, Sri J.sujin Kumar, Excise Court

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In the Court of the Special Judicial Magistrate of First Class,

(Prohibition and Excise Cases), Anantapuramu

Present: Sri J.Sujin Kumar

Special Judicial Magistrate of First Class(Mobile), for trial of cases under

PCR Act -cum- II Addl. Junior Civil Judge, Ananthapuramu

FAC-Special Judicial Magistrate of First Class,

(Excise Court), Anantapuramu

Thursday, the 22 nd Day of August, 2024

Calendar Case No.40 of 2023

Between:-

State Represented by Sub Inspector of Police,

Anantapuramu III Town Police Station....Complainant.

AND

1. S.Mahammad Khasim @ Basha, aged 40 years, S/o. Late Shekshavali,

R/o. Indiramma Colony, Narayanapuram Village, Ananthapur Rural.

2. Gongati Venkatarami Reddy, aged 47 years, S/o. G.Thipareddy,

R/o.Yaleru Village, Atmakur Mandal.

3. Pujari Chandrasekhar @ Swamy, aged 58 years, S/o.Late Hanumanthaiah,

R/o.Nayanapalli Village, Narpala Mandal.

4. Pamulapati Raveendranath @ Ravi, aged 45 years, S/o.Lakshminarayana,

D.No.2-34, BC Colony, Chelopalli Village, Putluru Mandal. ...Accused 1 to 4

This case came before me on 22.08.2024 for final hearing before me in the presence of APP for the state and of Sri.A.Sreekanth Reddy, Advocate for ac- cused and upon hearing both sides and having perused the material on record, this court delivered the following:

JUDGMENT

1.The Sub-Inspector of Police, Anantapuramu III Town Police Station, filed charge sheet against the accused 1 to 4 in Crime No.250/2022 for the offences 2 punishable under sections 9(1) of Andhra Pradesh Gaming Act(Matka), Sec.34(a) of A.P.Excise Act & Sec.8(b) of A.P. Prohibition Act.

2.The case of the prosecution alleged against the accused 1 to 4 in the charge sheet is as follows:

On 24.10.2022, LW.11 received credible information about selling of Kar- nataka Liquor and organizing Matka, Immediately LW.11 along with mediators LWs 1, 2 and staff LWs 3 to 10 and reached infront of MG Petrol bunk, Bellary by-pass

Road, Ananthapuramu Town and found the A1 to A4 was standing at the place by keeping plastic bags in their hands. LW.11 surrounded and detained the accused with the help of staff and drafted mahazarnama and seized one blue colour Redmi company mobile phone, 15 Haywards Cheers whisky each one 90ml tetra packets of Karnataka liquor and cash of Rs.11,40,000/- from the possession of A1, and seized one red colour OPPO company mobile phone, 12 Haywards Cheers Whiksy each one 90ml Tetra packets of Karnataka liquor and cash of Rs.3,00,000/- from the possession of A2, seized one blue colour VIVO company mobile phone, 12

Haywards Cheers whisky each one 90ml tetra packets of Karnataka liquor and cash of Rs.50,000/- from the possession of A3 and one brown colour Redmi coma- pany mobile phone, 11 Haywards Cheers Whisky each one 90ml, tetra packets of

Karnataka liquor and cash of Rs.75,000/- from the possession of A4, total 50 Hay- wards Cheers Whisky 90ml tetra packets, 4 mobile phones and cash of

Rs.15,65,000/- from the possession of A1 to A4 and arrested the accused. LW.6 registered the mahazarnama as a case in Cr.No.250/2022, U/secs. 9(1) of Andhra 3

Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b) of A.P. Prohibition

Amendment Act-2020 and sent the A1 to A4 to judicial custody.

On 05.11.2022 as per the orders of Hon'ble Spl.Judicial First Class Magis- trate, Proh., & Excise, Ananthapuramu, in this case seized cash of Rs.15,65,000/- was deposited in Union Bank of India vide Ac.No.147713030000727 and customer

ID No.52712853. During the course of investigation, LW.11 forwarded the material objects to the Examiner, Regional Prohibition & Excise Laboratory, Chittoor for chemical analysis and obtained the laboratory report vide C.E.No.1412/2022. The examiner opined that the sample is Indian Made liquor. He destroyed the property vide C.No.528/SEB-A-ATP/2022, dated 16.12.2022. After completion of investiga- tion he filed charge sheet.

3. This court took cognizance of case for the offences punishable U/secs. 9(1) of

Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of

A.P.Prohibition Act against the accused 1 to 4.

4.On appearance of the accused 1 to 4, copies of case documents were fur- nished to the accused as contemplated under Section 207 Criminal Procedure

Code.

5.The accused 1 to 4 were examined under section 239 of Criminal Procedure

Code by explaining the accusation against them for which they denied and on con- sidering the entire record, the charges for the offences punishable U/secs. 9(1) of

Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b) (i) of

A.P.Prohibition. They were framed against the accused 1 to 4 and the said charges 4 were read-over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried. Hence, the case was posted for trial.

6.During the course of trial, the prosecution has examined LW.1/K.Raj Kumar as PW.1 and got marked Ex.P2, LW.2/V.Ganapathi as PW.2 and got marked Ex.P1,

LW.7/A.Yellanjana Reddy, Police Constable as PW.3 and LW.11/G.Randadu, S.I of

Police as PW.4 and got marked as Ex.P4 to P7 and Mos.1 to 5. The learned Assis- tant Public Prosecutor has given up the evidence of LW.3 to LW.6 and LW.8 to

LW.10/Sreenivasulu, Rajasekhar, Naresh, C.Ramana, Sreedhar, Salappa, Loknath

Chowdary respectively and accordingly prosecution side evidence was closed,

7.After closure of the prosecution evidence, the accused 1 to 4 were examined under section 313 of Criminal Procedure Code by explaining the incriminating pros- ecution evidence against them in Telugu, for which they denied the incriminating material and reported no defence evidence.

8.Heard arguments of learned Assistant Public Prosecutor and learned defence counsel.

9.Now the points that arise for determination are as follows :-

I) ““Whether the prosecution established the guilt of accused 1 to 4 for

the offence punishable under Section 9(1) of Andhra Pradesh Gaming Act be-

yond reasonable doubt”?

II) “Whether the prosecution established the guilt of accused 1 to 4 for

the offences punishable under Section 34(a) of A.P.Excise Act and Sec.8(b)(i)

of A.P.P.Act beyond reasonable doubt”?.

5 10. The arguments of the prosecution are that evidence of PW.4 supported by

PW.3 and documentary evidence clinchingly establishes that Accused 1 to 4 organized matka game in a public place and collected hard earnings of the public and further more all the accused in order to gain unlawful income used to sell liquor bottles for higher prices to public which are offences under 34(a) of A.P. Excise Act and Section 8(b)(i) of A.P. Prohibition Act , Further she argued that as per the re- cent amendment of A.P. Excise Act and as per the G.O.Ms.No.411 issued by the

Excise Department in September, 2019 one person has to carry 3 bottles of any size of Indian made liquor without any license, but herein in the present case the accused without any license transporting 50 Haywards cheers whisky 90 ml tetra packets which is more than the prescribed quantity. And the court shall presume that accused is committed offence unless contrary is proved Hence prays to convict the accused for the offence charged against them.

11.On the other hand the learned defence counsel argued that, except the confession which was recorded by Police no other independent evidence was let in by the prosecution to prove the guilt of accused under levelled offences. He further submitted that the alleged confession of accused is hit by Section 25 and 26 of Indian Evidence Act and same is inadmissible in evidence. Hence prayed to acquit all the accused from the charges levelled U/secs. 9(1) of Andhra Pradesh

Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of A.P.Prohibition Act.

12. In view of these rival contentions, the entire evidence is perused.

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13.POINT No.1 and 2 :

The point Nos.1 and 2 are answered together for the sake of convenience, as they are inter linked and inter related with each other. In order to substantiate its case, the prosecution has examined Pws.1 to PW.4, out of 11 listed witnesses and got marked Exs.P1 to P7 and MO.1 to 5 among them, PW.1 is said to be the medi- ator and P.W.2 to 4 are Police Officials, Anantapuramu III Town Police station, who filed complaint, registered and investigated into the case.

14. The Ex.P1 and P2 are the Signatures of PW.1 & 2 on seizure mahaz- arnama dated 24.10.2022. Ex.P3 is Confession cum Seizure Mahazarnama, Ex.P4 is Original First Information Report. Ex.P5 is Letter of Advice, Ex.P6 is Panchayath- nama and Ex.P7 is Analysis Report. MO.1 to 4 are 4 cell phones and MO.5 is

Fixed Deposited Receipt for Rs.15,65,000/- in Union bank of India vide

Ac.No.147713030000727 with Term Deposit customer ID No. is 52712853

15.The evidence of PW.1 & 2 goes to shows that on they do not know any facts of the case. On one day in the year 2022, they have been to the police staion along on their personal work, there police obtained their signatures/ Ex.P1 and P2 on a written papers. They do not know the contents of Confession, arrest cum

Seizure mahazarnama, dated 24.10.2022.

