Dr. Soni Dwarampudi

OS No.3 of 2019 Dt. 29.04.2026

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IN THE COURT OF THE VI ADDITIONAL CIVIL JUDGE

(SENIOR DIVISION):: VISAKHAPATNAM

Present :: Dr. Soni Dwarampudi,

VI Additional Civil Judge (Senior Division),

Visakhapatnam

Wednesday, the 29 th day of April, 2026

APVS010000042019

ORIGINAL SUIT NO. 03 of 2019

Between:

Pilla Narasimha Patrudu, S/o late Satyanarayana Patrudu, Aged 68 years, R/at D.No.2-147, Appannapalem Village, Rajayyapeta Panchayat, Pendurthi Mandal, Visakhapatnam. Represented by his General Power of Attorney Pilla Siva Nageswara Rao Patrudu, S/o Narasimha Patrudu, Aged 26 years, R/at D.No.2-147, Appannapalem Village, Rajayyapeta Panchayat, Pendurthi Mandal, Visakhapatnam.

... Plaintiff

And:

01. Majji Sanyasayya Patrudu, S/o late Narayana Patrudu, Aged 67 years, Real Estate Agent, R/at Rajayyapalem Panchayat, Pendurthi Mandal, Visakhapatnam.

02. Pilla Appala Narasaiah Patrudu, S/o late Narasimhacarya Patrudu, Aged 65 years, Flat No.401, Kanderi Residence, Beside Rajayya Nagar Bus Stop, Yendada Village, Visakhapatnam.

03. Pilla Suryanarayana Patrudu, S/o late Sitharam Patrudu, Aged 68 years, R/at Patrudu Gari Rice Mill, Desapatrunipalem, Kottavalasa Mandal, Vizianagaram District.

04. Pilla Appalanarasaiah Patrudu, (Died) S/o late Sitharam Patrudu, Aged 58 years, R/at Patrudu Gari Rice Mill, Desapatrunipalem, Kottavalasa Mandal, Vizianagaram District.

05. Pilla Venkata Ramana Murthy, S/o late Adinarayana Patrudu, Aged 72 years, Retired Employee, Residing at Back side of Mandal Praja Parishad Office, Pendurthi, Visakhapatnam.

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06. Pilla Raj Gopal, S/o late Adinarayana, Aged 70 years, Retired Port Employee, Residing at Back side of Mandal Praja Parishad Office, Pendurthi, Visakhapatnam.

07. Pilla Ramani, W/o late Appala Narasaiah Patrudu, Aged 50 years, R/at Flat No.G-1, B.H.P.V Colony, Sujatha Nagar, Pendurthi, Visakhapatnam.

08. Pilla Avinash, S/o late Appala Narasaiah Patrudu, Aged 28 years, R/at Flat No.G-1, B.H.P.V Colony, Sujatha Nagar, Pendurthi, Visakhapatnam.

09. Majji Mrudula, D/o late Appala Narasaiah Patrudu, Aged 50 years, R/at Flat No.G-1, B.H.P.V Colony, Sujatha Nagar, Pendurthi, Visakhapatnam.

(Defendants 7 to 9 are added as Legal Representatives of the

deceased 4 th defendant as per Orders passed in IA No.28/2023,

dated 14.11.2023)

… Defendants

This suit has come up on 20.04.2026 for final hearing before me in the presence of Sri M.V.S Narayana and Sri J.Suresh Chandra Reddy, Advocates for the Plaintiff and of Sri A.Srinivas, Advocate for defendants and upon hearing and on perusal of the material on record, and the matter having stood over for consideration till today, the Court delivered the following:

J U D G M E N T

01.This suit is filed seeking grant of permanent injunction restraining defendants, their men and agents from ever interfering with the peaceful possession and enjoyment of plaintiffs over the plaint schedule property and for costs of the suit.

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02. The brief averments of the plaint are narrated in a nut-shell as under:

a)The plaintiff is the absolute owner of the property in an extent of Ac. 0.85 cents in S.No.27/3 part with house bearing No.2- 147 of Appannapalem Village, Pendurthi Mandal (hereinafter referred to as ‘plaint schedule property’). Originally, the father of the plaintiff by name Satyanarayana Patrudu is the absolute owner and was in possession of Ac 0.90 cents of land in S.No.27/3 part and other properties.

b)At about 70 years back, the father of the plaintiff had constructed a tiled house on the northern side of the plaint schedule property which was assessed with D.No.3-8 by Gram Panchayat,

Rajayyapeta and used to pay taxes in his name. Later, said house was completely dilapidated and the plaintiff has constructed a slabbed house on the eastern side of the plaint schedule property, which was assessed in the name of the plaintiff with D.No.1-60/1 and

Assessment No.344 and the plaintiff used to pay taxes regularly.

Later, revised D.No.2-147 was allotted with new Assessment Number 297 for the plaint schedule property.

c)On the eastern side of the plaint schedule property, the plaintiff holds Zeroyith land in S.Nos.34/5 and 34/6, for which he has obtained Pattadar Pass Books also and remained in possession of the property. The 1st defendant who is real estate agent intended to grab the property and brought defendants 2 to 6 by instigating them to make false claim in respect of S.Nos.34/5 and 34/6, but their claim was rejected. Out of Ac 0.90 cents in S.No.27/3 part, the plaintiff has executed a registered gift settlement deed bearing Document

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No.5887/2018, dated 07.10.2018 for an extent of 242 sq yards in favour of his sister by name Pilla Chittamma.

d)Upon instigation of the 1st defendant, defendants 2 to 6 have tried to make pit in the plaint schedule property on 25.12.2018, but it was resisted by the plaintiff and he also lodged a Police report on 26.12.2018. Therefore, the present suit is filed seeking permanent injunction restraining defendants from interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property.

03. While traversing most of allegations made in the plaint,

defendants filed written statement inter-alia contending as

under:

a)The father of the plaintiff is not the absolute owner of the plaint schedule property. The plaint schedule property situated in

S.No.27/3 is notified as Grama kantam as per revenue records, which is ancestral property of the plaintiff and defendants 2 to 6. Originally, the ancestor of the plaintiff and defendants 2 to 6 by name Pilla

Satyanarayana Patrudu is the owner of the plaint schedule property who has five sons and the plaintiff is one of grand sons of said Pilla

Satyanarayana Patrudu.

b)Originally, all families of Pilla Satyanarayana Patrudu used to reside in the Gramakantam and over a period of time, some families migrated to Visakhapatnam. The houses became dilapidated and the father of the plaintiff continued in the village and used to look after the family properties. In that process, the plaintiff continued to reside in the village and he has been receiving income of the family

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Fair Copy Page 5 of 19 properties. The plaintiff and his son have distributed the income of the family agricultural properties, but in the month of August, it was noticed that the plaintiff got mutated his name and started claiming the agricultural properties.

c)The 2nd defendant along with his another co-sharer by name P.N.Patrudu submitted a report to the Tahsildar, Pendurthi about said fact and the plaintiff requested to give some time to settle the issue. The plaint schedule property is joint family property and defendants 2 to 6 are co-sharers along with him. The defendants 2 to 6 and other co-sharers have been in joint possession and enjoyment of the plaint schedule property. The 1st defendant is one of the village elders who advised the plaintiff to settle the issue. The plaintiff has no exclusive right in the plaint schedule property and he is not entitled to seek the relief of permanent injunction. Hence, prays to dismiss the suit, with costs.

04.Since both parties did not arrive at any settlement under

Section 89 of the Code of Civil Procedure, 1908, on the basis of pleadings of both parties, the following issues have been settled for trial by my learned predecessor at office on 26.09.2024:

1. Whether the plaintiff is in settled exclusive lawful

possession and enjoyment of the suit schedule property,

as on the date of filing of the suit?

2. Whether the suit against defendants is not maintainable being the suit against co-owners?

3. Whether the plaintiff is entitled for the relief of

permanent injunction against the defendants, as prayed

for?

4. To what relief?

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05.In support of his claim, the GPA holder of the plaintiff is examined as PW1 and also examined PWs.2 to 4 who are third parties to the suit proceedings and got marked Exs.A1 to A13 on his behalf. On the other hand, the 3rd defendant is examined DW1 on behalf of defendants and no documents are marked.

06.Heard the learned counsel appearing for the plaintiff and the learned counsel appearing for defendants.

07.On the basis of rival contentions of both parties, considering the same, the issues are taken up for discussion in order to find out whether the plaintiff is entitled for the suit claim.

08. ISSUE Nos. 1 to 3:

a)The first and foremost contention raised by the learned counsel for defendants is that the plaintiff did not turn-up before the

Court to give evidence and in such contingency the evidence of the

GPA holder cannot be considered by the Court, as per settled law.

