Sri T. Suyodhan

APNE0A0010822021 1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRAIL OF PROHIBITION & EXCISE OFFENCES – CUM – JUNIOR CIVIL

JUDGE :: NELLORE

Present:Sri T.Suyodhan, Special Judicial Magistrate of First Class for Trail of Prohibition & Excise Offences:: Nellore.

Wednesday, this the 23rd (Twenty-Third) day of April, 2025

CALENDAR CASE No.824/2021

State: Inspector, Special Enforcement Bureau, Nellore-I

.. Complainant

Vs., Batta Raja, S/o.Joseph, aged 52 years, caste: Mala (SC), resident of NTR Nagar, Nellore, SPSR Nellore District.

.. Accused

This case is coming on the same day for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant, and of Sri D.Ramanaiah, Advocate for the accused and upon hearing and this Court delivered the following:

J U D G M E N T

1)The Inspector, Special Enforcement Bureau, Nellore-I filed charge sheet against the accused in P.R.No.49/2019 of Prohibition and Excise Station,

Nellore-I for the offence punishable U/s.34(a) of A.P. Excise Act, 1968.

2)The case of the prosecution in nutshell is as follows :-

It is the case of the prosecution that the SEB police had found accused to be in illegal possession of 48/180 ml of Mc Dowells brandy bottles on 01.10.2019 at about 08.30 PM while they were conducting raids at Rajupalem Village cross road western beside NH-16, Nellore Municipal Corporation,SPSR Nellore District.

Further the case of the prosecution is that the accused could not produce any bills or valid licence or permit for possessing of above said 48 liquor bottles without heal numbers and then arrested the accused and seized the liquor bottles from the accused under the special report was scribed by Pw.2. Later Pw.3 registered the case in crime No.49/2019 for offence under section 34(a) of A.P.Excise Act and served section 41(A) Cr.P.C. notices on the accused and released him on bail and he also sent the samples for chemical examination. Subsequently, proposals were submitted to the Deputy Commissioner of Prohibition and Excise, Nellore seeking orders for confiscation and destruction of the case property and orders

APNE0A0010822021 2 awaited and after receipt of chemical analysis report and after completion of investigation, Lw.5/A.Rathnam, Prohibition and Excise Inspector, Nellore-I laid charge sheet in this case.

3)This case was taken on file for the offence U/s.34(a)(1)(i) of A.P.

Excise Act against the accused.

4)On appearance of accused, the case copies were furnished to accused as per Sec. 207 of Cr.P.C. Accused was examined under section 239

Cr.P.C. Accused denied the offence. Then, a charge under section 34(a) of A.P.

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

5) During the course of trial, on behalf of the prosecution, Pws.1 to 3 were examined and got exhibited Exs.P1 to P5 and M.O.1 are marked. The learned Assistant Public Prosecutor has given up the evidence of

Lw.3/M.Masthanaiah, Prohibition and Excise Constable, Enforcement, Nellore and

Lw.5/A.Rathnam, Prohibition and Excise Inspector, Nellore-I and accordingly the prosecution evidence was closed.

6) After closure of prosecution evidence, accused was examined

U/s.313(1)(b) of Cr.P.C explaining the incriminating material elicited against him in the evidence of prosecution witnesses. Accused denied the same and reported no defence evidence.

7) The learned Assistant Public Prosecutor and learned counsel for the accused reported the arguments to be treated as NIL.

8)Now, the point for determination is:

Whether the prosecution proved the guilt of accused for

the offence punishable U/s.34(a) of A.P. Excise Act

beyond all reasonable doubt?

Point:-

9)To establish the case of the prosecution, the prosecution got examined Pws.1 to 3 and marked Exs.P1 to P5 and M.O.1. Pw.1- M.V.Krishna

Rao, SI, DTF, Markapuram deposed that on 01.10.2019 at about 08.00 pm., as per the instructions of the Assistant Commissioner of P & E, Nellore, he along with his staff went to Rajupalem Village Cross Road to detect excise offences, they noticed one Male person holding a white plastic bag in his right hand and on

APNE0A0010822021 3 seeing the police, he tried to skulk away and on suspicion, he stopped him with the help of his staff and questioned about his identity for which he revealed his identity particulars and on his further questioning, accused disclosed that accused possessed liquor bottles for re-sale purpose to eke-out his livelihood, but failed to produce any valid bills or permit to possess the liquor bottles and then he deputed his Constable by name M. Masthanaiah/ Lw.3 to secure mediators to search the bag, but in vain and then he decided to search the bag with the special report, opened the bag and noticed 48 liquor bottles 180ml capacity belongs to MC

Dowells Brandy and on his verification all the liquor bottles are duty paid liquor bottles and then he separated one liquor bottle for sample purpose affixed identity slips to the sample bottle and the bag with remaining bottles duly signed by him and also obtained the signature of the accused on it and then he seized the sample bottle and the bag with remaining liquor bottles from the possession of the accused under the cover of special report drafted by his constable Pw.2/S.Sai

Babu on his dictation and then he attested on it along with his accompanied staff

Ex.P1 was duly attested by the accused in token of the copy of it. He identified the sample bottle marked it as M.O.1 and he left the scene of offence along with the accused and case property and handed over to the Nellore-I Town Excise Station for further investigation.

10)Pw.2/S.Sai Babu, Head Constable, SEB, Nellore-II deposed that on 01.10.2019 at about 08.00 pm., as per the instructions of the Assistant

Commissioner of P & E, Nellore, he accompanied PW1 along with other staff went to Rajupalem Village Cross Road to detect excise offences, they noticed one

Male person holding a white plastic bag in his right hand and on seeing the police, he tried to skulk away and on suspicion, PW1 stopped him with the help of his staff and questioned about his identity for which he revealed his identity particulars and on further questioning of PW1, accused disclosed that he possessed with liquor bottles for re-sale purpose to eke-out his livelihood, but failed to produce any valid bills or permit to possess the liquor bottles and then

Pw.1 deputed his Constable by name M.Masthanaiah/Lw.3 to secure mediators to search the bag, but in vain and then Pw.1 decided to search the bag with the special report, opened the bag and noticed 48 liquor bottles 180ml capacity belongs to MC Dowells Brandy and on verification of Pw.1, he noticed that all the liquor bottles are duty paid liquor bottles and then Pw.1 separated one liquor bottle for sample purpose, affixed identity slips to the sample bottle and the bag

APNE0A0010822021 4 with remaining bottles duly signed by him and also obtained the signature of the accused on it and then Pw.1 seized the sample bottle and the bag with remaining liquor bottles from the possession of the accused under the cover of special report drafted by him on dictation of Pw.1 and then Pw.1 attested on it along with his accompanied staff. Ex.P1 was duly attested by the accused in token of the copy of it and then they left the scene of offence along with the accused and case property and handed over to Nellore-I Town Excise Station for further investigation.

11) Pw.3/B.Ashok Kumar, Sub Inspector, P & E, Ongole deposed that on 02.10.2019 at 11.00 am he received Ex.P1 and M.O.1 from M.G. Krishnam Raju,

Station Centry and in turn he registered the special report/Ex.P1 as a case in

Cr.No.49/2019, U/Sec. 34(a)(1)(1) of APE Act and then he served notices to the accused U/Sec. 41-A Cr.P.C and then he forwarded the sample bottle to the FSL for chemical analysis and then he submitted requisition to Deputy commissioner

SEB, Nellore for seeking orders for confiscation and destruction of the case property. During the course of investigation, L.W5 received analyst report from chemical examiner Guntur and later he destroyed the remaining case property on 01.02.2020 as per the orders from Deputy Commissioner, SEB, Nellore vide

RC.No.09/2017/A1, dated 24.02.2020 in the presence of mediators under cover

of mediators report and after completion of investigation, Lw.5 filed charge sheet.