16.The evidence of PW3 goes to shows that on 24.10.2022 at 9 AM,

LW.11 Sub-Inspector of Police received credible information about selling of Kar- nataka Liquor and Organizing Matka. LW.11 sent LW.5 to secure mediators. Later he brought PW.1 and 2 police station. LW.11 requested Pws. 1 and 2 to act as me- 7 diators for the arrest and seizure of property as he got credible information about the accused. They agreed to act as mediators and then myself Pws.1, 2 Lws 3 to 6, 8 to 11 in a police jeep and reached at 10 AM infront of MG Petrol Bunk situated at

Bellary Bypass road. They found 4 persons standing, having of possession of white

Plastic Bags. On seeing the officials in Uniform the accused tried to flew away from the spot. They caught them, and brought before Pws 1 and 2 and enquired their identity particulars and reasons for their escape. The said 4 persons revealed their identity particulars as Mohammad Khasim (A1) G. Venkatarami Reddy (A2)

Chandrasekhar (A3) P. Ravindranath (A4). LW.11 enquired all the four accused separately. On enquiry A1 voluntarily confessed that he is addicted to Matka, in the year 2015 he went to Mumbai and played Matka lost so much money and also worked as Assistant to a person who was running Matka at Mumbai. In the year 2018 he came back to Ananthapuramu and started playing Matka having acquain- tance with Mumbai Matka Company he further confessed that he used to collect matka chits through his Whatsapp Number from various places of Ananthapuramu ,

Kurnool, Pulivendala , Kakinada and Vijayawada. He also confessed that daily he used to send 7 lakhs to Mumbai. During his confession he confessed that he brought Karnataka Liquor and sold for higher prices to the persons who ap- proaches him to play matka. Other 3 persons voluntarily confessed that they are also playing Matka with the assistance of A1 at various places and the money transactions were going on between them with regard to the percentage of Matka.

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They further confessed that they are facilitators for transporting Karnataka

Liquor in various spots of Andhra Pradesh without licence and permit. LW.11 searched the accused and found 4 mobile phones from them, verified the plastic bags and found 50 tetra packets of Haywards Cheers Whisky 90 ml and an amount of Rs.15,65,000/-. LW.11 separated 4 packets of Haywards Cheers Whisky (90 ml ) for chemical analysis purpose and seized the contraband cash duly sealed and labeled under the cover of confession cum seizure mahazarnama obtained signatures accused as well as Pws 1 and 2.

17.The evidence of PW4, investigation officer goes to shows that

a)On 24.10.2022 at 9 AM, S.I of Police received credible information about selling of Karnataka Liquor and Organizing Matka. He sent LW.5 to secure mediators. Later he brought PW.1, 2 to police station. He requested Pws. 1 and 2 to act as mediators for the arrest and seizure of property as he got credible informa- tion about the accused. They agreed to act as mediators and then myself Pws.1, 2, 3 Lws 3 to 6, 8 to 11 in a police jeep and reached at 10 AM infront of MG Petrol

Bunk situated at Bellary Bypass road. There they found 4 persons standing, having of possession of white Plastic Bags. On seeing the officials in Uniform the accused tried to flew away from the spot. They caught them, and brought before Pws 1 and 2 and enquired their identity particulars and the reasons for their escape. The said 4 persons revealed their identity particulars as Mohammad Khasim (A1) G.

Venkatarami Reddy (A2) Chandrasekhar (A3) P. Ravindranath (A4). He enquired all the four accused separately. On enquiry A1 voluntarily confessed that he is ad- 9 dicted to Matka, in the year 2015 he went to Mumbai and played Matka lost so much money and also worked as Assistant to a person who was running Matka at

Mumbai. In the year 2018 he came back to Ananthapuramu and started playing

Matka having acquaintance with Mumbai Matka Company he further confessed that he used to collect matka chits through his Whatsapp Number from various places of Ananthapuramu, Kurnool, Pulivendala, Kakinada and Vijayawada. He also confessed that daily he used to send 7 lakhs to Mumbai. During his confes- sion he confessed that he brought Karnataka Liquor and sold for higher prices to the persons who approaches him to play matka. He searched A1 he possessed one

Blue colour Redme mobile phone (MO.1) in his pants pocket and also with denomi- nationsRs.500X1980=Rs.9,90,000/-,Rs.200X500=Rs.1,00,000/-and

Rs.50X1000=Rs.50,0000/-, total amount of Rs.11,40,000/- cash. on verifying the plastic cover he found 15 tetra packets of Hayward's Cheers Whiksy each 90ml. He handed over him to the staff and started enquiring the second person in the pres- ence of mediators.

b)His evidence further goes to show that the second person revealed his name as G.Venkatarami Reddy he also corroborated with the version of A1 in all the aspects he searched A1 he possessed one Red colour OPPO company mobile phone (MO.2) in his pants pocket and also with denominations

Rs.100X3,000=Rs.3,00,000/-, total amount of Rs.3,00,000/-, on verifying the plastic cover he found 12 tetra packets of Hayward's Cheers Whiksy each 90ml. He 10 handed over him to the staff and started enquiring the Third person in the presence of mediators.

c) His evidence further goes to show that the third person revealed his name as P.Chandra Sekhar, he also corrobarated with the version of A1 & A2 in all the aspects then, He searched him, he possessed one Blue colour VIVO company mobile phone(MO.3) in his pants pocket and also with denominations

Rs.100X500=Rs.50,000/-, total amount of Rs.50,000/-, on verifying the plastic cover he found 12 tetra packets of Hayward's Cheers Whiksy each 90ml. He handed over

A3 to the staff and started enquiring the fourth person in the presence of mediators.

d) His evidence further goes to show that the fourth person revealed his name as P.Ravindranath, he also corrobarated with the version of A1 to A3 in all the aspects then, He searched him, he possessed one Ash colour Redmi company mobile phone (Mo.4) in his pants pocket and also with denominations

Rs.100X750=Rs.75,000/-, total amount of Rs.75,000/-, on verifying the plastic cover he found 11 tetra packets of Hayward's Cheers Whiksy each 90ml.

e)PW.4 further deposed that then he seized total amount of cash of

Rs.15,65,000/-,four mobile phones, 50 Tetra packets after lifting the samples from each accused under the cover of confession cum seizure mahazarnama un- der Ex.P3. Later returned to the police station along with accused and seized property.Basing on Ex.P3. He registered cased in Cr.No.250/2020 punishable 9(1) of Gaming act sec.34(a) of A.P.Excise Act and Sec.8(b) of A.P.P.Act. He submitted 11 original copy of FIR under Ex.P4 to the court concerned.on the same day he for- warded the Accused before the court for judicial remand. On 05.11.2022 as per the orders of this court he deposited an amount of Rs.15,65,000/- which is seized prop- erty in Union bank of India vide Ac.No.147713030000727 and Term Deposit customer ID No. is 52712853 /MO.5. He also forwarded the material objects the chemical examiner Chittoor for chemical analysis report under the cover of Letter of Advice which is marked as Ex.P5. On 29.12.2022 he destroyed the seized the property i.e., 50 Haywards Cheers Whiksy 90ml each tetra packets as per the or- ders of Supdt., of Police Ananthapruamu vide C.No.528/SEB-A-ATP/2022, dated 16.12.2022 under the cover of panchayathnama marked as Ex.P6. After reciept analysis report he laid charge sheet against the accused. Ex.P7 is Analysis Re- port.

18. It is the contention of the prosecution that the PW4 received a credible information about the conducting matka game at scene of offence and he went there and found the accused writing matka chits and with 50 tetra packets of Hay- wards Cheers Whisky 90 ml at the scene of offence and he seized cash of

Rs.15,65,000/- and 0 tetra packets of Haywards Cheers Whisky 90 ml from ac- cused 1 to 4 under the cover of Ex.P3/confessional-arrest and Seizure mahazar and Ex.P6 the Panchayathnama, in the presence of PW’s.1 to 3. Hence the prose- cution proved the guilt of accused for the offence U/secs. 9(1) of Andhra Pradesh

Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of A.P.Prohibition Act.

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19.On the other hand it is the core contention of the learned defense counsel that the ingredients of U/secs. 9(1) of Andhra Pradesh Gaming Act

Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of A.P.Prohibition Act also does not at- tract to this case and none of the prosecution witnesses supported its case and the burden of prosecution to prove its case completely rests on the sole testimony of

Pw.4 and it is the duty of the court to see whether his evidence inspires the confi- dence of this court and trust worthy but his evidence did not inspire the confidence of this court because he failed to arrest the public who played matka game and ex- amine the constables who have allegedly gone to the scene to corroborate his evi- dence and the PW.1 & 2 who are said to be mediators did not support his version and the follow the procedure as contemplated under section 100 Cr.P.C while seizure and arrest of the accused. Therefore it is not much difficult to this court to come to inevitable conclusion that the prosecution failed to prove its case.

20.In order to prove the same the prosecution relied on the evidence of

P.W1 to 4. The evidence of P.W.4 is no way help full to say that the said amount was collected by the accused towards matka game as they resiled from their earlier statements. It is also the contention of the learned defence counsel that the P.W.4 did not follow the procedure prescribed under section 100 of Cr.P.C while seizure of amount and arrest of the all accused and except the evidence of Pw.2 and

Ex.P3/confessional-arrest and Seizure mahazar, which is inadmissible in evidence, there is no any other evidence against the accused to connect the accused to the offence.

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21.According to Section 100 of Cr.P.C, the investigating officer has to se- cure the presence of two independent mediators at the time of seizing money and 50 tetra packets of Haywards Cheers Whisky 90 ml from the possession of ac- cused. If he fails to do so, he has to state the reasons for not securing the presence of mediators.

22.In so far as securing the presence of independent mediators is con- cerned, it is the evidence of P.W4 that he secured the presence of P.W.s.1 and

PW.2 from the police station. As could be seen from the Ex.P3. there is no whisper whether the P.W.4 tried to secure the presence of independent mediators. No rea- sons were assigned that what made P.W.4 to secure the presence of P.W.1 and

PW.2 from the police station and non securing the mediators from the local inhabi- tants. Hence the P.W4 did not follow the procedure under Section 100 Cr.P.C while alleged seizure of money and arrest of the accused. Hence, viewed from any angle the prosecution failed to connect the MO.1 to 5 as (matka) gaming amount and cell phones and failed to prove the guilt of accused for the offecne U/secs. 9(1) of

Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of

A.P.Prohibition Act. Hence the accused are entitled for acquittal for the said of- fences . Accordingly Point 1 and 2 are answered against the prosecution.