Admittedly, PW1 is the Special Power of Attorney holder of the plaintiff. The plaintiff has executed Ex.A13 - Special Power of

Attorney in favour of PW1 on 31.12.2018, which is an unregistered document, empowering PW1 to look after the affairs of the plaint schedule property and also in respect of cases arising out of the plaint schedule property.

b)Refuting this argument, the learned counsel for the plaintiff has argued that PW1 is not only Special Power of Attorney holder of the plaintiff, but also the son of the plaintiff and as such, he

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Fair Copy Page 7 of 19 has full knowledge of the facts of the case. As rightly pointed out by the counsel for defendants, the evidence affidavit of PW1 is silent regarding personal knowledge in connection with the facts of the case. However, the counsel for the plaintiff has relied on the

Judgment of the Hon’ble Supreme Court in the following case :

Russi Fisheries P.Ltd Vs. Bhavna Seth 1

“41. Now, the crucial issue which remains is about the effect of non- appearance of the plaintiff in the witness box to prove his plaint case. It is an admitted position that the plaintiff himself has not entered the witness box and has not offered himself to be cross-examined. In such a situation, a presumption can always be drawn against him that the case, as pleaded by him, is not correct. In this connection, a reference can be made to the decision of this Court in the case of Vidyadhar vs Manikrao and Another, which lays down that where a party does not 10 (1999) 3 SCC 573 appear in the witness box, a presumption would arise that the case set up by him is not correct. This Court in laying down as aforesaid has referred to various decisions of the High Court. The decisions of the High Court are also to the effect that when a party fails to appear as a witness, it gives rise to an adverse inference and nothing more.

42. The adverse presumption, if any, drawn for non-appearing in the witness box by the plaintiff, is a rebuttal presumption and if the aforesaid presumption is successfully rebutted by the other cogent evidence on record, the said presumption would not be material and applicable. In the 1 2026 INSC 339

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Fair Copy Page 8 of 19 present case, PW-4, the Manager of the plaintiff, had appeared as a witness. He has stated that he had been working with the plaintiff since 1988 and had the knowledge of all the transactions in relation to the agreement to sell dated 18.07.1988. His testimony substantially corroborates the case as set up by the plaintiff in the plaint, including execution of agreement, payment of consideration and extension of time. Therefore, in the light of the evidence of the PW- 4, the plaint allegations stand corroborated. The adverse inference drawn on account of non- appearance of the plaintiff stands rebutted by his evidence and other evidence on record. In these circumstances, the non- appearance of the plaintiff in the witness box would not be fatal in this case.

43. In the recent case of Rajesh Kumar vs Anand Kumar and Others in which one of us (P. Mithal, J) was a party, relying upon Janki Vashdo Bhojwani and Another vs IndusInd Bank Ltd. and other, it was held that a power of attorney holder may depose on behalf of the

principal in respect of such acts which are within

his personal knowledge but he cannot certainly depose for the principal, for the acts done by the

principal and not known personally by him.

Applying the same analogy, the Manager, PW-4 herein had deposed about the entire transaction based upon his personal knowledge as he was attached to the plaintiff as the Manager. In such circumstances, his evidence cannot be discarded.”

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c)Applying the above ratio to the facts on hand, PW1 is not only the Special Power of Attorney holder, but he is the son of the plaintiff, his evidence cannot be discarded for the reason that he did not specify about his personal knowledge as he is admitted to have personal knowledge about the facts of the case, as held by the

Hon’ble Supreme Court in the above Judgment. Therefore, the

argument of the counsel for defendants that the evidence of PW1 cannot be considered in the absence of the evidence of the plaintiff, is answered in negative to defendants.

d)Adverting to the facts on hand, it is the case of the plaintiff that he is the absolute owner of the plaint schedule property, having inherited the same from his father Satyanarayana Patrudu.

PW1 also deposed that the plaintiff’s father has constructed a tiled house on the northern side of the plaint schedule property at about 70 years ago, which was assessed with D.No.3-8 and also paid taxes for the said property and later the house was dilapidated and the father of the plaintiff has constructed a house on the eastern side of the plaint schedule property, which was allotted D.No.1-60/1 (old) and 2- 147 (new). As such, the plaintiff claim that he has been in possession and enjoyment of the entire plaint schedule property and paying taxes.

e)In support of the case of the plaintiff, he has filed property tax receipts issued in his name marked as Exs.A1 to A3, the property tax receipt issued for D.No.1-60/1 issued in the name of the plaintiff in the year 2018 is marked as Ex.A4. The gas consumption receipt in the name of the plaintiff is marked as Ex.A6. The plaintiff has also asserted that to the east of the plaint schedule property, the

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Fair Copy Page 10 of 19 plaintiff also owns land in S.Nos. 34/5 and 34/6 and being absolute owner of the plaint schedule property and that Pattadar Pass Books are also issued in the name of the plaintiff for the property in

S.No.34/5 and 34/6.

f)The plaintiff has also filed Ex.A7 - Form 1B to show that he is in possession of the land in S.Nos.34/5 and 34/6 which are said to be situated to the east of the plaint schedule property. However, as these properties are no way connected to the plaint schedule property except being one of the boundaries, it does not hold much importance and hence Ex.A7 - Form 1B will not come to the aid of the plaintiff.

g)Regarding police report submitted by the plaintiff to the

Commissioner of Police against defendants under Ex.A8 which would support of the case of the plaintiff to establish the alleged interference. PW1 has also deposed that the plaintiff has executed a registered gift settlement deed in favour of his sister by name Pilla

Chittamma in respect of 242 sq yards of land in S.No.27-3 which is a part of the land inherited from his father and the registered settlement deed dated 07.12.2018 is marked as Ex.A5, but defendants have raised a contention that when they came to know about the execution of Ex.A5, they have questioned the plaintiff regarding the same and he stated that he has gifted his share of the property to his sister.

h) Ex.A5 - registered gift settlement deed is not a part of the property which is subject matter of the suit. The plaintiff also stated that after gifting away the property under Ex.A5, the remaining property left to his possession, is the subject matter of the suit.

Therefore, confining to subject matter of the suit, refuting the case of the plaintiff, defendants have contended that the plaintiff along with

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Fair Copy Page 11 of 19 defendants 2 to 6 are co-owners and in joint possession of the plaint schedule property and that the plaintiff is not the absolute owner of the same.

i)It is further contended by the plaintiff that the land in

S.No.27/3 is identified as Grama Kantam as per revenue records.

The defendants further came up with pleadings that originally their ancestor by name Pilla Seetarama Patrudu is in possession of the entire plaint schedule property who has five sons by name Pilla Peda

Sanniyya Patrudu, Pilla Peda Narasimha Patrudu, Pilla China

Narasimha Patrudu, Pilla Suryanarayana Patrudu, Pilla Adinarayana

Patrudu.

j)As per the pleadings of the defendants at paragraph-9 of the written statement, the succession tree of Pilla Seetha Rama

Patrudu is :-

i)The first son of Pilla Seetha Rama Patrudu by name Pilla Peda Sanniyya Patrudu has one son by name Pilla Varahala Swamy and he succeeded by his son Pilla Sanniyya Patrudu who in-turn has one son by name Pilla Shankar Srinivas.

ii)The second son of Pilla Seetha Rama Patrudu by name Pilla Peda Narasimha Patrudu has two sons by names Pilla Narayana Patrudu and Pilla

Narasimhacharyulu Patrudu. The said Pilla

Narayana Patrudu is succeeded by Pilla Narasimha

Patrudu and Pilla Narasimhacharyulu Patrudu is succeeded by one son by name Pilla Appala

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Narasimha Patrudu.

iii)The third son of Pilla Seetha Rama Patrudu by name Pilla Chinna Narasimha Patrudu has one son by name Pilla Satyanarayana Patrudu and he succeeded by one son by name Pilla Narasimha

Patrudu.

iv)The fourth son of Pilla Seetha Rama Patrudu by name Pilla Suryanarayana Patrudu has one son by name Pilla Seetha Rama Patrudu, who in-turn has five sons by names Pilla Suryanarayana Patrudu (3rd defendant), Pilla Satyanarayana Patrudu, Pilla

Somalingeswara Appala Narasayya Patrudu (4th defendant), Pilla Adinarayana Patrudu @ Chitti

Babu and Pilla Narasimha Patrudu.

v)The fifth son of Pilla Seetha Rama Patrudu by name Pilla Adinarayana Patrudu has five sons by names Pilla Varaha Narasimha Patrudu, Pilla

Venkata Krishnayya Patrudu, Pilla Veera Venkata

Satyanarayana Patrudu, Pilla Venkata Ramana

Murthy (5th defendant) and Pilla Rajagopalarao

Patrudu (6th defendant).

k)During his cross-examination, when PW1 is questioned about said relationship, he categorically admitted at paragraph No.2 of his cross-examination that the genealogy stated by defendants at

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Fair Copy Page 13 of 19 paragraph No.9 of their written statement is true. As such, the genealogy in respect of the plaintiff and defendants 2 to 6 and relationship is admitted by PW1. As per the case of the plaintiff, there was an oral partition among sons of Pilla Seetharama Patrudu.

