offences and police got filed the present case against him for statistical purpose and requested to acquit the accused in the interest of justice.

9. Now the point that arises for determination is “ whether the

prosecution could bring home the guilt of the accused beyond all

reasonable doubt for the offences u/Sec.379 IPC, Sec.21(ii) of MMDR Act

and Sec.3 of PDPP Act?”

10.To prove the offence under Section.379 I.P.C., Sec.21(ii) of M.M.D.R.

Act, Sec.3 of P.D.P.P. Act, the prosecution has to establish that the accused dishonestly extracts sand, gravel and other minerals from the river which is the property of the states, out of the states possession, without consent, constitute an offence of theft, mischief causing damage to the public property.

11.PW1, the then Sub Inspector of Police, SEB, Ongole, deposed in his evidence on 15.03.2021, at about 04.00 P.M., on the instructions of Assistant

Commissioner, SEB, Ongole with regard with regard to illegal transportation of sand, himself along with Lw.2-M.V. Koteswara Rao and another constable started from the station in a Government hired vehicle and reached Doddavaram Village by 4.30 P.M. and started checking of vehicles and at that time they observed 4

M.O.1 loaded with sand proceeding towards Mallavaram to Ongole and on suspicion they stopped the said tractor with the help of his staff and during his enquiry accused shown receipt with to the sand and on perusal of the said receipt it shows the timings for transportation of the sand as 9.00 A.M. Then he again enquired the accused with regard to his personal details and as to why he is transporting the sand at that time, for which the accused revealed his name and identity particulars and further confessed that he already transported the sand in the morning and it is the second trip from Mallavaram reach. He also further deposed before this Court that on informing the accused the transportation of sand without any license or permit is an offence, he seized M.O.1 loaded with sand from the custody of accused under cover of Ex.P1 special report. Then they went to the police station and handed over the accused and case property in the police station.

12.PW.2, the V.R.A., in his evidence has stated that on 15-03-2021, at about 5.00 P.M., while himself along with PW.4 were present at Ankamma temple,

Doddavaram village, one police constable came to them and requested them to come to Sakthi Pitam and they got information with regard to transportation of sand and at his request they accompanied him and went to Sakthi Pitam and observed tipper loaded with sand and the police enquired the driver of the tipper lorry with regard to the sand but he cannot identify the driver of the tipper lorry as he was wearing mask and police shifted the lorry loaded with sand and police informed them that they will examine him in the police station but they did not examine him and obtained his signature.

13.PW.3, in his evidence has stated that on 19-03-2021, at morning hours, auction has been conducted on the said at Maddipadu police station premises and in the said auction he being the successful bidder purchased the sand for an amount of Rs.10,500/- and handed over the cash to the police.

5

14.PW.4, V.R.A., in his evidence has stated that on 15.03.2021, at about 5.00 P.M., while he was sitting near Poleramma temple along with PW.2 he observed a tipper lorry loaded with sand which was proceeding from West to East and the police stopped the tipper and shifted the tipper to the Maddipadu police station and police did not examine him.

15.PW.5, Head Constable of Maddipadu police station, in his evidence has stated that on 15.03.2021, at about 9.00 P.M., while he was acting as Station

House Officer, Maddipadu police station, PW.1 came to the police station and presented Ex.P1. Basing on Ex.P1 he registered a case in Cr. No.47/2021, for the offences u/Sec.379 of I.P.C., Sec. 21 (ii) of M.M.D.R. Act and Sec. 3 of P.D.P.P. Act and issued FIR to all concerned officers, served section 41(A) Cr.P.C. notices on accused 1 to 4 directing them to appear before the police station or before the

Court as and when called and required and then he examined and recorded the statement of PW.1 and Lw.2-M.V. Koteswara Rao in the police station itself. On the next day morning at about 11.00 A.M. he visited the scene of offence which is situated at Doddavaram village along with accused, examined the scene and drafted rough sketch, secured the presence of PW.2 and PW.4 with the help of his staff, examined and recorded their statements and then they returned to the police station.

He also further deposed before this Court that after obtaining permission from the Hon’ble Court, he conducted auction on the seized sand in the premises of police station and PW.3 purchased the sand in the said auction for an amount of Rs.10,500/- and he remitted the said amount in the District

Treasury Office vide challan No. 41426738952020 and he handed over M.O.1 to its owner as per orders of this Hon’ble Court. Further investigation done by Lw.7-

Y. Nagaraju, who verified the investigation done by him and found in on correct lines and got filed charge sheet against the accused.

6

16.Whether the prosecution was able to prove the guilt of the accused

for the offence punishable Sec.21(ii) of Mines & Minerals Development &

Regulation Act, 1957?

In order to prove the guilt of the accused for the above offence, the prosecution has to prove that the accused dishonestly committed theft of sand, gravels or minerals from the Government land and transporting the same in

M.O.1.

On perusal of the Mines & Minerals Development and Regulation Act, 1957 it clearly shows that as per section 22 of MMDR Act, no Court shall take cognizance for any offence under this act or any rules made there under except upon the complainant in writing made by a person authorized in this behalf by the

Central Government or the State Government. In order to institute prosecution under MMDR Act, it is incumbent on the prosecution to prove that authorized person only got filed the complaint U/Sec.22 and after proof of such authorization only, the complaint made by such authority will obtain sanctity for consideration

U/Sec.190 Cr.P.C. So, for prosecution of offence for contravention of any rule under MMDR Act, the proof of authorization held by a person making complaint by the State or Central Government, shall be the condition precedent or else the proceedings shall lapse for non-compliance of Sec.22 of MMDR Act. In this regard,

I also rely upon the principle laid down in the decision held by Honourable

Supreme Court of India in Crl.Appeal 1920 of 2019 Kanwarpal Singh

Vs.State of Uttar Pradesh and another reported on December 18, 2019.

In the said decision, the Supreme court categorically held that” the prosecution and cognizance U/Sec.21 (ii) of Mines and Regulation Act is not be valid and justified in the absence of authorization and upholding cognizance of the offence taken by the Magistrate U/Sec.379 IPC and Sec.3 of PDPP Act.

In this present case on hand, no authorization was obtained from the police officials prior to the filing of the complaint under MMDR Act as such, the available 7 evidence on record not even be looked into with regard to the offence punishable

U/Sec.21(ii) of MMDR Act. Hence, no offence is made out U/Sec.21(ii) of MMDR

Act. This point is answered in favour of the accused and against the prosecution.

17. Whether the prosecution was able to prove the guilt of the accused for the offence U/s 379 IPC and Section 3 of PDPP Act?

In order to prove the offence under section 379 of I.P.C., the prosecution has to prove that the accused intending to take dishonestly the sand from the Government land without the consent of the Government and moved the property in order to such taking they said to commit theft.

In order to prove the offence under section 3 of PDPP Act, the prosecution has to prove that the accused by loading and transport the sand (or) sand gravels from Government land thereby, committed mischief in respect of the public property.

18.According to prosecution on 15.03.2021, at about 4.00 P.M., on the instructions of the Assistant Commissioner, SEB, PW.1 along her staff went to detect illegal transportation of liquor and sand and reached Doddavaram village by 4.30 A.M. and at that time they observed M.O.1 loaded with sand proceeding from Mallavaram to Ongole and on suspicion PW.1 stopped M.O.1 with the help of his staff and enquired with regard to the sand in the tipper, for which the accused showed a receipt with regard to the sand and on perusal of the said receipt it shown the timings in the receipt mentioned as 9.00 A.M. Then he again enquired the accused with regard to his personal details and as to why he is transporting the sand at that time, for which accused revealed his name and identity particulars and further confessed that he already transported the sand in the morning and it s the second trip from Mallavaram reach and on informing him that transportation of sand without any license or receipt is an offence, he seized

M.O.1 loaded with sand under Ex.P1.

8

19.It is the contention of the prosecution that SEB officials try to secure mediators prior to drafting procedure of Ex.P1 as they could not secure mediators they drafted Ex.P1. As can be seen from the record, PW.1 in his cross- examination has stated that he deputed Lw.2-M.V. Koteswara Rao to secure mediators and the said Koteswara Rao returned to the scene and informed him that V.R.O. and V.R.A. are not available in Doddavaram village and he did not trye to stop any vehicle at the scene of offence and requested the persons who were travelling in the said vehicles to act as mediators.

