Sri.Shaik.Reyaz

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

NANDIGAMA.

Present: Sri Shaik Reyaz,

Judicial Magistrate of First Class, Nandigama.

Thursday, this the 24th day of April, 2025.

Calendar Case No.69 of 2025

BETWEEN:

State: Represented by the Proh. & Excise Sub Inspector, Kanchikacherla Police Station, NTR District.

…. Complainant

A N D

1. Chimirala Naga Malleswara Rao, S/o Venkateswara Rao, aged 56 years, R/o Near Bhavana Theatre, Kanchikacherla Village and Mandal,NTR District.

2. Shaik Rafi, S/o Masthan, aged 24 years, R/o Paritala Village of Kanchikacherla Mandal, NTR District.

....Accused

This case is coming on 22.04.2025 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the

Complainant and of Sri. D.Arun Kumar, Advocate for Accused No.1, Sri

SMK Azad,Advocate for the accused No.2 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 Kanchikacherla Police

Station has filed a charge sheet in Cr.No.43/2024 against the accused/A1 & A2 for the offence punishable u/Sec.34(a) of the Andhra Pradesh

Excise Act (Amendment Act No. 17 of 2020) (for short ‘the Act’).

2. The brief facts of the prosecution case are as follows:

On 06.02.2024 at about 06.00 P.M., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, LW.2/Sri Y.N.Krishna, Sub-Inspector of Police, SEB

Kanchikacherla Police Station along with mediator LW.1/M.Vijaya Kumari,

MSK and his staff LW.3/Sri M.Uma Maheswara Rao, SEB Head Constable, conducted raids opposite to Auto Stand in Gottumukkala road,

Kanchikacherla Village and Mandal and noticed accused/A1 & A2 were coming by carrying two bags in a suspicious manner. On seeing the police, they tried to skulk away. On suspicion, LW.2 apprehended the accused/A1 & A2 and verified their bags. On verification, he found total 87 2 liquor bottles ie., 1. 56 bottles of King fisher platinum lager beer 650 ml each, 2. 22 bottles of Daaru House XO Brandy 180 ml each, 3. 04 bottles of Manjeera Blue premium Whisky 180 ml each and 4. 05 bottles of Andhra gold fine whisky 180 ml each. Then, LW.2 apprehended the accused and questioned them, they stated that they purchased the duty paid liquor bottles from Government liquor shops in Kanchikacherla on MRP rates, with an intention to sell the same at their native place at higher price to get more profit without having any license or permit for possession and sale of liquor bottles. LW.2 informed to them that illegal possession of IML bottles is an offence under the provisions of A.P. Excise Act, 1968. He seized the bottles from the scene, took sample bottles for chemical analysis, sealed the bottles and pasted identity slips over the bottles under the cover of mediator’s report.

Subsequently, LW.2 returned to Police Station and basing on the mediators Report, he registered as case in Cr.No.43/2024 for the offence punishable U/s.34(a) of A.P. Excise Act 1968. Later, he served 41 A Cr.P.C.

notice to the accused, on which he complied the same. He sent the sample bottles to the Chemical Examiner, Kakinada for analysis. The Chemical

Examiner analyzed the contents of the samples and opined that it is Indian made liquor. He received analysis report and handed over the entire case record to LW.4/Sri MD. Galeb Saheb, Prob.& Excise S.I. of

Kanchikacherla P.S., after completion of investigation, LW.4 filed charge sheet in this case.

3.Cognizance has been taken against the accused for the offence punishable Under Sections 34(a) of AP Excise Act.

4.On appearance of the accused, copies of relevant documents were furnished to them as contemplated U/Sec.207 of the Code of Criminal

Procedure (for short ‘the Cr.P.C’).

5.When the accused have been examined U/Sec.239 of the Cr.P.C, a charge for the offence punishable u/Sec.34(a) of the Act, have been framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed the case to be tried.

6.During trial, the prosecution has examined LW.2/Sri Y.N.Krishna,

SEB Sub - Inspector of Police, as PW.1, and got marked Exs.P1 to P4 and MOs.1 to 4. The Learned Assistant Public Prosecutor has given up the remaining witnesses as PW.1 supported the case.

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7.The accused have been examined U/Sec.313 of Cr.P.C by explaining the incriminating material appearing against them, for which, they denied the same and reported no defense evidence.

8.Heard the arguments of both sides.

The learned Assistant Public Prosecutor argued that the evidence of

PW.1 coupled with Exs.P1 to P4 and MOs.1 to 4 are cogent, consistent and trustworthy in nature and the said evidence is enough to prove the guilt against the accused, as such prayed the court to convict the accused.

The legal aid counsel argued that there is no corroboration in the case of prosecution and the evidence of PW.1. No independent mediator has been examined by the prosecution, even though LWs.1 & 3 were present at the time of seizure of the contraband for the best reasons known to it. Hence, benefit of doubt shall be given to the accused, as such, prayed the court to acquit the accused.

9Now, the point of determination is whether the prosecution able to prove the accused is found in possession of liquor bottles in prohibited quantity without any valid license or permit, as such committed the offence punishable u/Sec.34(a) of A.P Excise Act beyond all reasonable doubt?

10.POINT: To prove the case, PW.1/Sri Y.N.Krishna, SEB Sub-Inspector of Police, deposed in his evidence that on 06.02.2024 at about 06.00 P.M., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, he along with mediator LW.1/M.Vijaya Kumari,

MSK and his staff LW.3/Sri M.Uma Maheswara Rao, SEB Head Constable, conducted raids opposite to Auto Stand in Gottumukkala road,

Kanchikacherla Village and Mandal and noticed accused/A1 & A2 were coming by carrying two bags in a suspicious manner. On seeing the police, they tried to skulk away, with the help of his staff, he caught hold the accused and on verification, he found total 87 liquor bottles ie., 1. 56 bottles of King fisher platinum lager beer 650 ml each, 2. 22 bottles of

Daaru House XO Brandy 180 ml each, 3. 04 bottles of Manjeera Blue premium Whisky 180 ml each and 4. 05 bottles of Andhra gold fine whisky 180 ml each. He seized the bottles and took samples MOs.1 to 4 under the cover of Mediator Report Ex.P1. Then, he returned to Police station along with Ex.P1, contraband and accused, he registered a case in

Cr.No.43/2024 for the offence punishable U/s.34(a) of AP Excise Act under

Ex.P2/FIR. He served notice U/s 41 A Cr.P.C. to the accused. He sent the sample bottles to Forensic Laboratory, Kakinada for analysis under 4

Ex.P3/Letter of advice. He received Ex.P4/Analysis report opining that the contraband is Indian Made liquor. After completion of investigation, LW.4 filed charge sheet in this case.

11.Section 34(a) of Andhra Pradesh Excise Act, 1968 (Amendment Act, 2020) says that:

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or of any license or permit granted or issued under this Act, imports, exports, transports, manufactures, collects or possesses or sells any intoxicant shall be punishable with imprisonment for a term which shall not be less than six months but which may extend up to eight years.

In order to bring the case within the provisions of Section 34 (a) of

Andhra Pradesh Excise Act, 1968, it is necessary for the prosecution to prove that the accused are in possession of more than six quarter bottles of Indian made liquor without permit. In the case on hand, as per the evidence of prosecution witnesses, the accused were carrying 87 NIP bottles of duty paid IML. Therefore, this Court is of the view that the accused is found in possession of liquor in the prohibited quantity under the Act.

12.The next contention of the State is that the accused are in possession of the contraband to sell them at higher price. Though it is stated by PW.1 that the accused intended to sell them at higher price, none of the witnesses had enquired from whom he purchased the liquor bottles and where the accused are intending to sell those liquor bottles.

Though PW.1 apprehended the accused basing on the confession, the same is not admissible in evidence. It is settled law that an Excise Officer is a Police officer within the meaning of Section 25 of the Evidence Act and a confession made by the accused persons before an excise official, if otherwise not proved, is inadmissible in evidence. (Kalidinidi Ramaraju

Vs State of A.P. [2002 1 ALD (Crl) 863 (AP) = 2002 (2) ALT (Crl) 114

(AP)]. The Honourable High Court of Andhra Pradesh in Mudavath

Mothia Vs State of A.P [2002 (1) ALT 9 Crl. 437 (AP)] held that the offence u/Sec.34 of the A.P. Excise Act is made cognizable offence and 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 in- 5 admissible. Therefore, this Court is of the view that the said contention cannot be believed without any supporting evidence.

13.Sec.100 (4) of Cr.P.C., says that:

“100: Persons in charge of closed place to allows search: (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Sec.55 of the Act is as follows:

“55. Power to search without warrant - Whenever the Commissioner or a Collector 8[or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a police station or any excise officer not below the rank of Prohibition and Excise Sub-Inspector 9[or any Special Enforcement Bureau Officer not below the rank of Sub- Inspector] has reason to believe that an offence under section 34, section 35, section 36, 1[section 37 or section 37A] has been, is being or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief,-

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”

In Yeduru Sreenivasul Reddy Vs. State of A.P. [2002 (1) ALT(Crl.) 251 (A.P),]the Hon’ble High Court of Andhra Pradesh held that “in absence of punch witnesses, written order to be passed that no one was willing to act as punch witnesses. When such written orders were not passed, evidence that no one was willing to act as punch witnesses cannot be believed or relied upon. Entire search is without jurisdiction.” On close reading of Sec.100

Cr.P.C, it is clear that the officer before making a search shall call at least two or more respectable inhabitants of the locality in which the place is to be searched and if no such inhabitants of that locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it 6 do. When the law required a particular thing to be done in a particular way, it must be done in that way only and not otherwise. If there is any violation of the statutory provision, it makes the act of the Investigating Officer doubtful.

14.As seen from Ex.P1, the scene of offence is opposite to Auto stand I

Gottumukkala Village road in Kanchikacherla Village and Mandal.

