Kum.V.Tharani

Judl. Magistrate of I Class, Alur1C.C.No.323/2022

CALENDAR AND JUDGMENT

IN THE JUDICIAL MAGISTRATE OF I CLASS, ALUR

C.C.NO.323/2022

1 Date of offence05-05-2021 2 Date of complaint05-05-2021 3 Date of apprehension of accusedSec.41 (A) Cr.P.C. notice 4 Date of release on bail of accused- 5 Date of commencement of trial08-06-2023 6 Date of close of trial28-06-2023 7 Date of Judgment 30-06-2023

ComplainantS.I. of Police, Alur PS in Cr.No.82/2021 of Alur PS.

AccusedYerukala Sudhakar, aged 23 years, S/o Sunkanna, r/o H.No.5/198, Molagavalli village, Alur mandal.

OffenceNegligent act likely to spread infection of disease dangerous to life, and The possession, sale and purchase of I.D arrack.

Section of Law Sec.269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act

FindingAccused is found not guilty

Sentence or As a result, the accused is not found guilty for the offence order punishable under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. The accused is acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. Since there is no property produced in the instant case, there is no order as to the property.

// True Copy //

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR Copy submitted to: The Hon'ble Chief-Judicial Magistrate-cum- Principal Assistant Sessions Judge, Kurnool.

Judl. Magistrate of I Class, Alur2C.C.No.323/2022

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS, ALUR

Present:-Ms. V.Tharani,

Judicial Magistrate of I Class, Alur.

Friday, the 30th day of June, 2023

C.C.No.323/2022

The State repd. by Sub Inspector of Police,

Alur P.S.....Complainant

AND

Yerukala Sudhakar, aged 23 years, S/o Sunkanna, r/o H.No.5/198,

Molagavalli village, Alur mandal....... Accused

This case came on 28-06-2023 for final hearing and disposal in the presence of learned Assistant Public Prosecutor for the State/Complainant; and of Sri B.Lakshmi Kanth, Sri R.S.Vali, Sri C.Praveen Kumar, Advocates for the Accused and having stood over for consideration till this day, this court delivered the following:

:: JUDGMENT ::

1.The Sub Inspector of Police, Alur P.S filed a charge sheet in Crime

No.82/2021 alleging that the accused committed the offence punishable under

Sec.188 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

2. The case of the prosecution in brief is as follows :

On 05-05-2021 at 14-30 hours, on receipt of credible information

L.W.4/P.Ramanjulu, the Sub Inspector of Police, left the police station along with

L.W.1/N.Siva Naik,. L.W.2/K.Ravi, Police Constables reached near Bramhaiah

Tata Colony, Molagavalli village, Alur mandal and found accused was sitting in front of the house by violating the orders of the Government promulgated due to

Covid-19 pandemic and maintain social distance. On seeing the police, the accused tried to skulk away, but L.W.4 with the assistance of his staff and caught him. On questioning, the accused revealed his identity and confessed that he is

Judl. Magistrate of I Class, Alur3C.C.No.323/2022 selling the ID arrack in the village, which he purchased the same from an unknown person at Neraniki Thanda village for selling it for higher price. On identification, L.W.4 found that accused rightly contained 10 litres of ID Arrack.

L.W.4 then drew the sample from the contraband for chemical analysis and seized it and arrested the accused under the cover of police proceedings.

Based on the police proceedings, L.W.4 registered a case in Cr.No.82/2021

U/Sec.269 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act and submitted copies to all the concerned and took up investigation. Since the accused was

Corona positive, he issued Sec.41 (A) Cr.P.C. notice to the accused. The chemical examiner, RPEL, Kurnool, who examined the sample issued report, wherein the examiner opined that the samples sent were illicitly distilled liquor, unfit for human consumption and injurious to health. Based on the investigation, L.W.4 filed the charge sheet against the accused for the offence U/Sec.188 of IPC and

Sec.7(A) r/w 8 (e) of AP Prohibition Act. Hence, the case.

3. This court took cognizance, on the police report, of the offence under

Sec.269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 against the accused and issued summons to the accused.

4.On the appearance of accused before the Court, copies of documents were furnished to her as required under section 207 Cr.P.C. The accused was then examined under section 239 Cr.P.C. and the charge under section 269 of IPC and

Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 was framed, read over, and explained to the accused in his vernacular language, to which he denied the same and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W.4 was examined as P.W.1 and

Exs.P.1 to P.5 were marked. The learned A.P.P. has given up the evidence of

L.Ws.1 to 3.