12) Except the evidence of Pws.1 to 3 no other evidence was available on record. On careful scrutiny of the oral evidence of Pws.1 to 2 coupled with Ex.P1, it is manifest that the accused is appeared to have been possessing liquor bottles without having any licence or permit or bills for selling it to general public for getting profits. Be that as it may. On face of record, Pws.1 and 2 seized contraband on their own without any 3rd party mediator. Pw.1 stated that in his cross-examination that the scene of offence is a busy locality and there are several Government offices. But Pw.1 did not take any steps to secure the presence of mediators at the scene of offence as per his version. It is further came to light that Lw.3 who was deputed to secure mediators was not at all examined by the prosecution, his evidence was given up by the prosecution, if he is examined the truth would have been revealed. But the prosecution did not take any steps for examining Lw.3, it is one of the doubtful circumstance whether Pw.1 conducted any raid and seized the contraband from the possession of accused along with his staff. Further Pw.1 did not whisper whether Lw.3 stated the names

APNE0A0010822021 5 of persons whom he contacted to act mediators in this case but he simply stated that the names of person who Lw.3 contracted to act as mediators is not mentioned in Ex.P1. Further Pw.1 himself admitted in his cross-examination that in Ex.P1, the scene of offence is not described clearly about the junction at which the accused was found. It is also one of the doubtful circumstance about the caught holding of accused. Pw.2 in his cross-examination stated that the scene of offence is located at around 5 KM from his station. He himself admitted that it is mentioned in FIR that the scene of offence is located at around 10 KM from his station. Further Pw.2 stated that they started at 08.00 am from their station for conducting raids and reached the scene of offence at 08.30 PM and caught the accused. Whereas coming to cross-examination of Pw.1, he stated that he started from his station at 10.00 am for conducted raids and further stated that they conducted raids in between also on the way to the scene of offence and further he stated that they reached the scene of offence at night. There are two contradictions between the version of Pws.1 and 2 about they started from their station for conducting raids and reaching the scene of offence. It is also one of the doubtful circumstance about the conducting of raids by them. There is no plausible explanation from Pw.1 at what places he conducted on way to the scene of offence. As seen from the evidence of Pws.1 and 2, it came to light that there is every possibility for Pws.1 and 2 to secure mediators but Pw.1 did not take any steps to secure mediators. Thus, neither Pw.1 nor Pw.2 offered any plausible explanation why they could not secure mediators for the alleged raid. If it is so, believing their evidence with respect to seizure of liquor is not just and proper.

Thus, the seizure of liquor has no sanctity in the eye of law. Further Pw.3 who is only registering FIR after receiving the case record, he stated in his cross- examination that he is the complainant and investigating officer in this csae and also stated that they conducted raids in several other place while they reaching the scene of offence and further admitted that scene of offence is a busy locality.

This itself creates a doubt about the participation of Pw.3 in the raid along with

Pws.1 and 2 and other staff. Since no mediator was secured, seizing such bottles by SEB officials themselves is nothing but violation of Section 100(4) Cr.P.C.

when there is presence of public at scene of offence, without securing mediators believing the seizure proceedings is not tenable as the scene of offence is a busy locality and such raid conducted at about 08.00 PM but no mediator was secured which circumstance in itself is creating much doubtful circumstance about raid

APNE0A0010822021 6 conducted. Hence, the seizure of contra band covered under Ex.P1 has no sanctity in the eye of law. For which this Court relied upon a decision reported in

Gajamker Narayana Vs. State of A.P., reported in 2005(3) ALT (Crl.) Page 1 in which it was observed that:

“Seizure of contraband was held to be illegal when the provision of Sec.100(4) Cr.P.C., not complied”.

In another case State V. Aran reported in (3)(2003)2 SCC 202 : AIR 2003

SC 801, our Hon’ble Apex Court held that

“where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.”

Thus this court is of the view that the alleged seizure of contra band from the possession of accused is illegal.

13) Further the evidence of Pws.1 and 2 coupled with Ex.P1 on record goes to show that the accused is alleged to have made confession of his guilt but such confession also is not believable and trustworthy without having corroboratory evidence. Although, the evidence of SEB Officials can be taken into account as they are not treated on par with the rank of Police Officers, but corroboration to their evidence is necessary. Since corroboration is rule of prudence.

14) Further Pw.3 stated that Lw.5 destroyed the remaining case property on 01.02.2020 as per the orders from Deputy Commissioner, SEB, Nellore vide

RC.No.09/2017/A1, dated 24.02.2020. If it is so believing the evidence of Pws.1

and 2 that they have conducted raid and detained the accused and seized contra band is not believable and trustworthy. Further Pws.1 and 2 did not whisper whether they investigated from where such seized bottles were purchased by the accused. But Pw.1 stated that the name of the shop from which accused purchased the liquor bottles is not mentioned in Ex.P1. Thus, it is crystal clear that

Pws.1 to 3 did shoddy investigation into the matter and after receiving analysis report, Lw.5 appeared to have laid charge sheet in hurry manner without collecting necessary documents. Thus believing evidence both oral and

APNE0A0010822021 7 documentary adduced on record is not just and tenable. Hence, extending benefit of doubt in favour of accused is justifiable.

15) In view of foregoing discussion and coupled with the evidence of

Pws.1 to 3, this court has no hesitation to hold that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt for the offence charged. Hence, the accused is entitled to be acquitted.

16) In the result, the accused is not found guilty for the offence punishable under section 34(a) of A.P. Excise Act, 1968 and accordingly he is acquitted of the same under section 248(1) Cr.P.C. The bail bonds of accused, if any shall remain in force for a period of six months as per Sec.437-A Cr.P.C. M.O.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 23rd day of April, 2025.

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class fo Trial of Prohibition & Excise Offences, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

Pw.1:M.V.Krishna Rao, SI, DTF, -None- Markapuram Pw.2:S.Sai Babu, head Constable, SEB, Nellore-II Pw.3:B.Ashok Kumar, SI, P & E, Ongole

DOCUMENTS MARKED

For Prosecution:

Ex.P1:Special report. Ex.P2:First Information Report. Ex.P3:Requisition Ex.P4:Chemical Analysis Report. Ex.P5:Destruction proceedings along with mediators report.

For Defence: NIL

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class for Trial of Prohibition & Excise Offences, Nellore.

APNE0A0010822021 1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRAIL OF PROHIBITION & EXCISE OFFENCES – CUM – JUNIOR CIVIL

JUDGE :: NELLORE

Present:Sri T.Suyodhan, Special Judicial Magistrate of First Class for Trail of Prohibition & Excise Offences:: Nellore.

Wednesday, this the 23rd (Twenty-Third) day of April, 2025

CALENDAR CASE No.824/2021

State: Inspector, Special Enforcement Bureau, Nellore-I

.. Complainant

Vs., Batta Raja, S/o.Joseph, aged 52 years, caste: Mala (SC), resident of NTR Nagar, Nellore, SPSR Nellore District.

.. Accused

This case is coming on the same day for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant, and of Sri D.Ramanaiah, Advocate for the accused and upon hearing and this Court delivered the following:

J U D G M E N T

1)The Inspector, Special Enforcement Bureau, Nellore-I filed charge sheet against the accused in P.R.No.49/2019 of Prohibition and Excise Station,

Nellore-I for the offence punishable U/s.34(a) of A.P. Excise Act, 1968.

2)The case of the prosecution in nutshell is as follows :-

It is the case of the prosecution that the SEB police had found accused to be in illegal possession of 48/180 ml of Mc Dowells brandy bottles on 01.10.2019 at about 08.30 PM while they were conducting raids at Rajupalem Village cross road western beside NH-16, Nellore Municipal Corporation,SPSR Nellore District.

Further the case of the prosecution is that the accused could not produce any bills or valid licence or permit for possessing of above said 48 liquor bottles without heal numbers and then arrested the accused and seized the liquor bottles from the accused under the special report was scribed by Pw.2. Later Pw.3 registered the case in crime No.49/2019 for offence under section 34(a) of A.P.Excise Act and served section 41(A) Cr.P.C. notices on the accused and released him on bail and he also sent the samples for chemical examination. Subsequently, proposals were submitted to the Deputy Commissioner of Prohibition and Excise, Nellore seeking orders for confiscation and destruction of the case property and orders

APNE0A0010822021 2 awaited and after receipt of chemical analysis report and after completion of investigation, Lw.5/A.Rathnam, Prohibition and Excise Inspector, Nellore-I laid charge sheet in this case.