Admittedly, the alleged scene of apprehension is a busy locality. So many vehicles will pass bye. As per the case of prosecution, though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. A bare reading of Ex.P1 Mediators report discloses the fact that the police tried to secure mediators. Furthermore, PW.1 is the

Investigating officer in this case and the entire investigation was done by him. Further, PW.1 registered the case and he also sent the remaining bottles for Chemical Analysis. The Hon’ble Apex Court in Mohanlal Vs. The state of Panjab [(2018) SCC online SC 974]held that “the accused will be prejudiced of his right to free and fair investigation, if the informant is the

Investigating Officer of the case.” Therefore, in such circumstances, the evidence of PW.1 coupled with Ex.P1 does not establish that the accused are found in possession of contraband. Coming to the cross-examination also, PW.1 stated that the alleged scene of offence is the place where vehicle will pass frequently as such, it is a busy locality. He also had not examined any persons at the scene of offence. He has not collected any information of the source of liquor seized from the scene of offence. He has not forwarded the sample bottles through the Court for Chemical

Examination and also not sent all the samples to the analyst. In Mudavath

Mothia Vs. State of A.P. [2002 (1) ALT (Crl.) 437 (A.P)], It was held at

Paragraph No.5, that “moreover only one sample of sachet was produced

before the Court and not all the sachets seized and it is for the prosecution

to establish that all the samples of sachets seized contain I.D. liquor and is not proved”. Further in S. Babu Saheb @ Babu v/s The State of A.P., rep.

by Public Prosecutor, High Court Building, (through Proh.& Excise PS.,

Srikalahasti) Hyderabad, [2010 (1) ALT Crl) (AP)], it is held as follows:

“16. Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a 7 different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

Hence, these are also latches on the part of the investigating officer. Thus, a perusal of the above evidence shows that PW.1 has not secured any independent witnesses at the time of conducting search of accused. The inconsistencies in their evidence about securing mediators and apprehending the accused at the scene creates a doubt in the mind of the

Court about the seizure of contraband and as such their evidence cannot be relied upon as PW.1 failed to follow the search procedure contemplated under Sec.100(4) Cr.P.C which is mandatory at the time of seizing the contraband. Admittedly, the witnesses are the Excise officials and they will be highly interested for getting the success of prosecution. All these facts lead to inference that the Excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband, which certainly affects the investigation.

15.Thus, in view of the above circumstances of the case, it can be rightly concluded that mere registering the crime in favour of the state by itself does not prove the case of prosecution. Except the evidence of PW.1 who is the police official and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this Court is inclined to hold a considered view that the State has failed in bringing home the guilt of the accused for the charge framed against the accused for the offence punishable u/Sec.34(a) of the Act, and hence, accused are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the State.

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16.In the result, the Accused/A1 & A2 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MOs.1 to 4 shall be destroyed after expiry of appeal time.

Typed by the Stenographer, Gr.III on my dictation, corrected and

pronounced by me in open Court on this the 24 th day of April, 2025.

SHAIKDigitally signed by

SHAIK REYAZ

REYAZDate: 2025.04.24 14:50:40 +0530

Judicial Magistrate of First Class

Nandigama.

APPENDIX OF EVIDENCE

LIST OF WITNESSES

For Prosecution For Defense. PW1 : Sri Y.N.Krishna - None -

DOCUMENTS MARKED FOR

For Prosecution. For Defence: Ex.P1: Mediators Report - Nil - Ex.P2: FIR Ex.P3: Letter of Advice Ex.P4: Analysis Report Material Objects:

MO.1 – Sample bottle of King fisher platinum lager beer 650 ml. MO.2 – Sample bottle of Daaru House XO Brandy 180 ml. MO.3 – Sample bottle of Manjeera Blue premium Whisky 180 ml. MO.4 – Sample bottle of Andhra gold fine whisky 180 ml.

SHAIK

Digitally signed by SHAIK REYAZ REYAZDate: 2025.04.24 14:50:49 +0530

 Judicial Magistrate of First Class

Nandigama.

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CALENDAR AND JUDGMENT

Calendar Case No. 69 of 2025 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

Date ofReport orApprehensiRelease onCommenceClose ofJudgment offence Complainton of thebailment of trial trial accused 06.02.2024 06.02.2024----15.04.202522.04.2025 24.04.2025

Explanation for delay and remarks:

This case was taken on file on 31.01.2025. On 04.03.2025 copies of documents were furnished to the accused. On 10.03.2025 accused are examined u/s.239 Cr.P.C and a charge for the offence punishable u/Sec.34(a) of AP Excise Act have been framed against them. They denied the offence and claimed to be tried. On 15.04.2025 PW.1 has been examined and Exs.P1 to P4 and MOs.1 to 4 got marked. The learned Asst. Public Prosecutor has given up the remaining witnesses, as PW.1 supported the case. Hence, Prosecution evidence closed. On 22.04.2025 Accused are examined u/s.313 Cr.P.C. They denied the evidence and reported no defence evidence. Hence, defence evidence closed. Heard the arguments. Judgment pronounced on 24.04.2025. Hence, no delay.

Judgment in C.C.No: 69 of 2025 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

BETWEEN:

State: Represented by the Proh. & Excise Sub Inspector, Kanchikacherla Police Station, NTR District. …. Complainant

A N D

1. Chimirala Naga Malleswara Rao, S/o Venkateswara Rao, aged 56 years, R/o Near Bhavana Theatre, Kanchikacherla Village and Mandal,NTR District.

2. Shaik Rafi, S/o Masthan, aged 24 years, R/o Paritala Village of

Kanchikacherla Mandal, NTR District.....Accused

Offence : U/s.34(a) of A.P. Excise Act, 1968.

Finding : Not guilty.

Result: In the result, the Accused/A1 and A2 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437- A Cr.P.C. MOs.1 to 4 shall be destroyed after expiry of appeal time. SHAIK Digitally signed by SHAIK REYAZ REYAZDate: 2025.04.24 14:51:04 +0530

JUDICIAL MAGISTRATE OF FIRST CLASS

NANDIGAMA.

Copy submitted to: 1.The Honourable I Addl. District and Sessions Judge, Krishna, Machilipatnam.

2. The Superintendent of Police, Krishna, Machilipatnam.

3. The learned Assistant Public Prosecutor. Dis No. ,Dt.

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION), NANDIGAMA.

Present: Sri Shaik Reyaz,

Prl. Civil Judge(Junior Division), Nandigama

FAC Additional Civil Judge (Junior Division), Nandigama.

Friday, this the 17th day of May, 2024.

Original Suit No.119 of 2022

Between :

Kolipaka Venkateswarlu, S/o. Peda Nagaiah, 68 years, Agriculture labour, R/o. Penuganchiprolu village and Mandal, NTR District. : Plaintiff.

And

Marreboina Chalapathi, S/o. Tirupathirao, 65 years, Pujari, Tirupathamma temple, Penuganchiprolu village and Mandal, NTR District. : Defendant.

This suit is coming before me on 14-05-2024 for final hearing in the presence of Sri T.V.V.S.Sarma, Advocate for the plaintiff and of Sri G.V.Ratnam, Advocate for the defendant and upon hearing both sides, this court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff for recovery of an amount of

Rs.2,53,964/- being the principal and interest due under the foot of a promissory note, dt.16.12.2016 from the defendant.

2.The brief averments made in the plaint are that the defendant borrowed a sum of Rs.1,12,000/- from the plaintiff on 16.12.2016 for his family expenses and executed a promissory note in his favour agreeing to repay the amount with interest @ 24% per annum to the plaintiff or to his order on demand. After receiving the amount, in spite of several demands made by the plaintiff, the defendant has not paid the amount and postponing the same on one protect or the other. Hence, the plaintiff filed this suit.

3.The defendant filed the written statement denying all the material averments made in the plaint. He stated that heapproached the plaintiff in the year 2016 for an amount of Rs.75.000/-(Rupees Seventy Five

Thousand Only) and the plaintiff agreed to advance the said amount on conditions that the rate of interest is 60%, he has to pay interest every 2 month, and he has to sign on blank stamped promissory and also blank signed cheque. Out of due necessity of money, he agreed the above conditions and obtained an amount of Rs.75,000/-(Rupees Seventy Five

Thousand Only) from the plaintiff and handed over the blank stamped signed promissory note and also issued blank signed cheque for security of the above debt. Hepaid interest every month to the plaintiff from 16th

January, 2017 to 16th December, 2019 and he also paid the principal amount of Rs.75,000/-(Rupees Seventy Five Thousand Only) to the plaintiff and demanded the plaintiff to return the blank signed stamped promissory note and blank signed cheque and the plaintiff represented that the above documents are misplaced in his house and return the same after traced out. He believed the words of the plaintiff and kept quiet. Recently some disputes arose between the plaintiff and himself. The plaintiff taking possession of the said promissory note, got issued a notice through his advocate on 8th February, 2022 and also got issued another notice through his another advocate on 17th March, 2022 with false and baseless allegations. After receiving the said notices he held a Panchayat in the presence of elders and the plaintiff agreed to withdraw the said notices and failed to do so and filed the suit with false and baseless allegations with a view to get wrongful gain and to cause loss to him. In fact he need not pay any amount to the plaintiff under the suit promissory note. The promissory note is rank forged one and the alleged signature on the part payment endorsement is forged one. The alleged payment is created only to save limitation. The alleged scribe and attestors are also close followers of the plaintiff and they signed on the suit promissory note and payment endorsement just before filing of the suit. Hence, prayed to dismiss the suit.

4.Basing on the above pleadings, the following issues have been framed:

1. Whether the suit promissory note is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for?

3. If so, to what relief?

5.In order to prove the case, the plaintiff got himself examined as

PW.1 and also examined PW.2. He also got marked Ex.A1 to Ex.A4 on his 3 behalf. On behalf of the defendant he is examined as DW.1 and also examined DW.2. He also got marked Ex.B1 to Ex.B3 on his behalf.