However, the plaintiff cannot adduce any evidence stating that there was oral partition and the shares were distributed among the children of Pilla Seetharama Patrudu and they have obtained possession in pursuance of the oral partition, to consider it as valid partition. In the absence of any such evidence, it has to be treated that the plaintiff is seeking the relief of permanent injunction against co-owners, which is not maintainable.

l)Be that as it may, the defendants are not disputing the possession of the plaintiff over the house in D.No.2-147. The counsel for defendants has argued that the plaintiff is only in possession of the house situated in the plaint schedule property which is only in an extent of Ac 0.04 cents but they disputed the exclusive possession of the plaint over remaining portion of the plaint schedule property.

m) PW1 has categorically stated that the house bearing

D.No.2-147 is constructed in an extent of Ac 0.04 cents. Exs.A1 to

A4 and A6 also show that the plaintiff is in possession of the house bearing D.No.2-147 and paying taxes. Though Exs.A9 to A12 photographs and CD are filed, the plaintiff did not file the certificate under Section 65-B of the Indian Evidence Act and as such, the same cannot be considered.

o)In respect of the possession of the house, it is not disputed and it is also supported by the evidence of PWs.2 to 4, out of whom PWs 2 and 3 have attended construction works of the house

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Fair Copy Page 14 of 19 in D.No.2-147 and PW4 is a third party who could depose only regarding house property and it is not much in dispute. Regarding the remaining extent of plaint schedule property which is shown as

Ac.0.90 cents, no piece of paper is filed by the plaintiff to support or suggest his possession over said property. The counsel for the plaintiff has relied on the following Judgments :

Rame Gowda v. M.Varadappa Naidu 2

“It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Ors. Vs. Delhi Administration's case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, 2 2003 0 Supreme (MP) 1272

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Fair Copy Page 15 of 19 extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession’.”

Ayala Damayanti vs The State of Andhra Pradesh 3

“It is settled law that a person in settled possession cannot be dispossessed forcibly as held in Rame Gowda (D) by Lrs v. M.Varadappa Naidu (D) by Lrs & Anr1 wherein the 3 W.P.No.20540 of 2022 decided on 21.07.2022

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Hon’ble Supreme Court held as follows:

“…. to forcibly dispossess citizens of their private property, without following due process of law would be to violate a human right, as also the constitutional right under Article 300A of the Constitution.”

p)Though the plaintiff has relied on these findings, initial burden is on the plaintiff to establish his possession over the entire extent of the plaint schedule property. In the absence of any scrap of paper to establish his possession over the remaining vacant site except the house in D.No.2-147 which is situated in an extent of

Ac.0.04 cents, the evidence of the plaintiff and his witnesses cannot be treated as sufficient evidence to establish the possession of the plaintiff over the entire plaint schedule property which is in an extent of Ac.0.90 cents. Therefore, this Court is of the opinion that the plaintiff failed to establish his exclusive possession over the entire extent of the plaint schedule property and in such circumstances, permanent injunction cannot be granted in favour of the plaintiff for the entire plaint schedule property. These issues are accordingly answered in favour of defendants and against the plaintiff.

09. ISSUE No.4:

In view of above discussion under Issue Nos.1 to 3, the plaintiff failed to establish his exclusive possession over the entire plaint schedule property and in the set of facts, the plaintiff is not entitled for the relief of Permanent Injunction against defendants from interfering with his peaceful possession and enjoyment over entire plaint schedule property and as such, the suit is liable to be dismissed. The plaintiff is ordered to pay costs of the suit to

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Fair Copy Page 17 of 19 defendants. This issue is answered accordingly in favour of defendants and against the plaintiff.

10. IN THE RESULT, the suit is dismissed. Both parties do bear their own costs.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in the open Court, on this the 29 th day of April, 2026.

Digitally signed by

SONI

SONI DWARAMPUDI

DWARAMPUDI

Date: 2026.04.30

18:09:10 +0000

VI ADDITIONAL CIVIL JUDGE (SD)

VISAKHAPATNAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Plaintiff :

PW1: P.Rama Siva Nageswara Rao Patrudu

PW2: Anthakapalli Eswara Rao

PW3: M.Satyanarayana Patrudu

PW4: Dasari Gangamma.

For Defendants :

DW1: P.Suryanarayana Patrudu

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EXHIBITS MARKED

For the Plaintiff :

Ex.A1:12.12.2018 Original Property Tax payment receipt issued in the name of the plaintiff.

Ex.A2:01.12.2018 Original Property Tax demand notice got issued by Panchayat Autorities in the name of the plaintiff.

Ex.A3:31.03.2018 Original Property Tax payment receipt issued in the name of the plaintiff.

Ex.A4:23.01.2018 Original Property Tax payment receipt with D.No.1-60/1 issued in the name of the plaintiff.

Ex.A5:07.12.2018 Certified copy of gift settlement deed executed by the plaintiff in favour of Pilla Chittamma.

Ex.A6:25.10.2018 Original HP Gas receipt in the name of the plaint.

Ex.A7:05.02.2018 Mee-Seva copy of 1B register issued in the name of the plaintiff.

Ex.A8:26.12.2018 Office copy of Police report issued by the Plaintiff to the Commissioner of Police, Visakhapatnam.

Ex.A9:--Photograph showing house building.

Ex.A10:--Photograph showing dilapidated structures along with trees.

Ex.A11:--Photograph showing vacant site with palm trees.

Ex.A12:--Corresponding CD for photographs marked as Exs. A9 to A11

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Ex.A13: 30.12.2018 Original Special Power of Attorney executed by the father of the plaintiff by name Pilla Narasimha Patrudu.

For Defendants:

---NIL--

Digitally signed

by SONI

SONI

DWARAMPUDI

DWARAMPUDI

Date: 2026.04.30

18:09:22 +0000

VI ADDITIONAL CIVIL JUDGE (SD)

VISAKHAPATNAM

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C.C.No.3602/2023 Page 1 of 10

Dt. 12.09.2024

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION):: VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Thursday, this the 12 th day of September 2024

CALENDER CASE No: 3602 of 2023

Between : The State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Station, Gajuwaka, Visakhapatnam … Complainant

and

A1 : Duda Dhanavamma, W/o Devudu, Aged 47 years, C/o Vadabalija, R/o D.No.15-1-21/2, Kondavitha Main Road, Gangavaram (v), Pedagantyada, Gajuwaka, Visakhapatnam

A2 : Ummidi Dhana Raju, S/o Late Appanna, Aged 46 years, C/o Vadabalija, R/o D.No.15- 2-102/2, 50th ward, Gangavaram (v), Pedagantyada, Gajuwaka, Visakhapatnam ... A1 and A2

This case came up before me for final hearing on 11.09.2024 in the presence of the

Assistant Public Prosecutor for the State, and of Sri T.Srinivasa Rao, Counsel for accused, on perusal of material on record and upon hearing both sides, matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau Station, Gajuwaka,

Visakhapatnam filed a charge sheet in Cr.No.211/2021 for the offence punishable under

Section 34 (a) of the Andhra Pradesh Excise Act (for short, ‘the Excise Act’) against the

A1 and A2.

02. The conspectus of the case of prosecution is that:

On 02.09.2021 at about 11.00 a.m, he Enforcement Inspector (PW2) SEB

Gajuwaka along with his staff proceeded to Gangavaram village to conduct patrolling they

C.C.No.3602/2023 Page 2 of 10

Dt. 12.09.2024

reached at Open place, under the water tank, Gangavaram village, Pedagangyada mandal, Gajuwaka, he noticed that two persons sitting with one white polythene cover in front of them surrounded by people, on seeing the staff in uniform and among them in suspicious circumstances and there are 07 bottles of Southern Blue supreme whiskey each 180ml, 02 bottles of Green Choice superior whiskey each 180ml, 02 bottles of

Champion special whiskey 180ml each, 02 bottles of Celebrity brandy 180ml each, 01 bottle of Silver stripes original reserve whiskey 180ml, 01 bottle of Royal simha superior whiskey 180ml, 01 bottle of 9 Sea horses whiskey 180ml Indian Made liquor in a polythene cover without any bills or permit. On enquiry, the accused confessed that they purchased the liquor and selling the same at higher price to get profit. Then, he arrested them, seized the case property, drawn seven bottles as sample under cover of occurrence report, returned to SEB Gajuwaka, along with seized property and occurrence report and basing on the occurrence report, he registered the said occurrence report as a case in Cr. No.

211/2021 for the offence under Section 34 (a) of the Excise Act. Remaining bottles of liquor seized from accused are confiscated as per proceedings of his Superior Authorities.

On receipt of chemical analysis report and after completion of investigation, LW.3,

K.Manmadha Rao, Enforcement Inspector, Special Enforcement Bureau Gajuwaka filed charge sheet. Hence, the charge.

03. On receipt of charge sheet, this case was taken on file for the offence under Section 34 (a) of the Excise Act., against the A1 and A2.