3)This case was taken on file for the offence U/s.34(a)(1)(i) of A.P.

Excise Act against the accused.

4)On appearance of accused, the case copies were furnished to accused as per Sec. 207 of Cr.P.C. Accused was examined under section 239

Cr.P.C. Accused denied the offence. Then, a charge under section 34(a) of A.P.

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

5) During the course of trial, on behalf of the prosecution, Pws.1 to 3 were examined and got exhibited Exs.P1 to P5 and M.O.1 are marked. The learned Assistant Public Prosecutor has given up the evidence of

Lw.3/M.Masthanaiah, Prohibition and Excise Constable, Enforcement, Nellore and

Lw.5/A.Rathnam, Prohibition and Excise Inspector, Nellore-I and accordingly the prosecution evidence was closed.

6) After closure of prosecution evidence, accused was examined

U/s.313(1)(b) of Cr.P.C explaining the incriminating material elicited against him in the evidence of prosecution witnesses. Accused denied the same and reported no defence evidence.

7) The learned Assistant Public Prosecutor and learned counsel for the accused reported the arguments to be treated as NIL.

8)Now, the point for determination is:

Whether the prosecution proved the guilt of accused for

the offence punishable U/s.34(a) of A.P. Excise Act

beyond all reasonable doubt?

Point:-

9)To establish the case of the prosecution, the prosecution got examined Pws.1 to 3 and marked Exs.P1 to P5 and M.O.1. Pw.1- M.V.Krishna

Rao, SI, DTF, Markapuram deposed that on 01.10.2019 at about 08.00 pm., as per the instructions of the Assistant Commissioner of P & E, Nellore, he along with his staff went to Rajupalem Village Cross Road to detect excise offences, they noticed one Male person holding a white plastic bag in his right hand and on

APNE0A0010822021 3 seeing the police, he tried to skulk away and on suspicion, he stopped him with the help of his staff and questioned about his identity for which he revealed his identity particulars and on his further questioning, accused disclosed that accused possessed liquor bottles for re-sale purpose to eke-out his livelihood, but failed to produce any valid bills or permit to possess the liquor bottles and then he deputed his Constable by name M. Masthanaiah/ Lw.3 to secure mediators to search the bag, but in vain and then he decided to search the bag with the special report, opened the bag and noticed 48 liquor bottles 180ml capacity belongs to MC

Dowells Brandy and on his verification all the liquor bottles are duty paid liquor bottles and then he separated one liquor bottle for sample purpose affixed identity slips to the sample bottle and the bag with remaining bottles duly signed by him and also obtained the signature of the accused on it and then he seized the sample bottle and the bag with remaining liquor bottles from the possession of the accused under the cover of special report drafted by his constable Pw.2/S.Sai

Babu on his dictation and then he attested on it along with his accompanied staff

Ex.P1 was duly attested by the accused in token of the copy of it. He identified the sample bottle marked it as M.O.1 and he left the scene of offence along with the accused and case property and handed over to the Nellore-I Town Excise Station for further investigation.

10)Pw.2/S.Sai Babu, Head Constable, SEB, Nellore-II deposed that on 01.10.2019 at about 08.00 pm., as per the instructions of the Assistant

Commissioner of P & E, Nellore, he accompanied PW1 along with other staff went to Rajupalem Village Cross Road to detect excise offences, they noticed one

Male person holding a white plastic bag in his right hand and on seeing the police, he tried to skulk away and on suspicion, PW1 stopped him with the help of his staff and questioned about his identity for which he revealed his identity particulars and on further questioning of PW1, accused disclosed that he possessed with liquor bottles for re-sale purpose to eke-out his livelihood, but failed to produce any valid bills or permit to possess the liquor bottles and then

Pw.1 deputed his Constable by name M.Masthanaiah/Lw.3 to secure mediators to search the bag, but in vain and then Pw.1 decided to search the bag with the special report, opened the bag and noticed 48 liquor bottles 180ml capacity belongs to MC Dowells Brandy and on verification of Pw.1, he noticed that all the liquor bottles are duty paid liquor bottles and then Pw.1 separated one liquor bottle for sample purpose, affixed identity slips to the sample bottle and the bag

APNE0A0010822021 4 with remaining bottles duly signed by him and also obtained the signature of the accused on it and then Pw.1 seized the sample bottle and the bag with remaining liquor bottles from the possession of the accused under the cover of special report drafted by him on dictation of Pw.1 and then Pw.1 attested on it along with his accompanied staff. Ex.P1 was duly attested by the accused in token of the copy of it and then they left the scene of offence along with the accused and case property and handed over to Nellore-I Town Excise Station for further investigation.

11) Pw.3/B.Ashok Kumar, Sub Inspector, P & E, Ongole deposed that on 02.10.2019 at 11.00 am he received Ex.P1 and M.O.1 from M.G. Krishnam Raju,

Station Centry and in turn he registered the special report/Ex.P1 as a case in

Cr.No.49/2019, U/Sec. 34(a)(1)(1) of APE Act and then he served notices to the accused U/Sec. 41-A Cr.P.C and then he forwarded the sample bottle to the FSL for chemical analysis and then he submitted requisition to Deputy commissioner

SEB, Nellore for seeking orders for confiscation and destruction of the case property. During the course of investigation, L.W5 received analyst report from chemical examiner Guntur and later he destroyed the remaining case property on 01.02.2020 as per the orders from Deputy Commissioner, SEB, Nellore vide

RC.No.09/2017/A1, dated 24.02.2020 in the presence of mediators under cover

of mediators report and after completion of investigation, Lw.5 filed charge sheet.

12) Except the evidence of Pws.1 to 3 no other evidence was available on record. On careful scrutiny of the oral evidence of Pws.1 to 2 coupled with Ex.P1, it is manifest that the accused is appeared to have been possessing liquor bottles without having any licence or permit or bills for selling it to general public for getting profits. Be that as it may. On face of record, Pws.1 and 2 seized contraband on their own without any 3rd party mediator. Pw.1 stated that in his cross-examination that the scene of offence is a busy locality and there are several Government offices. But Pw.1 did not take any steps to secure the presence of mediators at the scene of offence as per his version. It is further came to light that Lw.3 who was deputed to secure mediators was not at all examined by the prosecution, his evidence was given up by the prosecution, if he is examined the truth would have been revealed. But the prosecution did not take any steps for examining Lw.3, it is one of the doubtful circumstance whether Pw.1 conducted any raid and seized the contraband from the possession of accused along with his staff. Further Pw.1 did not whisper whether Lw.3 stated the names

APNE0A0010822021 5 of persons whom he contacted to act mediators in this case but he simply stated that the names of person who Lw.3 contracted to act as mediators is not mentioned in Ex.P1. Further Pw.1 himself admitted in his cross-examination that in Ex.P1, the scene of offence is not described clearly about the junction at which the accused was found. It is also one of the doubtful circumstance about the caught holding of accused. Pw.2 in his cross-examination stated that the scene of offence is located at around 5 KM from his station. He himself admitted that it is mentioned in FIR that the scene of offence is located at around 10 KM from his station. Further Pw.2 stated that they started at 08.00 am from their station for conducting raids and reached the scene of offence at 08.30 PM and caught the accused. Whereas coming to cross-examination of Pw.1, he stated that he started from his station at 10.00 am for conducted raids and further stated that they conducted raids in between also on the way to the scene of offence and further he stated that they reached the scene of offence at night. There are two contradictions between the version of Pws.1 and 2 about they started from their station for conducting raids and reaching the scene of offence. It is also one of the doubtful circumstance about the conducting of raids by them. There is no plausible explanation from Pw.1 at what places he conducted on way to the scene of offence. As seen from the evidence of Pws.1 and 2, it came to light that there is every possibility for Pws.1 and 2 to secure mediators but Pw.1 did not take any steps to secure mediators. Thus, neither Pw.1 nor Pw.2 offered any plausible explanation why they could not secure mediators for the alleged raid. If it is so, believing their evidence with respect to seizure of liquor is not just and proper.