6.Heard learned counsel for plaintiff and defendant.

7.I S S U E S: In M.Narsinga Rao V. State of Andhra Pradesh [(2001) 1 SCC 691], the Hon’ble Supreme Court held that:

“15. The word "proof" needs to be understood in the sense it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is the production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd., observed this : "Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."

16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching a conclusion, the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. The law gives absolute discretion to the Court to presume the existence of any fact that it thinks likely to have happened. In that process, the Court may have regard to the common course of natural events, human conduct, and public or private business vis- a-vis the facts of the particular case. The discretion is envisaged in Section 114 of the Evidence Act.”

Further, in R.Puthunainar Alhithan V. P.H.Pandian [(1996) 3 SCC 624], the Hon’ble Supreme Court held that an inference from the proved facts must be so probable that if the Court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective, direct or circumstantial.

8.In view above the above pleadings, the contention of the plaintiff is that the defendant borrowed an amount of Rs.1.12,000/- and executed

Ex.A1. The defence of the defendant is that he borrowed only Rs.75,000/- in the year 2016 and at that time he handedover blank signed promissory 4 note and blank signed cheque at that time and moreover, he discharged the said amount, but the defendant had not returned the said instruments.

9. To prove the case, the plaintiff/Kolipaka Venkateswarlu as PW.1 filed his chief-examination affidavit and reiterated the facts mentioned in the plaint. He stated that the defendant borrowed an amount of Rs.1.12,000/- from him for his family expenses and executed Ex.A1 promissory note agreeing to repay the same with interest @ 24 per annum. But thereafter, he failed to repay the amount. In support of his evidence, PW.2/

K.Chiranjeevi also filed his chief examination affidavit and reiterated the facts of borrowal of amount and execution of promissory note in his presence. He stated that the said suit promissory note was executed in his presence and he attested the same. He also stated the defendant kept his signature on the promissory note. The said evidence is corroborated with each other and proves the execution of the promissory note and borrowal of the amount by the defendant from the plaintiff.

10.PWs.1 & 2 were cross-examined at length by the defendant counsel.

In the cross- examination, nothing could be elicited to disprove their evidence. Moreover, a suggestion was put to PW.1 that he borrowed

Rs.1,00,000/- from the defendant on 14.12.2018 and when the defendant demanded the plaintiff to repay the amount, an altercation occurred, as such the suit is filed. It is never the contention of the defendant in his written statement. It was the contention of the defendant that he borrowed Rs.75,000/- in the year 2016 and at that time the plaintiff obtained a blank promissory note and blank cheque as security, and thereafter they are misused by filing this suit. But, no such suggestion was put to PWs.1 & 2 to prove the defence of the defendant. A suggestion was put to PW.1 that the defendant paid an amount of

Rs.75,000/- in installments till 16.12.2019 and it was admitted by PW.1.

PW.1 further clarified that after payment of the said amount, the defendant again borrowed the amount. As no suggestion that the blank promissory note and blank cheque were handedover to PW.1 by defendant was given to PWs.1 & 2 to prove the defence, it cannot be said that the defendant had really given the blank negotiable instruments to PW.1 as security.

11.It is one of the contention that the attestors at the time of execution of promissory note and the attestor at the time of part payment 5 endorsement are different. But, there is no hard and fast rule that the same attestor should be present at the time of borrowal of the amount and part payment of the amount. The another contention of the defendant is that two legal notices were issued to the defendant and the part payment amounts were mentioned differently in them. Though a perusal of (Ex.A3=Ex.B2) and Ex.B1 shows the same, the same is not fatal to the case of the plaintiff as it may be a clerical mistake. The defendant also could not able to show that there is also a hard and fast rule that legal notice shall be issued before filing of the suit. As the defendant had stated that the plaintiff obtained blank promissory note and blank cheque from him, it is clear that the defendant admitted his signature on Ex.A1 promissory note. A perusal of Ex.A1 promissory note and Ex.A2 part payment endorsement also shows that the signature on both of them seems to be same to the naked eye. PWs.2 & 3 denied the suggestions which are adverse to them. It is a well known fact that the promissory note is not a compulsorily attestable document. Generally no attestors are necessary to execute a promissory note. In Chandabolu Bhaskara Rao vs Betha Saidi Reddy [2006 (4) ALD 572 = 2006 (4) ALT 245], the

Honble High Court of A.P held that

“4. Since promissory note is not a compulsorily attestable document, even if the signatures of the attestors are taken, after its execution it does not amount to material alteration, and so it does not get vitiated. Therefore, whether there were attestors or not at the time of its execution is immaterial, more so when its execution is admitted.”

Thus, as per the said decision, even though if it is believed that the scribe had filled the contents after the borrower and attestor signed on it, it is not fatal to the case of the plaintiff.

12.On the other hand, It is contention of the defendant by filing his chief-examination affidavit that he borrowed an amount of Rs.75,000/- from the plaintiff and later he paid the said amount to the plaintiff and demanded the plaintiff to return the blank signed stamped promissory note and blank signed cheque and the plaintiff represented that the said documents are misplaced in his house and will return after traced out. Ex.A3 is same as

Ex.B2. Though the defendant got marked Exs.B1 to B3, Exs.B1 & B2 are the legal notices and Ex.B3 is his salary certificate. Why the salary certificate has been filed is not explained by him. The defendant also got examined himself as DW.1 and got examined DW.2. DW.1 stated he 6 borrowed Rs.75,000/- in the year 2016 and gave the blank negotiable instruments to PW.1 as security. But no proof has been filed by him to show that he really borrowed Rs.75,000/- and repaid the same. Thus, he could not able to prove that he gave the promissory note as security.

However, PW.1 admitted the same and he further stated that the defendant again borrowed the said amount. Coming to the cross-examination, DW.1 stated that taking advantage of the discharged promissory note in his custody has foisted this case against him for wrongful gain. But, to prove the same, he had not filed any documents. Moreover, Ex.A1 clearly shows that the defendant signed on it along with the date ’16.12.2016’ i.e., the date of its execution. DW.2/Chandrakanti Srinivasarao though filed his chief examination affidavit and stated that the defendant borrowed

Rs.75,000/- from PW.1 and handedover blank sgined promissory note and blank signed cheque as security at that time, he in his cross-examination admitted that he had not signed on any document with regard to the said transaction in the year 2016. He has no document to show that he was present at the time of said transaction in the year 2016 and also that he was present at the time of discharge of the amount. He himself stated he does not know the interest date with regard to transaction. He also does not know how much amount the defendant paid each month towards interest for the said transaction. He has no personal knowledge with regard to payment of interest by the defendant. He also stated he does not know the date when the defendant repaid Rs.75,000/- to the plaintiff.

Thus, it is clear that the evidence of DW.2 is doubtful in nature.

13.Further, in Bharat Barrel and Drum Manufacturing Company Vs.

Amin Chand Payrelal [AIR 1999 SC 1008], the Hon’ble Apex Court held thus:

“Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-exi stence of the consideration can be 7 either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.”

In G. Venkata Rama Subbaiah Vs. D. Rasool Naik [2003 (4) ALT 414], the composite Hon’ble High Court of Andhra Pradesh held thus :

“Once the execution of the promissory note is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under Section 118 does not come to the rescue of the plaintiff.”

In a decision Bonalaraju V. S. Sarupula Srinivas 2006(2) ALD 202, the composite Hon’ble High Court of Andhra Pradesh held that:

“once execution is proved the presumption under Section 118 of N.I. Act that it is supported by consideration automatically applies and the contention that the plaintiff is not only to establish the execution but also establish passing on the consideration is rejected”.

In a decision Abbisetti Krishnamoorthy V. Singasani Raghuramaiah (died) per L.R.s [2011 (5) ALT 143], the composite Hon’ble High Court of

Andhra Pradesh held that:

"Section 118 of the N.I Act shows that the presumption attached to passage of consideration (as is the subject matter of this Appeal) just like other presumption also is clearly 8 rebuttable and it is for the defendant to satisfy the Court that in a given case, the presumption cannot be drawn". Thus, in view of the above evidence, facts and circumstances of the case, this Court is of the view that the evidence of PWs.1 & 2 proved the execution and passing of consideration of Rs.1,12,000/- under Ex.A1 promissory note to the defendant and the defendant failed to prove either that the promissory note was issued as security for another transaction, and as such the plaintiff is entitled to recover the suit amount. Hence, the issues are answered accordingly.

14.With regard to interest, the plaintiff had claimed 12% interest on the

principal amount from the date of the suit till the date of realization of the

amount. Sec.34 of the Civil Procedure Code, 1908 postulates that where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. Thus, this court is of the view that 12% interest from the date of the suit till the date of decree and 6% interest from the date of decree till the date of realization is reasonable to be ordered on the principal amount adjudged.

15.In the result, the suit is decreed with costs, directing the defendant to pay a sum of Rs.2,53,964/- (Rupees Two Lakha Fifty Three thousand

Nine hundred and sixty four only) to the plaintiff together with interest @ 12% p.a., from the date of filing of suit to till the date of decree and thereafter subsequent interest @ 6% p.a., from the date of the decree till the date of realization on the principal amount of Rs.1,11,800/- (Rupees

One lakh eleven thousand eight hundred only).

Dictated to the Stenographer Grade-III, transcribed by him, corrected

and pronounced by me in the open court, this the 17 th day of May, 2024.

Digitally signed SHAIKby SHAIK REYAZ REYAZDate: 2024.05.17 14:31:33 +0530

PRL. CIVIL JUDGE(JUNIOR DIVISION),

ADDL. CIVIL JUDGE(JUNIOR DIVISION),

NANDIGAMA.