04.On appearance of the accused, copies of documents were furnished to them as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' , for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the A1 and A2 denied the allegations levelled against them. After perusing the entire material on record and on hearing both sides, a charge had been framed against the A1 and A2 under Section 34 (a) of the Excise Act which was read over and explained to them in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

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Dt. 12.09.2024

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined, Exs.P1 to P3 and MOs.1 to MO.7 were exhibited. The evidence of L.Ws.2

S.Triveni, Enforcement Constable, Special Enforcement Bureau, Gajuwaka is given up by prosecution.

07.On closure of evidence let in by the prosecution, the A1 and A2 were examined under Section 313 of Cr.P.C., with regard to the incriminating material available against them, for which, their plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for A1 and A2.

a)The learned Assistant Public Prosecutor argued that the evidence of

PW's.1 and 2 coupled with Exs.P1 to P3 and MOs.1 to M.O7 goes to show that the A1 and

A2 had committed the offence and the prosecution proved the case beyond all reasonable doubt against the A1 and A2.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is an infirmity. Hence, prays to acquit the A1 and A2 on the ground of benefit of doubt.

09.The point for determination is :

“Whether the prosecution is successful in bringing home

the guilt of A1 and A2 for the charge framed against them

under Section 34 (a) of the Excise Act beyond all reasonable

doubt?”

10. POINT :

a)Pws.1 and 2 is the Enforcement Constable, and Enforcement

Inspector, deposed in one voice that on 02.09.2021 at about 11.00 a.m, PWs.1 & 2 proceeded to Gangavaram village to conducted patrolling. They reached at Open Place

Under the Water Tank, Ganvaram village, Pedagantyada mandal, Gajuwaka he noticed two persons sitting with one white polythene cover in front of them surrounded by people, on seeing the staff in uniform and among them in suspicious circumstances; that

C.C.No.3602/2023 Page 4 of 10

Dt. 12.09.2024

immediately, P.W-2 apprehended them with the help of his staff and on enquiry, the A1 and

A2 stated that they are in possession of liquor bottles without any bill as such they are trying to escape, and that they did not give any reply with regard to the source of liquor bottles and taking the said liquor bottles for sale at their village. P.W-2 sent PW-1 N.

Sankara Rao, Enforcement Constable, SEB Gajuwaka to secure the mediators, though

PW-1 made attempts PW-1 could not secure any persons to act as mediator as they are not willing and then PW-2 prepared occurrence report and seized 07 bottles of Southern

Blue supreme whiskey each 180ml, 02 bottles of Green Choice superior whiskey each 180ml, 02 bottles of Champion special whiskey 180ml each, 02 bottles of Celebrity brandy 180ml each, 01 bottle of Silver stripes original reserve whiskey 180ml, 01 bottle of Royal simha superior whiskey 180ml, 01 bottle of 9 Sea horses whiskey 180ml, drawn seven sample bottles from the above property for chemical analysis purpose and the said seven (7) bottles are marked as Mos.1 to M.o7 and took the property along with A1 and A2, brought the accused along with seized property to their SEB Gajuwaka, Visakhapatnam.

b) PW.2 further deposed that on the basis of Ex.P1 - occurrence report, he registered a case in Case in Cr. No.211/2021 of SEB Gajuwaka, Visakhapatnam

U/s. 34(a) of A.P. Excise Act, issued Ex.P2 - original FIR; that on 17.09.2021, he forwarded

MOs.1 to M.O7 to Government chemical examiner for analysis, on 27.10.2021, he received Ex.P3 - analysis report from chemical examiner in which it was opined that the seized samples are “Indian Liquor”. He further deposed that he sent the remaining seized property to Dy. Commissioner of SEB VSP for confiscation and property order and the seized property were handed over t Excise officials vide RC.No. 501/2021/A1, dated 24.02.202 and remaining bottles were destroyed on 13.09.2022 in the presence of

Enforcement Superintendent (I/C), VSP vide RC.No.509/2021/A, dated 02.09.2022 of the

DC SEB VSP. On completion of investigation, he filed charge-sheet.

c)PW.1 & 2 stated during their cross-examination that the scene of offence is a busy locality and he have not personally summoned any revenue officials.

PW.1 further stated that he tried to secure Village Revenue Officer, but he was not available. In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of P.W.1, at the time of arrest and seizure, the accused was

C.C.No.3602/2023 Page 5 of 10

Dt. 12.09.2024

found in possession of seized 16 liquor bottles as detailed above, arrested the accused and seized the contraband under cover of Ex.P1- Occurrence report.

d)Admittedly, the alleged offence is situated Water tank, Gangavaram village which is a busy locality. As per the case of prosecution though he tried to secure the mediators, none came forward to act as mediators for the seizure of contraband.

When the place of offence is busy locality where there is movement of public and there is a possibility to secure public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.2 could not say the names of the persons whom they approached to act as mediators and stated that they have not served notices to any persons or village officials to act as mediators.

e)In such circumstances, the testimonies of PWs.1 and 2 cannot be relied upon as they are 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 the locality during seizure of contraband.

Consequently, the seizure of contraband as alleged from Ex.P1 - Occurrence report stands vitiated.

f)Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the A1 and A2, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis were found to be Indian Made Liquor, but it is for the prosecution to establish that

M.Os.1 to M.O.7 referred to chemical analysis was seized and from the possession of the accused, which the prosecution failed to prove.

g)In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 and 2, who are excise officials 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.

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Dt. 12.09.2024

Consequently, this Court is inclined to hold a considered view that the prosecution failed in bringing home the guilt of the A1 and A2 for the charge framed against the A1 and A2 under Section 34 (a) of the Excise Act, and hence, A1 and A2 are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the

A1 and A2 and against the prosecution.

11.In the result, accused (A1 and A2) are found not guilty of the offence punishable under Section 34 (a) of the Excise Act. Accordingly, they are acquitted under section 248 (1) Cr.P.C. Their bail bonds shall stand cancelled. The A1 and A2 shall furnish a bond under Section 437-A Cr.P.C., that they shall appear before the Appellate Court, in the event they receives summons within the six months from today. The case property Mos.1 to M.o7 (samples) are ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Typist of this Court, corrected and

pronounced by me in the open Court, on this the 13 th day of September, 2024.

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- PW.1:N.Sankara Rao Enforcement Constable,SEB Gajuwaka P.W.2:K.Manmadha Rao, Enforcement C.I, SEB Gajapathinagaram.

For Defence:- None

DOCUMENTS MARKED

For Prosecution :- Ex.P1:Occurrence report by PW.2 Ex.P2:Original FIR Ex.P3:Chemical Analysis report.

For Defence:- --Nil--

MATERIAL OBJECTS

M.O.1:Southern Blue supreme whiskey 180ml

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Dt. 12.09.2024

M.O.2:Green Choice superior whiskey 180ml M.O.3Champion special whiskey 180ml M.O.4Celebrity brandy 180ml M.O.5Silver stripes original reserve whiskey 180ml, M.O.6Royal simha superior whiskey 180ml M.O.79 Sea horses whiskey 180ml

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

C.C.No.3602/2023 Page 8 of 10

Dt. 12.09.2024

FORM A

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL

OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION):: VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Thursday, this the 12 th day of September 2024

CALENDER CASE No:3602/2023

ComplainantThe State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Gajuwaka Represented byAssistant Public Prosecutor AccusedA1 : Duda Dhanavamma, W/o Devudu, Aged 47 years, C/o Vadabalija, R/o D.No.15-1-21/2, Kondavitha Main Road, Gangavaram (v), Pedagantyada, Visakhapatnam

A2 : Ummidi Dhana Raju, S/o Late Appanna, Aged 46 years, C/o Vadabalija, R/o D.No.15-2- 102/2, 50thward, Gangavaram (v), Pedagantyada, Visakhapatnam Represented by Sri T. Srinivasa Rao

FORM B

Date of Offence02.09.2021 Date of First Information Report02.09.2021 Date of Charge sheet06.09.2023 Date of framing of charges22.04.2024 Date of commencement of evidence06.09.2024 Date of which judgment is reserved11.09.2024 Date of the Judgment12.09.2024 Date of Sentencing Order, If any-

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division),

FAC S p.J.Magistrate of First Class (Proh. Ex.)