20.PW.1 admitted that the scene of offence is a busy locality and there will be availability of the public. PW.5 also admitted the same in his cross- examination. Further, no reason was assigned for not securing mediators even though there are armful opportunities to secure mediators. If really PW.1 has made an attempt to secure mediators the same will be reflected in Ex.P1 but nowhere it had been recited in Ex.P1 with regard to attempt to secure mediators and further no reason was also assigned by him for non-securing mediators, as such the evidence of PW.1 that he made an attempt to secure mediators prior to drafting of Ex.P1 is not believable.

21.Securing of mediators is a mandate U/Sec.100(4) Cr.P.C and the object of Sec.100(4) Cr.P.C is search and seizure must be conducted in the presence of two respectable local inhabitants and but Ex.P1 shows that PW.1 not even made an attempt to secure mediators and further they did not assign any reasons for not securing mediators as such basing on the oral testimony of

PW.1 and PW.2 without any corroboration from independent witnesses is not useful to the case of the prosecution.

22.In this regard, it is pertinent to mention here the relevant citation of the Honourable Supreme Court in this aspect in the case of State Vs.Arun reported in AIR 2003 SC 801 in which it has held that “ when there are no 9 independent witnesses from locality, prosecution has to offer reasonable explanation for non-securing the mediators. Non-examining of independent mediators is a fatal to the prosecution version and such procedure drafted even cannot be considered in view of the bar under section 25 and 27 of Indian

Evidence Act. As per section 25, 27 of Indian Evidence Act any confession made

before Police Officer is inadmissible except to that extent which leads discovery of

any new fact.

But in the present case the police did not disclose any new fact basing on alleged confessional statement as such the alleged confessional statement which was said to be recorded under Ex.P1 by PW.1 cannot be looked into and as such it is hit by Section 25 of Indian Evidence Act.

23.PW.2/V.R.A. in his evidence has stated that on 15.03.2021, at about 5.00 P.M., while himself and PW.4 present at Ankamma temple, Doddavaram village, one police constable came to them and requested them to come to the

Sakthi Pitam and at their request they went to Sakthi Pitam and observed tipper lorry loaded with sand and police are enquiring driver of the tipper lorry with regard to the sand and he also further deposed that he cannot identify the driver of the tipper lorry as he was wearing mask.

24.PW.4 another V.R.A. in his evidence has stated that while he was sitting near Poleramma temple along with PW.2 he observing a tipper lorry loaded with sand proceeding from West to East and the police stopped the tipper and shifted the tipper to the Maddipadu police station.

25.None of the witnesses deposed in their presence the accused confessed before them with regard to transportation of the sand illegally, as such their evidence is not useful to the case of prosecution.

26.PW.3 who is said to be successful bidder as per prosecution, in his evidence has stated that on 19.03.2021 he purchased the sand for an amount of 10

Rs.10,500/- in the auction which was conducted in the Maddipadu police station premises and handed over the amount to the police and his evidence is helpful to the prosecution only to an extent of purchase of sand in a public auction. PW.3 in his evidence has stated that he observed the accused in the police station premises at the time of auction, but PW.5 nowhere in his evidence has stated that he conducted auction in the presence of the accused and it shows the evidence of

PW.3 with regard to the presence of the accused at the time of auction is mere exaggeration and there is no need to give much importance to that aspect and even assuming accused was present at the time of auction and mere presence of the accused in the police station at the time of auction cannot connect him with the offence. As per the version of PW.1 the accused was transporting the sand for the second trip from Mallavaram sand reach basing on the receipt. But the said receipt was not seized by PW.1, for the best reasons known to her. Further, no reason was assigned what made him to seize the said document and further no reason was assigned by the investigating officer what prevented him to produce said receipt before this Court in support of the version of prosecution.

27.On perusal of the entire evidence on record, there are several lacunas and infirmities in the evidence of PW.1 to PW.3 and thus their evidence cannot be looked into due to lack of corroboration from independent witnesses. This point is answered in favour of accused.

RESULT :

28. In view of the above foregoing discussion, it clearly shows that the prosecution miserably failed to prove the guilt of the accused for the offences punishable u/Sec.379 of IPC, Sec.21(ii) of MMDR Act and Sec.3 of PDPP Act.

29.In the result, accused is found not guilty for the offences u/Sec.379 of

I.P.C., Section 21(ii) of M.M.D.R. Act and Sec.3 of P.D.P.P. Act and accordingly, he is acquitted u/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall remain in 11 force for a period of six months from the date of this Judgment as per section 437-A of the Criminal Procedure Code. M.O.1 which was given to the interim custody to its registered owner will become absolute after expiry of the appeal time.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, on this the 11 th day of January, 2022.

Sd/- S.C. Kamala /-

Judicial Magistrate of I Class,

Spl. Mobile Court, Ongole.

MEMO OF EVIDENCE

WITNESS EXAMINED

For prosecution: For Defence: Nil

PW.1: K. Ramesh PW.2: P. Narasaiah PW.3: P. Sai Sumanth PW.4: P. Nagabhushanam PW.5: M. Ramesh

Exhibits Marked

For Prosecution: Ex.P1: Special Report Ex.P2: 161(3) Cr.P.C. statement of PW.2 Ex.P3: 161(3) Cr.P.C. statement of PW.2 Ex.P4: FIR in Cr. No.47/2021 Ex.P5: Rough sketch. Ex.P6: Challan No. 41426738952020

For Defence: Nil

Material Objects Marked:

M.O.1 : Tipper lorry bearing No. AP 07 TG 4971

Sd/- S.C. Kamala /-

Judicial Magistrate of I Class,

Spl. Mobile Court, Ongole. // True copy //

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

12

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

CALENDAR & JUDGMENT IN C.C.NO. 2116 of 2021

1. Date of offence: 15-03-2021

2. Date of report/complaint: 15-03-2021

3. Date of apprehension of appearance : 25-10-2021 of accused

4. Date of release of accused on bail : --

5. Date of commencement of trial: 15-11-2021

6. Date of close of trial: 06-01-2022

7. Date of Judgment: 11-01-2022

8. Complainant: Sub-Inspector of Police,

Maddipadu PS (Cr. No.47/2021)

9. Description of Accused:

Swarna Prudhvi Raj, S/o Immaniyelu, age 31 years, SC Mala by caste, Maddiralapadu Village, N.G. Padu Mandal, Driver of lorry bearing No. AP 07 TG 4971

10. Offence: U/Sec.379 of IPC, Sec.21(ii) of

MMDR Act, Sec.3 of PDPP Act

11. Plea of Accused: Not guilty

12. Finding of the Court: Found not guilty

13. Sentence or Order:In the result, accused is found not guilty for the offences u/Sec.379 of I.P.C., Section 21(ii) of M.M.D.R. Act and Sec.3 of

P.D.P.P. Act and accordingly, he is acquitted u/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months from the date of this Judgment as per section 437-A of the Criminal Procedure Code. M.O.1 which was given to the interim custody to its registered owner will become absolute after expiry of the appeal time.

14. Fine amount: ---

15. Explanation for the delay:This case was taken on file on 29-09-2021. On 25-10-2021 copies of documents are furnished to accused as required u/sec.207

Cr.P.C. On 28-10-2021 the accused was examined u/Sec.239 of the Cr.P.C and the charges for the offences punishable u/Sec.379 of IPC, Sec.21(ii) of MMDR Act and

Sec.3 of PDPP Act against the accused has been framed and the contents are read over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried. On behalf of prosecution, PW.1 to PW.5 were examined 13 and Exs.P1 to P6, M.O.1 was marked, and prosecution side evidence closed. On 29-12-2021 accused was examined u/Sec.313 Cr.P.C explaining the incriminating material availabl0e against him, for which he denied and reported no defence evidence. On 06-01-2022 arguments heard. Judgment pronounced in open Court on 11-01-2021. Hence, the delay.

Sd/- S.C. Kamala /-

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

Copy Submitted to:

The Hon'ble I-Addl. District & Sessions Judge, Ongole.