9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW.1 : K.Venkateswarlu DW.1 : M.Chalapathi

PW.2 : K. ChiranjeeviDW.2: Ch. Srinivasa Rao.

DOCUMENTS MARKED

For Plaintiff: 

Ex.A1: Original Pronote, dt.16.12.2016 executed by the defendant in favour of plaintiff.

Ex.A2 : Payment Endorsement dt.1.12.2019

Ex.A3 : Office copy of legal notice dt.17.3.2022.

Ex.A4 : Postal Acknowledgment

For Defendant:

Ex.B1 : Served copy of legal notice, issued by the plaintiff showing the part payment of Rs.2,000/- dated 1.12.2019.

Ex.B2: Served copy of legal notice issued by the plaintiff showing the part payment of Rs.200/- dt.1.12.2019.

Ex.B3 : Attested copy of salary certificate of the defendant.

SHAIK

Digitally signed by SHAIK REYAZ REYAZDate: 2024.05.17 14:31:25 +0530

PRL. CIVIL JUDGE(JUNIOR DIVISION),

ADDL. CIVIL JUDGE(JUNIOR DIVISION),

NANDIGAMA.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

NANDIGAMA.

Present: Sri Shaik Reyaz,

Judicial Magistrate of First Class, Nandigama.

Thursday, this the 24th day of April, 2025.

Calendar Case No.72 of 2025

BETWEEN:

State: Represented by the Proh. & Excise Sub Inspector, Kanchikacherla Police Station, NTR District.

…. Complainant

A N D

1. Chirivella Karthik, S/o Narasimha rao, aged 24 years, R/o Gandepalli village, Kanchikacherla Mandal, NTR District.

2. Mungi Seethaiah, S/o Sattaiah, aged 43 years, R/o ST colony, Alluru village, Veerulapadu mandal, NTR District.

....Accused

This case is coming on 22.04.2025 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the

Complainant and of Legal Aid Counsel for Accused Nos.1 & 2, 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 Kanchikacherla Police

Station has filed a charge sheet in Cr.No. 46 /2024 against the accused/

A1 & A2 for the offence punishable u/Sec.34(a) of the Andhra Pradesh

Excise Act (Amendment Act No. 17 of 2020) (for short ‘the Act’).

2. The brief facts of the prosecution case are as follows:

On 12.02.2024 at about 04.00 P.M., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, LW.2/Sri Y.N.Krishna, Sub-Inspector of Police, SEB

Kanchikacherla Police Station along with mediator LW.1/ M.Vasavi, MSK and his staff LW.3/Sri Ch.Satyanarayana, SEB Constable, conducted raids near road margin opposite to Anjaneyaswamy temple, Jagannadhapuram village, Kanchikacherla mandal, and noticed accused/A1 & A2 were coming by carrying three mica bags in a suspicious manner. On seeing the police, they tried to skulk away. On suspicion, LW.2 apprehended the accused/A1 & A2 and verified their bags. On verification, he found total 83 liquor bottles ie., 1. 56 bottles of King fisher Platinum Lazer beer 650 ml each, 2. 8 bottles of Daaru House XO brandy 180 ml each, 3. 12 bottles of 2

HD Heart’s desire ultra deluxe whisky 180ml each and 4. 7 bottles of

Andhra Gold Fine whisky 180ml each. Then, LW.2 apprehended the accused and questioned them, they stated that they purchased the duty paid liquor bottles from Government liquor shops in Kanchikacherla on

MRP rates, with an intention to sell the same at their native place at higher price to get more profit without having any license or permit for possession and sale of liquor bottles. LW.2 informed to them that illegal possession of

IML bottles is an offence under the provisions of A.P. Excise Act, 1968. He seized the bottles from the scene, took sample bottles for chemical analysis, sealed the bottles and pasted identity slips over the bottles under the cover of mediator’s report.

Subsequently, LW.2 returned to Police Station and basing on the mediators Report, he registered as case in Cr.No. 46 /2024 for the offence punishable U/s.34(a) of A.P. Excise Act 1968. Later, he served 41 A Cr.P.C.

notice to the accused, on which he complied the same. He sent the sample bottles to the Chemical Examiner, Kakinada for analysis. The Chemical

Examiner analyzed the contents of the samples and opined that it is Indian made liquor. He received analysis report and handed over the entire case record to LW.4/Sri MD. Galeb Saheb, Prob.& Excise S.I. of

Kanchikacherla P.S., after completion of investigation, LW.4 filed charge sheet in this case.

3. Cognizance has been taken against the accused for the offence punishable Under Sections 34(a) of AP Excise Act.

4. On appearance of the accused, copies of relevant documents were furnished to them as contemplated U/Sec.207 of the Code of Criminal

Procedure (for short ‘the Cr.P.C’).

5. When the accused have been examined U/Sec.239 of the Cr.P.C, a charge for the offence punishable u/Sec.34(a) of the Act, has been framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed the case to be tried.

6.During trial, the prosecution has examined LW.2/Sri Y.N.Krishna,

SEB Sub - Inspector of Police, as PW.1, and got marked Exs.P1 to P4 and MOs.1 to 4. The Learned Assistant Public Prosecutor has given up the remaining witnesses as PW.1 supported the case.

7.The accused have been examined U/Sec.313 of Cr.P.C by explaining the incriminating material appearing against them, for which, 3 they denied the same and reported no defense evidence.

8. Heard the arguments of both sides.

The learned Assistant Public Prosecutor argued that the evidence of

PW.1 coupled with Exs.P1 to P4 and MOs.1 to 4 are cogent, consistent and trustworthy in nature and the said evidence is enough to prove the guilt against the accused, as such prayed the court to convict the accused.

The legal aid counsel argued that there is no corroboration in the case of prosecution and the evidence of PW.1. No independent mediator has been examined by the prosecution, even though LWs.1 & 3 were present at the time of seizure of the contraband for the best reasons known to it. Hence, benefit of doubt shall be given to the accused, as such, prayed the court to acquit the accused.

9 Now, the point of determination is whether the prosecution able to prove the accused is found in possession of liquor bottles in prohibited quantity without any valid license or permit, as such committed the offence punishable u/Sec.34(a) of A.P Excise Act beyond all reasonable doubt?

10.POINT: To prove the case, PW.1/Sri Y.N.Krishna, SEB Sub-

Inspector of Police, deposed in his evidence that on 12.02.2024 at about 04.00 P.M., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, he along with mediator LW.1/

M.Vasavi, MSK and his staff LW.3/Sri Ch.Satyanarayana, SEB Constable, conducted raids near road margin opposite to Anjaneyaswamy temple,

Jagannadhapuram village, Kanchikacherla mandal and noticed accused/

A1 & A2 were coming by carrying three bags in a suspicious manner.

On seeing the police, they tried to skulk away, with the help of his staff, he caught hold the accused and on verification, he found total 83 liquor bottles ie., 1. 56 bottles of King fisher Platinum Lazer beer 650 ml each, 2. 8 bottles of Daaru House XO brandy 180 ml each, 3. 12 bottles of HD

Heart’s desire ultra deluxe whisky 180ml each and 4. 7 bottles of Andhra

Gold Fine whisky 180ml each. He seized the bottles and took samples

MOs.1 to 4 under the cover of Mediator Report Ex.P1. Then, he returned to

Police station along with Ex.P1, contraband and accused, he registered a case in Cr.No. 46 /2024 for the offence punishable U/s.34(a) of AP Excise

Act under Ex.P2/FIR. He served notice U/s 41 A Cr.P.C. to the accused. He sent the sample bottles to Forensic Laboratory, Kakinada for analysis under Ex.P3/Letter of advice. He received Ex.P4/Analysis report opining that the contraband is Indian Made liquor. After completion of investigation, 4

LW.4 filed charge sheet in this case.

11.Section 34(a) of Andhra Pradesh Excise Act, 1968 (Amendment Act, 2020) says that:

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or of any license or permit granted or issued under this Act, imports, exports, transports, manufactures, collects or possesses or sells any intoxicant shall be punishable with imprisonment for a term which shall not be less than six months but which may extend up to eight years.

In order to bring the case within the provisions of Section 34 (a) of

Andhra Pradesh Excise Act, 1968, it is necessary for the prosecution to prove that the accused are in possession of more than six quarter bottles of Indian made liquor without permit. In the case on hand, as per the evidence of prosecution witnesses, the accused were carrying 83 NIP bottles of duty paid IML. Therefore, this Court is of the view that the accused is found in possession of liquor in the prohibited quantity under the Act.

12. The next contention of the State is that the accused are in possession of the contraband to sell them at higher price. Though it is stated by PW.1 that the accused intended to sell them at higher price, none of the witnesses had enquired from whom he purchased the liquor bottles and where the accused are intending to sell those liquor bottles.

Though PW.1 apprehended the accused basing on the confession, the same is not admissible in evidence. It is settled law that an Excise Officer is a Police officer within the meaning of Section 25 of the Evidence Act and a confession made by the accused persons before an excise official, if otherwise not proved, is inadmissible in evidence. (Kalidinidi Ramaraju

Vs State of A.P. [2002 1 ALD (Crl) 863 (AP) = 2002 (2) ALT (Crl) 114

(AP)]. The Honourable High Court of Andhra Pradesh in Mudavath

Mothia Vs State of A.P [2002 (1) ALT 9 Crl. 437 (AP)] held that the offence u/Sec.34 of the A.P. Excise Act is made cognizable offence and 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 in- admissible. Therefore, this Court is of the view that the said contention cannot be believed without any supporting evidence.