Visakhapatnam

C.C.No.3602/2023 Page 9 of 10

Dt. 12.09.2024

Accused Details

Rank ofName of Accused DateofDateofOffenceWhetherSentencPeriod of theArrestRelease onsAcquittedeDetention AccuseBailchargesorimposedUndergone dwith convictedduring trial for purpose of Section 428 Cr.P.C A1 andA1 : Duda02.09.202102.09.2021UnderAcquitted Acquittal-- A2Dhanavamma,Section W/o Devudu,34(a) of Aged 47 years,A.P. Excise(A C/o Vadabalija, mendme R/o D.No.15-1- nt) Act 21/2, Kondavitha MainRoad, Gangavaram

(v), Pedagantyada, Visakhapatnam

A2 : Ummidi Dhana Raju, S/ o Late Appanna, Aged 46 years, C/o Vadabalija, R/o D.No.15-2- 102/2,50th ward, Gangavaram

(v), Pedagantyada, Visakhapatnam

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

FORM C

A.Prosecution

RANKNAMENATURE OF EVIDENCE

PW1N. Sankara Rao, Enforcement Excise official Constable, SEB Gajuwaka

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Dt. 12.09.2024

PW2K.Manmadha Rao Enforcement, C.I,Excise official SEB - Gajapathinagaram B. Defence Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

------

C. Court Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

1CW.1---- Explanation for delay : Nil

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

Copy submitted to: The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

C.C.No.3769/2023 Page 1 of 11

Dt. 12.09.2024

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION):: VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Thursday, this the 12 th day of September 2024

CALENDER CASE No: 3769 of 2023

Between : The State: Rep., by the Proh. & Ex. Sub Inspector,(AROMO), APSBCL Depot-II, Jerripothulapalem, Visakhapatnam and ES Squad, Visakhapatnam(SEB Gajuwaka). … Complainant

And

A1 : Neetapu Chandra Sekhar, S/o Shankara Rao, Aged 22 years, C/o Reddy, R/o. Venkatapuram, Gopalapatnam, Visakhapatnam

A2 : Ketha Srinivasa, S/o China Sanyasi Rao, Aged 31 years, C/o Settibalija, R/o. Pedagantyada, Gajuwaka, Visakhapatnam ... A1 and A2

This case came up before me for final hearing on 11.09.2024 in the presence of the

Assistant Public Prosecutor for the State, and of Sri T.Srinivasa Rao, Counsel for accused, on perusal of material on record and upon hearing both sides, matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau Station, Gajuwaka,

Visakhapatnam filed a charge sheet in Cr.No.31/2023 for the offence punishable under

Section 34 (a) of the Andhra Pradesh Excise Act (for short, ‘the Excise Act’) against the

A1 and A2.

02. The conspectus of the case of prosecution is that:

On 20.04.2023 at about 03.50 a.m, as per the instructions of District Proh. & Ex.

Officer, Visakhapatnam and Depot Manager, APSBCL Depot-2, Visakhaptnam

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Enforcement Sub Inspector (LW4) AROMO APSCL, Depot-II, along with his staff proceeded to Akkireddipalem village to conduct patrolling while conducting patrolling at

APSBCL Government Retail Out code 3236, GSLNo.82, Akkireddipalem village,

Gajuwaka mandal found one supervisor (A2) conducting liquor business and another salesmen (A1) standing and on the backside on cardboard box of 8PM 375 ml liquor bottles in which opened caps liquor bottles and diluting the liquor bottles notices and catch the above salesman (A1) in possession of a 11 bottles of 8 PM Premium Black

Excusive whiskey with a capacity of 375ml, Diluted liquor bottles, Batch No. 208- 17/11/22 L-3, Open Caps and One plastic Water Bottles (Aquafina) containing loose liquor in 500ml in cardboard box without any bills or permit. On enquiry, the A1 confessed that he selling the liquor outside premises and disbursing the money to self and A2 same at higher price to get profit. Then, LW4 arrested them, seized the case property, drawn eleven bottles and water bottle containing loose liquor as samples

under cover of occurrence report. Then, LW-4 transmitted to the A1 and A2 and

property to the SEB Gajuwaka, Visakhapatnam and LW.3 registered the said

occurrence report as a case in Cr. No.31/2023 for the offence under Section 36 (1)

(b) &(c) of the Excise Act r/w Shops Rules, 2019 and returned to case documents

along with case property and two accused for further investigation. LW.4 after

receiving case documents with two accused from LW.3. During the course

investigation, LW.4 sent the sample for chemical examination and the remaining case property was destroyed as per the proceedings of his Superior Authorities. On receipt of chemical analysis report and after completion of investigation, LW.4 filed charge

sheet. Hence, the charge

03. On receipt of charge sheet, this case was taken on file for the offence under

Section 36 (1) (b) &(c) of the Excise Act r/w Shops Rules, 2019, against the A1 and

A2

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04.On appearance of the accused, copies of documents were furnished to them as

contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after

referred as 'Cr.P.C.', for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against them. After perusing the entire material on record and on hearing both sides, a charge had been framed against the A1 and A2 under Section 36

(1) (b) &(c) of the Excise Act r/w Shops Rules, 2019 which was read over and

explained to them in Telugu, for which, they pleaded not guilty and claimed the case

to be tried.

06.During the course of trial, on behalf of the prosecution, PW.1 and 2 were

examined, Exs.P1 to P3 and MO.s.1 to MO.12 were exhibited. The evidence of

L.W.1 – M.Divya Vani, Proh. & Ex. Constable APSBCL Depot-II, JP Palem, LW.3 –

N.Shankara Rao, Enforcement Constbale, STB Gajuwaka are given up by

prosecution.

07.On closure of evidence let in by the prosecution, the A1 and A2 was examined under Section 313 of Cr.P.C., with regard to the incriminating material available against them, for which, their plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for A1 and A2

a)The learned Assistant Public Prosecutor argued that the evidence

of PW's.1 and 2 coupled with Exs.P1 to P3 and MO.s.1 to MO.12 goes to show that

the A1 and A2 had committed the offence and the prosecution proved the case beyond

all reasonable doubt against the A1 and A2.

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Dt. 12.09.2024

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is an infirmity. Hence,

prays to acquit the accused on the ground of benefit of doubt.

09. The point for determination is :

“Whether the prosecution is successful in bringing home

the guilt of A1 and A2 for the charge framed against them

under Section 36 (1) (b) &(c) of the Excise Act r/w Shops

Rules, 2019 , beyond all reasonable doubt?”

10. POINT :

a)PW.1 who is the , Proh. & Ex. S.I, IML Depot, deposed that on

20.04.2023 at about 03.50 p.m, he along with his staff proceeded to APSBCL,

Government Retail outlet code 3236, GSL No.82 Akkireddipalem village, they found two male persons in possession of cardboard box in suspicious circumstances and the accused tried to skulk away on seeing them; that immediately, he apprehended them with the help of his staff. He further deposed that on enquiry, the accused stated that they are in possession of liquor bottles without any bill as such he is trying to escape, and stated that they purchased liquor bottles and selling the same at higher prices. He further stated that he sent L.W.1 M.Divya Vani Proh. & Ex. Head Constable, Depot-II

though she tried to secure mediators through LW.1, none came forward to act as

mediators and as such, LW.3 prepared Ex.P1 - Occurrence report and seized 11

bottles of 8 PM Premium Black Exclusive whiskey with a capacity of 375ml, Diluted liquor bottles, Batch No. 208-17/11/22 L-3, Open Caps and One plastic Water Bottles (Aquafina) containing loose liquor in 500ml, drawn twelve sample bottles from the

C.C.No.3769/2023 Page 5 of 11

Dt. 12.09.2024

above property for chemical analysis purpose. he transmitted to the accused along

with seized property and occurrence report to Proh. & Ex. Station Circle-IV.

b)PW.2, Enforcement Inspector, SEB - Gajapathinagaram deposed that on 05.02.2020 at about 06.30 p.m, he have received the case file and two male

accused from SE Gajuwaka station along with the occurrence report (Ex.P1) and

seized contraband and basing on the occurrence report, he registered a case in Cr.

No.31/2023, under Section 36(1)(b)(c) of A.P. Excise Act and Ex.P2 – FIR, He

handed over case documents with two accused to P.W1 and on 21.04.2023, PW.1 sent

the sample to Government Chemical for analysis purpose and 04.05.2023, he

received the Ex.P3 - analysis report from Chemical Examiner, who opined that the sample is ‘Indian Made Liquor’ and on completion of investigation, he (PW1) filed

charge-sheet.

c)PW.1 stated during their cross-examination that the scene of offence is a busy locality and PW.2 stated that there is no signature on the complaint in the FIR

and he has no personal knowledge about the raid and sample bottles and that the

chemical analysis report is given by their department itself.In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of

PW.1, at the time of arrest and seizure, the accused was found in possession of seized 12 bottles of liquor as detailed above, arrested the accused and seized the contraband

under cover of Ex.P1- Occurrence report.

d)Admittedly, the alleged offence is situated at Akkireddipalem village, which is a residential locality. 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.When the place of offence is busy locality where there is movement of

C.C.No.3769/2023 Page 6 of 11

Dt. 12.09.2024

public and there is a possibility to secure public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.1 could not say the names of the

persons whom they approached to act as mediators and stated that they have not

served notices to any persons or village officials to act as mediators.

e)In such circumstances, the testimonies of PWs.1 and 2 cannot be relied upon as they are 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 the locality during seizure of contraband.

Consequently, the seizure of contraband as alleged from Ex.P1 - Occurrence report

stands vitiated.

f) Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis was found to be Indian Made Liquor, but it is for the prosecution to establish that M.Os.1 to M.O12 referred to chemical analysis was seized from the possession

of the A1 and A2, which the prosecution failed to prove.

g)In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 and 2, who are excise officials 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 prosecution failed in bringing home the guilt of the accused for the charge framed

C.C.No.3769/2023 Page 7 of 11

Dt. 12.09.2024

against the accused under Section 36 (1)(b)&(c) of the Excise Act, and hence,

accused is 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 prosecution.