23.The learned defense counsel argued that section 12 of the Act says that on conviction of any person under section 9 of the Act, the convicting magis- trate may order all the instruments of gaming seized, shall forthwith be destroyed or forfeited and the order of conviction alone would result in forfeiture of any of the 14 game or destruction thereof on conviction of the individual under section 9 of the

Act. in case of acquitting the accused, the accused is entitled for refund of the amounts seized from him, instead of confiscation and sought for return of the seized amount, in the event of accused found not guilty for the offence U/sec.9(1) of

A.P.Gaming Act and acquitted. Herein accused No.1 to 4 claimed cash of

Rs.15,65,000/- as their hard earned money but they did not claim the four mobile phones which was alleged to be seized from their possession as their own. So this court is inclined to pass property order accordingly.

24. In view of the above discussion, this court holds that the prosecution failed to establish the guilt of accused 1 to 4 for the offences punishable U/secs. 9(1) of

Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of

A.P.Prohibition Act beyond reasonable doubt. Accordingly, the points No.1 and 2 are answered against the prosecution. Since the accused are not claiming the seized amount as their personal amount and the prosecution though failed to prove their guilt for the offence under U/secs. 9(1) of Andhra Pradesh Gaming Act

Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of A.P.Prohibition Act.

25.In the result, accused 1 to 4 are found not guilty for the offences punishable

U/secs. 9(1) of Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and

Sec.8(b)(i) of A.P.Prohibition Act. Therefore, accused 1 to 4 are acquitted

U/sec.248(1) of Criminal Procedure Code for the said offences and are set at lib- erty. The bail bonds of accused and their sureties shall remain in force for a period of six months as contemplated under section 437-A of Criminal Procedure Code.

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MO.1: One Blue Colour Redmi company mobile phone. MO.2 : One Red

Colour OPPO Company mobile phone. MO.3 : One Blue Colour VIVO company mobile phone. MO.4 : One Ash Colour Redmi company mobile phone are ordered to be confiscated to the state on expiry of appeal time.

MO.5 : Fixed Deposited Receipt for Rs.15,65,000/- in Union bank of India vide Ac.No.147713030000727 with Term Deposit customer ID No. is 52712853 is ordered to returned to A1 to A4 as per their respective amounts on expiry of appeal time.

Typed to my dictation by Stenographer of this court, corrected and pro- nounced by me in open Court, this the 22nd day of August, 2024

Special Judl Magistrate of I Class, (Mobile) FAC-Special Judl Magistrate of I Class, Prohibition and Excise Cases, Ananthapuramu.

Appendix of evidence

Witnesses examined for

Prosecution

PW1:K.Raj Kumar PW2:V.Ganapathi PW3:Yallanjana Reddy PW4:G.Randadu

Defence

-NIL-

EXHIBITS MARKED FOR PROSECUTION

Ex.P1Signatureof PW.1 on Mahazar, dated 24.10.2022. Ex.P2Signatureof PW.2 on Mahazar, dated 24.10.2022. Ex.P3Confession-seizure Mahazarnama. Ex.P4First Information Report 16

Ex.P5Letter of Advice Ex.P6Panchyathnama Ex.P7Analysis Report

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

MO.1 is One Blue Colour Redmi company mobile phone.

MO.2 is One Red Colour OPPO Company mobile phone.

MO.3 One Blue Colour VIVO company mobile phone.

MO.4 is One Ash Colour Redmi company mobile phone

MO.5 is Fixed Deposited Receipt for Rs.15,65,000/- in Union bank of India vide

Ac.No.147713030000727 with Term Deposit customer ID No. is 52712853

MOS MARKED FOR DEFENCE

-NIL-

FAC-Spl. J.F.C.M, P & E/ATP 17

CALENDAR AND JUDGMENT

District :: ANANTHAPURAMU.

CALENDAR CASES TRIED IN THE COURT OF SPECIAL JUDICIAL FIRST CLASS

MAGISTRATE FOR PROHIBITION AND EXCISE CASES, ANANTAPURAMU.

Date ofReport orApprehension ofReleasedCommenceClose ofSentenc OffenceComplaintaccused on bailment of trialtriale Order 24.10.202224.10.202224.10.202228.10.20226.8.202420.8.202422.08.24

Calendar and Judgement in C.C.No.40/2023 on the file of Special Judicial First Class

Magistrate for Prohibition and Excise Cases, Ananthapuramu.

Complainant: The Sub-Inspector of Police, Anantapuramu III Town Police Station. Crime No: 250/2022

Father's or Name of the Age Religion Calling Residence Mandal Husband’s Name Accused

S.Mahammad40Narayanapuram Late ShekshavaliHindu---Anantapuramu KhasimyrsVillage

G.Venkatarami54 G.Thippa ReddyHindu---P.Yaleru VillageAtmakur Reddyyrs

P.Chandra58LateNayanapalli Hindu---Narpala SekharyrsHanumanthaiahVillage

P.Raveendra45Cherlopalli LakshminarayanaHindu---Putlur nathyrsvillage

Offence: U/secs. 9(1) of Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise Act and Sec.8(b)(i) of A.P.Prohibition Act.

Finding: Accused 1 to 4 are found not guilty.

Sentence: In the result, accused 1 to 4 are found not guilty for the offences punishable U/secs. 9(1) of Andhra Pradesh Gaming Act Sec.34(a) of A.P.Excise

Act and Sec.8(b)(i) of A.P.Prohibition Act. Therefore, accused 1 to 4 are acquitted

U/sec.248(1) of Criminal Procedure Code for the said offences and are set at liberty. The bail bonds of accused and their sureties shall remain in force for a period of six months as contemplated under section 437-A of Criminal Procedure

Code.

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MO.1: One Blue Colour Redmi company mobile phone. MO.2 : One Red

Colour OPPO Company mobile phone. MO.3 : One Blue Colour VIVO company mobile phone. MO.4 : One Ash Colour Redmi company mobile phone are ordered to be confiscated to the state on expiry of appeal time.

MO.5 : Fixed Deposited Receipt for Rs.15,65,000/- in Union bank of India vide Ac.No.147713030000727 with Term Deposit customer ID No. is 52712853 is ordered to returned to A1 to A4 as per their respective amounts on expiry of appeal time.

Special Judl Magistrate of I Class, (Mobile) FAC-Special Judl Magistrate of I Class, Prohibition and Excise Cases, Ananthapuramu.

Dis.No. dt.

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS

FOR TRIAL OF CASES UNDER AP PROH. & EXCISE ACT :

ANANTHAPURAMU

Present : J. SUJIN KUMAR,

Special Judicial Magistrate of I Class (Mobile), Ananthapuramu (FAC) Special Judicial Magistrate of I Class (Excise), Ananthapuramu Saturday the 17th day of August 2024

C.C.No.1489of 2022

Between: -

The State Represented by D.Sreenivasulu Sub Inspector of police , Atmakur PS … Complainant.

And

Talari Lakshmi Devi @ Bodemma, aged 42 years, W/o. T.Obilesu, Occupation: Laborer, Cate:Boya, R/o D.No.1-110, Goridingdal Village, Atmakur Mandal. …Accused

This case is coming on 17-08-2024 for final hearing before me, in the presence of Assistant Public Prosecutor for the State and of

Sri A.Sreekantha Reddy, Advocate for the Accused, perusing the material available on record, and upon hearing the argument on both side I am delivering the following Judgment:

J U D G M E N T

1.The Sub Inspector of police, Atmakur filed charge sheet against the accused in Cr.No.220/2021 for the offence punishable under Section 34(e) of A.P. Excise Act.

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2.The brief averments of the charge sheet are as follows:

On 25.11.2021, P.W.2 received credible information about selling of ID arrack, immediately P.W.2 collected mediators and his staff and reached house of accused, situated at Gorindala Village of Atmakur Mandal, and found the accused having one gunny bag and plastic pot. On seeing police party the accused escaped from the spot by leaving gunny and plastic pot. Then PW.2 examined gunny bag and found jaggery and plastic pot having

ID wash with acacia wood of 4 liters. P.W.2 drafted mahazarnama and seized 4 liters of ID wash with acacia and drawn sample for sending the same to chemical analysis. P.W.2 registered the case as in Cr.No.220/2021 under

Section 34(e) of A.P. Excise Act of Atmakur station. During the course of investigation P.W.2 arrested the accused and he had also received chemical analysis report. After completion of investigation LW.4/D.Sreenivasulu, the then Sub-Inspector of police Atmakur PS filed charge sheet.

3.This case was taken cognizance for the offence under section 34

(a) of A.P Excise Act against the Accused and issued summons to the accused.

4.On appearance of accused before this Court copies of documents furnished to the Accused as contemplated under Section 207 Cr.P.C. and when he was examined under Section 239 Cr.P.C. about the substance of allegation leveled against him in the charge sheet the accused denied the same and hence a charge under Section 34(a) of A.P. Excise Act was framed, read over and explained to him in Telugu under section 240(2) Cr.P.C. for which he pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution P.Ws.1 and 2 were examined and

Exs.P.1 to P.4 got marked.

6.After closure of the prosecution evidence, the Accused was examined under Section 313 Cr.P.C. explaining the incriminating 3 circumstances appearing against him in the evidence of prosecution witnesses for which he denied and further stated that he did not commit any offence and he was implicated in a false case due to statistical purpose. The accused did not choose to examine any defence witness nor marking documents.

7.Heard arguments of learned Assistant Public Prosecutor for the state and the learned counsel for the accused.