// True copy //

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

IN THE COURT OF THE SPL.JUDICIAL MAGISTRATE OF FIRST CLASS:

EXCISE COURT, ONGOLE.

Present:- Smt S.C. Kamala, L.L.B.,

Judicial Magistrate of I Class,

Spl.Mobile Court, Ongole. FAC Spl. Judicial Magistrate of I Class, Excise Court, Ongole.

Thursday, this the 24th day of December, 2020.

C.C.No.9 of 2020

State: Represented by the Sub-Inspector of police, Prohibition and Excise P.S Chimakurthy ….Complainant

Vs.

Setty Venkata Subba Rao, s/o Srinivasulu, age 32 years, caste Balija, R/o Ongole, Prakasam District. ….Accused

This case coming on this day for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the

Complainant and of Sri A.V.Rama Krishna, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Proh. & Excise P.S. Chimakurthy has filed charge sheet against the sole accused in Cr.No.41/2019 for the offence punishable under Section.34 (a) of A.P. Excise Act.

2. The case of the prosecution in brief is that on 08-04-2019 at about 3.30 a.m during route watch, LW6 (V.Sreenivasulu,Prohibition &

Excise Inspector, Chimakurthy) along with his staff proceeded for deducting Prohibition and Excise offences, reached Kalavartu opposite to Pratibha Junior College on main road of Pernamitta village of

Santhanuthalapadu Mandal and at about 4.15 a.m they observed accused who was riding motor cycle by keeping plastic gunny bag on the petrol tank coming towards them, and on suspicion when

LW6 (V.Sreenivasulu,Prohibition & Excise Inspector, Chimakurthy) tried to stop the bike the accused escaped from the scene by leaving the gunny plastic bag there itself as LW6 traced out the accused, he verified the vehicle and found the said vehicle as Bajaj CT 100 bearing registration number is AP 27 N 7966 and also verified vehicle tool box but could not find any required documents and during his further enquiry he opened the plastic gunny bag with the help of his staff and observed the said bag containing Officers Choice Whisky each 180 ml(30) and observing the labels he noticed the said bottles are duty paid liquor and the seals which are affixed on the caps of the bottles were tampered there upon, he collected a bottle as sample and seized remaining contraband under the cover of special report and returned to the station along with the seized property. Basing on the special report, the case was registered and investigated into and during the course of investigation, the Investigation Officer issued FIR to all concerned officers and he also deputed LW3 Y.Srinivasulu to enquire at

Regional Transport Authority with the help of the registration number of the motor cycle and obtain the particulars of vehicle owner.

( ii)On 17-04-2019 LW6 along with his staff proceeded to the house bearing Dr.No.6-257, near Anjaneyaswamy temple, 1st line of

Maruthi Nagar, Ongole and observed accused, who on seeing them tried to escape but LW6 detained him with the help of his staff and during his enquiry the said person revealed him that at about last one week Excise police searching for him in liquor case then LW6 deputed

LW5 to secure mediators and in the presence of LW4 M.Vaddikasulu and LW5 S.Lakshmaiah, then he recorded the confession statement of the accused in the presence of the mediators under the cover of

Mahazarnama and arrested the accused and informed him the grounds and thereafter 41-A Cr.P.C notice were served on him to attend before the court as and when required.

(iii) On receiving chemical analysis report and on producing the property before Deputy Commissioner of Prohibition & Excise, Ongole for confiscation and on completion of investigation, LW7 M.Sukanya filed the charge sheet against the accused. Thereby, the accused has committed the offence U/Sec.34(a) of A.P.Excise Act.

3. The case was taken on file for the offence u/Sec.34 (a) of A.P.

Excise Act against the sole accused.

4. After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C. were furnished to them.

5. The accused was examined u/Sec.239 Cr.P.C. and the charge for the offence under Section.34 (a) of A.P. Excise Act against the accused is framed, read over and explained to him in Telugu. He has pleaded not guilty and claimed to be tried.

6. In pursuance of the case of the prosecution, the prosecution has examined PWs.1 to 4 and got marked Exs.P1 to P.8 and M.O.1 also marked. The learned A.P.P. has given up the evidence of

Y.Srinivasulu, M.Sukanya (Lws.3 and 7 respectively).

7. After the closure of the prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C. and the incriminating material was put to him. He has denied the same and reported no defence evidence.

8. Arguments Heard.

The learned A.P.P. has submitted before this Court that the oral evidence of PWs.1 and 2 coupled with Ex.P.1 which was marked on behalf of them is sufficient to prove the guilt of the accused beyond all reasonable doubt and she prayed to convict the accused.

The learned counsel for the accused submitted that excise officials failed to secure the mediators at the time of the seizure even though the scene of offence is a busy locality which clearly shows that they have foisted the present case for statistical purpose and requested to acquit the accused.

9. Now the point that arises for determination is:-

“ whether the prosecution could bring home the guilt of

the accused beyond all reasonable doubt for the offence

u/Sec.34 (a) of A.P. Excise Act.?”

10. To prove the offence under Section.34 (a) of A.P. Excise Act, the prosecution has to establish :

(i)that the accused herein was transporting, exporting, importing, manufacturing, collecting or possessing any intoxicant

(ii)the said possession (or) transportation of such intoxicant is without valid permit (or) license in contravention under the act.

11. PW.1 and PW2, the mediators to the case of the prosecution in their evidence have stated that they do not know the accused and at the instance of police they signed in some drafted papers and identified their signatures Ex.P1 and Ex.P2 and further they have stated that they do not know the contents of it. As PW1 and PW2 did not support the case of the prosecution, they were cross-examined by the APP but nothing was elicited during their cross-examination.

12. PW.3, the then Prohibition and Excise Inspector, Chimakurthy in his evidence has stated that, on 08-04-2019, at about 3.00 a.m himself along with PW4 and other staff started in private Government vehicle by engaging private driver for conducting route watch and reached Kalavartu opposite to Prathiba Junior College on main road of

Pernamitta village of S.N padu mandal by 3.30 a.m and started conducting vehicle checking and at about 4.15 a.m observed one person coming on motor cycle from S.N padu carrying one white plastic gunny bag on the petrol tank and when he tried to stop him the accused escaped from the scene leaving the crime vehicle there itself and on his instructions LW3 Y.Srinivasulu tried to caught hold the accused but it was in vain. Then he tried to secure mediators with the help of his staff Y.Srinivasulu from the nearby areas to the scene of offence and as it was early hours they could not secure mediators and then he opened the bag and observed 30 Officer Choice liquor bottles of 180 ml each. He also further deposed that he identified the said person who ran away at the scene, was the accused in the present case. He also further deposed that he verified the registration number of Motor cycle ie., Bajaj CT 100 as AP 27 N 7966 and he also searched for the documents in the motor cycle but he could not find any documents pertaining to the motor cycle. Then he also further deposed that he collected one bottle as sample after it was duly labelled for chemical analysis and seized remaining contraband, plastic bag and motor cycle under the cover of Ex.P3 which was scribed by PW4 on his dictation and returned to the station along with the case property.

He also further deposed that basing on Ex.P1, he registered the case in Cr.No.41/2019 for the offence punishable U/Sec.34(a) of

A.P.Excise Act and got issued FIR to all the officers concerned. Then he forwarded the M.O.1 along with Ex.P5 requesting to forward the same to the Chemical Examiner along with Ex.P6. The Government

Chemical Examiner after examining M.O.1 gave his opinion stating that the seized M.O.1 is a Indian Liquor. He also produced remaining contraband before Deputy Commissioner of Prohibition & Excise,

Ongole for confiscation and the said property was confiscated to the

State as per the orders of Deputy Commissioner of P & E, Ongole.