Thus, the seizure of liquor has no sanctity in the eye of law. Further Pw.3 who is only registering FIR after receiving the case record, he stated in his cross- examination that he is the complainant and investigating officer in this csae and also stated that they conducted raids in several other place while they reaching the scene of offence and further admitted that scene of offence is a busy locality.

This itself creates a doubt about the participation of Pw.3 in the raid along with

Pws.1 and 2 and other staff. Since no mediator was secured, seizing such bottles by SEB officials themselves is nothing but violation of Section 100(4) Cr.P.C.

when there is presence of public at scene of offence, without securing mediators believing the seizure proceedings is not tenable as the scene of offence is a busy locality and such raid conducted at about 08.00 PM but no mediator was secured which circumstance in itself is creating much doubtful circumstance about raid

APNE0A0010822021 6 conducted. Hence, the seizure of contra band covered under Ex.P1 has no sanctity in the eye of law. For which this Court relied upon a decision reported in

Gajamker Narayana Vs. State of A.P., reported in 2005(3) ALT (Crl.) Page 1 in which it was observed that:

“Seizure of contraband was held to be illegal when the provision of Sec.100(4) Cr.P.C., not complied”.

In another case State V. Aran reported in (3)(2003)2 SCC 202 : AIR 2003

SC 801, our Hon’ble Apex Court held that

“where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.”

Thus this court is of the view that the alleged seizure of contra band from the possession of accused is illegal.

13) Further the evidence of Pws.1 and 2 coupled with Ex.P1 on record goes to show that the accused is alleged to have made confession of his guilt but such confession also is not believable and trustworthy without having corroboratory evidence. Although, the evidence of SEB Officials can be taken into account as they are not treated on par with the rank of Police Officers, but corroboration to their evidence is necessary. Since corroboration is rule of prudence.

14) Further Pw.3 stated that Lw.5 destroyed the remaining case property on 01.02.2020 as per the orders from Deputy Commissioner, SEB, Nellore vide

RC.No.09/2017/A1, dated 24.02.2020. If it is so believing the evidence of Pws.1

and 2 that they have conducted raid and detained the accused and seized contra band is not believable and trustworthy. Further Pws.1 and 2 did not whisper whether they investigated from where such seized bottles were purchased by the accused. But Pw.1 stated that the name of the shop from which accused purchased the liquor bottles is not mentioned in Ex.P1. Thus, it is crystal clear that

Pws.1 to 3 did shoddy investigation into the matter and after receiving analysis report, Lw.5 appeared to have laid charge sheet in hurry manner without collecting necessary documents. Thus believing evidence both oral and

APNE0A0010822021 7 documentary adduced on record is not just and tenable. Hence, extending benefit of doubt in favour of accused is justifiable.

15) In view of foregoing discussion and coupled with the evidence of

Pws.1 to 3, this court has no hesitation to hold that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt for the offence charged. Hence, the accused is entitled to be acquitted.

16) In the result, the accused is not found guilty for the offence punishable under section 34(a) of A.P. Excise Act, 1968 and accordingly he is acquitted of the same under section 248(1) Cr.P.C. The bail bonds of accused, if any shall remain in force for a period of six months as per Sec.437-A Cr.P.C. M.O.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 23rd day of April, 2025.

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class fo Trial of Prohibition & Excise Offences, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

Pw.1:M.V.Krishna Rao, SI, DTF, -None- Markapuram Pw.2:S.Sai Babu, head Constable, SEB, Nellore-II Pw.3:B.Ashok Kumar, SI, P & E, Ongole

DOCUMENTS MARKED

For Prosecution:

Ex.P1:Special report. Ex.P2:First Information Report. Ex.P3:Requisition Ex.P4:Chemical Analysis Report. Ex.P5:Destruction proceedings along with mediators report.

For Defence: NIL

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class for Trial of Prohibition & Excise Offences, Nellore.

APNE0A0007672022 1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRAIL OF PROHIBITION & EXCISE OFFENCES – CUM – JUNIOR CIVIL

JUDGE :: NELLORE

Present:Sri T.Suyodhan, Special Judicial Magistrate of First Class for Trail of Prohibition & Excise Offences:: Nellore.

Wednesday, this the 23rd (Twenty-Third) day of April, 2025

CALENDAR CASE No.665/2022

State: Enforcement Inspector, Special Enforcement Bureau, Nellore-I

.. Complainant

Vs.,

Raguthu Harikrishna, S/o. Chennaiah, aged 30 years, caste SC (Mala), resident of D.No.16-16-572,Yalamavaridinne, Stonehousepet, SPSR Nellore District.

.. Accused

This case is coming on the same day for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant, and of Sri Sk.Kowsar, Advocate for the accused and this Court delivered the following:

J U D G M E N T

1)The Enforcement Inspector, Special Enforcement Bureau, Nellore-I filed charge sheet against the accused in Cr.No.192/2021 of Special Enforcement

Bureau Station, Nellore-I for the offence punishable U/s.34(a)(1)(i) of A.P. Excise

Act, 1968.

2)The case of the prosecution in nutshell is as follows :-

It is the case of the prosecution that the SEB police had found accused to be in illegal possession of 18/180 ml of Good Friends Deluxe Whisky bottles on 06.12.2021 at about 04.45 PM while they were conducting raids at Children Park gate, Nellore Municipal Corporation, SPSR Nellore District. Further the case of the prosecution is that the accused could not produce any bills or valid licence or permit for possessing of above said 18 liquor bottles without heal numbers and then arrested the accused and seized the liquor bottles from the accused under

APNE0A0007672022 2 the special report was scribed by Pw.2. Later Pw.1 registered the case in crime

No.192/2021 for offence under section 34(a)(1)(i) of A.P.Excise Act and sent the accused for judicial remand and he also sent the sample for chemical examination. Subsequently, the remaining case property was destroyed as per the orders of the Deputy Commissioner of Special Enforcement Bureau, Nellore and after receipt of chemical analysis report and after completion of investigation,

Lw.4/K.P.Kishore, Enforcement Inspector, SEB Station, Nellore-I laid charge sheet in this case.

3)This case was taken on file for the offence U/s.34(a)(1)(i) of A.P.

Excise Act against the accused.

4)On appearance of accused, the case copies were furnished to accused as per Sec. 207 of Cr.P.C. Accused was examined under section 239

Cr.P.C. Accused denied the offence. Then, a charge under section 34(a)(1)(i) of

A.P. Excise Act was framed against accused and the same was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5) During the course of trial, on behalf of the prosecution, Pws.1 and 2 were examined and got exhibited Exs.P1 to P5 and M.O.1 are marked. The learned Assistant Public Prosecutor has given up the evidence of Lw.2/B.Puttaiah,

Enforcement Constable, SEB Station, Nellore-I and Lw.4/K.P.Kishore,

Enforcement Inspector, SEB Station, Nellore-I and accordingly the prosecution evidence was closed.

6) After closure of prosecution evidence, accused was examined

U/s.313(1)(b) of Cr.P.C explaining the incriminating material elicited against him in the evidence of prosecution witnesses. Accused denied the same and reported no defence evidence.

7) The learned Assistant Public Prosecutor for State and the learned counsel for the accused reported the arguments to be treated as NIL.

8)Now, the point for determination is:

Whether the prosecution proved the guilt of accused for

the offence punishable U/s.34(a)(1)(i) of A.P. Excise Act

beyond all reasonable doubt?