6.After the closure of prosecution evidence, the accused was examined

U/Sec.313 Cr.P.C. The incriminating evidence adduced by P.W.1 was readover to him, to which he completely denied and stated that he doesnot want to produce

Judl. Magistrate of I Class, Alur4C.C.No.323/2022 any evidence on his behalf. Hence, defence evidence was closed.

7.Heard learned APP on behalf of the prosecution and the learned defence counsel on behalf of the accused.

8. The point for determination is:

Whether prosecution has brought home the guilt of the accused for the

offence under section 269 of Indian Penal Code and Sec.7(A) r/w. 8(e) of

A.P.Prohibition Act?”

9. Section 269 reads as follows:

“Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

10. 7A of AP Prohibition Act, 1995 reads as follows:- “The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.”

Section 8(e) of the same act reads as follows:

“Whoever contravenes the provisions of section 7A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence”.

11.According to the prosecution, the accused was in possession of 10 litres of ID Arrack hence making him liable under section 7(A) r/w 8 (e) of AP

Prohibition Act and tried to sell the same in contravention of the Covid.

Judl. Magistrate of I Class, Alur5C.C.No.323/2022

12.In support of the prosecution, the S.I of police was examined as

P.W.1. Police proceedings were marked as Ex.P.1. Original F.I.R was marked as

Ex.P.2. The Chemical Analysis report was marked as Ex.P.3. Proceedings issued by S.P., Kurnool vide C.No.332/SEB/2021, dt.04-12-2021 was marked as Ex.P.4.

Destruction Panchanama, dt.23-02-2022 was marked as Ex.P.5.

12.The case of prosecution in a nutshell is that:

On 05-05-2021 as per lock-down proceedings on superior officers instructions, he along with L.W.1 and L.W.2 reached at Bramhaiah Thata Colony,

Molagavalli village they found the accused having in possession of white super cover. When the accused on seeing them tried to skulk away, they caught the accused and questioned him. The accused then revealed his descriptive particulars and confessed the offence found 10 liters of ID arrack in the said cover. P.W.1 examined him and seized the ID liquor from his possession and told the accused that he violated the orders promulgated by Govt. of A.P. and that possession of ID arrack is an offence and then arrested him under the cover of police proceedings.

Hence according to the prosecution, the accused should be punished for possession of ID liquor in contravention of Sec.7-A r/w 8 (e) of A.P. Prohibition

Act and U/Sec.269 of IPC for negligently spreading corona virus infection as they contravened covid guidelines and roamed outside.

13.The learned Assistant Public Prosecutor submitted his arguments, contending that the evidence of prosecution witnesses and exhibits manifestly proves that the accused had committed an offence under sections 269 of I.P.C and

Sec.7-A r/w 8 (e) of A.P. Prohibition Act, and he is liable for conviction.

14.On the other hand, the learned counsel for the accused contended that the police failed to follow the procedure prescribed U/Sec.100(4) of Cr.P.C. He further contended that no independent witnesses have been examined and all the prosecution witnesses are interested witnesses who are interested in the conviction of the accused. Further he contended that the entire case of prosecution solely relied upon the confessional statement of the accused to the police which is

Judl. Magistrate of I Class, Alur6C.C.No.323/2022 inadmissible in evidence. Therefore, according to him, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, and the accused is entitled to benefit of the doubt.

15.According to the prosecution, the search, seizure and arrest of the accused occurred in the presence of only P.W.1 and L.Ws.1 and 2. But Sec.23 of

Andhra Pradesh Prohibition Act, 1995 provides that any search, seizure or arrest has to happen in accordance with the Criminal Procedure Code. The relevant provision in Cr.P.C with respect to search, Sec.100 Cr.P.C may be looked into to see whether the police have compiled with the provision.

16. Sec. 100(4) of Cr.P.C reads as:

“Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Thus, P.W.1 in the instant case had to either call upon two independent witnesses of that locality or if no one is available in the locality, from any other locality or if no one is willing to come forward has to at the least issue an order to them to attend and witness the search.

17.In the instant case, the search did not happen in the presence of independent witnesses. P.W.1 stated in his chief examination that he sent L.W.1 to procure panchayatdars but he could get not procure anyone. however, L.W.1 was not examined to corroborate the testimony of P.W.1. Further, P.W.1 agreed in his cross-examinations that the scene of offence is a busy area, however no plausible explanation was given by them as to why an independent witness was not procured.