He also further submitted that upon receiving credible information about the person who escaped from the scene of offence, they went to the house No.6-257, Maruthinagar, 1st lane, Near

Anjaneyaswamy temple and observed a person who was aged about 30 years try to escape on seeing him then he caught hold of him with the help of his staff and during enquiry, the said person informed him that he escaped from the clutches of Prohibition & Excise officials, with a fear that he may be arrested and then he send LW5 S.Lakshmaiah to secure mediators in the nearby area of Maruthi nagar and on securing

PW1 and PW2, LW5 S.Lakshmaiah returned to the scene and they also admitted before him to act as mediators for arrest and recording of confession statement of accused and in their presence accused revealed his name and other details and also confessed that on 08-04- 2019 in the early hours, while he was proceeding on his motor cycle along with gunny bag he escaped by leaving the motor cycle at

Kalavartu on seeing the Excise officials and he also further confessed that he purchased the said liquor bottles from the nearby wine shops in order to sell the same for higher rates for personal profit at S.N

Padu in view of general elections. PW3 further deposed before this court that on informing the grounds, he arrested the accused in the presence of mediators under the cover of Ex.P8 and returned to the station and the successor LW4 M.Sukanya on verifying his investigation got filed the charge sheet against the accused.

13. PW4, the then Prohibition and Excise constable, Chimakurthy supported the version of PW3 with regard to conducting of raid on 08- 04-2019 at 3.00 a.m and observing a person who was coming on

Motor cycle carrying one white plastic gunny bag on the petrol tank and escape of the said person leaving the crime vehicle and the gunny bag there itself, collecting a bottle as sample and seizure of remaining contraband under the cover of Ex.P3 and so on.

14. According to PW3 on 08-04-2019 at about 3.00 a.m himself along with PW4 and other staff started in the station in order to conduct route watch in view of general elections and reached Kalavartu opposite to Pratibha Junior College, main road of S.N.Padu and started checking of vehicles by 3.30 and at about 4.15 a.m he observed accused riding motorcycle carrying a white plastic bag on the petrol tank and on seeing excise officials he escaped from the scene leaving the motor bike and the contraband even though they have made attempts to catch him but it was in vain. Then PW3 tried to secure mediators in the nearby areas with the help of his staff but it was in vain as such he opened one gunny bag and observed 30 Officer choice liquor bottles of 180 ML and selected one liquor bottle as sample and after observing due formalities he seized remaining contraband including motorcycle under the cover of under Ex.P3 and returned to the station.

On receiving credible information himself, along with his staff went to the house bearing D.No.6-257, Maruthinagar, 1st lane, Near

Anjaneyaswamy temple and observed the accused who again tried to escape on seeing them but he was caught holded with the help of his staff and during his enquiry the accused revealed is name and details and further confessed that he escaped leaving the liquor bottles and motor cycle on seeing the excise officials then PW3 secured mediators ie., PW1 and 2 with the help of his staff, arrested the accused on recording his confession statement under Ex.P8. PW1 and PW2, the mediators in their evidence stated that they do no know about the facts of this case and they signed in the papers at the instance of the police and identified their signatures.

15.PW3 in his cross-examination has admitted that the scene of offence is a busy locality with heavy traffic further he also admitted that it is not mentioned in Ex.P3 that he tried to secure mediators and if he really he has tried to secure mediators the same will be reflected in Ex.P3. As such the evidence of PW3 and PW4 with regard to trying to secure mediators at the scene is unbelievable and not credit worthy.Further PW3 in his cross-examination has stated that there is every chance of breaking of glass bottles if they are thrown on the ground and further nothing was brought on record about breaking of any liquor glass bottle.

16.Admittedly, M.O.1 is a duty paid liquor and it is easily available in the wine shop. As can be seen from the record, there are no independent witnesses at the time of seizure and it clearly shows that they did not make any bonafide efforts to secure mediators and the Excise officials also failed to give reasonable explanation with regard to non securing of any mediators at the time of alleged seizure.

As such the seizure of the contraband in the manner prescribed by

PW3 and PW4 under Ex.P3 is not believable.

17.The Honourable High Court of Andhra Pradesh in the case of

Mudavath Mothia Vs. State of Andhra Pradesh reported in 2005(1) ALD (NOC)52 AP held that :- “once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials.

When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, Ex. P5 panchanama is hit by Sections 25,27 of the Indian EVIDENCE

ACT, 1872 and Section 161 of Cr. P. C”.

18.PW3 alone deposed before this court that he arrested the accused, on recording his confession statement in the presence of PW1 and PW2 under Ex.P8 but PW1 and PW2 did not support their case and once Excise officials are interested with the investigation of cognizance offence under A.P.Excise Act they become police officials as such confession recorded by them in the proceedings is inadmissible and even cannot be considered in view of U/Sec.25 and 27 of Indian

Evidence Act.

19.In this regard, it is pertinent to mention here the relevant citation of the Honourable Supreme Court in this aspect the State Vs.

Arun reported in AIR 2003 SC 801, in the above said citation

the Supreme Court held that When there are no independent witnesses from the locality, the prosecution must offer reasonable explanation. But in this present case, Excise officials failed to give any reasonable explanation with regard to non securing of independent witnesses. Even assumed if they have tried to secure mediators and they did not secure as it was early hours the same would have been reflected in Ex.P1 and in the absence of the same it also create a cloud of suspicion on the manner prescribed with regard to arrest and seizure of contraband under Ex.P1. As per Section 100(4) of Cr.P.C search and seizure must be conducted in the presence of two reasonable local inhabitants as the place of offence is amicable to secure independent persons and it is not an isolated place and not securing of independent witnesses is a fatal to the case of the prosecution.

20.Basing on the evidence of Excise officials in the absence of corroboration of any other independent witness, it is not safe to conclude that prosecution proved the guilt of the accused beyond reasonable doubt.

21.In view of above foregoing discussion, it clearly shows that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused is entitled for benefit of doubt.

22.In the result, the accused is found not guilty for the offence under Section.34 (a) of AP Excise Act and accordingly, he is acquitted U/Sec.248 (1) Cr.P.C. His bail bonds shall stand cancelled after the appeal time is over. M.O.1 shall be destroyed after expiry of appeal time.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court, on this the 24th day of December, 2020.

Sd/-S.C.Kamala/-

Judl.Magistrate of I Class,

Spl.Mobile Court, Ongole.

FAC Spl. Judl.Magistrate of I Class,

Excise Court, Ongole.

MEMO OF EVIDENCE

Witnesses examined for prosecution: for Defence:Nil PW.1: Sri D.Anji Reddy PW.2: Sri Sk.Mastan Vali PW3 : V.Srinivasulu PW4 : M.Vaddikasulu

Exhibits marked for prosecution: for Defence: Nil Ex.P1: Signature of PW1 on arrest mediatornama dt.17.4.19. Ex.P2: Signature on arrest mediatornama dt.17.4.19. Ex.P3: Special report dt.8-4-2019. Ex.P4: FIR. Ex.P5: Letter of request Ex.P6 : Letter of advice. Ex.P7 : Chemical analysis report. Ex.P8 :Mahazarnama dt.17.4.2019

Material Objects Marked: M.O.1 : Sample bottle.

Sd/-S.C.Kamala/-

Judl.Magistrate of I Class, Spl.Mobile Court, Ongole.

FAC Spl.Judl.Magistrate of I Class,

Excise Court, Ongole. // True Copy //

Judl.Magistrate of I Class, Spl.Mobile Court, Ongole. FAC Spl.Judl.Magistrate of I Class, Excise Court, Ongole.

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

EXCISE COURT, ONGOLE.

CALENDAR & JUDGMENT IN C.C.NO. 9 of 2020

1. Date of Offence: 08-04-2019

2. Date of report/complaint: 08-04-2019

3. Date of apprehension of appearance : : 24-01-2020 of accused

4. Date of release of accused on bail : 41 A Cr.P.C notice

5. Date of commencement of trial: 10-02-2020

6. Date of close of trial: 22-12-2020

7. Date of Judgment: 24-12-2020

8. Complainant: Prohibition & Excise Inspector Chimakurthy (Cr.No.41/2019)

9. Description of Accused: Setty Venkata Subba Rao, s/o Srinivasulu, age 32 years, caste Balija, R/o Ongole, Prakasam District.

10. Offence: U/Sec.34(a) of A.P.Excise Act.

11. Plea of Accused: Not guilty

12. Finding of the Court: Found not guilty

13. Sentence or Order: In the result, the accused is found not guilty for the offence under Section.34 (a) of AP Excise Act and accordingly, he is acquitted U/Sec.248 (1) Cr.P.C. His bail bonds shall stand cancelled after the appeal time is over. M.O.1 shall be destroyed after expiry of appeal time.

