C.C.No.36/2020105.08.2022
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:: NAGARI.
PRESENT: Smt. V.Leela Shyam Sundari,
Principal Junior Civil Judge, Puttur
FAC/Junior Civil Judge-cum-
Judicial Magistrate of First Class, Nagari
Friday, this the Fifth (05th) day of August, 2022
CALENDAR CASE No: 36 of 2020
Between:
State Represented by the Proh. & Excise Sub Inspector of Police, Nagari.
... Complainant
And:
1. S. Dhamu, S/o Subramanyam, age 32 years, R/o No.2-94, mangadu D/W, Nagari Mandal, Chittoor District.
2. K. Bhaskar, S/o Kailsam, Age 40 years, R/o Mangadu D/W, Nagari Mandal, Chittoor District.
3. D. Guravaiah, S/o Dora Kanan, Age 50 years, R/o Mangadu D/W, Nagari Mandal, Chittoor District.
4. P. Sumeer (Died)
5. S. Nagaraju, S/o Subramanyam, Age 40 years, R/o Mangadu D/W, Nagari Mandal, Chittoor District.
6. Y. Gopi, S/o Basavalingappa, Age 63 years, R/o 10/33, Rasappa colony, Nagari mandal. … Accused
This case came before me on 22-07-2022, for final hearing in the presence of the learned Assistant Public Prosecutor, Sri M. Babu, Advocate for A1 to A3, A5 and of Sri Mohammed Haneefa, Advocate for A6 and upon hearing arguments of both sides and having stood over for consideration till this day, this Court made the following:
J U D G M E N T
1.The Proh. & Excise Sub Inspector of Police, Nagari has filed charge sheet against the accused in crime No.90 of 2018 for the offence punishable under Section 7A r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 & 34(e) of A.P. Excise Act 1968. (herein after referred as A.P.P. Act).
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2.The facts of the prosecution case as mentioned in the charge sheet in nutshell are as follows:
That on 06.04.2018 at about 09.00 a.m., as per orders of the
Director of Enforcement, Prohibition and Excise, A.P, Vijayawada, in the action plan of Navodayam Phase-III, under the supervision of Assistant
Commissioner of Prohibition and Excise Enforcement, Chittoor, raids were conducted by ESTF, Tirupati team, Prohibition and Excise Sub Inspector of
Police, Nagari, Prohibition and Excise Sub-Inspector, Puttur, S.H.O Tirupati
Rural team, S.H.O Srikalahasti team, along with their staff and panchayatdars reached and conducted raids in I.D prone villages. On reliable information, at about 9.30 AM, raid was conducted at the premises of D.No.2-94, Muthamma street, D/W of Mangadu village. One person was arrested, he was detained, the other than two persons ran away from the scene of offence and seized 20 liters of I.D arrack in one white plastic can and one plastic bucket containing 300 plastic empty covers and interrogated A1. He disclosed that they are in the habit of manufacturing and selling of I.D arrack for their monitory benefit and revealed the location of their distillation point. The excise officials had drawn 180ml sample bottle of ID arrack from the contraband for chemical analysis purpose. They reached distillation point situated at Gollavani gunta and found one ID still and four plastic mugs, each mug contains 50 Lts of
F.J.wash in total 200 Lts. Drawn 400ml sample of F.J wash in a 675 ml bottle from residue wash on the still and another 400ml sample in 675 ml bottle from the contents of 4 plastic mugs for chemical analysis purpose, seized the sample bottles, affixed identity chits, in the presence of panchayatdars and destroyed remaining F.J. wash and I.D.still under cover of panchayatdars drafted on the spot and left the scene of offence. Then they reached to the house of Y. Gopi, a black jaggery vendor, Nagari and found 12 bags of black jaggery, each bag weighed 50 kgs and in total 600 kgs, seized the sample
C.C.No.36/2020305.08.2022 and sent for chemical analysis. The P&ESI, Nagari registered a case in Cr.
No.90/2018 U/s 7(A) r/w 8(e) of A.P. Prohibition Act 1995 & 34(e) of A.P.
