Sri Shaik Ibrahim Sharief

1

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

CLASS:: CHINTALAPUDI

Present:- Sri Shaik Ibrahim Sharief, Junior Civil Judge-cum-

Judicial Magistrate of I Class,

Chintalapudi

Tuesday, this the 14th day of February, 2023.

C.C.No.1942 of 2022

Between :

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

and

Kannam Udaya Bhaskar, S/o Krishnarao, 38 years, R/o Meraka Veedhi, Opposite Ramalayam, Chintalapudi village and Mandal.

… Accused .

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

J U D G M E N T

1. The Assistant Enforcement Superintendent, Special Enforcement

Bureau, Eluru, filed charge sheet in Cr.No.190/2021 for the offence punishable U/sec.34(a) of A.P.Excise (Amendment) Act 2020 against the accused.

2. The case of the prosecution in brief is that on 18.3.2021 at 4.30 p.m.,

P.W.1-P.Appa Rao, VRO PW.2/V.Priya Darshini and PW.3/G.Basanti, P&ESI,

ENFT, Eluru along with staff conducting excise raids at the house of accused situated at Muslim Veedhi of Chintalapudi vilalge found accused is in possession of TI Mansion House XO Brandy 750 ml 25 bottles, 2.Seagram’s

Royal Stage Blended Whisky 750 ml-5 bottles, Total 30 bottles of Non Duty

Paid Liquor. In the circumstances the P.W.3 proceeded under special report and arresting the accused, and taken one bottle as sample bottle under 2 cover of special report by affixing identify slips and brought him to Police

Station. Basing on the special report, L.W.4-P.Balaji, P&ESI, Chintalapudi registered FIR in Cr.No.190/2021, for the offence punishable U/s 34(a) of

A.P.Excise Act 2020 and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy Commissioner. After completion of investigation, L.W.9-G.Amar Babu, Assistant Enforcement

Superintendent, Special Enforcement Bureau, Eluru, filed charge sheet.

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

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

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

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

5. During the course of trial, on behalf of prosecution, Pws.1 to3 examined and got marked Ex.P.1 to Ex.P5 and M.Os.1 and 2 are marked.

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

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

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

8. Point for determination is:

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

3

9. POINT:

P.W.1-P.Appa Rao, on 18.3.2021 at 4.30 PM the then VRO deposed he along with Pws.2 and 3 and their staff went to house of accused and found 10 bottles of Mansion House Brandy and 15 bottles of Royal Stag whisky and he drafted Ex.P1 mediators report. Mos.1 and 2 are sample bottles of

Mansion House and Royal stag whisky respectively. PW.2 deposed on 18.3.2021 at 4.30 PM she proceeded along with PW1, PW.3 and their staff to the house of accused which is situated at Muslim street, Chintalapudi and they found Mansion house 10 bottles and Royal stag 5 bottles.

PW.3/Basanti, the then Prohibition and Excise Sub-Inspector of Police, ENFT,

Eluru deposed that on 18.3.2021 at 4.30 p.m., while she along with her staff conducting excise raids at Muslim Veedhi, Chintalapudi village found the accused is in possession of in possession of TI Mansion House XO Brandy of 750 ml of 25 bottles 2) Seagrams Royal stag blended whisky 750 ml of 5 bottles total 30 bottles. She drawn one bottle, affixed identity slips, arrested the accused and handed over the case property along with the accused to

Prohibition and Excise Station, Chintalapudi. PW.3/G.Basanti registered as a case in Cr.No.190/2021 under Ex.P2 FIR, letter of advice under Ex.P3, Ex.P4 is destruction proceedings and received Chemical analyst report under

Ex.P5. M.O.1 is the sample bottle. The accuse was produced before the

Hon’ble Court for Judicial custody. After completion of investigation, L.W.9-

G.Amar Babu, Assistant Enforcement Superintendents, Eluru filed charge sheet.

10.P.Ws.1 to 3 in their cross-examination admitted that the alleged scene of offence is a busy locality. PW3 further admitted that she has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence. None of his personnel are signed on the special report.

4

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

Prohibition constable and Excise Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of Cr.P.C. while conducting search and seizure.