NOW THE POINT THAT AROSE FOR DETERMINATION IS AS FOLLOWS:

Whether the prosecution brought home the guilt of accused beyond reasonable doubt for the offences punishable under

Section 34(a)of A.P. Excise Act ?

POINT:-

8.The arguments of the prosecution is that accused in order to gain unlawful income he used to transport and sell ID arrack for higher prices to public which is offence under section 34(a) of A.P. Excise Act, Further argued that as per the recent amendment of A.P. Excise Act and as per the

G.O.Ms.No.411 issued by the Excise Department in September, 2019 one person has to carry 3 bottles of any size of Indian made liquor without any licence, but herein in the present case the accused without any license is found in possession of 4 liters of ID wash with acacia . And argued that as per section 42 of AP Excise Act the court shall presume that accused is committed offence unless contrary is proved. Hence prays to convict the accused for the offence charged against him.

9.On the other hand the learned defence counsel argued that, the confession recorded by Police is hit by Section 25 and 26 of Indian Evidence

Act. In the present case police recorded confession of accused and seized 4

ID wash of 4 liters which is hit by section 25 and 26 of Indian evidence Act,

Hence prayed to acquit the accused.

10.One of the argument of prosecution is as per section 42 of AP

Excise Act the court shall presume that accused is committed offence unless contrary is proved. Here accused has to disprove the case of prosecution. To that I am reiterating section 42 of AP Excise Act.

42. Presumption as to commission of offence in certain cases. - In prosecutions under Section 34, Sections 37 and 37-A it shall be presumed until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of,-

(a) any intoxicant; or

(b) any still, utensil, implement or apparatus whatsoever in the manufacture of any intoxicant other than toddy; or

(c) any materials which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured; for the possession of which he is unable to account satisfactorily.

11.In general Presumption of innocence is one of the fundamental principles of criminal natural jurisprudence which automatically enunciates that an accused is presumed to be innocent until proven guilty. This principal by default applies to general and special statues unless a provision stating otherwise exists in the stature. For instance, Exceptions to have principle are contemplated in general statues like Indian Penal code, by virtue of section 111A, 113A &B, 114A etc of the Indian Evidence Act. 1872 similarly, certain provision in special statues like Narcotic Drugs and psychotropic substances

Act, Prevention of corruption Act, and Protection of children from sexual offences Act. Requires the courts to presume the existence of certain circumstances which point towards the guilt of the accused, thereby carving out an exception to the principle. For example a person charged with an 5 offence under NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence. But whether mere charge under the statue enough for the reverse burden/presumption to apply, to that I am relying on Nareshm

Kumar Vs. State of Himachal pradesh 2017 AIR(SC) 3859

The Honorable Supreme court of India set aside the conviction imposed by the High Court against the accused who was charged under Sections 20 and 61 of the NDPS Act wherein the allegation against the Appellant was that two kilograms of charas was recovered from a bag in his possession. The Apex Court observed- “9. The presumption against the accused of culpability under Section 35 and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt….

that the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga v. State of

Punjab, (2008) 16 SCC 417, observing:- “58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of

Section 35 of the Act, the actus reus which is possession of 6 contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of

Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” in M/s Seema Silk and Sarees v. Directorate of Enforcement

SLP (Criminal) No. 6812 of 2007 it was observed- “Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments

Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act.”

12.Thus, it is pellucid that unless the foundational facts are not established by the prosecution, a mere charge under a statute would not be enough for the presumption to apply.As per the above rulings of supreme court of India, the prosecution has to establish the foundational facts beyond all reasonable doubts. That the prosecution has to establish that accused is in possession more than 3 liquor bottles. And the prosecution has to establish that they have followed the procedure while seizing of ID arrack which is foundational fact of the case.

13.The prosecution in order to establish the foundational facts got examined Woman Police Constable (LW.1) as P.W.1 and Head constable of 7

Police (L.W.2) as PW.2, they are police officials. The evidence of P.Ws.1 and 2 by in large is on similar lines, their evidence shows that on 25.11.2021, , they found the accused with a one gunny and plastic pot, on seeing the arrival of Police the accused skulked away from that place by leaving the gunny bag and plastic pot containing ID wash with acacia of 4 liters. So PW.2 seized case property/ ID wash with acacia of 4 liters from his possession under Ex.P1/Police proceedings. Admittedly the scene of offence is a busy locality. When that being so, why they failed to secure independent mediator at scene of offence though the scene of offence is residential area and non- securing independent mediators at the place of search and seizure itself creates a serious doubt with regard to seizure of liquor bottles from the possession of accused. As per Sec.100(4) and (5) Cr.P.C it provides the process for conducting search and seizure. Sec.59 of A.P.Excise Act also provides whenever an officer conducting search and seizure he has to follow the processor contemplated under the Code of Criminal Procedure. For better appreciation Sec.100(4) (5) Cr.P.C reads as follows:

“Section 100.Persons in charge of closed place to allow 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.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required 8 to attend the Court as a witness of the search unless especially summoned by it.

14.In view of the above statutory provisions, it is clear that whenever any search and seizure is conducted by any officer, he has to take effective steps to secure the presence of at least two respectable inhabitants of the locality.

Here police officials found the accused at his house situated at Gorindla village of Atmakur mandal which is a busy locality as well as residential area, there is every chance to secure independent mediators. But police officials not try to secure mediators. Even the evidence of prosecution witnesses did not disclose any of their efforts for securing local inhabitants from the scene of offence to act as mediators in this case. Such silence creates doubt on the prosecution case. Therefore, either P.Ws.1 and P.W.2 not made efforts to secure local respectable inhabitants of the locality in strict compliance of provisions of Sec.100(4) Cr.P.C. If for any reason the local inhabitants of the locality did not co-operate the police officials, Police officials are authorized to issue an order in writing asking them to act as mediators as per Sec.100(4)

Cr.P.C. The object of Sec.100 Cr.P.C is to ensure confidence in the neighbors and in the public that a genuine search has been made and the incriminating material is found and not planted. Therefore, the presence of independent respectable mediators at the time of search is always desirable and the presence of mediators of that locality is more suggestible. But where, in a case, the police officials, having an opportunity to take respectable mediators, did not make any efforts to take such mediators, certainly it casts a doubt about the prosecution version. In this case, admittedly no efforts were made to secure the presence of the local mediators. As already stated above, PW.2 did not make any efforts to secure the presence of local mediators. In this regard, it is relevant to mention a decision between Gajamker Narayan Vs State of

A.P. wherein our Hon'ble High Court while dealing with Excise case held as follows:

9 “Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P. W. 1 nor that of P. W. 3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex. P-1, Panchanama, also does not protest disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100(4) Cr. P. C. are not followed by the Excise Officials while seizing the plastic can containing I. D. liquor. Therefore, the seizure made in this case is illegal.”

15.In the present case, as already discussed above, PWs1 and PW2 did not make any efforts to secure the independent respectable inhabitants of the locality. Further, the prosecution failed either to secure the presence of any of witnesses or cited them as witnesses in the memo of evidence, who are present at the time of alleged seizure at the scene of offence. Therefore, the prosecution failed to establish seizure of ID wash from the possession of accused. For the forgoing discussion and by perusing entire case records, this court has no hesitation to hold that the prosecution miserably failed to prove the guilt of accused beyond reasonable doubt for the offence under

Sec.34(a) of A.P. Excise Act and hence the accused is entitled for benefit of doubt and for acquittal.

10

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

Sec.34(a) A.P. Excise Act and hence he is acquitted of the same under

Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. No property was produced before this

Court. Hence, no order passed with regard to property.

Directly typed to my dictation by Stenographer, corrected and

pronounced by me in the open Court, this the 17th day of August, 2024.

Sd /- J. Sujin Kumar,

SPL.JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL.JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

11

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW.1 :H.Sravana Sandhya, the then WPC Constable -None-

PW.2 : M.Babu Naik, the then Head constable of Atmakur PS.

EXHIBITS MARKED

PROSECUTION: DEFENCE: Ex.P1: Police Proceedings -NIL- Ex.P2: First Information Report Ex.P3: Letter of advice Ex.P3: Analysis Report

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

-NIL-

Sd /- J. Sujin Kumar,

SPL.JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL.JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU.ru //True copy//

Spl.Judicial Magistrate of First Class (Excise), Ananthapuramu.

12

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU

Calendar cases tried by the Spl.Judl. Magistrate of First Class (Excise), Ananthapuramu

Date of OffenceReportApprehensioReleasedCommenceClose of trialSentence n ofon bail-ment of Accusedtrial 25.11.202125.11.202125.11.202130.11.202114.08.202414.08.202417.08.2024

Judgment in C.C.No.1489/2022 on the file of Spl.Judl. Magistrate of First Class (Excise), Ananthapuramu. Complainant :: Sub Inspector, Atmakur Police Station Cr.No:220/2021 Sl. Name of the AgeHusband’s CallingReligionResidence NoAccusedName 1Talari Lakshmi 42 T.Obilesu LabourHinduD.No.1-110, Devi @ yearsGoridingdal Village, BodemmaAtmakur Mandal

Offence :- U/sec. 34(a) of AP Excise Act Accused found not guilty. Finding :- Sentence :- In the result, the accused is found not guilty for the offence under Sec.34(a) A.P. Excise Act and hence he is acquitted of the same under Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. No property was produced before this Court. Hence, no order passed with regard to property.

Sd/- J. Sujin Kumar,

SPL.JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL.JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU.