14. Fine amount: ---

15. Explanation for the delay: This case was taken on file on 02-01-2020. On 24-01-2020 copies of documents are furnished to accused as required u/sec.207 of the Cr.P.C. On 04-02-2020 the accused were examined u/s 239 of the Cr.P.C and the charge for the offences punishable under section 34(a) of A.P.Excise act have been framed against accused is read over and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried. PW1 to PW4 were examined and Ex.P1 to Ex.P8 were marked, and prosecution side evidence closed. On 22-12-2020 accused was examined under section 313 Cr.P.C explaining the incriminating material available against him, for which he denied and reported no defence evidence and on 23.12.2020 arguments heard. Judgment pronounced in open court on 24.12.2020. Hence, the delay.

Sd/- S.C.Kamala/-

Judl.Magistrate of I Class, Spl.Mobile Court, Ongole.

FAC Spl.Judl.Magistrate of I Class,

Excise Court, Ongole.

Copy Submitted to: The Hon'ble I-Addl.District & Sessions Judge, Ongole. // True copy //

SPL. JMFC, MOBILE COURT, ONGOLE.

FAC Spl.Judl.Magistrate of I Class,

Excise Court, Ongole.

CC .No.1368 of 2020

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I-CLASS, EXCISE

COURT:: ONGOLE. Present :: Smt.S.C.Kamala, Judl. Magistrate of I Class, Spl.Mobile Court, Ongole. FAC Special Judl. Magistrate of I Class, Excise Court, Ongole.

Wednesday, this the 30 th day of December, 2020

Calendar Case No.1368/2020

Between:

The State, represented by Sub-Inspector of Police,

Santhanuthalapadu Police Station.... Complainant

Vs.

Munagala Ramachandra Reddy, a/o Subbareddy, aged 39 years, Reddy by caste, r/o Maddulur village, S.N.Padu Mandal. Driver cum owner of the tractor & truck bearing No. AP 27 TY 6729 & 6895.

... Accused

This case coming on 22.12.2020 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the Complainant and of Sri I.Venkateswarlu, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Inspector of Police, Santhanuthalapadu police station has filed charge sheet against the accused in Cr.No.106/2020 for the offences punishable U/Sec.379 of IPC, Sec.21(ii) of Mines & Minerals Development &

Regulation Act, 1957, Sec.3 of PDPP Act and Sec.3 r/w 181 of M.V.Act.

2. The case of the prosecution in brief is that on 28-06-2020 at about 11.30 p.m on receiving credible information about illegal transporting of sand from Musi River of Maddulur village, LW4 A.Srinivasulu along with his staff proceeded towards Maddulur side, and observed one tractor with trailer loaded with sand bearing registration number AP 27 TY 6729 and AP 27 TY 6895 at ZPHS of Maddulur village then he stopped the tractor and enquired

CC .No.1368 of 2020

the accused and during his enquiry accused revealed his name and identity particulars and further admitted that he used to transport sand illegally from

Musi river area in his tractor and sold the same in some other places for higher rates to have wrongful gain without any permission or permit. Upon which he arrested the accused on recording his confession statement and seized the tractor-cum-trailer along with sand under cover of police proceedings.

Basing on the police proceedings, LW4 registered the same as a case in Cr.No.106/2020 for the offence U/Sec.379, 21(ii) of Mines and

Minerals Development & Regulation Act, Section 3 of PDPP Act, Sec.3 r/w 181 of MV Act of Santhanuthalapadu Police station on 28-06-2020 and forwarded FIR to all concerned officers and during his further investigation he also came to know that accused did not possess valid driving license. He served 41A Cr.P.C notice on the accused LW3 K.Sridhar Reddy conducted auction with the permission of the court and the sale proceedings were deposited in the treasury vide challan number 40048023612020. Upon completion of investigation LW5 D.Rajarao, Sub-Inspector of Police, S.N.Padu filed charge sheet against the accused. Thereby, the accused has committed the offence U/Sec.379 IPC, Section 21(ii) of Mines and Minerals Development & Regulation Act 1957, Section 3 of PDPP Act and Sec.3 r/w 181 MV act.

3. The case was taken on file for the offence u/Sec.379 of IPC,

Sec.21(ii) of Mines & Minerals Development & Regulation Act, 1957,Sec.3 of

PDPP Act and Sec.3 r/w 181 of M.V.Act against the Accused.

4. After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C. were furnished to him.

5. The accused were examined u/Sec.239 Cr.P.C. and the charge for the offence u/Sec.379 of IPC, Sec.21(ii) of Mines & Minerals Development &

CC .No.1368 of 2020

Regulation Act, 1957,Sec.3 of PDPP Act and Sec.3 r/w 181 of M.V.Act against accused is framed, read over and explained to him. He have pleaded not guilty and claimed to be tried.

6.In pursuance of the case of the prosecution, the prosecution has examined Pws.1 to 3 and got marked Exs.P1 to P4. M.O.1 is marked. The learned A.P.P has given up the evidence of N.Nagarjuna, D.Raja Rao (Lw.2,

L.W.s 5 respectively).

7. After the closure of the prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C. and the incriminating material was put to him. He has denied the same and reported no defence evidence.

8. Arguments Heard.

The learned A.P.P. has submitted before this Court that the evidence of PWs.1 to 3 is corroborated with the evidence of Ex.P.1 which was marked on behalf of them and it is sufficient to prove the guilt of the accused beyond all reasonable doubt. She prayed to convict the accused.

It is the contention of the learned counsel for the accused that accused did not commit any offences and police got filed the present case against him for statistical purpose and requested to acquit the accused in the interest of justice.

9. Now the point that arises for determination is “ whether the prosecution

could bring home the guilt of the accused beyond all reasonable

doubt for the offence U/Sec.379 of IPC, Sec.21(ii) of Mines &

Minerals Development & Regulation Act, 1957, Sec.3 of PDPP Act and

Sec.3 r/w 181 of M.V.Act?”

10. To prove the offence under Section.379 IPC, Sec.21(ii) of MMDR

Act, Sec.3 of PDPP Act, the prosecution has to establish that the accused dishonestly extracts sand, gravel and other minerals from the river which is

CC .No.1368 of 2020

the property of the states, out of the states possession, without consent, constitute an offence of theft, mischief causing damage to the public property.

In order to prove the section 3 r/w 181 of MV act, the prosecution has to prove that accused drove M.O.1 without having any valid driving license.

11. PW3, who have been working as Head constable of

Santhanuthalapadu police station in his evidence has stated that on 27-06- 2020 at about 11.30 p.m on receiving credible information about transporting of sand illegally from Musi river of Madduluru of Maddulur himself along with PW1, PW2 proceeded towards Maddulur village in a private hired vehicle and reached thereby at 12.00 a.m and observed one tractor-cum-trailer coming opposite to them with lights, near ZP high school then immediately they stopped the vehicle and observed the trailer contents two cubic meters of sand. Then immediately he enquired the accused whether he got any license or bills to transport the sand, for which accused informed him that he has got no license or any bills to transport the said bills after revealing his name and other details upon which he arrested the accused and seized the M.o.1 loaded with sand under the cover of Ex.P1 and then returned to the station along with accused and case property. Then he registered the case in Cr.No.106/2020 U/sec.379 IPC, Sec.21(ii) of Mines and

Minerals Development and Regulation Act, 1957, Sec.3 of PDPP Act of SN

Padu PS and got issued FIR to all concerned and on the next day ie., 28-06- 2020 he visited the scene of offence and drafted rough sketch then he forwarded the accused to judicial custody and handed over the M.O.1 to the court.

He also further deposed that on receiving permission from the court to conduct public auction he forwarded the seized sand to the MRO of

CC .No.1368 of 2020

SN Padu to conduct auction on the seized sand and in the said auction one

S.Ravi purchased sand for an amount of Rs.1100/- and deposited the said amount in the treasury and after completion of investigation, verifying his investigation he got filed charge sheet against the accused.