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

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

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

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

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

Excise police i.e. PW3 cannot be acted upon. It is further contention of the

Defence that the P.W.3 failed to follow the prescribed procedure as contemplated U/sec. 100(4) Cr.P.C. It is the evidence of P.W.3 that the learned counsel for the accused rightly pointed out that the P.W.3 failed to give the details of the persons whom they approached to act as mediators.

5

14.As seen from the evidence on record it is clear that the P.W.3 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area.

Though there is a movement of public, P.W.3 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.3 also failed to follow the procedures prescribed U/sec.100 (4)

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

15.It is further contention of the Defence that as per the evidence of the prosecution, P.W.3 is the complainant and he conducted the entire investigation. It is P.W.3, who detected the offence, seized the contraband, drawn the sample prepared the special report, arrested the accused, sent the sample to analysis and destructed the contraband. Hence it is clear that the entire proceedings in this case were taken up by P.W.3 alone. It is an established principle of law that the person who is a complainant in a case should not be allowed as an Investigating Officer in such case the investigation certainly prejudices the accused and impartial investigation is doubtful. I found there is some force in the contention of the Defence. It is clear that the complainant cannot be acted as an Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful. The above stated authorities are relevant in the present case in hand.

6

16.From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of

P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

17.The prosecution failed to connect the M.Os.1 and 2, are the sample bottles and the seized contraband with the accused. Therefore, there is no cogent and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

18.In the result, Accused is found not guilty for the offence punishable

U/sec.34(a) of A.P Excise (Amendment) Act 2020, therefore, he is acquitted

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

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 14th day of February, 2023.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 : P.Appa Rao

P.W.2 : V.Priya Darsini

P.W.3 :G.Basanti, P&ESI, ENFT, Eluru.

7

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-Mediators report

Ex.P.2:-FIR

Ex.P.3:-Letter of advice

Ex.P.4:-Destruction proceedings

Ex.P5:-Analysis report

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle

M.O.2 : Sample Bottle

S d/- Shaik Ibrahim Sharief,

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

8

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:1942 of 2022 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaintApprehensioReleaseCommence-Close of trialSentence or reportn ofon bailment of trialof Order accused 18.3.202118.3.2021––12.1.202317.1.202314.2.2023

Explanation for delay: --NIL--

Cr.No.:: 190/2021 of SEB Chintalapludi

Complainant : Assistant Enforcement Superintendent, Special Enforcement Bureau, Eluru.

Offence : Under section 34(a) of A.P.Excise (Amendment) Act, 2020

Name of the accused:

Kannam Udaya Bhaskar, S/o Krishnarao, 38 years, R/o Meraka Veedhi, Opposite Ramalayam, Chintalapudi village and Mandal.

… Accused.

Finding: Accused is found not guilty.

Sentence or Order of the Court:-

In the result, accused is found not guilty for the offence punishable U/sec.34(a) of A.P Excise (Amendment) Act, 2020, therefore, he is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.Os.1 and 2 i.e the sample bottles of I.D.Liquor shall be destroyed after appeal time is over. The bail bonds of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

Copy submitted to:

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

1

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

CLASS:: CHINTALAPUDI

Present:- Sri Shaik Ibrahim Sharief, Junior Civil Judge-cum-

Judicial Magistrate of I Class,

Chintalapudi.

Tuesday, this the 14 th day of February, 2023.

C.C.No.871 of 2016

Between:

Sub-Inspector of Police, T.Narasapuram Police Station. … Complainant

-Vs -

Choppa Veera Venkata Gangadhara Rao, S/o Dharma Rao, 40 years, Kapu, Allamcherla Kothagudem village, T.Narasapuram Mandal. …. Accused

This case is coming before me on 8.2.2023 for hearing in the presence of A.P.P. for the State and of Sri H.Venu, Advocate for the accused and on hearing both sides arguments and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Sub Inspector of police, T.Narasapuram Police station laid charge sheet in Crime No.102/2015 for the offence punishable u/Secs.447, 324, 384 r/w 511 and 506 IPC against the accused.

2. The case of the prosecution in brief is that the defacto complainant

Tammisetti Satyanarayana is native of Kamavarapukota. He served in he

Indian army for five years. In the year 1968 the Government granted poramboke land at Allamcherla Rajupalem on Ex-service man quota for

Ac.5.03 cents in RS No.193/2 and he was in possession and enjoyment of the same. The accused tried to occupy the land on which the defacto complainant explained him that he is an ex-service man. But the accused not convinced the same threatened on the point of death to vacate the land.