Excise Act 1968 of Proh. Excise station, Nagari. A1 was produced before the
Court, subsequently he obtained bail. A6 obtained station bail, due to aged about 63 years and his health B.P was increased abnormally. On 10.04.2018 at about 10.30 AM, A2 to A5 are arrested, produced before the Court and obtained station bail. During the course of investigation, the sample was sent to the chemical examiner, Chittoor. The chemical analysis report was received and after completion of investigation, he filed the charge sheet.
3.This Court took cognizance against A1 to A6 for the offence under
Section 7A r/w 8 (e) of A.P. Prohibition Act, 1995 and Section 34(e) of
A.P.Excise Act. On appearance of the accused before this Court, relevant copies of documents were furnished to them as required under Section 207
Cr.P.C.
4.A4 died on 21-02-2020 and so the case against A4 was abated.
The A1 to A3, A5 and A6 were examined under Section 239 Cr.P.C, they were explained in Telugu, the charges framed for the accusation of the offence punishable under Section 7A r/w 8 (e) of A.P. Prohibition Act, 1995, framed against A1 to A5 and for the offence under Section 34(e) of A.P.Excise Act against A6, to which they pleaded not guilty and claimed to be tried.
5.During the course of trial, on behalf of the prosecution, P.W.1 to
P.W.5 were examined, Exs.P.1 to P.7 and M.Os.1 to 3 were marked. Ex.P1
Panchanama dt.06.04.2018 at 9.30 am. Ex.P2 is the Joinder panchanama dt.06.04.2018 at 11.40am. Ex.P3 is the Panchanama dt.06.04.2018 at 2.20pm. Ex.P4 is the FIR. Exs.P5 to P7 are chemical analysis reports. M.O.1 is
C.C.No.36/2020405.08.2022 the 180 ml sample bottle. M.O.2 is the sample of F.J wash. M.O.3 is the black jaggery sample.
6.After closure of evidence on prosecution side, the A1 to A3, A5 and A6 were examined under Sec.313 Cr.P.C by explaining the incriminating material in the evidence of prosecution witnesses, for which they denied the same and reported no defence evidence.
7.Heard the arguments of both sides.
8.Now the point that has arisen for consideration is:
“Whether the prosecution is able to prove the guilt of A1 to A3 and A5 for the offence under Section7-A r/w 8(e) of A.P.Prohibition Act,1995 and the guilt of A6 for the offence under Section 34(e) of A.P.Excie Act against beyond reasonable doubt ?
9.POINT: To prove the case of prosecution, P.Ws.1 to 5 were examined and Exs.P1 to P7 and M.O.s 1 to 3 were marked. P.W.s 1 and 2 are the mediators. P.Ws.3 to 5 are police officials.
10.The learned Assistant Public Prosecutor argued that the independent witnesses corroborated with police officials and proved the seizure of contraband from the possession of accused. She argued that samples are tested and proved to be ID arrack, the accused/A.1 to A.3, A5 are proved to have manufactured ID arrack in the forest at the second scene of offence and A6 is proved to be in possession of black jaggery which he sold to the other accused for the purpose of manufacturing the ID arrack and so the prosecution proved the case against the accused/A.1 to A.3, A5 and A6 and she prays to convict the accused.
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11.Per contra, the learned defence counsel for A1 to A3 and A5 argued that the presence of PW1 at the first and second scene of offences is doubtful, while he deposed that there were six persons at the scene of offence and they caught four persons and that the distance between the first and second scene of offence is half kilometer, which is quite contrary to the evidence given by the other witness. He argued that the rough sketch is not marked by the prosecution which shows that the distance between the first and second scene of offence is 2kms. He argued that the PW1 did not depose anything about the FJ wash and there are several contradictions between
PW1 and P.W.s 3 to 5. He further argued that none of the prosecution witnesses identified the accused in the open Court. It shows that PW1 is a planted witness by the prosecution to support the case. He argued that the investigation officer did not produce any documents to prove that the door
No.2/94 belongs to the accused. He argued that the prosecution did not cite the expert who issued the report and did not prove the contents of the chemical analysis reports which is fatal to the case of prosecution. He argued that the FIR was submitted to the Court with delay which is not explained by the prosecution and so the prosecution failed to prove this case and prays to acquit the accused.