5

13.Sec.100 (4) of Cr.P.C., says that:

“100: Persons in charge of closed place to allows search: (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Sec.55 of the Act is as follows:

“55. Power to search without warrant - Whenever the Commissioner or a Collector 8[or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a police station or any excise officer not below the rank of Prohibition and Excise Sub-Inspector 9[or any Special Enforcement Bureau Officer not below the rank of Sub- Inspector] has reason to believe that an offence under section 34, section 35, section 36, 1[section 37 or section 37A] has been, is being or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief,-

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”

In Yeduru Sreenivasul Reddy Vs. State of A.P. [2002 (1) ALT(Crl.) 251 (A.P),]the Hon’ble High Court of Andhra Pradesh held that “in absence of punch witnesses, written order to be passed that no one was willing to act as punch witnesses. When such written orders were not passed, evidence that no one was willing to act as punch witnesses cannot be believed or relied upon. Entire search is without jurisdiction.” On close reading of Sec.100

Cr.P.C, it is clear that the officer before making a search shall call at least two or more respectable inhabitants of the locality in which the place is to be searched and if no such inhabitants of that locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it do. When the law required a particular thing to be done in a particular way, it 6 must be done in that way only and not otherwise. If there is any violation of the statutory provision, it makes the act of the Investigating Officer doubtful.

14.As seen from Ex.P1, the scene of offence is near road margin opposite to Anjaneyaswamy temple, Jagannadhapuram village,

Kanchikacherla mandal. Admittedly, the alleged scene of apprehension is a busy locality. So many vehicles will pass bye. As per the case of prosecution, though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. A bare reading of Ex.P1

Mediators report discloses the fact that the police tried to secure mediators.

Furthermore, PW.1 is the Investigating officer in this case and the entire investigation was done by him. Further, PW.1 registered the case and he also sent the remaining bottles for Chemical Analysis. The Hon’ble Apex

Court in Mohanlal Vs. The state of Panjab [(2018) SCC online SC 974] held that “the accused will be prejudiced of his right to free and fair investigation, if the informant is the Investigating Officer of the case.”

Therefore, in such circumstances, the evidence of PW.1 coupled with Ex.P1 does not establish that the accused are found in possession of contraband.

Coming to the cross-examination also, PW.1 stated that the alleged scene of offence is the place where vehicle will pass frequently as such, it is a busy locality. He also had not examined any persons at the scene of offence. He has not collected any information of the source of liquor seized from the scene of offence. He has not forwarded the sample bottles through the

Court for Chemical Examination and also not sent all the samples to the analyst. In Mudavath Mothia Vs. State of A.P. [2002 (1) ALT (Crl.) 437 (A.P)], It was held at Paragraph No.5, that “moreover only one sample of sachet was produced before the Court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I.D. liquor and is not proved”. Further in S. Babu Saheb @

Babu v/s The State of A.P., rep. by Public Prosecutor, High Court

Building, (through Proh.& Excise PS., Srikalahasti) Hyderabad, [2010

(1) ALT Crl) (AP)], it is held as follows:

“16. Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a 7 different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

Hence, these are also latches on the part of the investigating officer. Thus, a perusal of the above evidence shows that PW.1 has not secured any independent witnesses at the time of conducting search of accused. The inconsistencies in their evidence about securing mediators and apprehending the accused at the scene creates a doubt in the mind of the

Court about the seizure of contraband and as such their evidence cannot be relied upon as PW.1 failed to follow the search procedure contemplated under Sec.100(4) Cr.P.C which is mandatory at the time of seizing the contraband. Admittedly, the witnesses are the Excise officials and they will be highly interested for getting the success of prosecution. All these facts lead to inference that the Excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband, which certainly affects the investigation.

15.Thus, in view of the above circumstances of the case, it can be rightly concluded that mere registering the crime in favour of the state by itself does not prove the case of prosecution. Except the evidence of PW.1 who is the police official and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this Court is inclined to hold a considered view that the State has failed in bringing home the guilt of the accused for the charge framed against the accused for the offence punishable u/Sec.34(a) of the Act, and hence, accused are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the State.

8

16.In the result, the Accused/A1 & A2 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MOs.1 to 4 shall be destroyed after expiry of appeal time.

Typed by the Stenographer, Gr.III on my dictation, corrected and

pronounced by me in open Court on this the 24 th day of April, 2025.

SHAIKDigitally signed by SHAIK REYAZ REYAZDate: 2025.04.24 14:52:08 +0530

Judicial Magistrate of First Class

Nandigama.

APPENDIX OF EVIDENCE

LIST OF WITNESSES

For Prosecution For Defense.

PW1 : Sri Y.N.Krishna - None -

DOCUMENTS MARKED FOR

For Prosecution. For Defence:

Ex.P1: Mediators Report - Nil - Ex.P2: FIR Ex.P3: Letter of Advice Ex.P4: Analysis Report Material Objects:

MO.1 – Sample bottle of King fisher platinum lazer beer 650 ml. MO.2 – Sample bottle of Daaru House XO brandy 180 ml. MO.3 – Sample bottle of HD Heart’s Desire Ultra Deluxe whisky 180 ml. MO.4 – Sample bottle of Andhra Gold Fine whisky 180 ml. SHAIK Digitally signed by SHAIK REYAZ REYAZDate: 2025.04.24 14:52:19 +0530

 Judicial Magistrate of First Class

Nandigama.

9

CALENDAR AND JUDGMENT

Calendar Case No. 72 of 2025 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

Date ofReport orApprehensReleaseCommenceClose ofJudgment offence Complaintion of theon bailment of trial trial accused 12.02.2024 12.02.2024----15.04.202522.04.2025 24.04.2025

Explanation for delay and remarks:

This case was taken on file on 31.01.2025. On 05.03.2025 copies of documents were furnished to the accused. On 10.03.2025 accused are examined u/s.239 Cr.P.C and a charge for the offence punishable u/Sec.34(a) of AP Excise Act have been framed against them. They denied the offence and claimed to be tried. On 15.04.2025 PW.1 has been examined and Exs.P1 to P4 and MOs.1 to 4 got marked. The learned Asst. Public Prosecutor has given up the remaining witnesses, as PW.1 supported the case. Hence, Prosecution evidence closed. On 22.04.2025 Accused are examined u/s.313 Cr.P.C. They denied the evidence and reported no defence evidence. Hence, defence evidence closed. Heard the arguments. Judgment pronounced on 24.04.2025. Hence, no delay.

Judgment in C.C.No: 72 of 2025 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

BETWEEN:

State: Represented by the Proh. & Excise Sub Inspector, Kanchikacherla Police Station, NTR District. …. Complainant

A N D

1. Chirivella Karthik, S/o Narasimha rao, aged 24 years, R/o Gandepalli village, Kanchikacherla Mandal, NTR District.

2. Mungi Seethaiah, S/o Sattaiah, aged 43 years, R/o ST colony, Alluru

village, Veerulapadu mandal, NTR District.....Accused

Offence : U/s.34(a) of A.P. Excise Act, 1968.

Finding : Not guilty.

Result: In the result, the Accused/A1 and A2 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437- A Cr.P.C. MOs.1 to 4 shall be destroyed after expiry of appeal time. SHAIKDigitally signed by

SHAIK REYAZ

REYAZDate: 2025.04.24 14:52:30 +0530

JUDICIAL MAGISTRATE OF FIRST CLASS

NANDIGAMA.

Copy submitted to: 1.The Honourable I Addl. District and Sessions Judge, Krishna, Machilipatnam.

2. The Superintendent of Police, Krishna, Machilipatnam.

3. The learned Assistant Public Prosecutor. Dis No. ,Dt.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

NANDIGAMA.

Present: Sri Shaik Reyaz,

Judicial Magistrate of First Class, Nandigama.

Friday, this the 15th day of May, 2026.

Calendar Case No.915 of 2024

BETWEEN:

State: Represented by the Sub Inspector, Kanchikacherla Police Station, NTR District.

…. Complainant

A N D

1. Akula Srihari, S/o Sambasiva Rao, aged 46 years, R/o Hanumanpet Village of Kanchikacherla Mandal, NTR District.

2. Shaik Gali Saheb, S/o Ahammad, aged 65 years, R/o Gottumukkala Village of Kanchikacherla Mandal, NTR District.

3. Velpula Mariyamma, W/o Rayappa, aged 60 years, R/o Chevitikallu road, Kanchikacherla Village and Mandal, NTR District.

4. Muppalla Chinna Narayana, S/o Yesu, aged 45 years, R/o Kothapaeta Village of Kanchikacherla Mandal, NTR District.

....Accused

This case is coming on 14.05.2026 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the Complainant and of Sri V.Swamy, Advocate for the accused/A1; Sri K.Jeeva Rathnam, Advocate for A2 to A4; after hearing on both sides 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, Kanchikacherla Police Station has filed a charge sheet in Cr.No.107/2024 against the accused/A1 to A4 for the offence punishable u/Sec.34(a) of the Andhra Pradesh Excise Act (Amendment Act

No.17 of 2020) (for short ‘the Act’).

2. The brief facts of the prosecution case are as follows:

On 13.03.2024 at about 19.30 hrs., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, LW.3/Sri PSV

Subramanyam, Sub-Inspector of Police, Kanchikacherla Police Station along with his staff LW.1/B.Prabhakara Rao HC 4324 and LW.2/K.Syam Kumar PC 4122, while conducting vehicle checking at Jujjuru road, Kanchikacherla Village and

Mandal, they noticed accused/A1 & A2 coming in with a bag in a suspicious manner. On seeing the police, they tried to skulk away. On suspicion, LW.3 apprehended the accused and verified the bag which is in their possession. On 2 verification, LW.3 found total 60 bottles of King Fisher Beers. When LW.3 apprehended the accused and questioned them, they confessed that they purchased the liquor bottles (duty paid) from a wine shop situated at

Kanchikacherla Village and Mandal, on MRP rates and handed over the same to Velpula Mariyamma/A3 and Muppalla Chinna Narayana/A4 on commission basis. A3 and A4 will sold the same to the wanting persons at their native place at higher price, in order to get more profits in short time, without having any license or permit for possession, transportation and selling of the liquor bottles. LW.3 informed them, that illegal possession and selling of IML bottles is an offence under the provisions of A.P. Excise Act, 1968. He seized the bottles from the scene, took sample bottles for chemical analysis, sealed the bottles and pasted identity slips over the bottles under the cover of occurrence report.