12. PW1, the police constable of Santhanuthalapadu in his evidence has stated that PW3 on receiving credible information about transporting of sand illegally from Musi river of Madulur on 27-06-2020 at 11.30 a.m and on the instructions of PW3, himself along with LW2 accompanied him in a private hired vehicle by engaging private driver to Madduluru village and reached thereby 12.00 a.m and observed tractor-cum-trailer coming in the opposite with lights and immediately himself along with PW3 and LW2

N.Nagarjuna stopped tractor-cum-trailer observed two cubic meters of sand in the said trailer and accused was the driver of M.O.1 at the relevant point of time. He also supported the evidence of PW3 with regard to the arrest of the accused and on recording his confession statement, and seizure of M.O.1 under the cover of Ex.P1.

13.PW2, the auction purchaser in his evidence has stated that he purchased the sand in the public auction conducted on 17-07-2020 at

Santhanuthalapadu PS for an amount of Rs.1100/-.

14.Whether the prosecution was able to prove the guilt of the

accused for the offence punishable Sec.21(ii) of Mines & Minerals

Development & Regulation Act, 1957?

In order to prove the guilt of the accused for the above offence, the prosecution has to prove that the accused dishonestly committed theft of sand, gravels or minerals from the Musi River of Maddulur and transport the same in his M.O.1.

CC .No.1368 of 2020

On perusal of the Mines & Minerals Development and Regulation

Act, 1957 it clearly shows that as per section 22 of MMDR Act, no court shall take cognizance for any offence under this act or any rules made there under except upon the complainant in writing made by a person authorized in this behalf by the Central Government or the State Government. In order to institute prosecution under MMDR Act, it is incumbent on the prosecution to prove that authorized person only got filed the complaint U/Sec.22 and after proof of such authorization the complaint made by such authority will obtain sanctity for consideration to take consideration U/Sec.190 Cr.P.C. So, for prosecution of offence for contravention of any rule under MMDR Act, the proof of authorization held by a person making complaint by the State or

Central Government, shall be the condition precedent or else the proceedings shall lapse for non-compliance of Sec.22 of MMDR Act. In this regard, I also rely upon the principle laid down in the decision held by Honourable

Supreme Court of India in Crl.Appeal 1920 of 2019 Kanwarpal Singh

Vs.State of Uttar Pradesh and another reported on December 18,

2019. In the said decision, the Supreme court categorically held

that” the prosecution and cognizance U/Sec.21 (iv) of Mines and Regulation

Act is not be valid and justified in the absence of authorization and upholding cognizance of the offence taken by the Magistrate U/Sec.379 IPC and Sec.3 of PDPP Act.

In this present case on hand, no authorization was obtained from the police officials prior to the filing of the complaint under MMDR Act before this court as such, the available evidence on record cannot be looked into with regard to the offence punishable U/Sec.21(ii) of MMDR Act. Hence, no offence is made out U/Sec.21(ii) of MMDR Act and he is acquitted for the said offence.

CC .No.1368 of 2020

15.Whether the prosecution was able to prove the guilt of the

accused for the offence U/Sec.379 IPC and Section 3 of PDPP Act?

According to PW3 on 27-06-2020 at about 11.30 p.m on receiving credible information about transportation of sand illegally from

Maddulur village himself along with PW1 and LW2 N.Nagarjuna proceeded to

Maddulur village in private hired vehicle and reached by 12.00 a.m and observed M.O.1 loaded with sand driving by the accused coming opposite to them then immediately he stopped the said vehicle along with the staff and questioned the accused whether he got license and permit to transport the sand in M.O.1 for which accused informed him that he has got no permit to transport sand, then on recording his confession statement, and on informing the grounds of arrest, he arrested the accused and seized M.O.1 along sand under the cover of Ex.P1 and then returned to the station.

16.PW2 also supported the version of PW1 with regard to the manner of arrest and seizure of M.O.1 under Ex.P1.

17.PW3 in his cross-examination has admitted that the scene of offence is a main road which leads from Kondepi to SN padu and both PW1 and PW2 admitted with the scene of offence is situated in the residential locality and PW3 did not served any summons on the nearby residents.

Further PW3 also admitted that there are revenue officials at Maddulur village. The above categorical admissions of PW1 and 2 shows that they did not even made any attempt to secure mediators and further they did not assign any reason for not making any effort to secure mediators for the best reasons known to them.

18. In this regard, it is pertinent to mention here the relevant citation of the Honourable Supreme Court in this aspect in the case of

CC .No.1368 of 2020

State Vs.Arun reported in AIR 2003 SC 801 in which it has held that “ when there are no independent witnesses from locality, prosecution has to offer reasonable explanation for non-securing the mediators. Non-examining of independent mediators is a fatal to the prosecution version and such procedure drafted even cannot be considered in view of the bar under section 25 and 27 of Indian Evidence Act. As per section 25, 27 of Indian Evidence

Act any confession made before Police Officer is inadmissible except to that extent which leads discovery of any new fact. And in this present case, the prosecution did not revealed any discovery of any new fact basing on alleged confessional statement as such it is hit U/Sec.25 and 27 of Indian Evidence

Act.

19. Further PW3 should have made sincere effort to secure mediators which is the mandate of Section 100(4) Cr.P.C and the object of section 100(4) of Cr.P.C is to ensure confidence in the public in general.

As per section 100(4) Cr.P.C search and seizure must be conducted in the presence of two respectable local inhabitants. As the place of offence is amenable to secure independent persons and it is not an isolated place, the non-securing of local persons is one of the draw back to prosecution case.

20. The evidence of PW3 shows that he purchased the sand in the public auction conducted in the premises of the police station.

21. On perusal of the entire evidence on record, there are several lacunas and infirmities in the evidence of PW1 and PW2 and thus their evidence cannot be believed unless it is supported and corroborated with the independent witnesses.

22. On considering the above facts and circumstances, I am of the opinion that the Prosecution failed to prove the guilt of the accused for the

CC .No.1368 of 2020

offence punishable U/Sec.379 of IPC, Sec.21(ii) of MMDR Act, Sec.3 of PDPP

Act.

23. Whether the prosecution was able to prove the guilt of the accused for the offence U/Sec. 3 r/w 181 of MV Act?

The prosecution was able to prove the accused was the owner of the crime vehicle M.O.1 but failed to prove that he drove the said tractor without having any driving license, as such the accused is acquitted for the said offence.

RESULT :

24. In view of the above foregoing discussion, it clearly shows that the prosecution miserably failed to prove the guilt of the accused for the offences punishable U/Sec.379 of IPC, Sec.21(ii) of MMDR Act, Sec.3 of PDPP Act,

Sec.3 r/w 181 of MV Act.

25.In the result, the accused is found not guilty for the offence

U/Sec.379 of IPC and Section 21(ii) of MMDR Act, Sec.3 of PDPP Act and

Sec.3 r/w 181 of MV Act and accordingly, he is acquitted u/Sec.248(1) Cr.P.C.

His bail bonds shall stand cancelled after the appeal time is over. M.O.1 which was given to the interim custody to its registered owner-cum-accused will become absolute after expiry of the appeal time.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court, on this the 30th day of December, 2020.

Sd/- S.C.Kamala/-

Judicial Magistrate of I Class,

Spl.Mobile Court, Ongole. FAC Special Judl. Magistrate of I Class, Excise Court, Ongole.

MEMO OF EVIDENCE

Witnesses examined for prosecution for Defence: Nil

PW.1: K.Anil PW.2: V.Sridhar Reddy PW.3 : A.Srinivasulu

CC .No.1368 of 2020

Exhibits marked for prosecution: for Defence: Nil

Ex.P1: Police proceedings dt.28-06-2020 Ex.P2: FIR Ex.P3: Rough sketch. Ex.P4: Challan.

Material Objects Marked:

M.O.1 : Tractor bearing No.AP 27 TY 6729 and trailer bearing No.AP 27 TY 6895.

Sd/- S.C.Kamala/-

Judicial Magistrate of I Class,

Spl.Mobile Court, Ongole. FAC Special Judl. Magistrate of I Class, Excise Court, Ongole.

// True Copy //

Judicial Magistrate of I Class,

Spl.Mobile Court, Ongole. FAC Special Judl. Magistrate of I Class, Excise Court, Ongole.

CC .No.1368 of 2020

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

EXCISE COURT, ONGOLE.