12.The learned counsel for A6 argued that the admissions of PWs 1 to 5 during cross-examination show the contradictions in their testimony and create a doubt about the seizure of contraband from the possession of the accused. He further argued that PW2 did not sign in Ex.P3 and so it is not proved by the prosecution and mere possession of arrack is not an offence as per the ratio laid down by the Hon’ble High court. He argued that A6 is no way connected to this case and falsely implicated in the case and prays to acquit the accused.
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13.PW1, the VRO who acted as mediator, deposed that on 06-04- 2018 at 09.00 a.m he received a phone call from Nagari excise police, immediately he went to the excise police station, Nagari. LW2 T. Babu, VRA of Mangadu village was also called by the excise people to the excise police station. The Sub inspector of excise police, Nagari informed them that he received credible information about stocking of illegal ID arrack and requested them to act as mediators. Immediately at 09.15 am himself, LW2 and SI of excise police, Nagari and the staff left the police station and reached Mangadu Harijanawada. They went to the house bearing D.No.2-94, by that time there were six persons in the house, on seeing the excise police they tried to escape. With the help of staff the Sub inspector of excise police caught four of them, two of them escaped. He deposed that in their presence, the SI interrogated the said four persons separately. All of them revealed their names and other particulars and they voluntarily confessed that all of them together were manufacturing ID arrack in the forest area and selling the same. He further deposed that the SI of police verified the premises and found there were 300 polythene covers, one 20 liters plastic can containing ID arrack and seized the said polythene covers and plastic can. The SI of police arrested the accused under a cover of Panchanama dt.06-04-2018 at 09.30 a.m. He signed in Ex.P1. The SI of police drawn sample of ID arrack from the can. He further deposed that the accused led them to the forest area on the northern side of Mangadu village. They went about for ½ kilometer distance into the forest and shown the place where they manufactured ID arrack. There was one plastic bucket and plastic bottle.
The SI of police seized the said objects under the cover of joinder
Panchanama. He signed in Ex.P2. Then they returned back to police station along with the seized property and the arrested accused.
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14.P.W.2, VRO, Ekambarakuppam, who is another mediator, deposed that 06-04-2018 at 01.00 p.m he received the phone call from his
Tahsildar, Nagari and informed him to go to Rasappa colony. Immediately he went to the said place along with LW4 Valliyamma, their VRA. The Sub inspector of excise police, Nagari along with staff had already reached there.
All of them went to the house of one Gopi/ A6, he was present in the house.
The SI of police searched the house of A6 and found 12 bags of jaggery. The
SI seized the said jaggery bags and interrogated A6. The SI of police prepare
Panchanama and obtained his signature. He deposed that the SI arrested A6 and took to the police station along with seized contraband.
15. PW3 who previously worked as SI of Police, SEB, Nagari, deposed that 06-04-2018 at about 09.00 a.m he received credible information, he along with his staff and ESTF team, Tirupati reached Mangadu village. There they went the house bearing D.No.2-94. There were three persons infront of the house, on seeing them in uniform, all of them tried to escape, with the help of his staff, he caught one among them. He interrogated the said person. On which he revealed his name as S. Damu/A1. He also revealed his address particulars and also the particulars of the other two persons who ran away. A1 also confessed that he along with the other two accused i.,e A2 and A3, namely Bhaskar and Guravaiah, were packing ID arrack in small packets for selling the same for higher prices. He deposed that he searched the house in the presence of A1 and the panchayatdars i.e, PW2 and LW4
Valliyamma, who came along with them. They found 20 liters of ID arrack in a plastic can, also they found 300 plastic pressing covers in a plastic bucket.
He seized the contraband and also the plastic covers, got prepared
Panchanama/Ex.P1 and obtained signatures of mediators and A1. He drawn one 180 ml sample and sealed and labeled for chemical analysis. He arrested
C.C.No.36/2020805.08.2022
A1 and based on the information given by A1 all of them went to Mangadu
Gollavanigunta. There they found 4 plastic drums containing 200 liters of F.J.
wash.