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu

Dis No. Dt. //True copy//

Spl.Judicial Magistrate of First Class (Excise), Ananthapuramu.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS

FOR TRIAL OF CASES UNDER AP PROHIBITION. & EXCISE ACT :

ANANTHAPURAMU

Present : Sri J. Sujin Kumar,

Special Judicial Magistrate of I Class (Mobile), Ananthapuramu (FAC) Special Judicial Magistrate of I Class (Excise), Ananthapuramu

Saturday, the 17th day of August, 2024

C.C.No.1416 of 2022

Between:-

The Station House officer,

Special Enforcemnt Bureau,

Singanamala.…Complainant.

AND

1. Mulinte Mallikarjuna, aged 24 years, S/o.M.Narayana Swamy,

R/o.Pulasalanuthala Village, Narpala Mandal(A1)

2. Yelugu Suresh, aged 24 years, S/o.Y.Polaiah,

R/o. Rangapuram Village, Narpala Mandal.(A2) …Accused 1 and 2

This case came before me on 17.08.2024 for final hearing before me in the presence of APP for the state and of Sri.Bupur Sanjay and Sri

G.Ramamurthy, Advocates for accused 1 and 2 and upon hearing both sides and having perused the material on record, this court delivered the following:

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

2

1.The Enforcement Inspector, Special Enforcement Bureau Station,

Singanamala Police Station filed charge sheet against accused 1 and 2 in

Cr.No.128/2020 for the offence punishable U/Sec. 34 (a) of AP Excise Act 2020.

2.The case of the prosecution is that on 31.08.2020 at 07:20 AM ,During the raids conducted by the CI, ESTF, SEB., Ananthapuramu and CI, SEB

Singanamala along with their staff and mediators at Rangapuram Cross located in between Narpala to Gugudu bus road Rangapuram Village of

Narpala Mandal, they found A1 and A2 in possession of two Polythene bags.

on seeing them they tried to ran away from the place. On suspicion, with the help of staff, P.W.3 stopped and detained them. Then P.W.3 verified the 1st bag of Accused no.1/Mallikarjuna and found 8 Quarters of 8 PM Rare Blend of Indian Whisky bottles (NDPL) each 750 ml, 2nd bag of accused no.2/Suresh containing 7 quarters of 8 PM Rare belnd of Indian Whisky bottles (NDPL) each 750 ML . Further the A1 and A2 revealed their identity particulars.

Then the P.W.3 arrested the accused 1 and 2 after informing the grounds of arrest and took sample for chemical analysis purpose duly sealed, labeled and affixed identification slips and also to the said bags with remaining liquor bottles and seized the sample, property under cover of Mahazarnama.

LW.7/S.Md.Haseena Banu, Enforcement Inspector, registered the case as in

Cr.No.128/2020 under Section 34 (a) of A.P. Excise Amendment Act 220 of

SEB P.S., Bukkarayasamudra. During the course of investigation P.W.3 3 received chemical analysis report. After completion of investigation

LW.7/S.Md.Haseena Banu, the Enforcement inspector of police SEB Station,

Bukkarayasamudram filed charge sheet.

3.This case was taken cognizance for the offence under section 34(a) of

A.P. Excise Act against the Accused 1 and 2 and issued summons to the accused 1 and 2.

4.On appearance of accused 1 and 2 before this Court copies of documents furnished to the Accused 1 and 2 as contemplated under Section 207 Cr.P.C. and when they were examined under Section 239 Cr.P.C. about the substance of allegation leveled against them in the charge sheet the accused 1 and 2 denied the same and hence a charge under Section 34 (a) of A.P. Excise Act was framed, read over and explained to them in Telugu under section 240(2) Cr.P.C. for which they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution P.Ws.1 to 3 were examined and

Exs.P.1 to P.7 are marked.

6.After closure of the prosecution evidence, the Accused 1 and 2 were examined under Section 313 Cr.P.C. explaining the incriminating circumstances appearing against them in the evidence of prosecution witnesses for which they denied and further stated that they did not commit any offence and they were implicated in a false case due to statistical purpose. The accused 1 and 2 did not choose to examine any defence 4 witness nor marking documents.

7.Heard arguments of learned Assistant Public Prosecutor for the state and the learned counsel for the accused.

NOW THE POINT THAT AROSE FOR DETERMINATION IS AS FOLLOWS:

Whether the prosecution brought home the guilt of accused 1 and 2 beyond reasonable doubt for the offences punishable under Section 34(a) of A.P. Excise Act?

POINT No.1:-

8.The arguments of the prosecution is that accused 1 and 2 in order to gain unlawful income they used to sell arrack for higher prices to public which are offence under section 34 (a) of A.P. Excise Act, Further argued that as per the recent amendment of A.P. Excise Act and as per the G.O.Ms.No.411 issued by the Excise Department in September, 2019 one person has to carry 3 bottles of any size of Indian made liquor without any licence, but herein in the present case the accused without any license transporting 8 Quarters of 8

PM Rare Blend of Indian Whisky bottles (NDPL) each 750 ml, and 7 quarters of 8PM Rare belnd of Indian Whisky bottles (NDPL) each 750 ML which is more than the prescribed quantity. And argued that as per section 42 of AP

Excise Act the court shall presume that accused is committed offence unless contrary is proved Hence prays to convict the accused 1 and 2 for the offence charged against them.

5 9.On the other hand the learned defence counsel argued that, the confession recorded by Police is hit by Section 25 and 26 of Indian Evidence

Act. In the present case police recorded confession of accused 1 and 2 and seized liquor bottles which is hit by section 25 and 26 of Indian evidence Act,

Hence prayed to acquit the accused.

10.One of the argument of prosecution is as per section 42 of AP

Excise Act the court shall presume that accused is committed offence unless contrary is proved. Here accused has to disprove the case of prosecution. To that I am reiterating section 42 of AP Excise Act.

42. Presumption as to commission of offence in certain cases. - In prosecutions under Section 34, Sections 37 and 37-A it shall be presumed until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of,-

(a) any intoxicant; or

(b) any still, utensil, implement or apparatus whatsoever in the manufacture of any intoxicant other than toddy; or

(c) any materials which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured; for the possession of which he is unable to account satisfactorily.

6 11.In general Presumption of innocence is one of the fundamental principles of criminal natural jurisprudence which automatically enunciates that an accused is presumed to be innocent until proven guilty. This principal by default applies to general and special statues unless a provision stating otherwise exists in the stature. For instance, Exceptions to have principle are contemplated in general statues like Indian Penal code, by virtue of section 111A, 113A &B, 114A etc of the Indian Evidence Act. 1872 similarly, certain provision in special statues like Narcotic Drugs and psychotropic substances

Act, Prevention of corruption Act, and Protection of children from sexual offences Act. Requires the courts to presume the existence of certain circumstances which point towards the guilt of the accused, thereby carving out an exception to the principle. For example a person charged with an offence under NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence. But whether mere charge under the statue enough for the reverse burden/presumption to apply, to that I am relying on Nareshm

Kumar Vs. State of Himachal pradesh 2017 AIR(SC) 3859

The Honorable Supreme court of India set aside the conviction imposed by the High Court against the accused who was charged under Sections 20 and 61 of the NDPS Act wherein the allegation against the Appellant was that two kilograms of charas was recovered from a bag in his possession. The Apex Court observed- 7 “9. The presumption against the accused of culpability under Section 35 and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt….

that the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga v. State of

Punjab, (2008) 16 SCC 417, observing:- “58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of

Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of

Section 54 of the Act, element of possession of the contraband 8 was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” in M/s Seema Silk and Sarees v. Directorate of Enforcement

SLP (Criminal) No. 6812 of 2007 it was observed- “Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments

Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act.”

12.Thus, it is pellucid that unless the foundational facts are not established by the prosecution, a mere charge under a statute would not be enough for the presumption to apply.As per the above rulings of Hon’ble supreme court of India, the prosecution has to establish the foundational facts beyond all reasonable doubts. That the prosecution has to establish that accused is in possession more than 3 liquor bottles. And the prosecution has to establish that they have followed the procedure while seizing of liquor bottles and recording confession of accused which are foundational facts of the case.

9

13.Now coming to the facts of the case, prosecution examined four witnesses in which P.W.3 Sub Inspector SEB of Police and P.Ws.1 and 2 who are said to be mediators. The evidence of Police Official i.e., P.W.3 by and large is on his evidence shows that on credible information he reached scene of offence on seeing them the accused 1 and 2 tried to escape from that place. Immediately he detained them and interrogated in the presence of mediators on that the accused voluntarily confessed that that they were transporting 8 Quarters of 8 PM Rare Blend of Indian Whisky bottles (NDPL) each 750 ml, 7 quarters of 8PM Rare belnd of Indian Whisky bottles (NDPL) each 750 ML for sale purpose. P.W.3 arrested the accused along with case property and recorded confession of accused 1 and 2 in the presence of mediators. Generally in seizure proceedings mediator evidence is essential to prove that the police officials followed the procedure while seizing the liquor bottles. But the mediators P.Ws.1 and 2 turned hostile and not supported the version of prosecution. Therefore the prosecution failed to establish seizure of liquor bottles from the possession of accused. One of the arguments of the defence counsel is that basing on the confession given by the accused in the custody of the police is hit by 26 of Indian Evidence Act. On seeing mahazarnama which disclosed that the accused given confession in the custody of the Police thereby the confession given by the accused is hit by

Section 26 of Indian Evidence Act. The prosecution argued that as per

Section 27 of Indian Evidence Act basing on the confession of disclosure of 10 material objects cannot be taken into consideration. Here in this case on credible information Police went to scene of offence there they found the accused and on seeing the Police accused tried to went away from that place.

On that P.W.3 and his staff detained the accused. On interrogation accused stated that he purchased liquor in various wine shops . Here material object was discovered basing on the confession of the accused. But the independent mediators for confession turned hostile and not supported the version of prosecution. P.Ws.1 and 2, stated that the police obtained their signatures on written papers and they do not know the contents of the written paper. Therefore evidence of P.Ws.1 and 2 is not helpful to prosecution.