On 21.10.2015 at 4.00 PM the defacto complainant along with PWs.1, 2, 3 and others went to palm oil garden of defacto complainant for doing works, then the accused with an intention of drive off him by hook or crook has criminally trespassed into land of the defacto complainant with a spade in his 2 hand and questioned him as to why he came to the land because he has no right on the land and altercated with him. The defacto complainant and other tried to convince the accused but he picked up scuffle and demanded to leave the land otherwise to come for settlement to handover the land so that he will pay amount to him. The defacto complainant did not accept the said proposal. Then the accused went into rage and tried to hit with spade on his face and the defacto complainant put his hand across and it hit to his left index finger and right side knee and he sustained injuries. The persons who have accompanied the defacto complainant took the defacto complainant from the hands of accused. Later, the defacto complainant presented a report.

3. The case was taken on file for the offence punishable under sections 447, 324, 384 r/w 511 IPC against the accused.

4.On appearance of the accused, copies of documents were furnished to him under Sec.207 Cr.P.C., and subsequently they were examined under section 239 Cr.P.C. The charges levelled against accused for the offence punishable under sections 447, 324, 384 r/w 511 IPC have been framed read over and explained to him in Telugu for which, he pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution examined PWs.1 to 6 and got marked Exs.P.1 to P6 and MO.1 is marked.

6. During course of trial the defacto complainant died. The death certificate of defacto complainant was filed by the prosecution. Though the summons were served on LW.2 he was also called absent as such his evidence is closed. Prosecution side evidence was closed. On behalf of defence, no oral or documentary evidence is adduced.

7.After closure of the prosecution side evidence, the accused was examined u/sec 313 Cr.P.C by putting the incriminating material against him in 3 evidence of prosecution witnesses for which he denied the same and reported no defence evidence on his behalf.

8.Heard the arguments of learned Assistant Public Prosecutor as well as counsel for accused . Perused the material on record.

9.Now the points for determination are ;

1.Whether the accused on 21.10.2015 in the fields of

Allamcherlarajupalem criminally trespassed into the

land of defacto complainant, beat him and tried to

extorted the property of the defacto complainant?

2.Whether the prosecution could able to bring home the

guilt of accused for the charges levelled against them

beyond all reasonable doubt ?

10.POINT NO.1:-

The case of the prosecution in nutshell is that the defacto complainant is resident of Kamavarapukota and he was ex-service man. The Government assigned an extent of Ac.5.03 cents in RS No.193/2 and he was in possession and enjoyment of the said land. The accused is no way concerned with the said property. On 21.10.2015 at 4.00 PM the defacto complainant along with

PWs.1, 2, 3 and others went to palm oil garden of defacto complainant for doing works, then the accused with an intention of drive off him by hook or crook has criminally trespassed into land of the defacto complainant with a spade in his hand and questioned him as to why he came to the land because he has no right on the land and altercated with him. Then the accused went into rage and tried to hit with spade on his face and the defacto complainant put his hand across and it hit to his left index finger and right side knee and he sustained injuries.

11. As already stated the defacto complainant died during pendency of this case. However, according to the case of prosecution on the date of alleged incident he was accompanied by PWs.1 to 3 and other. PWs.2 and 3 did not 4 support the case of prosecution and they denied the statements given before police under Exs.P1 and P2 respectively. Now there remains the evidence of

PW.1 who is said to be eye witness to the alleged incident. PW.1 in his evidence stated that the incident occurred six years ago. The accused used to visit the land in which he used to cultivate belongs to defacto complainant by stating that the said land belongs to him. On one day the accused altercated with the defacto complainant. Then the defacto complainant stated that he will sell away the said land later he sold the said land. The evidence of PW.1 is not revealing that the accused threatened the defacto complainant. The evidence of PW.1 also does not reveal that the accused used to a spade and there was a scuffle and defacto complainant sustained injuries. However, PW.1 has introduced a new version that he used to do cultivation which belongs to defacto complainant but during the course of cross examination PW.1 admitted that he is not having any document to show that he is cultivating the land of defacto complainant on lease. Though

PW.1 admitted that the defacto complainant belongs to his community but he denied the suggestion that he is distant relative of defacto complainant.