16. PW3 further deposed that on interrogation A1 revealed that the said F.J. wash was prepared by A4 and A5 who were working under them. He took one 400 ml of sample of F.J. wash, sealed and labeled for analysis purpose under the cover of Panchanama/Ex.P2. Thereafter they destroyed the remaining F.J. wash. On further interrogation A1 revealed that he purchased black jaggery from A6 at Rasappa colony, Nagari. All of them went to the said place and reached there at 01.15 p.m. They went to D.No.10/33 in
Rasappa colony, Nagari. There they found A6 present in the house. He took him into custody and enquired A6 on which he showed them 12 bags of Black jaggery, each bag containing 50 Kg. In total 600 Kgs of black jaggery was found in the house. He further deposed that he had drawn 3 samples of 250 gms each of black jaggery, sealed and labeled for analysis purpose under the cover of Panchanama/Ex.P3. He arrested A6 and obtained the signatures of mediators and A6. He returned to police station along with A1, A6 and seized samples and contraband. He registered the panchanama as a case in
Cr.No.90/2018 U/sec.7 A r/w 8 (e) of A.P. Prohibition Act, 1995 and Sec.34 (e) of A.P. Excise Act. He submitted the original FIR to the Honourable court and copies to all concerned officers. He served 41-A notice to A6 and released on station bail. He produced A1 to the court for judicial custody for remand. He sent the samples M.Os.1 to 3 through his Inspector of police, to the chemical analysis Lab, Chittoor for analysis. Subsequently his inspector of police received the chemical analysis reports.
17. PW4 K. Babu, previously worked as SI of police, SEB, Nagari deposed on the same lines as P.W.3, about the raid conducted by them at the
C.C.No.36/2020905.08.2022 three scene of offences under Ex.P1 to P3. He further deposed that on 10-04- 2018 at about 10.00 a.m himself, his CI and staff went to Mangadu village, on receiving credible information about movements of A2 to A5. There they found the four persons in suspicious circumstances, they enquired them, they revealed their names as A2 to A5 and after verifying their identity particulars, they arrested A2 to A5 and returned to the police station. He produced A2 to
A5 before the Hon’ble Court for judicial remand. They sent the samples to chemical analysis and received the reports. After completion of investigation he filed the charge sheet.
18. PW5/ P. Babu, previously worked as Head constable, SEB, Nagari, deposed in corroboration with his superior officers ie., P.W.3 and 4 regarding the conduct of raid at the three places and that he accompanied with them and signed in Ex.P1 to P3.
19.Now coming to appreciation of evidence on hand, the case of the prosecution is that A1 to A5 manufactured ID arrack and were found in possession of ID arrack and that A6 supplied black jaggery for manufacturing of ID arrack to A1 to A5. The investigating officer filed charge sheet for the offence under Sec.7A r/w 8(e) of A.P. Prohibition Act.
Sec.7A defines the offence of Prohibition of production etc., of arrack. - The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.
20.The accused herein are charged for the offence of illegal manufacturing and possession of illicitly distilled arrack. P.W.1 and 2 corroborated with the police officials and deposed that they found A1 in illegal possession of 20 liters of illicitly distilled arrack and 200 liters of FJ wash. PW1, who is the mediator, corroborated with PWs 3 to 5 and deposed
C.C.No.36/20201005.08.2022 that the contraband was seized by the investigation officers from the scene of offences. Though he deposed that he signed in Ex.P1, as rightly argued by the learned defence counsel, P.W.1 deposed that they found six persons at the first scene of offence and when they tried to escape, the police caught four of them, this version of P.W1 is quite contrary to the version of P.Ws 3 to 5, who deposed that they found three persons at the first scene of offence, but two of them escaped and they caught one person among them, who is A1 in this case. Similarly P.W.1 deposed that the distance between the first and the second scene of offence is half kilometer, while the other prosecution witnesses deposed that the distance is two kilometers. The other admissions of PW1 that he was not served written summons and he does not know the owner of the house and that he does not know the particulars of the persons who signed in Ex.P1 and Ex.P2 and that he does not know the survey number of the forest area and the boundary of the scene of offence, do not affect his testimony. But the above said contradiction regarding the number of accused, is fatal and casts a serious doubt about his testimony and the presence of PW1 at the scene of offences.