Subsequently, LW.3 returned to Police Station, basing on the

Occurrence Report, he registered a case in Cr.No.107/2024 for the offence punishable U/s.34(a) of A.P. Excise Act 1968. Later, he served notice U/s 41 A

Cr.P.C. to all the accused, on which, they complied the same. He handed over the entire record to his successor LW.4/Sri B.Raju, S.I. of police,

Kanchikacherla P.S., he sent the sample bottles to the Chemical Examiner,

Kakinada for analysis. The Chemical Examiner analyzed the contents of the samples and opined that it is Indian Made Liquor. He received analysis report.

After completion of investigation, he filed charge sheet in this case.

3.Cognizance has been taken against the accused for the offence punishable Under Sections 34(a) of AP Excise Act.

4.On appearance of the accused, copies of relevant documents were furnished to them as contemplated U/Sec.207 of the Code of Criminal

Procedure (for short ‘the Cr.P.C’).

5.When the accused/A1 to A5 have been examined U/Sec.239 of the

Cr.P.C, a charge for the offence punishable u/Sec.34(a) of the Act, has been 3 framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed the case to be tried.

6.During trial, the prosecution has examined LW.3/Sri PSV

Subramanyam, Sub Inspector of Police as PW.1 and got marked Exs.P1 to P4 and MO.1. The Learned Assistant Public Prosecutor has given up the remaining witnesses as main witness PW.1 supported the case. Hence, prosecution evidence has been closed.

7.The accused have been examined U/Sec.313 of Cr.P.C by explaining the incriminating material appearing against them, for which, they denied the same and reported no defence evidence.

8.Heard the arguments of both sides.

The learned Assistant Public Prosecutor argued that the evidence of

PW.1 coupled with Exs.P1 to P4 and MO.1 are cogent, consistent and trustworthy in nature and the said evidence is enough to prove the guilt against the accused, as such prayed the court to convict the accused.

The learned counsel for the accused argued that there is no corroboration in the case of prosecution and the evidence of PW.1. No independent mediator has been examined by the prosecution, even though

LWs.1 & 2 were present at the time of seizure of the contraband, for the best reasons known to it. Hence, benefit of doubt shall be given to the accused, as such, prayed the court to acquit the accused.

9Now, the point of determination is whether the prosecution able to prove the accused is found in possession of liquor bottles in prohibited quantity without any valid license or permit, as such committed the offence punishable u/Sec. 34(a) of A.P Excise Act beyond all reasonable doubt?

10.P O I N T :To prove the case, PW.1/ Sri PSV Subramanyam, Sub

Inspector of police, deposed in his evidence that on 13.03.2024 at about 19.30 hrs., on receipt of credible information about illegal possession, transportation 4 and selling of liquor bottles, he along with his staff LW.1/B.Prabhakara Rao HC 4324 and LW.2/K.Syam Kumar PC 4122, while conducting vehicle checking at

Jujjuru road, Kanchikacherla Village and Mandal, they noticed accused/A1 &

A2 coming in with a bag in a suspicious manner. On seeing the police, they tried to skulk away, with the help of his staff, he caught hold the accused and on verification of the bag, which is in their possession, he found total 60 bottles of King Fisher Beers. He seized the bottles and took samples MO.1 under the cover of Occurrence Report/Ex.P1. Then, he returned to Police station along with Ex.P1, contraband and accused, registered a case in

Cr.No.107/2024 for the offence punishable U/s.34(a) of AP Excise Act., under

Ex.P2/FIR. He served notice U/s 41 A Cr.P.C. to the accused. He handed over the entire record to LW.4, he sent the sample bottles to Forensic Laboratory,

Kakinada for analysis through Letter of advice/Ex.P3. He received analysis report/Ex.P4, opining that the contraband is Indian Made liquor and after completion of investigation, he filed charge sheet in this case.

11.Section 34(a) of Andhra Pradesh Excise Act, 1968 (Amendment Act, 2020) says that:

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or of any license or permit granted or issued under this Act, imports, exports, transports, manufactures, collects or possesses or sells any intoxicant shall be punishable with imprisonment for a term which shall not be less than six months but which may extend up to eight years.

In order to bring the case within the provisions of Section 34 (a) of

Andhra Pradesh Excise Act, 1968, it is necessary for the prosecution to prove that the accused are in possession of more than six quarter bottles of Indian made liquor without permit. In the case on hand, as per the evidence of prosecution witnesses, the accused was carrying 60 NIP bottles of duty paid

IML. Therefore, this Court is of the view that the accused are found in possession of liquor in the prohibited quantity under the Act.

5

12.The next contention of the State is that the accused are in possession of the contraband to sell them at higher price. Though it is stated by PW.1 that the accused are intended to sell them at higher price, none of the witnesses had enquired from whom they purchased the liquor bottles and where the accused are intending to sell those liquor bottles. Though PW.1 apprehended the accused basing on the confession, the same is not admissible in evidence.

It is settled law that an Excise Officer is a police officer within the meaning of

Section 25 of the Evidence Act and a confession made by the accused person

before an excise official, if otherwise not proved, is inadmissible in evidence.

Kalidinidi Ramaraju Vs State of A.P. [2002 1 ALD (Crl) 863 (AP) = 2002 (2)

ALT (Crl) 114 (AP)]. The Honourable High Court of Andhra Pradesh in

Mudavath Mothia Vs State of A.P [2002 (1) ALT 9 Crl. 437 (AP)] held that the offence u/Sec.34 of the A.P. Excise Act is made cognizable offence and 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 in-admissible.

Therefore, this Court is of the view that the said contention cannot be believed without any supporting evidence.

13.Sec.100 (4) of Cr.P.C., says that:

“100: Persons in charge of closed place to allows search: (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Sec.55 of the Act is as follows:

“55. Power to search without warrant - Whenever the Commissioner or a Collector 8[or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a 6 police station or any excise officer not below the rank of Prohibition and Excise Sub-Inspector 9[or any Special Enforcement Bureau Officer not below the rank of Sub- Inspector] has reason to believe that an offence under section 34, section 35, section 36, 1[section 37 or section 37A] has been, is being or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief,-

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”

In Yeduru Sreenivasul Reddy Vs. State of A.P. [2002 (1) ALT(Crl.) 251 (A.P),]the Hon’ble High Court of Andhra Pradesh held that “in absence of punch witnesses, written order to be passed that no one was willing to act as punch witnesses. When such written orders were not passed, evidence that no one was willing to act as punch witnesses cannot be believed or relied upon. Entire search is without jurisdiction.” On close reading of Sec.100 Cr.P.C, it is clear that the officer before making a search shall call at least two or more respectable inhabitants of the locality in which the place is to be searched and if no such inhabitants of that locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it do. When the law required a particular thing to be done in a particular way, it must be done in that way only and not otherwise. If there is any violation of the statutory provision, it makes the act of the Investigating Officer doubtful.

14.As seen from Ex.P1, the scene of offence is at Jujjuru road,

Kanchikacherla Village and Mandal. Admittedly, the alleged scene of apprehension is a busy locality. So many vehicles will pass bye. As per the case of prosecution, though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. A bare reading of 7

Ex.P1/Occurrence report discloses the fact that the police tried to secure mediators. Furthermore, PW.1 is the Investigating officer in this case and the entire investigation was done by him. Further, PW.1 registered the case and he also sent the remaining bottles for Chemical Analysis. The Hon’ble Apex Court in Mohanlal Vs. The state of Panjab [(2018) SCC online SC 974] held that “the accused will be prejudiced of his right to free and fair investigation, if the informant is the Investigating Officer of the case.” Therefore, in such circumstances, the evidence of PW.1 coupled with Ex.P1 does not establish that the accused are found in possession of contraband. Coming to the cross- examination also, PW.1 stated that the alleged scene of offence is the place where vehicle will pass frequently as such, it is a busy locality. He also had not examined any persons at the scene of offence. He has not collected any information of the source of liquor seized from the scene of offence. He has not forwarded the sample bottles through the Court for Chemical Examination and also not sent all the samples to the analyst. In Mudavath Mothia Vs. State of

A.P. [2002 (1) ALT (Crl.) 437 (A.P)], It was held at Paragraph No.5, that “moreover only one sample of sachet was produced before the Court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I.D. liquor and is not proved”. Further in S. Babu

Saheb @ Babu v/s The State of A.P., rep. by Public Prosecutor, High Court

Building, (through Proh.& Excise PS., Srikalahasti) Hyderabad, [2010 (1)

ALT Crl) (AP)], it is held as follows:

“16. Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise 8 officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

Hence, these are also latches on the part of the investigating officer. Thus, a perusal of the above evidence shows that PW.1 has not secured any independent witnesses at the time of conducting search of accused. The inconsistencies in their evidence about securing mediators and apprehending the accused at the scene creates a doubt in the mind of the Court about the seizure of contraband and as such their evidence cannot be relied upon as

PW.1 failed to follow the search procedure contemplated under Sec.100(4)

Cr.P.C which is mandatory at the time of seizing the contraband. Admittedly, the witnesses are the Excise officials and they will be highly interested for getting the success of prosecution. All these facts lead to inference that the

Excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband, which certainly affects the investigation.

15.Thus, in view of the above circumstances of the case, it can be rightly concluded that mere registering the crime in favour of the state by itself does not prove the case of prosecution. Except the evidence of PW.1 who is the police official and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this Court is inclined to hold a considered view that the 9

State has failed in bringing home the guilt of the accused for the charge framed against the accused for the offence punishable u/Sec.34(a) of the Act, and hence, accused are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the

State.