Hence recovery of material objects basing on the confession not established.

Therefore the prosecution failed to establish that basing on the confession of accused liquor bottles were seized.

14.The evidence of P.W.3 who is police official it clear that in general

Police official is interested to see that the accused 1 and 2 to be convicted with a view to get fruitful result to the part of his investigation. without corroboration of independent witnesses it is not safe to convict the accused merely basing on the evidence of Police Officials as they are interested parties to the case and want to convict the accused. For the forgoing reasons and by perusing entire case records, this court has no hesitation to hold that the prosecution miserably failed to prove the guilt of accused beyond reasonable 11 doubt for the offences under Sec.34(a) of A.P. Excise Act and hence the accused is entitled for benefit of doubt and for acquittal.

In the result, the accused 1 and 2 are found not guilty for the offence under Sec.34(a) A.P. Excise Act and hence they are acquitted of the same under Sec.248(1) Cr.P.C. The bail bonds of accused 1 and 2 shall be in force for a period of six months as per Sec.437-A Cr.P.C. No property was produced before this Court. Hence, no order passed with regard to property.

Typed to my dictation by Stenographer Gr.III, corrected and

pronounced by me in the open Court, this the 17th day of August, 2024.

Sd/-J. Sujin Kumar,

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC)SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

APPENDIX OF EVIDENCE

12

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE:

PW.1 : G.Nagalingamaiah (Mediator) -None- PW.2 : K.N.Prakesh (Mediator) PW.3 : G.Maruthi Prasad, the Sub Inspector SEB of Police

EXHIBITS MARKED

PROSECUTION: DEFENCE:

Ex.P1: Signature of P.W.1 on the Mahazarnama, dt.31.08.2020 -NIL- Ex.P2: Signature of P.W.2 on the Mahazarnama, dt.31.08.2020 Ex.P3: Panchanama Ex.P4: First Information Report Ex.P5: Letter of advice Ex.P6: Proceedings of CD Ex.P7: Analysis Report

EXHIBITS MARKED FOR DEFENCE

-NIL-

MOS MARKED FOR PROSECUTION

-NIL-S

S Sd/-J. Sujin Kumar,

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC)SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

// True Copy //

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC)SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

13

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU Calendar cases tried by the Spl Judl. Magistrate of First Class (Excise), Ananthapuramu Date of OffenceReportAppreheReleasedCommence-Close ofSentence nsion ofon bailment of trialtrial Accused 1 and 2 08.08.2024 31.08.20 31.08.202031.08.202003.09.202013.02.2024 17.08.2024 20 Judgment in C.C.No.1416/2022 on the file of Judl. Magistrate of First Class (Excise), Ananthapuramu Complainant :: Enforcement Inspector, Singanamala Cr.No:128/2020 Sl. Name of the AgeFather’s NameCallingReligionResidence NoAccused 1Mulinte 24 M.Narayana --HinduR/o.Pulasalanuthala village, MallikarjunayearsSwamyNarpala Mandal 2Yelugu 24 Y.Polaiah--HinduR/o.Rangapuram village, SureshyearsNarpala Mandal Accused 1 and 2 found not guilty. Finding :- Sentence :- In the result, the accused 1 and 2 are found not guilty for the offence under Sec.34(a) A.P. Excise Act and hence they are acquitted of the same under Sec.248(1) Cr.P.C. The bail bonds of accused 1 and 2 shall be in force for a period of six months as per Sec.437-A Cr.P.C. No property was produced before this Court. Hence, no order passed with regard to property.

SSd/-J. Sujin Kumar, Kumar

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC)SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu Dis No. Dt. // True Copy //

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC)SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

1

In the Court of Special Judicial Magistrate of First Class for trial of

cases under A.P. Prohibition and Excise Act-cum-III Additional

Junior Civil Judge, Ananthapuramu

Present:- Sri J.Sujin Kumar,Special Judicial Magistrate of First Class (mobile) for trial of cases under P.C.R.Act-cum-II Additional Junior Civil Judge, Ananthapuramu

FACSpecial Judicial Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act-cum-III Addl Junior Civil Judge, Ananthapuramu

Monday, the 18 th day of April, 2022.

C.C.NO.266/2021

Between:-

State Represented by Sub- Inspector of Police, Proh & Excise, Singanamala.

…Complainant. AND

D.Sreenivasa Murthy, age 55 years, S/o Shankar Narayna Sharma, R/o K.K. Agraharam Village, B.K.Samudram Mandal. …Accused

This case came before me on 4.4.2022 for final hearing before me in the presence of APP for the state and of Sri A.Sreekanth Reddy, Advocate

for accused and upon hearing both sides and having perused the material

on record, this court delivered the following:

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

1)The State represented by the Sub Inspector of Police, Prohibition &

Excise, Singanamala filed charge sheet against accused in Cr.No.81/2019 for the offence punishable U/Sec. 34 (a) of AP Excise Act.

2)The case of the prosecution is that as per the instructions of Proh., &

Excise Inspector on 10.9.2019 at about 11.45am, PW3 along with staff i.e.,

LW3-Mahendranath and LW4-P.Vasu and mediators conducted raid at

Ananthapuramu to Narpala Cross (Junction) in Narpala village and Mandal, found accused in possession of one plastic bag. On seeing the police in uniform, he tried to run away. LW6-M.Satyanarayana/ Proh., & Excise

Inspector and his staff caught hold of him and on enquiry accused confessed 2 that he was selling liquor bottles without having any license. Then PW3 arrested accused in the presence of mediators and seized 11 Nips of

President medal fine whisky bottles. Then he lifted sample bottle for chemical analysis purpose and arrested him under cover of mediaor report.

PW3 registered a case in Cr.No.81/2019, U/secs.34 (a) of AP Excise Act and sent the accused for judicial remand. He forwarded the lifted sample bottle for chemical analysis through letter of advise under Ex.P5. During the course of investigation PW3 produced the seized property before Deputy

Commissioner of Proh. & Excise, Anantapuramu for confiscation U/s.46 (ii) of AP Excise Act. After completion of investigation LW6-M.Satyanarayna filed charge sheet in this case.

3) After filing charge sheet and required documents, the cognizance was taken for the offence U/s.34(a) of A.P Excise Act, 1968.

4)On appearance of Accused, copies of case records were furnished to him as required u/s.207 Cr.PC.

5) On 22.3.2022, accused was examined under Sec.239 of Cr.P.C by explaining the substance of accusation levelled against him in the charge sheet, for which, he denied. Having considered the submissions of both sides and also taking into consideration the material placed before this

Court. Charge was framed against accused for the offence punishable U/s.

34 (a) of AP Excise Act. Charge was read over and explained to him in

Telugu language. For which, he pleaded not guilty and claimed the case to be tried. Thus, the case was posted for trial.

6)In order to prove the case, prosecution got examined Pws.1 to 3 and got marked Ex.P1 to P6 and MO.1 on behalf of the prosecution. On the other hand, no witnesses were examined and no documents are marked on behalf of accused.

3

7)After closure of the prosecution side evidence, on 29.3.2022, accused was examined under Section 313 Criminal Procedure Code by explaining the incriminating evidence of prosecution in Telugu, for which he denied and reported no defence evidence. No witnesses were examined and no documents were marked by the defence.

8)Heard arguments of prosecution and defence. Perused the entire record.

9)The contention of the learned Assistant Public Prosecutor is that the prosecution has examined PW.1 to 3 to prove the guilt of the accused for the offence U/s.34 (a) of AP Excise Act and that without having any license, the accused was in possession of the liquor bottles which were seized by PW.3, that no inconsistent statement were made by PW3 and as such the accused is liable to be convicted for the offence U/s.34 (a) of AP Excise Act.

,

10) Per contra, the contention of the learned counsel for the accused is that the accused falsely implicated in this case only for statistical purposes and nothing else. He has further contended that the independent witnesses acted as mediators to the proceedings were turned hostile, that the entire proceedings were drafted in the Police Station itself and prayed this court to acquit the accused.

11)Now the point arose for determination is:

Whether the prosecution proved the guilt of accused for the offence punishable U/Secs.34 (a) of AP Excise Act beyond all reasonable doubt?

12)POINT:-

i)P.W.1 and 2 who are mediators at the time of arresting the accused and seizing the contraband deposed that the excise police did not arrest the accused in their presence and the police did not seize the contraband in their presence and they further deposed that excise police obtained their 4 signature on some written papers but they do not know the contents of the same.

ii).PW3- G.Maruthi Prasad, Excise Sub Inspector deposed that on 10.9.2019 being instructed by their superior officers himself, along with mediators i.e., PW1 and 2 and their staff i.e., LW3-Mahendranath and LW4-

P.Vasu proceeded to Narpala cross road junction at Narpala village and

Mandal and they found the accused present in the court was present by holding a white polythene bag and on seeing them he tried to skulk away.

He with the assistance of his staff and on enquiry he disclosed that the said bag contained contraband and search he found 11 Nips of President medal fine whisky bottles. On observation of said two wheeler he found its registration number as AP04 AE 8353 i.e., Bajaj Discover Red in colour. The accused further disclosed his name and particulars and he questioned with regard to licence or permit he disclosed he had no licence or permit on that he lifted sample by following due procedure. He informed the accused the grounds of his arrest and effected his arrest and seized contraband under cover of mediators report in the presence of PW1 and 2. On his dictation

LW3-Mahendranath drafted the mediator report. The mediator report dated 10.09.2019 is marked as Ex.P3. He returned to Prohibition & Excise station, Singanamala and registered the contents of mediator report as a case in Cr.No.81/2019 u/s 34(a) of A.P.Excise Act and issued FIR under

Ex.P4. He enlarged the accused on station bail. During the course of his investigation he got forwarded the lifted samples to Government Laboratory through letter of advice under Ex.P5. He received analysis report from

Government Laboratory and it is reported that the sample was Indian made liquor. The remaining seized contraband was produced before Deputy

Commissioner for confiscation. Subsequently he received proceedings of

Deputy Commissioner for destruction of seized contraband as HEALS were 5 torn away. According to the said proceeding the said contraband was destroyed under the cover of mediator report in the presence of P & E Es.