Thus, the evidence of PW.1 that he used to cultivate the land of defacto complainant on lease is not supported by any document. It is not the case of prosecution that PW.1 was doing cultivation of land of defacto complainant on lease.

12. Though the prosecution examined PW.4, the VRO who was said to be present when the police observed the scene of offence and seized MO.1 spade but it is generally available with every ryoth. Since MO.1 is an agricultural implement the possession of such agricultural implement in a field is not extra ordinary. However, PW.4 VRO admitted that the label affixed to MO.1 is not bearing the signature of Sub Inspector of police . The admission of VRO reveals that the seizure of MO.1 in the field of defacto complainant is doubtful circumstance. If really, the investigating officer seized MO.1 spade in the field PW.4 must have seen the signature of the 5 investigating officer on the label tobe affixed. However, the label affixed on

MO.1 is not bearing signature of Sub Inspector of police, This itself reveals the suspicious circumstances as to the seizure of MO.1 in the field of defacto complainant.

13. The prosecution examined PW.5 medical officer who said to have treated the defacto complainant on 24.1.2015 at 3.45 PM . According to the case of prosecution the alleged incident said to have been taken place on 24.10.2015 at 4.00 PM. PW.6 investigating officer categorically admitted that the offence took place on 21.10.2015 and the report was on 24.10.2015. If really the defacto complainant received injuries in the alleged incident he must have rushed to the hospital immediately after alleged incident. PW.5 doctor examined the defacto complainant three days after the alleged incident is also a suspicious circumstance. But PW.5 medical officer categorically admitted in cross examination that the injuries relating to the left index finger is possible if one comes into contact with a sharp object.

MO.1 is not sharp edged weapon it is only a spade. PW.5 medical officer also admitted that injury over right knee is possible if one comes into contact with hard surface. The very case of prosecution is that the accused tried to trespass into the land of defacto complainant. The investigating officer PW.6 neither seized any document nor produced the same before the court to show that disputed property belongs to defacto complainant. In the light of above facts and circumstances this court is of considered opinion that the evidence produced by the prosecution is not sufficient to convict the accused and that on the other hand accused is entitled for benefit of doubt.

Accordingly this point is answered.

14. Point NO.2:: In view of finding recorded by this court on point No.1, the prosecution utterly failed to bring home the guilt of accused for the charges levelled against the accused. Accused is entitled for benefit of doubt. Accordingly this point is answered.

6

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

U/secs. 447, 324, 384 r/w 511 IPC , therefore, he is acquitted U/s.248 (1)

Cr.P.C. The bail bonds of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C. The non valuable case property MO.1 spade shall be destroyed after appeal time is over.

Dictated to the stenographer, transcribe by her, corrected and

pronounced by me in open Court, this the 14thday of February,

2023.

Sd/- Shaik Ibrahim Sharief,

JUDL. MAGISTRATE OF I CLASS,

CHINTALAPUDI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FORPROSECUTION: FORDEFENCE:

PW1:BallaPullaiah PW2:Tammisetti Vijaya kumar-None-

PW3:Gottumukkala Gangadhar

P.W.4: Tanagala Raju

P.W.5: Dr.N.Suneetha

P.W.6: T.V.Suresh

EXHIBITS MARKED:

FOR PROSECUTION: Ex.P1/:161 Cr.P.C.statement of PW.2

Ex.P2/:161 Cr.P.C.statement of PW.3

Ex.P3/:Scene observation report.

Ex.P4/:Wound certificate

Ex.P5/:Printed FIR

Ex.P6/:Rough sketch of scene of offence.

FOR DEFENCE: Nil. M.OS. MARKED:

MO.1: Spade

Sd/- Shaik Ibrahim Sharief,

J.F.C.M., CTP.

7 8

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:871 of 2016 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS, CHINTALAPUDI

Date of

OffenceComplaintApprehensReleaseCommence-CloseofSentence or reportionofon bailmentoftrialof Order accusedtrial 21.10.201521.10.2015––18.5.202222.12.20214.2.2023 2

Explanation for delay: NIL

Cr.No. : 102/2015 of T.Narasapuram Police Station

Complainant : Sub Inspector of Police, T.Narasapuram PS.