21.PW2 corroborated with PWs 3 to 5 regarding the seizure of black jaggery from the house of A6 and no contradictions were elicited from him regarding Ex.P3. Though the learned counsel for the accused elicited from
PW3 that Ex.P3 does not contain the signature of A6, but on perusal of Ex.P3, the signature of PW2 is apparently present as the first panchayatdar as deposed by him during his chief examination. However, PW2 did not identify
A6.
22.The learned defence counsel cross examined PW3 to PW5 at length and elicited from them that the owner of the house bearing D.No.2-94 was not enquired about and that there are about 300 -500 houses at the scene of
C.C.No.36/20201105.08.2022 offence and villagers and neighbours were not secured. It was admitted by
PW3 and PW4 that they cannot say the names of all the persons who signed in Ex.P1 and Ex.P2, but all of them corroborated that the distance between the first and second scene of offence is 2kms and that the second scene of offence is a forest area and there were about 25 – 35 officials who participated in the raid. Though they did not depose about the exact number of officials who participated in the raid, this Court observes that, all of them deposed that, the SI of Excise police station along with ESTF team, Tirupati went for the raid and so, it may not be possible for them to give the exact number of police officials who participated in the raid, due to participation of the ESTF team also in the raid. However, it is pertinent to note that PW3 to
PW5 corroborated with each other and deposed that PW3 arrested A1 at the scene of offence and then he showed them the place of manufacture of ID arrack, which is a forest area, wherein they found 200 liters of FJ wash in four plastic drums. It is their testimony that A1 revealed the particulars of A2 to
A6 and that they went to the house of A6 and seized 600 kgs of black jaggery. Further PW3 to 5 corroborated with the contents of Ex.P1 to P3 and the prosecution produced M.Os 1 to 3 which are samples of ID arrack, FJ wash and black jaggery, as per the case of the prosecution.
23.It is also deposed by PW4 that he arrested A2 to A5 whose names were revealed by A1 during his confession. The substance of the testimony of
P.Ws 3 to 5 shows that during the confession of A1, the information given by
A1, had lead them to the second scene of offence ie., the forest area and thereafter to the 3rd scene of offence ie., the house of A6 and led to the seizure of the contraband as deposed by them. So, this Court finds that without the information given by A1, the investigation officer would not have gone to the second scene of offence and seized FJ wash and thereafter to the third scene of offence and seize the black jaggery. Hence, this Court finds
C.C.No.36/20201205.08.2022 that the information given by A1 during confession is admissible under
Section 27 of the Evidence Act. In these circumstances, this Court is inclined to apply the provisions under Section 27 of Indian Evidence Act which lays down the exception to Section 25, which reads as follows:
How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
In this regard, the Hon’ble Apex Court laid judgment in Madhu
Vs. State of Kerala (2012) 2 SCC 399.
Section 27 of Indian Evidence Act: “How much information received from accused may be proved – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police offier, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved”.
As an exception, Section 27 the Indian Evidence Act provides that confessional statement made to a police officer or while an accused in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of sections 25 and 26 of the Indian Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 the Indian Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited “.. as it relates distinctly to the fact thereby discovered...”. The rationale behind Section 27 the Indian Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. Discovery of fact itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Indian Evidence Act.
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In Pulukuri Kotayya V. King Emperor, AIR 1947 PC 67
It was held as follows:
“In the absence of any suggestion being made to the investigating officer during his cross-examination before the Court that he had prior knowledge from other sources that the incriminating articles were concealed at certain places, it is not possible to accept the contention that the statement claimed to have been made by the appellant was infact prepared after the recoveries had been made and therefore there was no “fact discovered” within the meaning of S.27 Evidence Act.
“Moreover in his statement the appellant had not given the details of the person and his location to whom he had given any particular stolen article. He merely stated that if he was taken to a particular village he would get a particular article. Therefore the statement made by the appellant is clearly admissible in evidence”
In Earabhadrappa @ Krishnappa V. State of Karnataka, (1983) 2 SCC 330
It was held that:
“For applicability of S.27 Evidence Act two conditions are prerequisite namely:
1) The information must be such as has caused discovery of the fact
2) The information must relate distinctly to the fact discovered
The word “fact” in the context of S.27 means some concrete or material fact to which the information directly relates.