The sample bottle with unexpedient portion is marked as MO.1. Further investigation in this case was done by LW6/M.Satyanarayna and he filed charge sheet in this case.

13)To bring home the guilt of the accused for the offence punishable

U/s. 34 (a) of A.P Excise Act, the prosecution shall prove that the accused 11 Nips of President Medal Fine whisky bottles and selling the same to public.

14)Before adverting to the rival contentions made on both sides and also

before delving into the evidence adduced by the prosecution witness, it is

necessary to have a look at section 42 of the AP Excise Act, 1968 which deals with regard to the presumption as to the commission of the offence in certain cases. The said Section reads as follows;

“Sec.42 : Presumption as to commission of

offence in certain cases:-

In prosecutions U/s.34, [Sec.37 and 37-A], it

shall be presumed, until the contrary is proved,

that the accused person has committed

the offence punishable under that section in

respect of -

(a) any intoxicant, or

(b) any still utensil, implement or apparatus

whatsoever in the manufacture of any

intoxicant other than toddy, or

(c) any materials which have undergone any

process towards the manufacture of an for the

possession of which he is unable to account

satisfactorily”.

The above said section would make it clear that there shall be a presumption stood in favour of the prosecution for the offences U/s.34, 37, 37-A, which mandates that it shall be presumed until the contrary is proved that the accused person has committed the offence punishable under that section in respect of any intoxicant, any utensil, implement or apparatus in 6 the manufacture of any intoxicant other than toddy or any materials which have undergone any process to the manufacture of an intoxicant and from which intoxicant has been manufactured when the accused is unable to account satisfactorily. To avail the said presumption, it is initially for the prosecution to establish that the accused was possession of liquor bottles.

To prove the same, the prosecution has examined PW.1 to 3.

15) On reading of the testimony of P.W.3, this Court does not find any inconsistent statement made by him in regard to seizure of the property from the possession of accused and the ocular evidence of P.W.3 is corroborated by the documentary evidence under Exs.P.1 to P.6 and as such the prosecution has successfully discharged the initial burden and as such, the prosecution is entitled to the presumption under Section 42 of the A.P.

Excise Act.

16) The burden of rebutting the presumption by the accused is not as high as that of the burden of proving the case by the prosecution. If the accused succeeds in placing positive evidence, the presumption will be disappeared and again the prosecution is not entitled to the said presumption and it has to prove its case against the accused beyond reasonable doubt.

17) Before conducting any search as per sub-section (4) of Section

Sec.100 of Cr.P.C, 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 situated or of any other locality if no such inhabitant of the said locality is available or 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.

The above said section would deal about before making the search under that chapter i.e., Chapter VII the procedure to be followed by the

Investigating Officer.

7

18)In the present case P.W.1 and 2 who are the mediators deposed that the police did not arrest the accused and did not seize the contraband in their presence. The evidence of mediators creates a doubt in the mind of the court as to the very case of the prosecution and the same would be sufficient to rebut the presumption stood in favour of the prosecution and as such the accused has successfully rebutted the presumption stood in favour of the prosecution. Now, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. The entire testimony of P.W.3 is silent as to from which shop the accused person purchased the liquor bottles and no investigation was done to that effect to drag the accused into the offence under Section 34(a) of A.P. Excise Act. Admittedly no identity slips were affixed on the seized property and no explanation has been offered to that effect. The reasonable doubt left by the prosecution in regard to the very seizure of the bottles from the possession of the accused person creates doubt in the mind of the court as to the entire case of the prosecution. In this case except P.W.3 witness deposed against accused.

19) At this juncture it is pertinent to refer a decision made in 1994 (2)

ALT (Crl. P.69 (AP) Botcha Raju VS State Rep. By the Inspector of

Police,Vizianagaram Rural Circle. Where in it was held that the conviction cannot be given basing on the sole evidence of the police officer without corroboration by disinterested witnesses. Hence, the prosecution has failed to prove its case against the accused person for the offence punishable under Section 34(a) of A.P. Excise Act. Hence, the point is answered against the prosecution.

20) In the result, the accused is found not guilty for the offence punishable

U/s.34 (a) of A.P. Excise Act and acquitted U/s.248 (1) of Cr.P.C The bail bonds of accused shall remain in force till six months as per the provisions of Section 437-A Cr.PC. MO.1 i.e., sample bottle with unexpedient portion 8 shall be destroyed after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in open court, this the 18th day of April, 2022.

Spl Judl Magistrate of I Class (mobile) for trial of cases under P.C.R.Act-cum- II Addl Junior Civil Judge, Ananthapuramu FAC Special Judl Magistrate of I Class for trial of cases under A.P. Prohibition and Excise Act- cum-III Addl Junior Civil Judge, Ananthapuramu

A ppendix of Evidence

Witnesses Examined

Prosecution Defence PW1 : E.Eswaraiah Nil

PW2 : Ramesh Goud

PW3 : G.Maruthi Prasad

Exhibits marked for Prosecution

Ex.P1 : Signature of PW1 on the Mahazarnama.

Ex.P2 : Signature of PW1 on the Mahazarnama.

Ex.P3 : Mahazarnama, Dt. 10.9.2019.

Ex.P4 : FIR

Ex.P5 : Letter of advise.

Ex.P6 : Analysis Report.

Exhibits marked for Delfence:Nil

Mos marked on behalf of

MO.1: Sample bottle with unexpedient portion.

FAC Spl. J.M.F.C- cum- III AJCJ.

9

CALENDAR AND JUDGMENT

District :: ANANTHAPURAMU.

CALENDAR CASES TRIED IN THE COURT OF SPECIAL JUDICIAL FIRST CLASS

MAGISTRATE FOR PROHIBITION AND EXCISE CASES, ANANTAPURAMU.

Date of Report or Apprehen- Released Commenc Close of Sentence

Offence Complaint sion of on bail ement of trial Order

accused trial

10.09.201910.9.201910.9.201910.9.201922.3.2228.3.2218.4.22

Calendar and Judgement in C.C.No.266/2021 on the file of Special Judicial First Class

Magistrate for Prohibition and Excise Cases, Ananthapuramu.

Complainant: The Inspector, Singanamala. Crime No: 81/2019

Father's or

Name of the Age Husband’s Religion Calling Residence Mandal

Accused Name

Sankar D.SreenivasaMilk 55NarayanaHinduK.K. AgraharamB.K.Samudram MurthyBusiness Sharma Offence: U/Sec.34 (a) of AP Excsie Act. Finding: Not guilty. Sentence: In the result, the accused is found not guilty for the offence punishable U/s.34 (a) of A.P. Excise Act and acquitted U/s.248 (1) of Cr.P.C The bail bonds of accused shall remain in force till six months as per the provisions of Section 437-A Cr.PC. MO.1 i.e., sample bottle with unexpedient portion shall be destroyed after expiry of appeal time. Explanation for delay: On 7.3.2022 accused was examined under Section 239 Cr.P.C. During the course of trial, PW.1 to 3 were examined and marked Exs.P1 to P6 and MO.1. On 28.3.2022 accused was examined U/s.313 Cr.P.C, they denied the same and reported no defence evidence. Heard both sides. Judgment pronounced on 13.4.2022. Hence, the delay.

Sd/-J.Sujin Kumar

Spl Judl Magistrate of I Class (mobile) for trial of cases under P.C.R.Act-cum- II Addl Junior Civil Judge, Ananthapuramu FAC Special Judl Magistrate of I Class for trial of cases under A.P. Prohibition and Excise Act- cum-III Addl Junior Civil Judge, Ananthapuramu

Copy submitted to the Hon’ble I Addl. Sessions Judge, Anantapuramu. Copy to the Superintendnt, Proh. And Excise, Buladevnagar, Anantapuramu. //True Copy//

Spl Judl Magistrate of I Class (mobile) for trial of cases under P.C.R.Act-cum- II Addl Junior Civil Judge, Ananthapuramu FAC Special Judl Magistrate of I Class for trial of cases under A.P. Prohibition and Excise Act- cum-III Addl Junior Civil Judge, Ananthapuramu 10

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS

FOR TRIAL OF CASES UNDER AP PROH. & EXCISE ACT :

ANANTHAPURAMU

Present : Sri J. Sujin Kumar,

Special Judicial Magistrate of I Class (Mobile), Ananthapuramu (FAC) Special Judicial Magistrate of I Class (Proh&Excise), Ananthapuramu

Saturday, the 17th day of August , 2024

C.C.No.1513 of 2022

Between: - The State represented through Sub-Inspector of Police, Atmakur Police Station . … Complainant

And

Ramavath Nagaraju Nayak, aged 46 years, S/o Late Ammala Lakshmanna, Cate Sugali, Occupation : Labourer, Education: IIIiterate, R/o D.No. 2-72, Pampanur Thanda, Atmakur Mandal. …Accused

This case is coming on this day i.e., 17.08.2024 for final hearing before me, in the presence of Assistant Public Prosecutor for the State and of Sri A.