APNE0A0007672022 3

Point:-

9)To establish the case of the prosecution, the prosecution got examined Pws.1 and 2 and marked Exs.P1 to P5 and M.O.1. Pw.1-A.Srinivasa

Rao, ESTF, Sub-Inspector, Baptla and Pw.2-A.Sreeramulu, P & E Constable,

Gudur who detected the offence deposed on the same lines that on 06.12.2021 at about 04.45 p.m., as per the instructions of Enforcement Inspector, SEB, Nellore-

I, Pw.1, Pw.2 along with their staff conducted raids and reached Children park gate, Nellore Municipal Corporation, SPSR Nellore District found one Male person by holding a white plastic bag in his right hand and on seeing them, he tried to skulk away and on suspicion, Pw.1 stopped him with the help of available staff and questioned about his identity and he revealed his identity particulars as accused herein and on further questioning of Pw.1, he disclosed that he possessed liquor bottles in the bag for re-sale purpose to eke-out his livelihood, but failed to produce any valid bills or permit to possess the liquor bottles and then Pw.1 deputed Lw.2/B.Puttaiah to secure mediators to search the bag, but in vain, as no other go, Pw.1 decided to search the bag with the special report, opened the bag and found 18/180 ml bottles of Good Friends Deluxe Whisky and on verification of Pw.1, all the liquor bottles are duty paid liquor bottles and on enquiry of Pw.1, accused disclosed that he brought the above said liquor bottles from different wine shops at Nellore and then Pw.1 separated one liquor bottle as a sample for chemical analysis purpose affixed identity slips to the sample bottles and the bag with remaining bottles duly signed by Pw.1 and also obtained the signature of accused on it and then Pw.1 seized the sample bottles and the bag with remaining liquor bottles from the possession of the accused under the cover of special report drafted by Pw.2 on his dictation. Pw.1 attested on it along with his accompanied staff and it was duly attested by the accused in token of the copy of it and that they left the scene of offence along with the accused and case property and returned to the station.

10) Pw.1 further deposed that he registered Ex.P1 as a case in

Cr.No.194/2021, U/sec.34(a)(1)(i) of APE act and he produced the accused

before the court for judicial remand on the same day and during course of his

APNE0A0007672022 4 investigation, he submitted that M.O.1 to Chemical Analyst, Guntur for analysis purpose and on receipt of analysis report, their CI/K.P.Kishore/Lw.4 and on completion of investigation, he laid the charge sheet. He further deposed that the remaining case property was confiscated as per the 1proceedings of the Deputy

Commissioner of Special Enforcement Bureau, Nellore vide RC.No.454/2021/C1,

dated 27.01.2022.

11)Pws.1 and 2 in their cross-examination in one voice admitted that scene of offence is a busy locality. They further stated that they found the accused at scene of offence at around 04.45 pm and further stated that the time at which

Lw.2 went for securing mediators and returned is not mentioned in Ex P1 and further stated that there are no official witnesses in this case and also Lw.2 did not issue summons to anybody to act as mediators. They further stated that batch numbers and manufacturing details of seized liquor bottles are not mentioned on

Ex.P1 and further stated that they did not investigate the liquor shops from where accused purchased liquor bottles and further stated that their vehicle details and staff particulars are not mentioned in Ex.P1 and also stated that.Lw.3 did not mention his EC number or name on Ex.P1 under the signature. The remaining part of cross-examination of Pws.1 and 2 is only suggestions put by the learned counsel for the accused and the same were denied by them. It is well known that mere suggestions to the witness are not evidence and not valid. It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

12) Except the evidence of Pws.1 and 2 no other evidence was available on record. On careful scrutiny of the oral evidence of Pws.1 and 2 coupled with

Ex.P1, it is manifest that the accused is appeared to have been possessing liquor bottles without having any licence or permit or bills for selling it to general public for getting profits. Be that as it may. On face of record, Pws.1 and 2 seized contraband on their own without any 3rd party mediator. Pws.1 and 2 stated that the scene of offence is busy locality. It is further came to light that Lw.2 who was deputed to secure mediators was not at all examined by the prosecution, his evidence was given up by the prosecution, if he is examined the truth would have been revealed. But the prosecution did not take any steps for examining Lw.2, it is one of the doubtful circumstance whether Pw.1 conducted any raid and seized the contraband from the possession of accused along with his staff. As seen from the

APNE0A0007672022 5 evidence of Pws.1 and 2, it came to light that there is every possibility for Pws.1 and 2 to secure mediators but Pw.1 did not take any steps to secure mediators and they simply stated that the time at which Lw.2 went for securing mediators and returned is not mentioned in Ex.P1 and also stated that Lw.2 did not issue summons to anybody to act as mediators. Further Pw.1 who is investigating officer did not whisper whether Lw.2 whisper any names of persons whom he contacted to act as mediators. This creates a doubt in the mind of court about sending of Lw.2 to secure mediators. Thus, neither Pw.1 nor Pw.2 offered any plausible explanation why they could not secure mediators for the alleged raid. If it is so, believing their evidence with respect to seizure of liquor is not just and proper. Thus, the seizure of liquor has no sanctity in the eye of law. Since no mediator was secured, seizing such bottles by SEB officials themselves is nothing but violation of Section 100(4) Cr.P.C. when there is presence of public at scene of offence, without securing mediators believing the seizure proceedings is not tenable as the scene of offence is a busy locality which is situated within the

Nellore city and such raid conducted at about broad day light but no mediator was secured which circumstance in itself is creating much doubtful circumstance about raid conducted. Hence, the seizure of contra band covered under Ex.P1 has no sanctity in the eye of law. For which this Court relied upon a decision reported in

Gajamker Narayana Vs. State of A.P., reported in 2005(3) ALT (Crl.) Page 1 in which it was observed that:

“Seizure of contraband was held to be illegal when the provision of Sec.100(4) Cr.P.C., not complied”.

In another case State V. Aran reported in (3)(2003)2 SCC 202 : AIR 2003

SC 801, our Hon’ble Apex Court held that

“where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.”

APNE0A0007672022 6

Thus this court is of the view that the alleged seizure of contra band from the possession of accused is illegal.

13) Further the evidence of Pws.1 and 2 coupled with Ex.P1 on record goes to show that the accused is alleged to have made confession of his guilt but such confession also is not believable and trustworthy without having corroboratory evidence. Although, the evidence of SEB Officials can be taken into account as they are not treated on par with the rank of Police Officers, but corroboration to their evidence is necessary. Since corroboration is rule of prudence.

14) Further Pw.1 being Investigating Officer reported that after receiving destruction proceedings, he destroyed the remaining case property as per destruction proceedings vide RC.No.454/2021/C1, dated 27.01.2022. If it is so believing the evidence of Pws.1 and 2 that they have conducted raid and detained the accused and seized contra band is not believable and trustworthy. Further

Pws.1 and 2 did not whisper whether they investigated from where such seized bottles were purchased by the accused but they simply stated in their cross- examination that they did not investigate the liquor shops from where accused purchased liquor bottles. Thus, it is crystal clear that Pw.1 did shoddy investigation into the matter and after receiving analysis report and after completion of investigation, Lw.4 appeared to have laid charge sheet in hurry manner without collecting necessary documents. Thus, believing evidence both oral and documentary adduced on record is not just and tenable. Hence, extending benefit of doubt in favour of accused is justifiable.

15) In view of foregoing discussion and coupled with the evidence of

Pws.1 and 2, this court has no hesitation to hold that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt for the offence charged. Hence, the accused is entitled to be acquitted.

16) In the result, the accused is not found guilty for the offence punishable under section 34(a)(1)(i) of A.P. Excise Act, 1968 and accordingly he is acquitted of the same under section 248(1) Cr.P.C. The bail bonds of accused, if any shall remain in force for a period of six months as per Sec.437-A Cr.P.C. M.O.1 sample

APNE0A0007672022 7 bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 23rd day of April, 2025.