24.In the instant case, the investigating officer ie., P.W.2 could know the second and third scene of offence, only due to the information given by
A1 and so admissible under Section 27 of Indian Evidence Act and even as per the ratios laid down in the above cases.
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25.It was argued and elicited by the learned counsel for the accused from PW4 that he did not mention the boundaries of the second scene of offence in Ex.P2. However, the prosecution witnesses deposed that it is forest area. Further Ex.P2 discloses the longitude and latitude measurements of the forest area. The other argument of the learned defence counsel is that the house owner of the first scene of offence is not enquired and that there are no documents in to prove the connection of the accused to the house. In this regard, this Court finds that, it is not necessary for the prosecution to prove the ownership of the house in the name of accused, to prove the ingredients of the offences charged against them. Further it was explained by PW3 and 4 that, as they have taken mediators with them, they did not secure the neighbours or elders at the scene of offence. Regarding the argument of the learned defence counsel that there is delay in submitting FIR, this court finds that Ex.P4 on the face of it reveals that it was registered on 06.04.2018 and it was submitted to the Court on 07.04.2018 and so, there is no delay, as argued by the learned defence counsel. Further, it was argued that the prosecution witnesses did not identify the accused, however, this court finds that PW1 and PW2 being the public servants and it is the duty of the VROs to assist the investigation officers in discharge of their duties. Further, the testimony of PW2 was recorded on 19.03.2021 but the raid was conducted on 06.04.2018 and there is a gap of nearly three years and so, it is reasonable that PW2 could identify A6. Coming to PW3 to PW5, they are police officials and there is no need for the official witnesses to identify the accused.
Moreover, the testimony of the police officials cannot be doubted readily, unless any contradictions or omissions are elicited to create any doubt about their testimony. This Court relies on the following decisions:
I n "State of Gujarat v. Raghunath Vamanrao Baxi ,"AIR 1985
SUPREME COURT 1092,
C.C.No.36/20201505.08.2022 it was held that SC No. 63/2011 10/36 State Vs. Mohd. Khizar & Anr.
"In appreciating oral evidence, in criminal cases, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in onIy particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter. Where the witness is found to be partly truthful or to spring from tainted sources, the court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a court is not entitled to reject the evidence of a witness merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating agencies. For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. It is extremely unfair to a witness to reject his evidence by merely giving him a label."
In "Karamjit Singh v. State "AIR 2003 SUPREME COURT 1311, it was also held that there is no principle of law that without corroboration by independent witnesses testimony of police witnesses cannot be relied upon ; presumption that person acts honestly applies as much in favour of police personnel as of other person ; it is thus not proper judicial approach to distrust and suspect SC No. 63/2011 11/36 State Vs. Mohd. Khizar & Anr.
26.The learned counsel for A6 argued that as per the decision of the
Hon’ble High Court, mere possession of jaggery is not an offence. Further, the
counsel for A1 to A3 and A5 argued that the report is not proved through expert. In this regard, this Court finds that Mos 1 to 3 are produced before this Court, and even though the expert is not examined, there are certain facts, firstly the conduct of A1 and the other accused, who tried to run away on seeing the police and then two of them ran away and escaped from the
C.C.No.36/20201605.08.2022 first scene of offence. Secondly the nature of the second scene of offence being a forest area, it shows the efforts made by the accused to conceal the activities done by them. Thirdly as per the testimony of P.W.s 3 to 5, they have seized huge quantity of FJ wash from the second scene of offence which leads to the inference that they made preparations for manufacture of ID arrack. Fourthly the possession of huge quantity of black jaggery by A6 at his house. All these circumstances in the instant case lead to the inference that,
A2 to A5 had manufactured ID arrack in the forest area in secrecy, by procuring black jaggery from A6. It is well known fact that black jaggery is the raw material used for manufacturing the ID arrack. The huge quantity of black jaggery seized from A6 leads to the inference that he must have knowingly supplied the huge quantity to A2 to A5 for manufacturing ID arrack.