Offence : Under sections 447, 324, 384 r/w 511 IPC

Name of the accused: Choppa Veera Venkata Gangadhara Rao, S/o Dharma Rao, 40 years, Kapu, Allamcherla Kothagudem village, T.Narasapuram Mandal..

Result: In the result, accused is found not guilty for the offence punishable U/secs. 447, 324, 384 r/w 511 IPC , therefore, he is acquitted U/s.248 (1) Cr.P.C. The bail bonds of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C. The non valuable case property MO.1 spade shall be destroyed after appeal time is over.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi

Copy submitted to:

1. The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

1

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

CLASS:: CHINTALAPUDI

Present:- Sri Shaik Ibrahim Sharief, Junior Civil Judge-cum-

Judicial Magistrate of I Class,

Chintalapudi

Tuesday, this the 14th day of February, 2023.

C.C.No.1943 of 2022

Between :

State: Represented by Assistant Enforcement Superintendent, Special Enforcement Bureau, Eluru.

…Complainant.

and

Palagani Ramakrishna, S/o Arjuna Rao, 35 years, Gowda, R/o Vallampatla village, T.Narasapuram Mandal. … Accused

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

J U D G M E N T

1. The Assistant Enforcement Superintendent, Special Enforcement

Bureau, Eluru, filed charge sheet in Cr.No.225/2021 for the offence punishable U/sec.7(B) r/w 8(A) &8(B) of A.P.P (Amendment) Act, 2020 against the accused.

2. The case of the prosecution in brief is that on 3.4.2021 at 8.00 A.M.,

P.W.1-G.Basanti, Sub Inspector, Pro & Excise, ENFT, Eluru along with staff conducting excise raids at Vallampatla village, T.Narasapuram Mandal found accused is in possession of 50 liters of ID Liquor and 200 liters of FJ Wash .

In the circumstances P.W.1 proceeded under special report and arresting the accused, seized the property under the confession of accused and drawn sample of 300ml of I.D.Liquor and 500 ml of FJ Wash under cover of special report by affixing identify slips and brought them to Police Station. Basing on the special report, LW.4/P.Balaji, Enforcement Sub Inspector, Chintalapudi 2 registered FIR in Cr.No.225/2021, for the offence punishable U/s 7(B) r/w 8(A) & (B) of A.P.P Act and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy Commissioner. After completion of investigation, L.W.5-G.Amar Babu, Assistant Enforcement

Superintendent, Eluru filed charge sheet.

3. The case was taken on file for the offence punishable U/sec. 7(B) r/w 8(A) & (B) of A.P.P Act against accused. On appearance of the accused copies of the documents were furnished to the accused as required U/sec.

207 Cr.P.C.

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

7(B) r/w 8(A) & (B) of A.P.P Act was framed against the accused. The charge was read over and explained to the accused in Telugu for which accused pleaded not guilty and claimed to be tried.

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

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

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

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

8. Point for determination is:

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

3

9. POINT:

P.W.1-G.Basanti, Prohibition and Excise Sub Inspector, ENFT, Eluru deposed that on 3.4.2021 at 11.00 a.m., while she along with her staff conducting excise raids at Vallampatla village, found the accused is in possession of 50 liters of ID Liquor and 200 liters of FJ wash. She drawn 300 ml sample of ID liquor and 500 ml of FJ wash, affixed identity slips, arrested the accused and handed over the case property along with the accused to

Prohibition and Excise Station, Chintalapudi. PW.1/G.Basanti, Sub Inspector,

Prohibition and Excise, ENFT, Eluru registered as a case in Cr.No.225/2021 and issued Ex.P1 is FIR under Ex.P2 special report, letter of advice under

Ex.P3, Ex.P4 is Destruction proceedings, received Chemical analyst report under Ex.P5. M.Os.1 and 2 are the sample bottles of I.D.Arrack and FJ wash.

After completion of investigation, LW.5/G.Amar Babu, AES, Special

Enforcement Bureau, Eluru filed charge sheet.

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

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

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

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

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

Excise officials no independent witnesses were examined by the 4 prosecution. The Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence

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

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

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

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

14.As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area.

Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed U/sec.100 (4)

Cr.P.C., As per the Sec 100 (4) of Cr.P.C. when the independent mediators in that locality are not available or not come forward, the Excise officials has to record the same and issue an order in writing as prescribed under law. It is clear from the record that though the scene of offence is not an isolated area the Excise officials adopted no such procedure. Thus, the entire 5 procedure vitiates the case.