16.In the result, the Accused/A1 to A4 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MO.1 shall be destroyed after expiry of appeal time.

Typed by the Stenographer Gr.III on my dictation, corrected and

pronounced by me in open Court on this the 15 th day of May, 2026.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:13:15 +0530

REYAZ SHAIK

Location: Nandigama

Judicial Magistrate of First Class

Nandigama.

APPENDIX OF EVIDENCE

LIST OF WITNESSES

For Prosecution For Defense.

PW.1 : Sri PSV Subramanyam - None –

DOCUMENTS MARKED FOR

For Prosecution. For Defence:

Ex.P1: Occurrence Report - Nil -

Ex.P2: FIR

Ex.P3: Letter of Advice

Ex.P4 : Analysis Report 10

Material Objects:

MO.1 – Sample bottle of King fisher beers.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:13:51 +0530

REYAZ SHAIK

Location: Nandigama

 Judicial Magistrate of First Class

Nandigama.

11

CALENDAR AND JUDGMENT

Calendar Case No.915 of 2024 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

Date ofReport orApprehensReleaseCommenceClose ofJudgment offence Complaintion of theon bailment of trial trial accused 13.03.2413.03.24 ----13.05.2026 14.05.2026 15.05.2026

Explanation for delay and remarks:

This case was taken on file on 19.11.2024. On 12.05.2026 copies of documents were furnished to the accused and on the same day, accused are examined u/s.239 Cr.P.C and a charge for the offence punishable u/Sec.34(a) of AP Excise Act has been framed against them. They denied the offence and claimed to be tried. On 13.05.2026 PW.1 has been examined and Exs.P1 to P4 and MO.1 got marked. The learned Asst. Public Prosecutor has given up the remaining witnesses as PW.1 supported the case. Hence, Prosecution evidence has been closed. On 14.05.2026 accused are examined u/s.313 Cr.P.C. They denied the evidence and reported no defence evidence. Hence, defence evidence closed. Heard the arguments. Judgment pronounced on 15.05.2026. Hence, no delay.

Judgment in C.C.No:915 of 2024 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

BETWEEN:

State: Represented by the Sub Inspector, Kanchikacherla Police Station, NTR District. …. Complainant

A N D

1. Akula Srihari, S/o Sambasiva Rao, aged 46 years, R/o Hanumanpet Village of Kanchikacherla Mandal, NTR District.

2. Shaik Gali Saheb, S/o Ahammad, aged 65 years, R/o Gottumukkala Village of Kanchikacherla Mandal, NTR District.

3. Velpula Mariyamma, W/o Rayappa, aged 60 years, R/o Chevitikallu road, Kanchikacherla Village and Mandal, NTR District.

4. Muppalla Chinna Narayana, S/o Yesu, aged 45 years, R/o Kothapaeta Village of Kanchikacherla Mandal, NTR District.

....Accused

Offence : U/s.34(a) of A.P. Excise Act, 1968.

Finding : Not guilty.

12

Result: In the result, the Accused/A1 to A4 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MO.1 shall be destroyed after expiry of appeal time.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:14:24 +0530

REYAZ SHAIK

Location: Nandigama

JUDICIAL MAGISTRATE OF FIRST CLASS

NANDIGAMA.

Copy submitted to: 1.The Honourable I Addl. District and Sessions Judge, Krishna, Machilipatnam.

2. The Superintendent of Police, Krishna, Machilipatnam.

3. The learned Assistant Public Prosecutor. Dis No. ,Dt.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

NANDIGAMA.

Present: Sri Shaik Reyaz,

Judicial Magistrate of First Class, Nandigama.

Friday, this the 15th day of May, 2026.

Calendar Case No.2494 of 2022

BETWEEN:

State: Represented by the Sub Inspector, Kanchikacherla Police Station, NTR District.

…. Complainant

A N D

1. Kommukuri Suresh @ Srikanth, S/o Srinu, aged 24 years, R/o Arundathi Colony, Kanchikacherla Village and Mandal, NTR District.

2. Bollepogu Yesu, S/o Swamy, aged 30 years, R/o Moguluru Village of Kanchikacherla Mandal, NTR District.

3. Banka Venklatappaiah, S/o Ramulu, aged 37 years, R/o Moguluru Village of Kanchikacherla Mandal, NTR District.

....Accused

This case is coming on 14.05.2026 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the Complainant and of Sri G.Ravi Kumar, Advocate for the accused/A1 & A3; Sri Sk.

Karimullah, Advocate for A2; after hearing on both sides 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, Kanchikacherla Police Station has filed a charge sheet in Cr.No.846/2020 against the accused/A1 to A3 for the offence punishable u/Sec.34(a) of the Andhra Pradesh Excise Act (Amendment Act

No.17 of 2020) (for short ‘the Act’).

2. The brief facts of the prosecution case are as follows:

On 13.09.2020 at about 17.30 hrs., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, LW.3/Sri 2

M.P.S.S.Ranganath, Sub-Inspector of Police, Kanchikacherla Police Station along with his staff LW.1/D.Venkateswara Rao PC 51 and LW.2/V.Radha

Krishna PC 1776, while conducting vehicle checking at Gottumukkala road,

Kanchikacherla Village and Mandal, they noticed accused/A1 coming in with a bag in a suspicious manner. On seeing the police, he tried to skulk away. On suspicion, LW.3 apprehended the accused and verified the bag which is in his possession. On verification, LW.3 found total 50 liquor bottles of Old Admiral 180 ml each. When LW.3 apprehended the accused and questioned him, he confessed that he purchased the liquor bottles (duty paid) from a wine shop situated at Kanchikacherla Village and Mandal, on MRP rates and handed over the same to Bollepogu Yesu/A2 and Banka Venkatappaiah/A3 on commission basis. A2 and A3 will sold the same to the wanting persons at their native place at higher price, in order to get more profits in short time, without having any license or permit for possession, transportation and selling of the liquor bottles. LW.3 informed them, that illegal possession and selling of IML bottles is an offence under the provisions of A.P. Excise Act, 1968. He seized the bottles from the scene, took sample bottles for chemical analysis, sealed the bottles and pasted identity slips over the bottles under the cover of occurrence report.

Subsequently, LW.3 returned to Police Station, basing on the

Occurrence Report, he registered a case in Cr.No.846/2020 for the offence punishable U/s.34(a) of A.P. Excise Act 1968. Later, he served notice U/s 41 A

Cr.P.C. to accused No.3 on which he complied the same, while he arrested A1 & A2 and them to Judicial custody., He handed over the entire record to his successor LW.4/Sri PSV Subramanyam, S.I. of police, Kanchikacherla P.S., he sent the sample bottles to the Chemical Examiner, Kakinada for analysis. The

Chemical Examiner analyzed the contents of the samples and opined that it is

Indian Made Liquor. He received analysis report. After completion of investigation, he filed charge sheet in this case.

3.Cognizance has been taken against the accused for the offence punishable Under Sections 34(a) of AP Excise Act.

3

4.On appearance of the accused, copies of relevant documents were furnished to them as contemplated U/Sec.207 of the Code of Criminal

Procedure (for short ‘the Cr.P.C’).

5.When the accused/A1 to A3 have been examined U/Sec.239 of the

Cr.P.C, a charge for the offence punishable u/Sec.34(a) of the Act, has been framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed the case to be tried.

6.During trial, the prosecution has examined LW.3/Sri

M.P.S.S.Ranganath, Sub Inspector of Police as PW.1 and got marked Exs.P1 to P3 and MO.1. The Learned Assistant Public Prosecutor has given up the remaining witnesses as main witness PW.1 supported the case. Hence, prosecution evidence has been closed.

7.The accused have been examined U/Sec.313 of Cr.P.C by explaining the incriminating material appearing against them, for which, they denied the same and reported no defence evidence.

8.Heard the arguments of both sides.

The learned Assistant Public Prosecutor argued that the evidence of

PW.1 coupled with Exs.P1 to P3 and MO.1 are cogent, consistent and trustworthy in nature and the said evidence is enough to prove the guilt against the accused, as such prayed the court to convict the accused.

The learned counsel for the accused argued that there is no corroboration in the case of prosecution and the evidence of PW.1. No independent mediator has been examined by the prosecution, even though

LWs.1 & 2 were present at the time of seizure of the contraband, for the best reasons known to it. Hence, benefit of doubt shall be given to the accused, as such, prayed the court to acquit the accused.

9Now, the point of determination is whether the prosecution able to prove the accused is found in possession of liquor bottles in prohibited quantity without any valid license or permit, as such committed the offence punishable 4 u/Sec. 34(a) of A.P Excise Act beyond all reasonable doubt?

10.P O I N T :To prove the case, PW.1/ Sri M.P.S.S.Ranganath, Sub

Inspector of police, deposed in his evidence that on 13.09.2020 at about 17.30 hrs., on receipt of credible information about illegal possession, transportation and selling of liquor bottles, he along with his staff LW.1/D.Venkateswara Rao

PC 51 and LW.2/V.Radha Krishna PC 1776, while conducting vehicle checking at Gottumukkala road, Kanchikacherla Village and Mandal, they noticed accused/A1 coming in with a bag in a suspicious manner. On seeing the police, he tried to skulk away, with the help of his staff, he caught hold the accused and on verification of the bag, which is in the possession of accused, he found total 50 liquor bottles of Old Admiral 180 ml each. He seized the bottles and took samples MO.1 under the cover of Occurrence Report/Ex.P1.