11.In the result, accused(A1 and A2) are found not guilty of the offence punishable under Section 34 (a) of the Excise Act. Accordingly, they are acquitted under Section 248 (1) Cr.P.C. Their bail bonds shall stand cancelled. The A1 and A2 shall furnish a bond under Section 437-A Cr.P.C., that they shall appear before the

Appellate Court, in the event they receives summons within the six months from

today. The case property Mos.1 to Mo.12 (samples) are ordered to be destroyed on

lapse of appeal time.

Typed directly to my dictation by the Typist of this Court, corrected and

pronounced by me in the open Court, on this the 12 th day of September, 2024.

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- PW.1:TVSN Achari Proh. & Ex. Sub Inspector, IML Depot, Vijayanagaram P.W.2:K.Manmadha Rao, Enforcement C.I, SEB Gajapathinagaram.

For Defence:- None

DOCUMENTS MARKED

For Prosecution :- Ex.P1:Occurrence report by PW.1 Ex.P2:Original FIR Ex.P3:Chemical Analysis report.

For Defence:- --Nil--

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Dt. 12.09.2024

MATERIAL OBJECTS

M.O.1 :8 P.M Premium black exclusive whiskey to M.12

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

C.C.No.3769/2023 Page 9 of 11

Dt. 12.09.2024

FORM A

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL

OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION):: VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Thursday, this the 12 th day of September 2024

CALENDER CASE No:3769/2023

ComplainantRep., by the Proh. & Ex. Sub Inspector, (AROMO),APSBCLDepot-II, Jerripothulapalem, Visakhapatnam and ES Squad, Visakhapatnam. (SEB Gajuwaka) Represented byAssistant Public Prosecutor AccusedA1 : Neetapu Chandra Sekhar, S/o Shankara Rao, Aged 22 years, C/o Reddy, R/o. Venkatapuram,Gopalapatnam, Visakhapatnam

A2 : Ketha Srinivasa, S/o China Sanyasi Rao, Aged 31 years, C/o Settibalija, R/o. Pedagantyada, Gajuwaka, Visakhapatnam Represented by Sri T. Srinivasa Rao

FORM B

Date of Offence20.04.2023 Date of First Information Report20.04.2023 Date of Charge sheet29.09.2023 Date of framing of charges30.11.2023 Date of commencement of evidence10.07.2024 Date of which judgment is reserved11.09.2024 Date of the Judgment12.09.2024 Date of Sentencing Order, If any-

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division),

FAC S p.J.Magistrate of First Class (Proh. Ex.)

Visakhapatnam

C.C.No.3769/2023 Page 10 of 11

Dt. 12.09.2024

Accused Details

Rank ofName of Accused DateofDateofOffenceWhetherSentencPeriod of theArrestRelease onsAcquittedeDetention AccuseBailchargesorimposedUndergone dwith convictedduring trial for purpose of Section 428 Cr.P.C A1 andA1 : Neetapu20.04.2023 20.04.2023UnderAcquitted Acquittal-- A2ChandraSection Sekhar, S/o34(1) Shankara Rao,(b)&7(c) of A.P. Aged 22 years, Excise(A C/o Reddy, R/o. mendme Venkatapuram, nt) Act Gopalapatnam, Visakhapatnam

A2 : Ketha Srinivasa, S/o China Sanyasi Rao, Aged 31 years,C/o Settibalija, R/o. Pedagantyada, Gajuwaka, Visakhapatnam

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

FORM C

A.Prosecution

RANKNAMENATURE OF EVIDENCE

PW1T.VSN Achari, Proh. & Ex. S.I IML Excise official Depot, Vijayanagaram PW2K.Manmadha Rao Enforcement, C.I,Excise official SEB - Gajapathinagaram B. Defence Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

------

C.C.No.3769/2023 Page 11 of 11

Dt. 12.09.2024

C. Court Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

1CW.1---- Explanation for delay : Nil

Sd/- Dr.Soni Dwarampudi

II Additional Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

Copy submitted to: The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

C.C.No.4007/2023 Page 1 of 9

Dt. 13.09.2024

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE

ACTS, VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS-CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION)::

VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Friday, this the 13th day of September, 2024

CALENDER CASE No: 4007 of 2023

Between : The State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy, Visakhapatnam (Formerly Proh. & Ex. Station Pendurthy) … Complainant

and

Arasavilli Raghu, S/o Late Venkata Ramana, Aged 32 years, C/o Nagaralu, R/oMangammapeta village, Chepala Uppada, Bheemunipatnam mandal, Visakhapatnam Dist.

... Accused

This case came up before me for final hearing on 12.09.2024 in the presence of the

Assistant Public Prosecutor for the State, and of Sri T.Srinivasa Rao, Counsel for accused, on perusal of material on record and upon hearing both sides, matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy

Visakhapatnam filed a charge sheet in Cr.No.68/2020 for the offence punishable under

Section 34 (a) of the Andhra Pradesh Excise Act, 1968 (for short, ‘the Excise Act’) against the accused.

02. The conspectus of the case of prosecution is that:

C.C.No.4007/2023 Page 2 of 9

Dt. 13.09.2024

On 06.05.2020 at about 01:30 p.m, as per the instructions of Assistant Proh. & Ex.

Superintendent, Gajuwaka, Proh. & Ex. Sub Inspector ES Task Force, Gajuwaka (PW1) along with his staff (LW1 & LW.2 constables ESTF) proceeded to Madurawada to conduct patrolling they reached beside Road, the road towards Sivasakthi nagar, madhurawada,

Chinagadili mandal they found one male person in possession of a plastic gunny bag in suspicious circumstances and there are 04 bottles of All Seasons Double barrel collection reserve whiskey 180ml each, 04 bottles of Royal palace VSOP brandy 180ml each, 04 bottles of Royal street deluxe grain whiskey 180ml each duty paid liquor in a gunny bag without any bills or permit. On enquiry, the accused confessed that he purchased the liquor at liquor outlets and selling the same at higher price to get profit. Then, he explained the accused about possession and transportation of more than three liquor bottles without permit or license is an offence as per the provisions of A.P. Excise Act and arrested him, seized the case property, drawn two bottles as sample under the cover of occurrence report. Then, PW1 transmitted to the accused and property to the Proh. & Ex. Pendurthy and PW2 registered the said occurrence report as a case in Cr. No.68/2020 for the offence under Section 34 (a) of the Excise Act, 1968. During the course investigation,

PW.2 sent the sample for chemical examination and the remaining case property was destroyed as per the proceedings of his Superior Authorities. On receipt of chemical analysis report and after completion of investigation, LW6, M.Sarojadevi, Enforcement

Inspector, Special Enforcement Bureau, Pendurthy filed charge sheet. Hence, the charge

03. On receipt of charge sheet, this case was taken on file for the offence under Section 34 (a) of the Excise Act., against the accused.

04.On appearance of the accused, copies of documents was furnished to him as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' , for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 34 (a) of

C.C.No.4007/2023 Page 3 of 9

Dt. 13.09.2024

the Excise Act which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined, Exs.P1 to P3 and Mos.1 to M.o.3 were exhibited. The evidence of L.Ws.1 –

U.Sivaji, Proh. & Ex. Contable, ESTF, LW.2 Ch.V.S.Suryanarayana, Proh. & Ex. Constable,

ESTF, LW.4 S.Gowri Proh. & Ex. Constable, Pendurthy and LW6 M. Saroja Devi, E.C.I,

SEB Pendurthy are given up by prosecution.

07.On closure of evidence let in by the prosecution, the accused was examined under

Section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for accused.

a)The learned Assistant Public Prosecutor argued that the evidence of PW's.1 and 2 coupled with Exs.P1 to P3 and Mos.1 to M.o.3 goes to show that the accused had committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is an infirmity. Hence, prays to acquit the accused on the ground of benefit of doubt.

09. The point for determination is :

“Whether the prosecution is successful in bringing home

the guilt of accused for the charge framed against him under

Section 34 (a) of the Excise Act, beyond all reasonable

doubt?”

10. POINT :

a)PW.1 who is the Enforcement Sub Inspector, Sentini Bio-Products,

Gandepalli deposed that on 06.05.2020 at about 01.30 p.m, he along with his staff

C.C.No.4007/2023 Page 4 of 9

Dt. 13.09.2024

proceeded to At Beside Road, the road towards Sivasakthi nagar, Madhurawada found the accused in possession of one plastic gunny bag in suspicious circumstances and the accused tried to skulk away on seeing them; that immediately, he apprehended him with the help of his staff and on enquiry, the accused stated that he is in possession of liquor bottles without any bill as such he is trying to escape. He further deposed that the accused did not give any reply with regard to the source of liquor bottles, he sent L.W.1 U. Shivaji

Proh. & Ex. Constable, ESTF, though he tried to secure mediators through LW.1, none came forward to act as mediators and as such, she prepared Ex.P1 - Occurrence report and seized 04 bottles of All Seasons Double barrel collection reserve whiskey 180ml each, 04 bottles of Royal palace VSOP brandy 180ml each, 04 bottles of Royal street deluxe grain whiskey 180ml each, drawn three (3) sample bottles from the above property for chemical analysis purpose marked as Mos.1 to 3 and he transmitted the accused along with seized property and occurrence report to Proh. & Ex. Pendurthy.

b)PW.2, Enforcement S.I, SEB Rajaam deposed that on 06.05.2020 at about 08.40 p.m, he has received the case file and one male accused along with the occurrence report (Ex.P1) and seized contraband and basing on the occurrence report, he registered a case in Cr. No.68/2020, under Section 34 (a) of A.P. Excise Act, issued Ex.P2 – FIR and on 01.06.2020, he sent the sample to Government Chemical for analysis purpose and on 18.06.2020, he received Ex.P3 analysis report from Chemical Examiner, opining that the samples are ‘Indian Made Liquor’. LW6 submitted the confiscation proposals to the Dy.