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class fo Trial of Prohibition & Excise Offences, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

Pw.1:A.Srinivasa Rao, ESTF, Sub Inspector, Baptla. Pw.2:A.Sreeramulu, Constable, P & E, Gudur

DOCUMENTS MARKED

For Prosecution:

Ex.P1:Special report. Ex.P2:First Information Report. Ex.P3:Chemical requisition Ex.P4:Analysis Report. Ex.P5:Confiscation proceedings

For Defence: NIL

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class for Trial of Prohibition & Excise Offences, Nellore.

APNE0A0021572020 1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRAIL OF PROHIBITION & EXCISE OFFENCES – CUM – JUNIOR CIVIL

JUDGE :: NELLORE

Present:Sri T.Suyodhan, Special Judicial Magistrate of First Class for Trail of Prohibition & Excise Offences:: Nellore.

Thursday, this the 24th (Twenty-Fourth) day of April, 2025

CALENDAR CASE No.1306/2020

State:SEB Inspector, Indukurpet

.. Complainant

Vs., Nellore Jayaramaiah, S/o.Audinarayana, aged 48 years, caste: Palle resident of Ankammasatram Village, Indukurupeta Mandal, SPSR Nellore District.

.. Accused

This case is coming on the same day for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant, and of Sri D.Surendra, Advocate for the accused and this Court delivered the following:

J U D G M E N T

1)The SEB Inspector, Indukurpeta filed charge sheet against the accused in Cr.No.11/2020 of SEB Station, Indukurpeta for the offence punishable

U/s.34(a)(1)(i) of A.P.Excise Act, 1968.

2)The case of the prosecution in nutshell is as follows :-

It is the case of the prosecution that on 28.03.2020 at about 12.45 PM during the dry days due to covid-19, Pw.1 along with his staff Pw.2 and others conducted raids and reached at a tree in left side of Punnuru village of

Indukurpeta Mandal at about 12.15 PM and found the accused with a white plastic can and some persons were also surrounded him and on seeing the police, the surrounded people ran away and on suspicion Pw.1 stopped the accused with the help of his staff and questioned him why he ran away on seeing them and also asked about the contents of can for which he stated that the can is containing toddy and due to fear he tried to ran away and on further questioning, he did not produce any permit or licence for having toddy. Pw.1 deputed Lw.3/G.

APNE0A0021572020 2

Ramprasad, Prohibition and Excise Constable, Indukurpeta to secure mediators but in vain and that Pw.1 verified the plastic can in the presence of his staff i.e,

Pw.2 and Lw.3 and found it is a 5 liters capacity can and it is 3 liters of toddy. On further questioning, the accused revealed his identity particulars and drawn the sample from the above said can and then arrested the accused under special report which was drafted by Pw.2 and that Pw.1 registered the special report as a case in crime No.11/2020 for the offence under section 34(a) of A.P.Excise Act and then served section 41(A) Cr.P.C notice on the accused and released him on station bail. Lw.4/K.P.Kishore, SEB Inspector, Indukurupeta sent the samples and also submitted proposals to the Deputy Commissioner of Special Enforcement

Bureau, Nellore seeking orders for confiscation and destruction of case property and orders are awaited. After receipt of chemical analysis report and after completion of investigation, Lw.4 laid charge sheet in this case.

3)This case was taken on file for the offence U/s.34(a) of A.P.Excise Act against the accused.

4)On appearance of accused, the case copies were furnished to accused as per Sec. 207 of Cr.P.C. Accused was examined under section 239

Cr.P.C. Accused denied the offence. Then, a charge under section 34(a) of

A.P.Excise Act was framed against accused and the same was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5) During the course of trial, on behalf of the prosecution, Pws.1 and 2 were examined and got exhibited Exs.P1 to P4 and M.O.1 are marked. The learned Assistant Public Prosecutor has given up the evidences of Lw.3/G.

Ramprasad, Prohibition and Excise Constable, Indukurpeta and Lw.4/K.P.Kishore,

SEB Inspector, Indukurupeta and accordingly the prosecution evidence was closed.

6) After closure of prosecution evidence, accused was examined

U/s.313(1)(b) of Cr.P.C explaining the incriminating material elicited against him in the evidence of prosecution witnesses. Accused denied the same and reported no defence evidence.

7) The learned Assistant Public Prosecutor and learned counsel for the accused reported the arguments to be treated as NIL.

APNE0A0021572020 3

8)Now, the point for determination is:

Whether the prosecution proved the guilt of accused for

the offence punishable under section 34(a) of A.P.Excise

Act beyond all reasonable doubt?

Point:-

9)To establish the case of the prosecution, the prosecution got examined Pws.1 and 2 and marked Exs.P1 to P4 and M.O.1. Pw.1-Sk.Sardar,

Retired SI, SEB, Indukurpeta and Pw.2-M.Kiran Singh, Head Constable,

Enforcement, Nellore who detected the offence deposed it on the same lines that on 28.03.2020 at about 12.45 pm during the dry days due to the Covid-19, as per the instructions of District Collector, Pw.1, Pw.2 along with their staff reached near

Tree left side of Pulluru Village of Indukurupeta Mandal, noticed the present accused by holding a plastic can in his hand and also noticed some persons around him in a suspicious manner and on seeing them, the surrounding people ran away and then Pw.1 detained the accused with plastic can with the help of his staff and on his questioning accused revealed his identity particulars as accused herein and on further questioning of Pw.1, he revealed the can is containing with toddy and selling the same for his livelihood and then Pw.1 deputed his constable /Lw.3/TG.Ram Prasad to Pulluru Village to secure for mediators, but invain and then Pw.1 verified the can and found 3 liters of toddy in 5 liters capacity of can and as he failed to produce any license or permit to possess the toddy and then Pw.1 seized the toddy from hid possession and lifted 3/180ml sample from the above said can for analysis purpose under the cover of the special report drafted by Pw.2 on his dictation and then Pw.1 attested on it along with his staff and also obtained Left Thumb Impression of accused on it in token of copy of special report. They further deposed that Pw.1 affixed identity slip to the sample bottle and the can duly signed by Pw.1 and also obtained the left thumb impression of accused on it and later, they left the scene of offence along with the accused and case property and returned to the station.

10) Pw.1 further deposed that he registered Ex.P1 as a case in Cr.No.11/ 2020, U/sec.34(a) of APE Act and later, he served notices to the accused

U/Sec.41-A Cr.P.C and on verification of record, he submitted that M.O.1 was sent

APNE0A0021572020 4 to Chemical Analyst, Guntur for analysis purpose and on receipt of analysis report opined as the sample is free from cloral Hydrate and Diazepal". He further deposed that the remaining case property was confiscated as per the proceedings of the Deputy Commissioner of Special Enforcement Bureau, Nellore vide RC. No.658/2021/C1, dated 16.12.2021 and on completion of investigation and after receipt of analysis report, his successor/K.P.Kishore/Lw.4 filed the charge-sheet.

11) Pw.1 in his cross-examination stated that he did not file the instructions given by the superior authorities to conduct raid as they are oral instructions and further stated that he did not mention my vehicle details and staff details in Ex.P1 and further stated that he did not mention the names of places where we conducted raids in Ex.P1 and further stated that in Ex.P1 it is not mentioned about the person who scribed it upon whose dictation. He admitted that scene of offence is a busy locality. He further stated that he did not mention the batch numbers and manufacturing details of seized liquor bottles in Ex.P1 and further stated that he did not mention the particulars of seized bag in Ex.P1 and he further stated that he did not prepare rough sketch of the scene of offence.

Pw.2 in his cross-examination admitted that scene of offence is a busy locality. He further stated that there are no mediators in this case and further stated that in

Ex.P1 it is not mentioned that he scribed it upon the dictation of Pw.1. He further stated that they did not measure the quantity of toddy and they estimated the quantity as it was carrying in 5 liters can.