Then, he returned to Police station along with Ex.P1, contraband and accused, registered a case in Cr.No.846/2020 for the offence punishable

U/s.34(a) of AP Excise Act., under Ex.P2/FIR. He served notice U/s 41 A

Cr.P.C. to the accused No.3, while he arrested A1 & A2 and sent them to

Judicial remand. He handed over the entire record to LW.4, he sent the sample bottles to Forensic Laboratory, Kakinada for analysis through Letter of advice. He received analysis report/Ex.P3, opining that the contraband is

Indian Made liquor and after completion of investigation, he filed charge sheet in this case.

11.Section 34(a) of Andhra Pradesh Excise Act, 1968 (Amendment Act, 2020) says that:

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or of any license or permit granted or issued under this Act, imports, exports, transports, manufactures, collects or possesses or sells any intoxicant shall be punishable with imprisonment for a term which shall not be less than six months but which may extend up to eight years.

5

In order to bring the case within the provisions of Section 34 (a) of

Andhra Pradesh Excise Act, 1968, it is necessary for the prosecution to prove that the accused are in possession of more than six quarter bottles of Indian made liquor without permit. In the case on hand, as per the evidence of prosecution witnesses, the accused was carrying 50 NIP bottles of duty paid

IML. Therefore, this Court is of the view that the accused are found in possession of liquor in the prohibited quantity under the Act.

12.The next contention of the State is that the accused are in possession of the contraband to sell them at higher price. Though it is stated by PW.1 that the accused are intended to sell them at higher price, none of the witnesses had enquired from whom they purchased the liquor bottles and where the accused are intending to sell those liquor bottles. Though PW.1 apprehended the accused basing on the confession, the same is not admissible in evidence.

It is settled law that an Excise Officer is a police officer within the meaning of

Section 25 of the Evidence Act and a confession made by the accused person

before an excise official, if otherwise not proved, is inadmissible in evidence.

Kalidinidi Ramaraju Vs State of A.P. [2002 1 ALD (Crl) 863 (AP) = 2002 (2)

ALT (Crl) 114 (AP)]. The Honourable High Court of Andhra Pradesh in

Mudavath Mothia Vs State of A.P [2002 (1) ALT 9 Crl. 437 (AP)] held that the offence u/Sec.34 of the A.P. Excise Act is made cognizable offence and 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 in-admissible.

Therefore, this Court is of the view that the said contention cannot be believed without any supporting evidence.

13.Sec.100 (4) of Cr.P.C., says that:

“100: Persons in charge of closed place to allows search: (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which 6 the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Sec.55 of the Act is as follows:

“55. Power to search without warrant - Whenever the Commissioner or a Collector 8[or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a police station or any excise officer not below the rank of Prohibition and Excise Sub-Inspector 9[or any Special Enforcement Bureau Officer not below the rank of Sub- Inspector] has reason to believe that an offence under section 34, section 35, section 36, 1[section 37 or section 37A] has been, is being or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief,-

(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”

In Yeduru Sreenivasul Reddy Vs. State of A.P. [2002 (1) ALT(Crl.) 251 (A.P),]the Hon’ble High Court of Andhra Pradesh held that “in absence of punch witnesses, written order to be passed that no one was willing to act as punch witnesses. When such written orders were not passed, evidence that no one was willing to act as punch witnesses cannot be believed or relied upon. Entire search is without jurisdiction.” On close reading of Sec.100 Cr.P.C, it is clear that the officer before making a search shall call at least two or more respectable inhabitants of the locality in which the place is to be searched and if no such inhabitants of that locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it do. When the law required a particular thing to be done in a particular way, it must be done in that 7 way only and not otherwise. If there is any violation of the statutory provision, it makes the act of the Investigating Officer doubtful.

14.As seen from Ex.P1, the scene of offence is at Gottumukkala Road,

Kanchikacherla Village and Mandal. Admittedly, the alleged scene of apprehension is a busy locality. So many vehicles will pass bye. As per the case of prosecution, though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. A bare reading of

Ex.P1/Occurrence report discloses the fact that the police tried to secure mediators. Furthermore, PW.1 is the Investigating officer in this case and the entire investigation was done by him. Further, PW.1 registered the case and he also sent the remaining bottles for Chemical Analysis. The Hon’ble Apex Court in Mohanlal Vs. The state of Panjab [(2018) SCC online SC 974] held that “the accused will be prejudiced of his right to free and fair investigation, if the informant is the Investigating Officer of the case.” Therefore, in such circumstances, the evidence of PW.1 coupled with Ex.P1 does not establish that the accused are found in possession of contraband. Coming to the cross- examination also, PW.1 stated that the alleged scene of offence is the place where vehicle will pass frequently as such, it is a busy locality. He also had not examined any persons at the scene of offence. He has not collected any information of the source of liquor seized from the scene of offence. He has not forwarded the sample bottles through the Court for Chemical Examination and also not sent all the samples to the analyst. In Mudavath Mothia Vs. State of

A.P. [2002 (1) ALT (Crl.) 437 (A.P)], It was held at Paragraph No.5, that “moreover only one sample of sachet was produced before the Court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I.D. liquor and is not proved”. Further in S. Babu

Saheb @ Babu v/s The State of A.P., rep. by Public Prosecutor, High Court

Building, (through Proh.& Excise PS., Srikalahasti) Hyderabad, [2010 (1)

ALT Crl) (AP)], it is held as follows:

8 “16. Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

Hence, these are also latches on the part of the investigating officer. Thus, a perusal of the above evidence shows that PW.1 has not secured any independent witnesses at the time of conducting search of accused. The inconsistencies in their evidence about securing mediators and apprehending the accused at the scene creates a doubt in the mind of the Court about the seizure of contraband and as such their evidence cannot be relied upon as

PW.1 failed to follow the search procedure contemplated under Sec.100(4)

Cr.P.C which is mandatory at the time of seizing the contraband. Admittedly, the witnesses are the Excise officials and they will be highly interested for getting the success of prosecution. All these facts lead to inference that the

Excise officials have failed to secure two or more independent or respectable 9 inhabitants of locality for seizure of contraband, which certainly affects the investigation.

15.Thus, in view of the above circumstances of the case, it can be rightly concluded that mere registering the crime in favour of the state by itself does not prove the case of prosecution. Except the evidence of PW.1 who is the police official and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this Court is inclined to hold a considered view that the

State has failed in bringing home the guilt of the accused for the charge framed against the accused for the offence punishable u/Sec.34(a) of the Act, and hence, accused are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the

State.

16.In the result, the Accused/A1 & A2 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MO.1 shall be destroyed after expiry of appeal time.

Typed by the Stenographer Gr.III on my dictation, corrected and

pronounced by me in open Court on this the 15 th day of May, 2026.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:11:12 +0530

REYAZ SHAIK

Location: Nandigama

Judicial Magistrate of First Class

Nandigama.

APPENDIX OF EVIDENCE

LIST OF WITNESSES

For Prosecution For Defense.

PW.1 : Sri M.P.S.S.Ranganath - None – 10

DOCUMENTS MARKED FOR

For Prosecution. For Defence:

Ex.P1: Occurrence Report - Nil -

Ex.P2: FIR

Ex.P3 : Analysis Report

Material Objects:

MO.1 – Sample bottle of Old Admiral 180 ml.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:11:56 +0530

REYAZ SHAIK

Location: Nandigama

 Judicial Magistrate of First Class

Nandigama.

11

CALENDAR AND JUDGMENT

Calendar Case No.2494 of 2022 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

Date ofReport orApprehensReleaseCommenceClose ofJudgment offence Complaintion of theon bailment of trial trial accused 13.09.2013.09.20 ----13.05.2026 14.05.2026 15.05.2026

Explanation for delay and remarks:

This case was taken on file on 29.11.2022. On 12.05.2026 copies of documents were furnished to the accused and on the same day, accused are examined u/s.239 Cr.P.C and a charge for the offence punishable u/Sec.34(a) of AP Excise Act has been framed against them. They denied the offence and claimed to be tried. On 13.05.2026 PW.1 has been examined and Exs.P1 to P3 and MO.1 got marked. The learned Asst. Public Prosecutor has given up the remaining witnesses as PW.1 supported the case. Hence, Prosecution evidence has been closed. On 14.05.2026 accused are examined u/s.313 Cr.P.C. They denied the evidence and reported no defence evidence. Hence, defence evidence closed. Heard the arguments. Judgment pronounced on 15.05.2026. Hence, no delay.

Judgment in C.C.No:2494 of 2022 on the file of

THE JUDICIAL MAGISTRATE OF FIRST CLASS, NANDIGAMA.

BETWEEN:

State: Represented by the Sub Inspector, Kanchikacherla Police Station, NTR District. …. Complainant

A N D

1. Kommukuri Suresh @ Srikanth, S/o Srinu, aged 24 years, R/o Arundathi Colony, Kanchikacherla Village and Mandal, NTR District.

2. Bollepogu Yesu, S/o Swamy, aged 30 years, R/o Moguluru Village of Kanchikacherla Mandal, NTR District.

3. Banka Venklatappaiah, S/o Ramulu, aged 37 years, R/o Moguluru Village of Kanchikacherla Mandal, NTR District.

....Accused

Offence : U/s.34(a) of A.P. Excise Act, 1968.

Finding : Not guilty.

Result: In the result, the Accused/A1 to A3 are found not guilty for the offence punishable u/Sec.34(a) of A.P Excise Act, 1968 and accordingly, they 12 are acquitted u/sec.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. MO.1 shall be destroyed after expiry of appeal time.

Digitally Signed by

REYAZ SHAIK

Date: 2026.05.15 15:12:33 +0530

REYAZ SHAIK

Location: Nandigama

JUDICIAL MAGISTRATE OF FIRST CLASS

NANDIGAMA.

Copy submitted to: 1.The Honourable I Addl. District and Sessions Judge, Krishna, Machilipatnam.

2. The Superintendent of Police, Krishna, Machilipatnam.

3. The learned Assistant Public Prosecutor. Dis No. ,Dt.