CALENDAR & JUDGMENT IN C.C.NO. 1368 of 2020

1. Date of Offence: 28-06-2020

2. Date of report/complaint: 28-06-2020

3. Date of apprehension of appearance: : 11-12-2020 of accused

4. Date of release of accused on bail : ----

5. Date of commencement of trial: 18-12-2020

6. Date of close of trial: 21-12-2020

7. Date of Judgment: 30-12-2020

8. Complainant: Sub-Inspector of Police, Santhanuthalapadu PS (Cr.No.106/2020)

9. Description of Accused: Munagala Ramachandra Reddy, a/o Subbareddy, aged 39 years, Reddy by caste, r/o Maddulur village, S.N.Padu Mandal.Driver cum owner of the tractor & truck bearing No.AP 27 TY 6729 & 6895.

10. Offence: U/s.379 IPC, & Sec.21(ii) of Mines & Minerals Development Regulation Act, 1957, Sec.3 of PDPP Act and Sec.3 r/w 181 of MV Act.

11. Plea of Accused: Not guilty

12. Finding of the Court: Found not guilty

13. Sentence or Order: In the result, the accused is found not guilty for the offence U/Sec.379 of IPC and Section 21(ii) of MMDR Act, Sec.3 of PDPP Act and Sec.3 r/w 181 of MV Act and accordingly, he is acquitted u/Sec.248(1) Cr.P.C. His bail bonds shall stand cancelled after the appeal time is over. M.O.1 which was given to the interim custody to its registered owner-cum-accused will become absolute after expiry of the appeal time.

14. Fine amount: ---

15. Explanation for the delay: This case was taken on file on 29-10-2020. On 10-12- 2020 copies of documents are furnished to accused as required u/sec.207 of the Cr.P.C. On 11-12-2020 the accused was examined u/s 239 of Cr.P.C and the charges for the offences punishable under section 379 of IPC, and sec.21(ii) of MMDR Act, Sec.3 of PDPP Act and section 3 r/w 181 of MV Act have been framed against accused are read over and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried. PW1 to PW3 were examined and Ex.P1 to Ex.P4, M.O.1 is marked and prosecution side evidence closed. On 21-12-2020 accused was examined under section 313 Cr.P.C explaining the incriminating material available against him, for which he denied and reported no defence evidence and on 22.12.2020 arguments heard. Judgment pronounced in open court on 30.12.2020. Hence, the delay.

Sd/- S.C.Kamala/-

SPL. JUDL. MAGISTRATE OF I CLASS,

MOBILE COURT, ONGOLE.

FAC Special Judl. Magistrate of I Class, Excise Court, Ongole. Copy Submitted to: The Hon'ble I-Addl.District & Sessions Judge, Ongole. // True copy //

SPL. JMFC, MOBILE COURT, ONGOLE.

FAC Special Judl. Magistrate of I Class, Excise Court, Ongole.

CC .No.1368 of 2020

CC .No.1368 of 2020

1

IN THE COURT OF THE SPL.JUDICIAL MAGISTRATE OF FIRST CLASS:

EXCISE COURT, ONGOLE.

Present:- Smt S.C. Kamala, L.L.B.,

Judicial Magistrate of I Class,

Spl.Mobile Court, Ongole. FAC Spl. Judicial Magistrate of I Class, Excise Court, Ongole.

Thursday, this the 24th day of December, 2020.

C.C.No.12 of 2020

State: Represented by the Sub-Inspector of police, Prohibition and Excise P.S Chimakurthy ….Complainant

Vs.

Tirunagari Sivasankar, son of Narayana, age 32 years, caste :Saatani, R/o Pidathalagudipadu village, Chimakurthy mandal, Prakasam District.….Accused

This case coming on this day for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the

Complainant and of Sri G.Nagi Reddy, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Proh. & Excise P.S. Chimakurthy has filed charge sheet against the sole accused in Cr.No.31/2019 for the offence punishable under Section.34 (a) of A.P. Excise Act.

2. The case of the prosecution in brief is that on 29-03-2019 at about 3.30 a.m LW3(V.Sreenivasulu,Prohibition & Excise Inspector,

Chimakurthy) along with his staff while conducting vehicle checking in view of general elections at P.Gudipadu cross road, Santhanuthalapadu to Chimakurthy road observed accused riding a motor cycle with plastic bag, and on suspicion when LW3 (V.Sreenivasulu,Prohibition &

Excise Inspector, Chimakurthy) detained him with the active assistance 2 of his staff and observed one white plastic bag on the two wheeler and during his enquiry the accused informed him that the said bag contains

Officer Choice liquor bottles, as it was early morning they could not secure mediators and he opened the bag with the help of his staff and observed the said bag containing 55-Officers Choice Whisky each 180 ml and verified the vehicle containing registration number AP 27

BK 8187 and it belongs to Hero Honda Shine company, on recording his confession statement, he arrested the accused and collected a bottle as sample and seized remaining contraband after observing due formalities under the cover of special report and returned to the station along with the accused and case property.

Basing on the special report of LW3, a case was registered and investigated into and he served 41(A) Cr.P.c notice on the accused instructing him to appear before the court or before them as and when his presence is required and forwarded the sample bottles along with letter of advice, letter of request to forward the same for Chemical

Analysis and on receiving Chemical Analysis report stating the sample is a ‘Indian Liquor”, he produced the remaining case property before

Deputy Commissioner of Prohibition & Excise, Ongole for confiscation and on completion of investigation, he filed the charge sheet against the accused. Thereby, the accused has committed the offence

U/Sec.34(a) of A.P.Excise Act.

3. The case was taken on file for the offence u/Sec.34 (a) of A.P.

Excise Act against the sole accused.

3

4. After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C. were furnished to him.

5. The accused was examined u/Sec.239 Cr.P.C. and the charge for the offence under Section.34 (a) of A.P. Excise Act against the accused is framed, read over and explained to him in Telugu. He has pleaded not guilty and claimed to be tried.

6. In pursuance of the case of the prosecution, the prosecution has examined PWs.1 and 2 and got marked Exs.P1 to P.6. M.O.1 is also marked. The learned A.P.P. has given up the evidence of

G.Rajasekhar, M.Sukanya (Lws.1 and 4 respectively).

7. After the closure of the prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C. and the incriminating material was put to him. He has denied the same and reported no defence evidence.

8. Arguments Heard.

The learned A.P.P. has submitted before this Court that the oral evidence of PWs.1 and 2 is coupled with Ex.P.1 is sufficient to prove the guilt of the accused beyond all reasonable doubt and she requested to convict the accused.

The learned counsel for the accused submitted that excise officials failed to secure the mediators at the time of the seizure even though the scene of offence is a busy locality which clearly shows that they have foisted the present case for statistical purpose and hence, requested to acquit the accused.

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9. Now the point that arises for determination is “ whether the

prosecution could bring home the guilt of the accused beyond

all reasonable doubt for the offence u/Sec.34 (a) of A.P. Excise

Act.?”

10. To prove the offence under Section.34 (a) of A.P. Excise Act, the prosecution has to establish:

(i) that the accused herein was transporting, exporting, importing, manufacturing, collecting or possessing any intoxicant

(ii) the said possession(or) transportation of such intoxicant is without valid permit (or) license in contravention under this act.

11. PW1, the then Prohibition and Excise Inspector, Chimakurthy in his evidence has stated that, on 29-03-2019, at about 12.30 p.m himself along with PW2 and other staff started from the station in a private Government hired vehicle for conducting raids and reached

P.Gudipadu cross road on Santhanuthalapadu to Chimakurthy by 1.00 a.m and started conducting vehicle checking and at about 3.30 a.m they observed one person coming on motor cycle with one plastic bag hanging on motor cycle and one seeing him and on suspicion they stopped him and during his enquiry with regard to the white plastic bag, the said person informed him that it contains liquor bottles and as it was early hours they could not secure mediators and then he enquired the accused and during his enquiry the accused revealed his name and other details and further disclosed that he purchased liquor bottles from the wine shops in order to sell the same for high profits then he opened the bag and observed 55 liquor bottles of 180 ml each and during his further enquiry the accused informed him that he has 5 got record pertaining to the said motorcycle and on collecting a bottle as sample, he seized remaining contraband, motor cycle bearing registration number AP 27 BK 8187, arrested the accused on informing the grounds of arrest under Ex.P1 and then they returned to the station. Basing on the Ex.P1, he got registered the case in

Cr.No.31/2019 for the offence punishable U/Sec.34(a) of A.P.Excise Act and got issued FIR to all the officers concerned and also served notice

U/Sec.41(A) Cr.P.C directing him to appear before the court as and when his presence is required and forwarded M.O.1 along with Ex.P4 and Ex.P5 to the court they have received report stating that M.O.1 is a ‘Indian Liquor” under Ex.P6. The remaining property was confiscated to the State as per the orders of Deputy Commissioner of Prohibition &

Excise, Ongole.