12) Except the evidence of Pws.1 and 2 no other evidence was available on record. On careful scrutiny of the oral evidence of Pws.1 and 2 coupled with

Ex.P1, it is manifest that the accused is appeared to have been possessing liquor bottles without having any licence or permit or bills for selling it to general public for getting profits. Be that as it may. On face of record, Pws.1 and 2 seized contraband on their own without any 3rd party mediator. Pws.1 and 2 stated that the scene of offence is a busy locality. It is further came to light that Lw.3 who was deputed to secure mediators was not at all examined by the prosecution, his evidence was given up by the prosecution, if he is examined the truth would have been revealed. But the prosecution did not take any steps for examining Lw.3, it is one of the doubtful circumstance whether Pw.1 conducted any raid and seized the

APNE0A0021572020 5 toddy can from the possession of accused along with his staff. As seen from the evidence of Pws.1 and 2, it came to light that there is every possibility for Pws.1 and 2 to secure mediators but Pw.1 did not take any steps to secure mediators.

Thus, neither Pw.1 nor Pw.2 offered any plausible explanation why they could not secure mediators for the alleged raid. If it is so, believing their evidence with respect to seizure of toddy can is not just and proper. Thus, the seizure of toddy can has no sanctity in the eye of law. Since no mediator was secured, seizing such toddy can by SEB officials themselves is nothing but violation of Section 100(4) Cr.P.C. when there is presence of public at scene of offence, without securing mediators believing the seizure proceedings is not tenable as the scene of offence is a busy locality and such raid conducted at about broad day light but no mediator was secured which circumstance in itself is creating much doubtful circumstance about raid conducted. Hence, the seizure of toddy can covered under Ex.P1 has no sanctity in the eye of law. For which this Court relied upon a decision reported in Gajamker Narayana Vs. State of A.P., reported in 2005(3)

ALT (Crl.) Page 1 in which it was observed that:

“Seizure of contraband was held to be illegal when the provision of Sec.100(4) Cr.P.C., not complied”.

In another case State V. Aran reported in (3)(2003)2 SCC 202 : AIR 2003

SC 801, our Hon’ble Apex Court held that

“where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.”

Thus this court is of the view that the alleged seizure of toddy can from the possession of accused is illegal.

13) Further the evidence of Pws.1 and 2 coupled with Ex.P1 on record goes to show that the accused is alleged to have made confession of his guilt but such confession also is not believable and trustworthy without having

APNE0A0021572020 6 corroboratory evidence. Although, the evidence of SEB Officials can be taken into account as they are not treated on par with the rank of Police Officers, but corroboration to their evidence is necessary. Since corroboration is rule of prudence.

14) Further Pw.1 being Investigating Officer reported that after receiving destruction proceedings, he destroyed the remaining case property as per destruction proceedings vide RC.No.658/2021/C1, dated 16.12.2021. If it is so believing the evidence of Pws.1 and 2 that they have conducted raid and detained the accused and seized toddy can is not believable and trustworthy. Thus, it is crystal clear that Pw.1 did shoddy investigation into the matter and after receiving analysis report and after completion of investigation, Lw.4 appeared to have laid charge sheet in hurry manner without collecting necessary documents. Thus believing evidence both oral and documentary adduced on record is not just and tenable. Hence, extending benefit of doubt in favour of accused is justifiable.

15) In view of foregoing discussion and coupled with the evidence of

Pws.1 and 2, this court has no hesitation to hold that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt for the offence charged. Hence, the accused is entitled to be acquitted.

16) In the result, the accused is not found guilty for the offence punishable under section 34(a) of A.P.Excise Act and accordingly he is acquitted of the same under section 248(1) Cr.P.C. The bail bonds of accused, if any shall remain in force for a period of six months as per Sec.437-A Cr.P.C. M.O.1 sample bottle is ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and

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

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class fo Trial of Prohibition & Excise Offences, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

Pw.1:Sk.Sardar, Retired SI, SEB -None-

APNE0A0021572020 7

Indukurpeta Pw.2:M.Kiran Singh, Head Constable, Enforcement, Nellore.

DOCUMENTS MARKED

For Prosecution:

Ex.P1:Special report. Ex.P2:First Information Report. Ex.P3:Chemical requisition Ex.P4:Analysis Report.

For Defence: NIL

MATERIAL OBJECTS MARKED

M.O.1: Sample bottle

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class for Trial of Prohibition & Excise Offences, Nellore.

APNE0A0011332021 1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR TRAIL OF PROHIBITION & EXCISE OFFENCES – CUM – JUNIOR CIVIL

JUDGE :: NELLORE

Present:Sri T.Suyodhan, Special Judicial Magistrate of First Class for Trail of Prohibition & Excise Offences:: Nellore.

Wednesday, this the 23rd (Twenty-Third) day of April, 2025

CALENDAR CASE No.892/2021

State: Inspector, Special Enforcement Bureau, Nellore-I

.. Complainant

Vs., Byraboyina Balakrishna, S/o.veeraraghavaiah, age 35 years, caste: Yadava, resident of D.No.28/4/55, Kissan Nagar, Sai Baba Temple, Nawabpeta, Nellore Municipal Corporation, Nellore Town, SPSR Nellore District.

.. Accused

This case is coming on the same day for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant, and of Sri D.Ramanaiah, Advocate for the accused and upon hearing and this Court delivered the following:

J U D G M E N T

1)The Inspector, Special Enforcement Bureau, Nellore-I filed charge sheet against the accused in P.R.No.128/2020 of Special Enforcement Bureau

Station, Nellore-I for the offence punishable U/s.34(a)(1)(i) of A.P. Excise Act, 1968.

2)The case of the prosecution in nutshell is as follows :-

It is the case of the prosecution that the SEB police had found accused to be in illegal possession of 10/180 ml of 9 Sea Horses whisky liquor bottles and 03/180 ml of Adaans Supreme Blend superior grain whisky bottles total 13/180 ml bottles on 11.10.2020 at about 05.00 PM while they were conducting raids in front of Sree Nithyannada Saraswathi Swamivari Veda Samskruthik School, Pappula

Street, Nellore Municipal Corporation, SPSR Nellore District. Further the case of the prosecution is that the accused could not produce any bills or valid licence or permit for possessing of above said total 3 liquor bottles without heal numbers

APNE0A0011332021 2 and then arrested the accused and seized the liquor bottles from the accused under the special report scribed by Lw.2/M.S.Ravindra Rao, Sub Inspector,

Special Enforcement Bureau, Nellore-I. Later Pw.2 registered the case in crime

No.128/2020 for offence under section 34(a)(1)(i) of A.P.Excise Act and served section 41(A) Cr.P.C. notices on the accused and released him on bail and he also sent the samples for chemical examination. Subsequently, proposals were submitted to the Deputy Commissioner of Prohibition and Excise, Nellore seeking orders for confiscation and destruction of the case property and orders awaited and after receipt of chemical analysis report and after completion of investigation,

Pw.2 laid charge sheet in this case.

3)This case was taken on file for the offence U/s.34(a)(1)(i) of A.P.

Excise Act against the accused.

4)On appearance of accused, the case copies were furnished to accused as per Sec. 207 of Cr.P.C. Accused was examined under section 239

Cr.P.C. Accused denied the offence. Then, a charge under section 34(a)(1)(i) of

A.P. Excise Act was framed against accused and the same was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5) During the course of trial, on behalf of the prosecution, Pws.1 and 2 were examined and got exhibited Exs.P1 to P5 and M.Os.1 and 2 are marked.

The learned Assistant Public Prosecutor has given up the evidence of

Lw.2/M.S.Ravindra Rao, Sub Inspector, Special Enforcement Bureau, Nellore-I and Lw.4/M.G.Krishnamaraju, Constable, Special Enforcement Bureau, Nellore-I and accordingly the prosecution evidence was closed.

6) After closure of prosecution evidence, accused was examined

U/s.313(1)(b) of Cr.P.C explaining the incriminating material elicited against him in the evidence of prosecution witnesses. Accused denied the same and reported no defence evidence.

7) The learned Assistant Public Prosecutor and learned counsel for the accused reported the arguments to be treated as NIL.