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

16.From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of

P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

17.The prosecution failed to connect the M.Os.1 and 2 are the sample bottles of I.D.liquor and FJ Wash and the seized contraband with the accused. Therefore, there is no cogent and corroborate evidence to implicate the complicity of the accused in commission of the offence. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, this point is answered.

6

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

U/sec. 7(B) r/w 8(A) & (B) of A.P.P (Amendment) Act, 2020, therefore, he is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.Os.1 and 2 i.e the sample bottles of I.D.Liquor and FJ wash shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of

Cr.P.C.

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 14th day of February, 2023.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 :G.Basanti

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR

Ex.P.2:-Special report

Ex.P.3:-Letter of advice

Ex.P.4:-Destruction proceedings

Ex.P5- Analysis report.

MATERIAL OBJECTS MARKED.

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

M.O.2 : Sample Bottle of FJ Wash

Sd/- Shaik Ibrahim Sharief,

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

7

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:1943 of 2022 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaintApprehensioReleaseCommence-Close of trialSentence or reportn ofon bailment of trialof Order accused 3.4.20213.4.2021––17.1.202317.1.202314.2.2023

Explanation for delay: --NIL--

Cr.No.:: 225/2021 of Chintalapudi P.S

Complainant : Assistant Enforcement Superintendent, Special Enforcement Bureau, Eluru.

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

Name of the accused:

Palagani Ramakrishna, S/o Arjuna Rao, 35 years, Gowda, R/o Vallampatla village, T.Narasapuram Mandal.

Finding: Accused is found not guilty.

Sentence or Order of the Court:-

In the result, the accused is found not guilty for the offence punishable U/sec. 7(B) r/w 8(A) & (B) of A.P.P (Amendment) Act,2020 therefore, he is acquitted U/s.248 (1) Cr.P.C. The non-valuable case property M.Os.1 and 2 i.e the sample bottles of I.D.Liquor and FJ wash shall be destroyed after appeal time is over. The bail bond of the accused and that of his sureties, if any, shall be in force for a period of six months, as per section 437-A of Cr.P.C.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

Copy submitted to:

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

1

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

CLASS:: CHINTALAPUDI

Present:- Sri Shaik Ibrahim Sharief, Junior Civil Judge-cum-

Judicial Magistrate of I Class,

Chintalapudi

Tuesday, this the 14th day of February, 2023.

C.C.No.976 of 2022

Between :

State: Represented by Assistant Enforcement Superintendent, Special Enforcement Bureau, Eluru. …Complainant.

and

Halavathu Nagaraju, S/o Venkateswara Rao, 28 years, Lambadi, R/o Namavaram village, Chintalapudi Mandal, West Godavari District.

… Accused .

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

J U D G M E N T

1. The Assistant Enforcement Superintendent, Special Enforcement

Bureau, Eluru, filed charge sheet in Cr.No.541/2020 for the offence punishable U/sec.34(a) of A.P.Excise (Amendment) Act 2020 against the accused.

2. The case of the prosecution in brief is that on 4.9.2020 at 3.30 p.m.,

P.W.1-G.Basanti, P&ESI, ENFT, Eluru along with staff conducting excise raids at Namavaram village found accused is in possession of Old Admiral special

VSOP Brandy 180ml 200 bottles, of Non Duty Paid Liquor. In the circumstances the P.W.1 proceeded under special report and arresting the accused, and taken one bottle as sample bottle under cover of special report by affixing identify slips and brought him to Police Station. Basing on the special report, L.W.5-K.Srinibabu, Enforcement Sub Inspector, 2

Chintalapudi registered FIR in Cr.No.541/2020, for the offence punishable

U/s 34(a) of A.P.Excise Act 2020 and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy

Commissioner. After completion of investigation, L.W.6-G.Amar Babu,

Assistant Enforcement Superintendnet, Eluru filed charge sheet.