Sreekantha Reddy and Sri C. Babu Prasad Advocates for the Accused, perusing the material available on record, and upon hearing the argument on both side I am delivering the following Judgment:

J U D G M E N T

1.The Sub-Inspector of Police, Atmakur P.S. filed charge sheet against the accused in Cr.No.210/2021 for the offence punishable under

Section Section 7(b) r/w 8(b) of A.P. Prohibition Act.

2.The brief averments of the charge sheet are as follows:

On 01.11.2021 at 05.00 PM, PW.2 received credible information about the selling of liquor at V E Thanda , Atmakur Mandal . Immediately he 2 along with P.W.1 and other staff left the P.S. and reached V E Thanda Village , where P.W.2 noticed the accused selling ID Liquor. On seeing the Police he tried to escape, meanwhile P.W.2 with the assistance of P.W.1,and other staff caught hold of him. On interrogation accused admitted about the offence and

P.W.2 seized the plastic can containing of 5 liters of ID Arrack from his possession, he arrested the accused by informing grounds of his arrest under cover of Ex.P.1 police proceedings. On the strength of Ex.P.1 police proceedings P.W.2 registered a case in crime No.Cr.No.210/2021 for the offence punishable under Section Section 7(b) r/w 8(b) of A.P. Prohibition Act.

and investigated into. PW.2 received chemical analysis report. After completion of investigation PW.2 filed charge sheet.

3.This case was taken cognizance for the offence under sections 7(b) r/w 8(b) of A.P. Prohibition Act against the Accused and issued summons to the accused.

4.On appearance of accused before this Court copies of documents furnished to the Accused as contemplated under Section 207 Cr.P.C. and when he was examined under Section 239 Cr.P.C. about the substance of allegation leveled against him in the charge sheet the accused denied the same and hence a charge under Sections Section 7(b) r/w 8(b) of A.P.

Prohibition Act was framed, read over and explained to him in Telugu under section 240(2) Cr.P.C. for which he pleaded not guilty and claimed to be tried.

3

5.On behalf of the prosecution P.Ws.1 and 2 were examined and

Exs.P.1 to P.4 marked.

6.After closure of the prosecution evidence, the Accused was examined under Section 313 Cr.P.C. by explaining the incriminating portion of prosecution witnesses for which he denied and further stated that he did not commit any offence and he was implicated in a false case due to statistical purpose. The accused did not choose to examine any defence witness nor marking documents.

7.Heard arguments of learned Assistant Public Prosecutor for the state and the learned counsel for the accused.

NOW THE POINT THAT AROSE FOR DETERMINATION IS AS FOLLO

Whether the prosecution brought home the guilt of accused beyond reasonable doubt for the offences punishable under

Section 7(b) r/w 8(b) of A.P. Prohibition Act?

POINT :-

8.The arguments of the prosecution is that accused in order to gain unlawful income used to sell Arrack to public which is unfit for human consumption and injurious to health. There by the accused committed offences punishable under section 7(b) r.w 8(b) of A.P. Prohibition Act, further argued that as per evidence of Pw1 and 2 clearly goes to show that they 4 seized ID arrack from the possession of accused, hence prayed to convict the accused for the charges framed against them.

9.On the other hand the learned defence counsel argued that, the confession recorded by Police is hit by Section 25 and 26 of Indian Evidence

Act. In the present case police recorded confession of accused and seized ID

Arrack from the possession of accused is hit by section 25 and 26 of Indian evidence Act, Hence prayed to acquit the accused as the police not followed the rules laid down under 100 crpc for search and seizure proceedings.

10.In order to prove the case of prosecution, The prosecution has to establish that the accused was found in possession of ID Arrack., further the prosecution has to establish that they have followed the procedure while seizing of liquor bottles and recording confession of accused which are foundational facts of the case. The prosecution in order to establish the foundational facts got examined Head Constable as P.W.2 and Constable as

P.W.1, who are police officials. The evidence of Pw2 shows that himself and

P.W.1 went to scene of offence which is situated V E Thanda, Atmakur Mandal there they found accused having plastic can, on seeing the arrival of police the accused tried to escape from that place, immediately they detained the accused and on interrogation the accused revealed his name and other particulars, then they verified the white can and found ID arrack of 5 liters, then they verified plastic can containing of 5 liters of ID Arrack , then he lifted 5 180ml quantity in plastic bottle as sample from the above said can for forwarding the same to chemical analysis under cover of police proceedings

Ex.P1. Then he arrested the accused and went to police station, basing on the strength of Ex.P1 he registered a case in crime No.210 of 2021 for the offences punishable Under Section 7(b) R/w 8(b) of Andhra Pradesh

Prohibition Act. During the course of his investigation he forwarded sample of 180 ml for chemical examination and after receipt of Ex.P.4 chemical analysis report he filed charge sheet. On seeing the evidence of Pw1, who is police constable is also in the same lines of evidence of P.W.2.

11.On seeing the evidence of Pw1 and 2 clearly goes to show that

Pw2 arrested the accused basing on the confession given by the accused that he is having ID Arrack in in his possession. As per the evidence of Pw1, the scene of offence is near V E Thanda Atmakur Mandal , When that being so, why they failed to secure independent mediator at scene of offence though the scene of offence regard to seizure of I.D. Arrack from the possession of accused. As per Sec.100(4) and (5) Cr.P.C it provides the process for conducting search and seizure, that whenever an officer conducting search and seizure he has to follow the processor contemplated under the Code of

Criminal Procedure. For better appreciation Sec.100(4) (5) Cr.P.C reads as follows:

“Section 100.Persons in charge of closed place to allow search.- 6 (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.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

12.In view of the above statutory provisions, it is clear that whenever any search and seizure is conducted by any officer, he has to take effective steps to secure the presence of at least two respectable inhabitants of the locality. Here police officials found the accused at village main centre, which is a busy locality, there is every chance to secure independent mediators. But police officials not try to secure mediators. Though Pw1 stated that they tried to secure mediators but in vain, but the said statement cannot be considered, because if for any reason the local inhabitants of the locality did not co- operate the police officials, Police officials are authorized to issue an order in writing asking them to act as mediators as per Sec.100(4) Cr.P.C. when the police officials, having an opportunity to take respectable mediators, and did not make any efforts to take such mediators, certainly it casts a doubt about the prosecution version. In this case, admittedly no efforts were made to 7 secure the presence of the local mediators. In this regard, it is relevant to mention a decision between Gajamker Narayan Vs State of A.P. wherein our

Hon'ble High Court while dealing with Excise case held as follows:

“Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P. W. 1 nor that of P. W. 3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediator Rs. Ex. P-1, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100(4) Cr. P. C. are not followed by the Excise Officials while seizing the plastic can containing I. D. liquor. Therefore, the seizure made in this case is illegal.”

13. In the present case, as already discussed above, Pw2 did not make any efforts to secure the independent respectable inhabitants of the locality. Therefore the prosecution failed to establish seizure of I.D. Arrack from the possession of accused . For the forgoing discussion and by perusing entire case records, this court has no hesitation to hold that the prosecution miserably failed to prove the guilt of accused beyond reasonable doubt for the offence under Section 7(a) r/w 8(e) of A.P. Prohibition Act and hence the accused are entitled for benefit of doubt and for acquittal.

8

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

Section 7(b) r/w 8(b) of A.P. Prohibition Act and he is acquitted of the same under Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per Sec.437-A Cr.P.C.The unmarked case property if any shall be destroyed after expiry of appeal time.

Directly typed to my dictation by Stenographer , corrected and

pronounced by me in the open Court, this the 17th day of August, 2024.

Sd/- J. Sujin Kumar,

SPL.JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL. JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW.1 : S.Mohammad Shakeer-None- PW.2 : M. Sreenivasulu (Head Constable)

EXHIBITS MARKED

PROSECUTION: DEFENCE: Ex.P1: Police Proceedings -NIL- Ex.P2: First Information Report Ex.P3: Letter of advise Ex.P4: Analysis Report

MATERIAL OBJECTS MARKED

NIL

Sd/-J. Sujin Kumar,

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

// True Copy //

JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU

9

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU Calendar cases tried by the Special Judicial Magistrate of I Class (Proh&Excise),Ananthapuramu Date of OffenceReportApprehensionReleased onCommence-Close of trialSentence of Accusedbailment of trial 01.11.202101.11.202129.11.202101.12.202113.02.2024 14.08.202417.08.2024

Judgment in C.C.No.1513/2022 on the file of SPL Judl. Magistrate of First Class (Excise), Ananthapuramu Complainant :: Sub-Inspector of Police, Atmakur P.S. Cr.No:210/2021

Sl. Name of the AgeFather’s NameCallingReligionResidence NoAccused 1Ramavath 46 Late Ammala LabourerHinduR/o. D.No.2-72, Nagaraju yearsLakshmannaPampanur Thanda, Atmakur NayakMandal

Offence :- Under Section 7(b) r/w 8(b) of A.P. Prohibition Act Accused found not guilty. Finding :- Sentence :- In the result, the accused is found not guilty for the offences under Section 7(b) r/w 8(b) of A.P. Prohibition Act and he is acquitted of the same under Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per Sec.437-A Cr.P.C. The unmarked case property if any shall be destroyed after expiry of appeal time.

Sd/- Sri.J.Sujin Kumar,Sd/- J. Sujin Kumar,

SPL JUDL. MAGISTRATE OF I CLASS (MOBILE)

ANANTHAPURAMU

(FAC) SPL JUDL. MAGISTRATE OF I CLASS (EXCISE),

ANANTHAPURAMU.

Submitted to the Hon’ble I Additional Sessions Judge, Anantapuramu. //True Copy//

Special Judl Magistrate of I Class, (Mobile) FAC-Special Judl Magistrate of I Class, (Excise). Ananthapuramu.

Dis No. Dt. ANANTHAPURAMU