8)Now, the point for determination is:

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Whether the prosecution proved the guilt of accused for

the offence punishable U/s.34(a) of A.P. Excise Act

beyond all reasonable doubt?

Point:-

9)To establish the case of the prosecution, the prosecution got examined Pws.1 and 2 and marked Exs.P1 to P5 and M.Os.1 and 2. Pw.1-

V.N.Prasad, Constable, P & E, Kovur and Pw.2-B.Ashok Kumar, Sub-Inspector, P & E, Ongole who detected the offence deposed on one and the same lines that on 11.10.2020 at about 05.00 pm., Pw.1 accompanied Pw.2 along with his staff went to scene of offence situated in front of Sri Nithyanandha Saraswathi Swamivari

Vedasamsruthika Patasala, Pappula Street to detect excise offences, they noticed accused with a Blue Colour Jip bag and upon seeing them he perturb and trying to escape and on suspicion, Pw.2 stopped him at the instance of his staff and questioned him why he tried to escape and about the contents of bag and then he stated that he is carrying liquor bottles and hence he is trying to escape and then

Pw.2 deputed Pw.1 for securing mediators, after sometime, Pw.1 returned and informed that nobody was willing to act as mediators in excise offences and village officials were not present in the village at that time and having no other go,

Pw.2 opened the bag and found 10/180ml 9 Sea Horses whisky, 03/180ml of

ADAANS Supreme Blend Superior Grain Whisky in total 13/180ml bottles and on observation, Pw.2 found that the labels displaying HEAL numbers are torn away and also noticed another label on the bottles that “for sale in AP only” and hence,

Pw.2 treated them as duty paid liquor bottles and then Pw.2 questioned accused about the identity particulars and source of the alleged contraband for which he disclosed his identity particulars as mentioned in the charge-sheet and also stated that accused was purchased those liquor bottles from various Government Shops in Nellore in order to sell them for higher price to eke-out his livelihood and then,

Pw.2 questioned the accused about bills and permits of the seized liquor bottles, but accused failed to produce them and then Pw.2 seized all the liquor bottles from his possession after lifting two samples under cover of Special report drafted by Lw.2 and arrested the accused and they left the place and reached to the station along with accused and case property.

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10)Pw.2 further deposed that he registered special report as a case in

Cr.No. 128/2020, U/sec.34(a)(1)(1) of A.P.Excise Act and then he served notices to the accused under section 41-A Cr.P.C. and he forwarded the sample bottles for chemical analysis and also submitted requisition to Deputy Commissioner,

SEB, Nellore for seeking orders for confiscation and destruction of the case property and during the course of investigation, he received analysis report and he destroyed the remaining case property on 12.07.2022 as per the orders from the Deputy Commissioner, SEB, Nellore in the presence of mediators vide

RC.No.454/2021/C1, dated 27.01.2022 under the cover of mediators report and

after completion of investigation, he laid charge sheet.

11)Pws.1 and 2 in their cross-examination stated that they started from their station at 08.00 am and further stated that they conducted raids in several other place while they reaching the scene of offence and further stated that they reached the scene of offence by 04.30 pm. They further stated that the scene of offence is located at a distance of 6 km from their station. They admitted that scene of offence is a busy locality. They further stated that day it was lock down period i.e., Covid period.

12) Except the evidence of Pws.1 and 2 no other evidence was available on record. On careful scrutiny of the oral evidence of Pws.1 to 2 coupled with

Ex.P1, it is manifest that the accused appeared to have been possessing liquor bottles without having any licence or permit or bills for selling it to general public for getting profits. Be that as it may. On face of record, Pws.1 and 2 seized contraband on their own without any 3rd party mediator. Pws.1 and 2 stated that in their cross-examination that the scene of offence is a busy locality. Pw.2 did not whisper that Pw.1 stated any names whom he contacted to act mediators. Pw.2 who was deputed to secure mediators did not depose his efforts to secure mediators. Pws.1 and 2 simply stated in their cross-examination that it was lock down period i.e., covid period. The Government gave caution orders to the public nobody will come out during the lock down period. How the accused is able to secure those bottles and also possessing those bottles at the time of offence. It creates a doubt in the mind of this court about the possessing of liquor bottles by the accused. As seen from the evidence of Pws.1 and 2, it came to light that there is every possibility for Pws.1 and 2 to secure mediators but Pw.1 did not take any

APNE0A0011332021 5 steps to secure mediators. Thus, neither Pw.1 nor Pw.2 offered any plausible explanation why they could not secure mediators for the alleged raid though Pw.2 was deputed to secure mediators. If it is so, believing their evidence with respect to seizure of liquor is not just and proper. Thus, the seizure of liquor has no sanctity in the eye of law. Since no mediator was secured, seizing such bottles by

SEB officials themselves is nothing but violation of Section 100(4) Cr.P.C. when there is presence of public at scene of offence, without securing mediators believing the seizure proceedings is not tenable as the scene of offence is a busy locality and such raid conducted at broad day light but no mediator was secured which circumstance in itself is creating much doubtful circumstance about raid conducted. Hence, the seizure of contra band covered under Ex.P1 has no sanctity in the eye of law. For which this Court relied upon a decision reported in

Gajamker Narayana Vs. State of A.P., reported in 2005(3) ALT (Crl.) Page 1 in which it was observed that:

“Seizure of contraband was held to be illegal when the provision of Sec.100(4) Cr.P.C., not complied”.

In another case State V. Aran reported in (3)(2003)2 SCC 202 : AIR 2003

SC 801, our Hon’ble Apex Court held that

“where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.”

Thus this court is of the view that the alleged seizure of contra band from the possession of accused is illegal.

13) Further the evidence of Pws.1 and 2 coupled with Ex.P1 on record goes to show that the accused is alleged to have made confession of his guilt but such confession also is not believable and trustworthy without having corroboratory evidence. Although, the evidence of SEB Officials can be taken into account as they are not treated on par with the rank of Police Officers, but corroboration to their evidence is necessary. Since corroboration is rule of prudence.

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14) Further Pw.2 stated that he destroyed the remaining case property on 12.07.2022 as per the orders from Deputy Commissioner, SEB, Nellore vide

RC.No.454/2021/C1, dated 27.01.2022. If it is so believing the evidence of Pws.1

and 2 that they have conducted raid and detained the accused and seized contra band is not believable and trustworthy. Further Pws.1 and 2 did not whisper whether they investigated from where such seized bottles were purchased by the accused. Thus, it is crystal clear that Pws.1 and 2 did shoddy investigation into the matter and after receiving analysis report and after completion of investigation, Lw.4 appeared to have laid charge sheet in hurry manner without collecting necessary documents. Thus, believing evidence both oral and documentary adduced on record is not just and tenable. Hence, extending benefit of doubt in favour of accused is justifiable.

15) In view of foregoing discussion and coupled with the evidence of

Pws.1 and 2, this court has no hesitation to hold that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt for the offence charged. Hence, the accused is entitled to be acquitted.

16) In the result, the accused is not found guilty for the offence punishable under section 34(a)(1)(i) of A.P. Excise Act, 1968 and accordingly he is acquitted of the same under section 248(1) Cr.P.C. The bail bonds of accused, if any shall remain in force for a period of six months as per Sec.437-A Cr.P.C. M.Os.1 and 2 sample bottles are ordered to be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 23rd day of April, 2025.

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class fo Trial of Prohibition & Excise Offences, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

Pw.1:V.N.Prasad, Constable, P & E, -None- Kovur Pw.2:B.Ashok Kumar, Sub Inspector, P & E, Ongole.

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DOCUMENTS MARKED

For Prosecution:

Ex.P1:Special report. Ex.P2:First Information Report. Ex.P3:Requisition Ex.P4:Chemical Analysis Report. Ex.P5:Destruction proceedings along with mediators report.

For Defence: NIL

MATERIAL OBJECTS MARKED

M.Os.1 and 2: Sample bottles

Sd/- T.Suyodhan

Special Judicial Magistrate of First Class for Trial of Prohibition & Excise Offences, Nellore.