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

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

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

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

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

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

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

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

8. Point for determination is:

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

9. POINT:

P.W.1-G.Basanti, the then Prohibition and Excise Sub-Inspector of

Police, ENFT, Eluru deposed that on 4.9.2020 at 3.30 p.m., while she along 3 with her staff conducting excise raids at Namavaram village found the accused is in possession of in possession of Old Admiral Brandy of 180ml of 200 bottles. She drawn one bottle, affixed identity slips, arrested the accused and handed over the case property along with the accused to

Prohibition and Excise Station, Chintalapudi. PW.1/G.Basanti registered as a case in Cr.No.541/2020 under Ex.P1 FIR, Ex.P2 special report, letter of advice under Ex.P3, Ex.P4 is destruction proceedings and received Chemical analyst report under Ex.P5. M.O.1 is the sample bottle. The accuse was produced before the Hon’ble Court for Judicial custody. After completion of investigation, L.W.6-G.Amar Babu, Assistant Enforcement Superintendent,

Eluru filed charge sheet.

10.P.W.1 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence. None of his personnel are signed on the special report.

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

Prohibition constable and Excise Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of Cr.P.C. while conducting search and seizure.

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

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

Excise officials no independent witnesses were examined by the prosecution. The Excise Police are competent to file charge sheet U/se. 173 4 (2) Cr.P.C like police officer as such they are the police officers. It is settled law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence

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

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

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

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

14.As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area.

Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed U/sec.100 (4)

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

5

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

16.From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of

P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

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

6

18.In the result, Accused is found not guilty for the offence punishable

U/sec.34(a) of A.P Excise (Amendment) Act 2020, therefore, he is acquitted

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

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 14th day of February, 2023.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 :G.Basanti, P&ESI, ENFT, Eluru.

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR

Ex.P.2:-Special report

Ex.P.3:-Letter of advice

Ex.P.4:-Destruction proceedings

Ex.P5:-Analysis report

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle

Sd/- Shaik Ibrahim Sharief,

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

7

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:976 of 2022 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaintApprehensioReleaseCommence-Close of trialSentence or reportn ofon bailment of trialof Order accused 4.9.20204.9.2020––17.1.202317.1.202314.2.2023

Explanation for delay: --NIL--

Cr.No.:: 541/2020 of SEB Chintalapludi

Complainant : Assistant Enforcement Superintendent, Special Enforcement Bureau, Eluru.

Offence : Under section 34(a) of A.P.Excise (Amendment) Act, 2020

Name of the accused:

Halavathu Nagaraju, S/o Venkateswara Rao, 28 years, Lambadi, R/o Namavaram village, Chintalapudi Mandal, West Godavari District.

… Accused.

Finding: Accused is found not guilty.

Sentence or Order of the Court:-

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

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

Copy submitted to:

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

1

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

CLASS:: CHINTALAPUDI

Present:- Sri Shaik Ibrahim Sharief, Junior Civil Judge-cum-

Judicial Magistrate of I Class,

Chintalapudi

Tuesday, this the 14th day of February, 2023.

C.C.No.1944 of 2022

Between :

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

and

Pamarthi Srinivasa Rao, S/o Yedukondalu, 42 years, Gowda, R/o Kovvurugudem, Chintalapudi village and Mandal.

… Accused .

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

J U D G M E N T

1. The Sub Inspector of Special Enforcement Bureau, Chintalapudi, filed charge sheet in Cr.No.359/2021 for the offence punishable U/sec.34(a) of

A.P.Excise (Amendment) Act 2020 against the accused.

2. The case of the prosecution in brief is that on 30.5.2021 at 5.00 p.m.,

P.W.1-G.Basanti, P&ESI, ENFT, Eluru along with staff conducting excise raids at Kovvurugudem village found accused is in possession of TI Mansion

House XO Brandy 180 ml 17 bottles, of Non Duty Paid Liquor. In the circumstances the P.W.1 proceeded under special report and arresting the accused, and taken one bottle as sample bottle under cover of special report by affixing identify slips and brought him to Police Station. Basing on the special report, L.W.4-P.Balaji, P&ESI, Chintalapudi registered FIR in

Cr.No.359/2021, for the offence punishable U/s 34(a) of A.P.Excise Act 2 2020and produced the accused before the court for judicial remand. The sample sent for chemical examination under letter of advice and received chemical analyst report and the remaining contraband was destroyed as per the directions of the Deputy Commissioner. After completion of investigation, L.W.4-P.Balaji, Enforcement Sub-Inspector of Police,

Chintalapudi filed charge sheet.