27.At this stage, this Court is inclined to apply the presumption under Sec.42 of Excise Act,1968, wherein it is provided that the accused person can be presumed to have committed the offence punishable under
Section 34, if for the possession of materials, which he is unable to account satisfactorily. A6 herein has not produced any evidence to account for his possession of the black jaggery.
28.Hence, in these circumstances, this Court finds that though the testimony of mediators is not taken into consideration and even though the prosecution did not prove the case through direct evidence, the circumstantial evidence and the confession of A1 leading to recovery of
M.Os1 to 3 and also the information about A2 to A6, admissible as discussed supra, prove the case of the prosecution for the offences charged against the accused.
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29. In the result, accused No.1 to 3, and accused No.5 are found guilty for the offence under section 7A r/w 8(e) of A.P. Prohibition Act and accordingly they are convicted for the above offence under Sec.248(2) Cr.P.C.
and accused No.6 is found guilty for the offence under Section 34(e) of A.P.
Excise Act and accordingly, he is convicted for the said offence under Section 248(2) of Cr.P.C.
Dictated to the Stenographer, transcribed by her, corrected, signed
and pronounced by me in the open Court, this the05th day of August, 2022.
Sd/- V. Leela Shyam Sundari,
Principal Junior Civil Judge cum
Judicial Magistrate of First Class, Puttur
FAC- Judicial Magistrate of I Class, Nagari
HEARING ON THE QUANTUM OF SENTENCE
30. When questioned as to the quantum of sentence, A1 to A3 and
A5 stated that they are living by doing coolie works and they are the sole breadwinners of their family and they have to look after their old aged parents and small children. A6 stated that he is a farmer and suffering with old age ailments and he underwent surgery. A1 to A3, A5 and A6 prayed for mercy of this court.
31. Having regard to the facts and circumstances of the case and keeping in view of the plea of accused Nos.1 to 3, 5 and 6, this Court is inclined to take a lenient view in sentencing them.
32. A1 to A3 and A5 are sentenced to undergo simple
imprisonment for three years each and to pay fine of Rs.10,000/-
(ten thousand only) each for the offence punishable under Section 7A r/w 8(e) of A.P. Prohibition Actand in default of payment of fine amount, A1 to A3 and A5 are sentenced to undergo further simple imprisonment for a period of
C.C.No.36/20201805.08.2022 three months each. A6 is sentenced to undergo simple imprisonment
for a period of one year and to pay fine of Rs.10,000/-(ten thousand
only) and punishable for the offence under Section 34(e) of A.P. Excise Act and indefault of payment of fine amount, A6 is sentenced to undergo further simple imprisonment for a period of three months.
33. A1 to A3, A5 and A6 were not in remand and so there is no set off under Section 428 IPC.
34.The property in C.P.R.No.135 of 2019 i.e., MOs.1- 180 ml sample bottle, MO2 – sample of FJ wash and MO3- black jaggery sample are ordered to be destroyed after expiry of appeal time.
35. A1 to A3, A5 and A6 are informed of their right to prefer appeal and free legal aid in appeal for which they stated that they have sufficient means to engage counsel in appeal.
Sd/- V. Leela Shyam Sundari,
//True copy //Principal Junior Civil Judge, Puttur FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
Principal Junior Civil Judge, Puttur
FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
Appendix of Evidence
Witnesses examined on behalf of
Prosecution :- Defence :- NIL PW1 : M.Bhupathi PW2 : M.Kesavulu PW3: K.Masthanvali PW4 :K.Babu PW5 :P.Babu
C.C.No.36/20201905.08.2022
Exhibits marked on behalf of the Prosecution:-
Ex.P-1 : Panchanama dated 06.04.2018 at 09.30a.m.
Ex.P-2 :Joinder panchanama dated 06.04.2018 at 11.40a.m
Ex.P-3 :Panchanama dated 06.04.2018 at 02.20p.m.