12. PW2, the then Prohibition and Excise constable, Chimakurthy supported the version of PW1 in all the aspects with regard to starting from the police station, arrest of the accused, seizure of contraband under Ex.P1 and so on.

13. According to PW1, himself along with PW2 and other staff started in the station in a private Government hired vehicle for conducting raids on 29-03-2019 at 12.30 they reached P.Gudipadu cross road on S.N padu to Chimakurthy by 1.00 a.m and started conducting vehicle checking and at about 3.30 a.m they observed accused, who was coming on motor cycle and on suspicion they stopped him and during his enquiry the accused informed him that the said white plastic bag contains liquor bottles and he purchased the said 6 liquor bottles from the nearby wine shops in order to sell the same for higher prices in view of general elections and as it was early hours it was difficult for them to secure mediators and then he opened the white plastic bag and found 55 180 ml liquor bottles and after collecting a sample, seized the contraband and arrested the accused under cover of Ex.P1 which was scribed by PW2 on his dictation.

14. PW2, the then Prohibition and Excise constable also supported the version of PW1 in all aspects. During the cross of PW1 and PW2, they have admitted that the scene of offence is a busy locality with regular traffic and further PW1 has admitted that there are Government officials at Santhanuthalapadu and the

Santhanuthalapadu is situated at a distance of 1.5 k.m to the scene of offence and further the scene of offence is situated on Ongole to

Kurnool road which is a busy locality with regular traffic and he also admitted that it is not mentioned in Ex.P1 that they tried to secure mediators. PW1 further admitted that there is a weighing bridge opposite to scene of offence and a factory to the right side of the scene of offence and if really PW1 got tried to secure mediators and the same would be reflected in Ex.P1 and M.O.1 is a duty paid liquor which is available in all wine shops.

15.The Honourable High Court of Andhra Pradesh in the case of

Mudavath Mothia Vs. State of Andhra Pradesh reported in 2005(1) ALD (NOC) 52 AP held that :- “once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise 7 officials can never say that they are not the police officials.

When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, Ex. P5 panchanama is hit by Sections 25,27 of the Indian EVIDENCE

ACT, 1872 and Section 161 of Cr. P. C”.

16.As can be seen from the record, there are no independent witnesses at the time of seizure and it clearly shows that they did not make any bonafide efforts to secure mediators and the Excise officials also failed to give reasonable explanation with regard to non securing of any mediators at the time of alleged seizure. The above citation also clearly applicable to the facts of the present case. As such the seizure of the contraband in the manner prescribed by the Ex.P1 is not believable.

17.In this regard, it is pertinent to mention here the relevant citation of the Supreme Court in this aspect the State Vs. Arun reported in AIR 2003 SC 801, in the above said decision the Supreme

Court held Where there is no independent witnesses in the locality the prosecution must offer reasonable explanation but in this present case,

Excise officials failed to give any reasonable explanation with regard to non securing of independent witnesses. Even assumed if they have tried to secure mediators and they did not secure as it was early hours the same would have been reflected in Ex.P1 and in the absence of the same it also create a cloud of suspicion on the manner prescribed with regard to arrest and seizure of contraband under Ex.P1. As per Section 100(4) of Cr.P.C search and seizure must be conducted in the presence of two reasonable local inhabitants as the place of offence is amicable to secure independent persons and it is not an isolated place and not 8 securing of independent witnesses is a fatal to the case of the prosecution.

18. Basing on the evidence of Excise officials in the absence of corroboration of any other independent witness, it is not safe to conclude that prosecution proved the guilt of the accused beyond reasonable doubt.

19.In view of above foregoing discussion, it clearly shows that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused is entitled for benefit of doubt.

20.In the result, the accused is found not guilty for the offence under Section.34 (a) of AP Excise Act and accordingly, he is acquitted u/Sec.248 (1) Cr.P.C. His bail bonds shall stand cancelled after the appeal time is over. M.O.1 shall be after expiry of the appeal time.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open court, on this the 24th day of December, 2020.

Sd/- S.C.Kamala/-

Judl.Magistrate of I Class,

Spl.Mobile Court, Ongole.

FAC Spl. Judl.Magistrate of I Class,

Excise Court, Ongole.

MEMO OF EVIDENCE

Witnesses examined for prosecution: for Defence:Nil

PW.1: V.Srinivasulu PW.2: S.Ramesh Babu 9

Exhibits marked for prosecution: for Defence: Nil

Ex.P1: Special report dt.29-03-2019. Ex.P2: Rough sketch Ex.P3: FIR Ex.P4: Letter of request Ex.P5: Letter of advice. Ex.P6 : Chemical analysis report.

Material Objects Marked:

M.O.1 : Sample bottle.

Sd/- S.C.Kamala/-

Judl.Magistrate of I Class,

Spl.Mobile Court, Ongole.

FAC Spl. Judl.Magistrate of I Class,

Excise Court, Ongole.

// True Copy //

Judl.Magistrate of I Class, Spl.Mobile Court, Ongole. FAC Spl.Judl.Magistrate of I Class Excise Court, Ongole.

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IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

EXCISE COURT, ONGOLE.

CALENDAR & JUDGMENT IN C.C.NO.12 of 2020

1. Date of Offence: 29-03-2019

2. Date of report/complaint: 29-03-2019

3. Date of apprehension of appearance : : 24-01-2020 of accused

4. Date of release of accused on bail : 41 A Cr.P.C notice

5. Date of commencement of trial: 18-12-2020

6. Date of close of trial: 21-12-2020

7. Date of Judgment: 24-12-2020

8. Complainant: Prohibition & Excise Inspector Chimakurthy (Cr.No.31/2019)

9. Description of Accused: Tirunagari Sivasankar, son of Narayana, age 32 years, caste :Saatani, R/o Pidathalagudipadu village, Chimakurthy mandal, Prakasam District.

10. Offence: U/Sec.34(a) of A.P.Excise Act.

11. Plea of Accused: Not guilty

12. Finding of the Court: Found not guilty

13. Sentence or Order: In the result, the accused is found not guilty for the offence under Section.34 (a) of AP Excise Act and accordingly, he is acquitted u/Sec.248 (1) Cr.P.C. His bail bonds shall stand cancelled after the appeal time is over. M.O.1 shall be after expiry of the appeal time.

14. Fine amount: ---

15. Explanation for the delay: This case was taken on file on 02-01-2020. On 24-01-2020 copies of documents are furnished to accused as required u/sec.207 of the Cr.P.C. On 04-02-2020 the accused were examined u/s 239 of the Cr.P.C and the charge for the offences punishable under section 34(a) of A.P.Excise act have been framed against accused is read over and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried. PW1 to PW2 were examined and Ex.P1 to Ex.P6 were marked M.O.1 is marked, and prosecution side evidence closed. On 21-12-2020 accused was examined under section 313 Cr.P.C explaining the incriminating material available against him, for which he denied and reported no defence evidence and on 22.12.2020 arguments heard. Judgment pronounced in open court on 24.12.2020. Hence, the delay.

Sd/- S.C.Kamala/-

Judl.Magistrate of I Class, Spl.Mobile Court, Ongole.

FAC Spl.Judl.Magistrate of I Class,

Excise Court, Ongole.

Copy Submitted to: The Hon'ble I-Addl.District & Sessions Judge, Ongole. // True copy //

SPL. JMFC, MOBILE COURT, ONGOLE.

FAC Spl.Judl.Magistrate of I Class,

Excise Court, Ongole.

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