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

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

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

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

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

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

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

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

8. Point for determination is:

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

9. POINT:

P.W.1-G.Basanti, the then Prohibition and Excise Sub-Inspector of

Police, ENFT, Eluru deposed that on 30.5.2021 at 5.00 p.m., while she along with her staff conducting excise raids at Kovvurugudem village found the 3 accused is in possession of in possession of TI Mansion House Brandy of 180ml of 17 bottles. She drawn one bottle, affixed identity slips, arrested the accused and handed over the case property along with the accused to

Prohibition and Excise Station, Chintalapudi. PW.1/G.Basanti registered as a case in Cr.No.359/2021 under Ex.P1 FIR, Ex.P2 special report, letter of advice under Ex.P3, Ex.P4 is destruction proceedings and received Chemical analyst report under Ex.P5. M.O.1 is the sample bottle. The accuse was produced before the Hon’ble Court for Judicial custody. After completion of investigation, L.W.4-P.Balaji, Enforcement Sub Inspector, Chintalapudi filed charge sheet.

10.P.W.1 in his cross-examination admitted that the alleged scene of offence is a busy locality. PW1 further admitted that he has not secured any revenue officials to act as mediators. He has not prepared any rough sketch of the alleged offence. None of his personnel are signed on the special report.

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

Prohibition constable and Excise Sub-Inspector. It is further contended that the Investigating agency failed to follow the prescribed procedure as contemplated U/sec.100 (4) of Cr.P.C. while conducting search and seizure.

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

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

Excise officials no independent witnesses were examined by the prosecution. The Excise Police are competent to file charge sheet U/se. 173 (2) Cr.P.C like police officer as such they are the police officers. It is settled 4 law that the confession which was recorded by police officer is not admissible in evidence and hit by Sec. 25 and Sec. 26 of Indian Evidence

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

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

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

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

14.As seen from the evidence on record it is clear that the P.W.1 did not make any sincere efforts to secure the independent mediators. Admittedly the scene of offence is a residential locality and it is not an isolated area.

Though there is a movement of public, P.W.1 did not proceed against the persons who failed to assist him during the search and seizure. No written authority or order was issued to the said persons as contemplated under law. P.W.1 also failed to follow the procedures prescribed U/sec.100 (4)

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

5

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

16.From the above discussion it is clear that the investigating agency is failed to follow the proper procedure and no independent witnesses are examined and there is no credibility to the prosecution witness to establish the guilty of the accused and it is not safe to rely upon the testimony of

P.W.1 for the above said reasons. Hence the search and seizure of liquor bottles from the possession of the accused is not proved.

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

6

18.In the result, Accused is found not guilty for the offence punishable

U/sec.34(a) of A.P Excise (Amendment) Act 2020, therefore, he is acquitted

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

Typed to my dictation on computer corrected and pronounced by me in the open court on this the 14th day of February, 2023.

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE. NIL.

P.W.1 :G.Basanti, P&ESI, ENFT, Eluru.

EXHIBITS MARKED.

Prosecution : Defense: Nil.

Ex.P.1:-FIR

Ex.P.2:-Special report

Ex.P.3:-Letter of advice

Ex.P.4:-Destruction proceedings

Ex.P5:-Analysis report

MATERIAL OBJECTS MARKED.

M.O.1 : Sample Bottle

Sd/- Shaik Ibrahim Sharief,

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

7

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:1944 of 2022 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS COURT :: CHINTALAPURDI

Date of

OffenceComplaintApprehensioReleaseCommence-Close of trialSentence or reportn ofon bailment of trialof Order accused 30.5.202130.5.2021––17.1.202317.1.202314.2.2023

Explanation for delay: --NIL--

Cr.No.:: 359/2021 of SEB Chintalapludi

Complainant : Sub Inspector of Special Enforcement Bureau, Chintalapudi.

Offence : Under section 34(a) of A.P.Excise (Amendment) Act, 2020

Name of the accused:

Pamarthi Srinivasa Rao, S/o Yedukondalu, 42 years, Gowda, R/o Kovvurugudem, Chintalapudi village and Mandal.

… Accused.

Finding: Accused is found not guilty.

Sentence or Order of the Court:-

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

Sd/- Shaik Ibrahim Sharief,

Judicial Magistrate of I Class,

Chintalapudi.

Copy submitted to:

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