Ex.P-4 :First Information Report
Ex.P5 to P7: Chemical analysis reports
Exhibits marked on behalf of the Defence : -
NIL
Material Objects marked
MO1- 180 ml sample bottle of I.D arrack.
MO2- sample of FJ wash
MO3- sample of black jaggery
Sd/- V. Leela Shyam Sundari,
//True copy //Principal Junior Civil Judge, Puttur FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
Principal Junior Civil Judge, Puttur
FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
C.C.No.36/20202005.08.2022
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS::
NAGARI.
C.C.No: 36 of 2020
Date of offence: 06.04.2018
Date of complaint: 06.04.2018
Date of taken on file: 14.02.2020
Date of apprehension of : 20.02.2020 accused
Date of commencement : 19.03.2021 of trial
Date of close of trial: 22.07.2022
Explanation for delay: No delay
Date of sentence or order : 05.08.2022
Complainant: The State represented by Proh. & Excise Sub Inspector of Police, Excise Police Station, Nagari
Name of the Husband’s nameAgeReligionVillage,Occupation AccusedMandal/ District S.DhamuSubramanyam32yrsHinduMangadu D/WCoolie
K.BhaskarKailasam40yrsHinduMangadu D/WCoolie
D.Guravaiah Dora Kanan50yrsHinduMangadu D/WCoolie
P.Sumeer (Died)
S.NagarajuSubramanyam40yrsHindu Mangadu D/WCoolie
Y.GopiBasavalingappa63yrsHinduNagariCoolie
Nature of offence:Illegal manufacturing and possession of I.D.arrack and black Jaggery Section of Law:Section 7(A) r/w 8 (e) of A.P. Prohibition Act, 1995 and Sec.34(e) of AP Excise Act, 1968
Pleaofthe :Pleaded not guilty. accused Finding of the :Found guilty for the offences Under Section 7(A) r/w 8 (e) of CourtA.P. Prohibition Act, 1995 and Sec.34(e) of AP Excise Act, 1968 Sentence or order:In the result, the accused No.1 to 3, A5 are found guilty for the offence under section 7A r/w 8(e) of A.P. Prohibition Act and accordingly they are convicted for the above offence under Sec.248(2) Cr.P.C. A6 is found guilty for the offence under Section 34(e) of A.P. Excise Act and accordingly, he is convicted for the said offence under Section 248(2) of Cr.P.C.
When questioned as to the quantum of sentence, A1 to A3 and A5 stated that they are living by doing coolie works and they
C.C.No.36/20202105.08.2022 are the sole breadwinners of their family and they have to look after their old aged parents and small children. A6 stated that he is a farmer and suffering with old age ailments and he underwent surgery. A1 to A3, A5 and A6 prayed for mercy of this court.
Having regard to the facts and circumstances of the case and keeping in view of the plea of accused Nos.1 to 3, 5 and 6, this Court is inclined to take a lenient view in sentencing them.
A1 to A3 and A5 are sentenced to undergo simple imprisonment for three years and to pay fine of Rs.10,000/ (ten thousand only) each for the offence punishable under Section 7A r/w 8(e) of A.P. Prohibition Act and in default of payment of fine amount, A1 to A3 and A5 are sentenced to undergo further simple imprisonment for a period of three months each. A6 is sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,000/(ten thousand only) and punishable for the offence under Section 34(e) of A.P. Excise Act and indefault of payment of fine amount, A6 is sentenced to undergo further simple imprisonment for a period of three months.
A1 to A3, A5 and A6 were not in remand and so there is no set off under Section 428 IPC.
The property in C.P.R.No.135 of 2019 i.e., MOs.1 180 ml sample bottle, MO2 – sample of FJ wash and MO3 black jaggery sample are ordered to be destroyed after expiry of appeal time. A1 to A3, A5 and A6 are informed of their right to prefer appeal and free legal aid in appeal for which they stated that they have sufficient means to engage counsel in appeal.
Sd/- V. Leela Shyam Sundari,
//True copy //Principal Junior Civil Judge, Puttur FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
Principal Junior Civil Judge, Puttur
FAC/Junior Civil Judge- cum-
Judicial Magistrate of First Class,
Nagari
C.C.No.36/20202205.08.2022