Commissioner of SEB Visakhapatnam. The property was destroyed in presence of DC,

SEB Visakhapatnam on 14.07.2023 vide ROC No. 501/2021/A1, dt. 21.06.2022 of the DC

SEB VSP zone and on completion of investigation, LW.6, M.Saroja Devi, Enforcement

Inspector, Special Enforcement Bureau, Pendurthy filed charge-sheet.

c)PW.1 and PW.2 stated during their cross-examination that the scene of offence is a busy locality and PW.2 stated that there is no signature of the complaint in the

FIR. PW.2 stated that he has no personal knowledge about the raid and samples and that the chemical analysis report is given by their department itself.In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of PW.1,

C.C.No.4007/2023 Page 5 of 9

Dt. 13.09.2024

at the time of arrest and seizure, the accused was found in possession of seized 12 liquor bottles as detailed above, arrested the accused and seized the contraband under cover of

Ex.P1- Occurrence report.

d)Admittedly, the alleged offence is situated at Sivasakthi nagar, Madhurawada which is a residential locality. 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.When the place of offence is busy locality where there is movement of public and there is a possibility to secure public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.1 could not say the names of the persons whom they approached to act as mediators and stated that they have not served notices to any persons or village officials to act as mediators.

e)In such circumstances, the testimonies of PWs.1 and 2 cannot be relied upon as they are 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 the locality during seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 - Occurrence report stands vitiated.

f) Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis was found to be Indian Made Liquor, but it is for the prosecution to establish that M.Os.1 to

M.O3 referred to chemical analysis were seized from the possession of the accused, which the prosecution failed to prove.

g)In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 and 2, who are excise officials 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

C.C.No.4007/2023 Page 6 of 9

Dt. 13.09.2024

inclined to hold a considered view that the prosecution failed in bringing home the guilt of the accused for the charge framed against the accused under Section 34 (a) of the Excise

Act, and hence, accused is 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 prosecution.

11.In the result, accused is found not guilty of the offence punishable under Section 34

(a) of the Excise Act, 1968. Accordingly, he is acquitted under section 248 (1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A

Cr.P.C., that they shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property Mos.1 to M.o3 (samples) are ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Typist of this Court, corrected and

pronounced by me in the open Court, on this the 13 th day of September, 2024.

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- PW.1:G.Babu Rao, Enforcement Sub Inspector, Sentini Bio-Products, Gandepalli P.W.2:S.Chandra Sekhar, Enforcement, S.I, SEB - Rajaam For Defence:- None

DOCUMENTS MARKED

For Prosecution :- Ex.P1:Occurrence report by PW.1 Ex.P2:Original FIR Ex.P3:Chemical Analysis report.

For Defence:- --Nil--

MATERIAL OBJECTS

M.O.1:All Seasons Double Barrel Collection Reserve whiseky 180ml M.O.2:Royal Palace VSOP brandy 180ml M.O.3:Royal street deluxe grain whiskey 180ml

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

C.C.No.4007/2023 Page 7 of 9

Dt. 13.09.2024

FORM A

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS-CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION)::

VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Friday, this the 13 th day of September, 2024

CALENDER CASE No:4007/2023

ComplainantThe State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy, Visakhapatnam (Formerly Proh. & Ex. Station Pendurthy) Represented byAssistant Public Prosecutor AccusedArasavilli Raghu, S/o Late Venkata Ramana, Aged 32 years, C/o Nagaralu, R/o Mangammapeta village, Chepala Uppada, Bheemunipatnam mandal, Visakhapatnam Dist. Represented by Sri Srinivasa Rao

FORM B

Date of Offence06.05.2020 Date of First Information Report06.05.2020 Date of Charge sheet18.11.2023 Date of framing of charges19.01.2024 Date of commencement of evidence05.09.2024 Date of which judgment is reserved12.09.2024 Date of the Judgment13-09-2024 Date of Sentencing Order, If any-

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

C.C.No.4007/2023 Page 8 of 9

Dt. 13.09.2024

Accused Details

Rank ofNameofDateofDateofOffenceWhetherSentencePeriod of theAccusedArrestRelease onsAcquittedimposedDetention AccusedBailchargesorUndergone with convictedduring trial for purpose of Section 428 Cr.P.C SoleArasavilli06.05.202006.05.2020UnderAcquittedAcquittal-- accusedRaghu, S/oSection Late34(a) of VenkataA.P. Ramana,Excise(A Aged 32mendme years, C/ont) Act Nagaralu, R/o Mangamm apeta village, Chepala Uppada, Bheemunip atnam mandal, Visakhapat nam Dist.

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.)

Visakhapatnam

FORM C

A.Prosecution

RANKNAMENATURE OF EVIDENCE

PW1G.Baburao, Enforcement S.I, Excise official Sentini Bio-Products, Gandepalli PW2S.Chandra Sekhar, Excise official Enforcement S.I, SEB, Rajaam

C.C.No.4007/2023 Page 9 of 9

Dt. 13.09.2024

B. Defence Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

------

C. Court Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

CW.1----

Explanation for delay : Nil

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

Copy submitted to: The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

C.C.No.4026/2023 Page 1 of 9

Dt. 13.09.2024

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE

ACTS, VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS-CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION)::

VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Friday, this the 13th day of September, 2024

CALENDER CASE No: 4026 of 2023

Between : The State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy, Visakhapatnam (Formerly Proh. & Ex. Station Pendurthy) … Complainant

and

Odiboyina Appalaraju, S/o Apparao, Aged 33 years, C/o Settibalija, R/o D.No.3-59, Pinagadi (v), Pendurthy (m), Visakhapatnam Dist.

... Accused

This case came up before me for final hearing on 12.09.2024 in the presence of the

Assistant Public Prosecutor for the State, and of Sri T.Srinivasa Rao, Counsel for accused, on perusal of material on record and upon hearing both sides, matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy

Visakhapatnam filed a charge sheet in Cr.No.16/2020 for the offence punishable under

Section 34 (a) of the Andhra Pradesh Excise Act, 1968 (for short, ‘the Excise Act’) against the accused.

02. The conspectus of the case of prosecution is that:

C.C.No.4026/2023 Page 2 of 9

Dt. 13.09.2024

On 03.02.2020 at about 12:10 p.m, as per the instructions of Assistant Proh. & Ex.

Superintendent, Gajuwaka, Proh. & Ex. Sub Inspector ES Task Force, Gajuwaka (PW1) along with his staff (LW1 & LW.2 constables ESTF) proceeded to Pendurthy to conduct patrolling they reached Pinagadi junction, Pendurthy mandal they found one male person in possession of a gunny bag in suspicious circumstances and there are 2 bottles of Old admiral deluxe VSOP brandy 750ml each, 02 bottles of Mc.dowels No.1 No.1 luxury fine whiskey 750ml, 02 bottles of Officers choice supreme whiskey 750ml duty paid liquor in a gunny bags without any bills or permit. On enquiry, the accused confessed that he purchased the liquor at liquor outlets and selling the same at higher price to get profit.

Then, he explained the accused about possession and transportation of more than three liquor bottles without permit or license is an offence as per the provisions of A.P. Excise Act and arrested him, seized the case property, drawn two bottles as sample under the cover of occurrence report. Then, PW1 transmitted to the accused and property to the Proh. &

Ex. Pendurthy and PW2 registered the said occurrence report as a case in Cr.

No.16/2020 for the offence under Section 34 (a) of the Excise Act, 1968. During the course investigation, PW.2 sent the sample for chemical examination and the remaining case property was destroyed as per the proceedings of his Superior Authorities. On receipt of chemical analysis report and after completion of investigation, LW6, M.Sarojadevi,

Enforcement Inspector, Special Enforcement Bureau, Pendurthy filed charge sheet.

Hence, the charge

03. On receipt of charge sheet, this case was taken on file for the offence under Section 34 (a) of the Excise Act., against the accused.

04.On appearance of the accused, copies of documents was furnished to him as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' , for the sake of brevity).

05.When examined under Section 240 (2) of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 34 (a) of

C.C.No.4026/2023 Page 3 of 9

Dt. 13.09.2024

the Excise Act which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined, Exs.P1 to P3 and Mos.1 to M.o.3 were exhibited. The evidence of L.Ws.1 –

U.Sivaji, Proh. & Ex. Contable, ESTF, LW.2 Ch.V.S.Suryanarayana, Proh. & Ex. Constable,

ESTF, LW.4 S.Gowri Proh. & Ex. Constable, Pendurthy and LW6 M. Saroja Devi, E.C.I,

SEB Pendurthy are given up by prosecution.

07.On closure of evidence let in by the prosecution, the accused was examined under

Section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08.Heard arguments of Assistant Public Prosecutor and the counsel for accused.

a)The learned Assistant Public Prosecutor argued that the evidence of PW's.1 and 2 coupled with Exs.P1 to P3 and Mos.1 to M.o.3 goes to show that the accused had committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is an infirmity. Hence, prays to acquit the accused on the ground of benefit of doubt.

09. The point for determination is :

“Whether the prosecution is successful in bringing home

the guilt of accused for the charge framed against him under

Section 34 (a) of the Excise Act, beyond all reasonable

doubt?”

10. POINT :

a)PW.1 who is the Enforcement Sub Inspector, Sentini Bio-Products,

Gandepalli deposed that on 03.02.2020 at about 12.10 p.m, he along with his staff

C.C.No.4026/2023 Page 4 of 9

Dt. 13.09.2024

proceeded to At Pinagadi junction, pendurthy mandal, found the accused in possession of one gunny bag in suspicious circumstances and the accused tried to skulk away on seeing them; that immediately, he apprehended him with the help of his staff and on enquiry, the accused stated that he is in possession of liquor bottles without any bill as such he is trying to escape. He further deposed that the accused did not give any reply with regard to the source of liquor bottles, he sent L.W.1 U. Shivaji Proh. & Ex. Constable, ESTF, though he tried to secure mediators through LW.1, none came forward to act as mediators and as such, she prepared Ex.P1 - Occurrence report and seized 2 bottles of Old admiral deluxe

VSOP brandy 750ml each, 02 bottles of Mc.dowels No.1 No.1 luxury fine whiskey 750ml, 02 bottles of Officers choice supreme whiskey 750ml, drawn three (3) sample bottles from the above property for chemical analysis purpose marked as Mos.1 to 3 and he transmitted the accused along with seized property and occurrence report to Proh. & Ex.

Pendurthy.

b)PW.2, Enforcement S.I, SEB Rajaam deposed that on 03.02.2020 at about 02.40 p.m, he has received the case file and one male accused along with the occurrence report (Ex.P1) and seized contraband and basing on the occurrence report, he registered a case in Cr. No.16/2020, under Section 34 (a) of A.P. Excise Act, issued Ex.P2 – FIR and on 10.02.2020, he sent the sample to Government Chemical for analysis purpose and on 11.02.2020, he received Ex.P3 analysis report from Chemical Examiner, opining that the samples are ‘Indian Made Liquor’. LW6 submitted the confiscation proposals to the Dy.

Commissioner of SEB Visakhapatnam. The property was destroyed in presence of DC,

SEB Visakhapatnam on 14.07.2023 vide ROC No. 5012021/A1, dt. 23.05.2023 of the DC

SEB VSP zone and on completion of investigation, LW.6, M.Saroja Devi, Enforcement

Inspector, Special Enforcement Bureau, Pendurthy filed charge-sheet.

c)PW.1 and PW.2 stated during their cross-examination that the scene of offence is a busy locality and PW.2 stated that there is no signature of the complaint in the

FIR. PW.2 stated that he has no personal knowledge about the raid and samples and that the chemical analysis report is given by their department itself.In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of PW.1,

C.C.No.4026/2023 Page 5 of 9

Dt. 13.09.2024

at the time of arrest and seizure, the accused was found in possession of seized 06 liquor bottles as detailed above, arrested the accused and seized the contraband under cover of

Ex.P1- Occurrence report.

d)Admittedly, the alleged offence is situated at Pinagadi junction which is a residential locality. 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.When the place of offence is busy locality where there is movement of public and there is a possibility to secure public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further, PW.1 could not say the names of the persons whom they approached to act as mediators and stated that they have not served notices to any persons or village officials to act as mediators.

e)In such circumstances, the testimonies of PWs.1 and 2 cannot be relied upon as they are 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 the locality during seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 - Occurrence report stands vitiated.

f) Adverting to the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 – chemical analysis report only speaks about the facts. The material report for chemical analysis was found to be Indian Made Liquor, but it is for the prosecution to establish that M.Os.1 to

M.O3 referred to chemical analysis were seized from the possession of the accused, which the prosecution failed to prove.

g)In view of the above discussion, it can be concluded that mere registering the crime and securing analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 and 2, who are excise officials 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

C.C.No.4026/2023 Page 6 of 9

Dt. 13.09.2024

inclined to hold a considered view that the prosecution failed in bringing home the guilt of the accused for the charge framed against the accused under Section 34 (a) of the Excise

Act, and hence, accused is 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 prosecution.

11.In the result, accused is found not guilty of the offence punishable under Section 34

(a) of the Excise Act, 1968. Accordingly, he is acquitted under section 248 (1) Cr.P.C. His bail bonds shall stand cancelled. The accused shall furnish a bond under Section 437-A

Cr.P.C., that they shall appear before the Appellate Court, in the event he receives summons within the six months from today. The case property Mos.1 to M.o3 (samples) are ordered to be destroyed on lapse of appeal time.

Typed directly to my dictation by the Typist of this Court, corrected and

pronounced by me in the open Court, on this the 13 th day of September, 2024.

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :- PW.1:G.Babu Rao, Enforcement Sub Inspector, Sentini Bio-Products, Gandepalli P.W.2:S.Chandra Sekhar, Enforcement, S.I, SEB - Rajaam For Defence:- None

DOCUMENTS MARKED

For Prosecution :- Ex.P1:Occurrence report by PW.1 Ex.P2:Original FIR Ex.P3:Chemical Analysis report.

For Defence:- --Nil--

MATERIAL OBJECTS

M.O.1:Old admiral deluxe VSOP brandy 750ml M.O.2:Mc.Dowells no.1 luxury fine whiskey 750ml M.O.3:Officers choice supreme whiskey 750ml

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

C.C.No.4026/2023 Page 7 of 9

Dt. 13.09.2024

FORM A

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER ANDHRA PRADESH PROHIBITION & EXCISE ACTS,

VISAKHAPATNAM-CUM-VIII ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS-CUM-VIII ADDITIONAL CIVIL JUDGE(JUNIOR DIVISION)::

VISAKHAPATNAM

Present: Dr.Soni Dwarampudi,

II Additional Civil Judge (Junior Division)

FAC S pecial Judicial Magistrate of First Class (Proh. & Ex.), Visakhapatnam

Friday, this the 13 th day of September, 2024

CALENDER CASE No:4026/2023

ComplainantThe State: Rep., by the Enforcement Inspector, Special Enforcement Bureau Station, Pendurthy, Visakhapatnam (Formerly Proh. & Ex. Station Pendurthy) Represented byAssistant Public Prosecutor AccusedOdiboyina Appalaraju, S/o Apparao, Aged 33 years, C/o Settibalija, R/o D.No.3-59, Pinagadi

(v), Pendurthy (m), Visakhapatnam Dist. Represented by Sri Srinivasa Rao

FORM B

Date of Offence03.02.2020 Date of First Information Report03.02.2020 Date of Charge sheet18.11.2023 Date of framing of charges19.01.2024 Date of commencement of evidence05.09.2024 Date of which judgment is reserved12.09.2024 Date of the Judgment13-09-2024 Date of Sentencing Order, If any-

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

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Accused Details

Rank ofNameofDateofDateofOffenceWhetherSentencePeriod of theAccusedArrestRelease onsAcquittedimposedDetention AccusedBailchargesorUndergone with convictedduring trial for purpose of Section 428 Cr.P.C SoleBommala03.02.202003.02.2020UnderAcquittedAcquittal-- accusedAnil,S/oSection Gundayya,34(a) of Aged 33A.P. years, C/oExcise(A SC-Relli,mendme R/o Block –nt) Act 29,S-4, Seva Nagar, Madhuraw ada, Visakhapat nam Dist.

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.)

Visakhapatnam

FORM C

A.Prosecution

RANKNAMENATURE OF EVIDENCE

PW1G.Baburao, Enforcement S.I, Excise official Sentini Bio-Products, Gandepalli PW2S.Chandra Sekhar, Excise official Enforcement S.I, SEB, Rajaam

B. Defence Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

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C. Court Witnesses, if any:

RANK NAMENATURE OF EVIDENCE

CW.1----

Explanation for delay : Nil

Sd/- Dr.Soni Dwarampudi

II Add. Civil Judge (Junior Division), FAC S p.J.Magistrate of First Class (Proh. Ex.) Visakhapatnam

Copy submitted to: The Hon'ble Chief Judicial Magistrate, Visakhapatnam.