18.The Hon'ble High court of A.P. in the case of 'Yeduru Sreenivasulu

Reddy Vs State of A.P. 2002(1) A.L.D (Crl) 347 (A.P) held in an excise case that,

Judl. Magistrate of I Class, Alur7C.C.No.323/2022 in case where no one was willing to act as panch witness, the police should have, for the purpose of conducting the search and seizure, passed a written order. In the absence of such written order, the evidence of prosecution witnesses that no one came forward to witness the panchanama, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.

19.The above authority is related to the A.P. Excise Act, 1968 but is also relevant to the case at hand. In the instant case also P.W.1 told that no one came forward to be witnesses, no reason was adduced as to why an order was not passed. Hence, the non compliance of the legislative safeguards under Cr.P.C, casts a shadow on the prosecution evidence.

20.The prosecution further relied upon this confession of the accused.

According to P.W.1, the accused confessed his guilt and the contraband was recovered from the accused. But, according to Sec.25 of Indian Evidence Act, confession made to a police-officer, shall not be proved as against a person accused of any offence. Further as per Sec.26 of the Evidence Act, confession by accused while in custody of police not to be proved against him. In view of sections 25 and 26 of the Indian Evidence Act, 1860, confession of the accused shall not be used against them, as such the alleged confession of the accused in the instant case cannot be looked into. Thus, Ex.P.1 i.e, the police proceedings showing the alleged confession of the accused is of not of much value. In the absence of Ex.P.1, Exs.P.2 to P.5 are not of much relevance.

21.The learned counsel for the accused contended that the P.W.1 is police official and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He further contended that except for the self-serving oral testimony of the police official, absolutely there is no evidence on record to prove the recovery of property.

22.In the instant case, it is true that except the evidence of S.I. of Police

Judl. Magistrate of I Class, Alur8C.C.No.323/2022 i.e., P.W.1, there is no evidence of any other witness, let alone an independent witness. In the absence of any corroborative evidence as to the recovery of the contraband from the possession of the accused, or about the arrest of the accused at the scene of the offence, and in light of material drawbacks in complying procedural safeguards, it is difficult to believe the prosecution’s case based on only P.W.1’s testimony.

23.Further, for the same reasons, it would be unsafe to convict the accused U/Sec.269 of I.P.C for spreading corona virus infection.

24.In the light of the discussion in the preceding paragraphs and on careful consideration of the entire material available on record, it appears that the prosecution could not prove the guilt of the accused for the offence U/Sec.269 of

I.P.C and Sec.7-A r/w 8 (e) of A.P. Prohibition Act, beyond all reasonable doubt.

Accordingly, this point is answered in favour of the accused and against the prosecution.

23.As a result, the accused is found not guilty for the offence punishable under section 269 of Indian Penal Code, 1860 and 7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act, 1995. The accused is acquitted under Section 248 (1)

Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. Since there is no property produced in the instant case, there is no order as to the property.

Directly typed to my dictation by Stenographer, corrected and pronounced by me in open court, on this the 30 th day of June, 2023.

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: P.RamanjuluNone

Judl. Magistrate of I Class, Alur9C.C.No.323/2022

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P.1: Police proceedings -Nil-

Ex.P.2: Original F.I.R

Ex.P.3: Chemical Analysis report

Ex.P.4: Proceedings issued by S.P., Kurnool vide C.No.332/SEB/2021, dt.04-12-2021

Ex.P.5: Destruction Panchanama, dt.23-02-2022

M.Os.MARKED

-Nil-

True Copy //

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

CALENDAR AND JUDGEMENT

IN THE JUDICIAL MAGISTRATE OF I CLASS, ALUR

C.C.NO.294/2022

1 Date of offence23-04-2020 2 Date of complaint23-04-2020 3 Date of apprehension of accused 23-04-2020

Sec.41(A) Cr.P.C. notice

4 Date of release on bail of accused-

5 Date of commencement of trial09-03-2023 6 Date of close of trial28-03-2023 7 Date of Judgment 06-04-2023 ComplainantS.I. of Police, Holagunda PS in Cr.No.75/2020 of Holagunda PS

Accused1. Paigeri Devendra, 27 years, S/o P. Eranna, r/o Kogilathota village, Holagunda mandal, Kurnool District.

2. Boya Mallikarjuna, 22 years, S/o Thimappa, r/o Neraniki Thanda village, Holagunda mandal, Kurnool District.

OffenceNegligent act likely to spread infection of disease dangerous to life and the purchase, possession and sale of ID arrack.

Section of Law U/Sec.269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995

FindingAccused are found not guilty

Sentence or As a result, the accused are not found guilty for the offences order punishable under section 269 of Indian Penal Code and section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after the lapse of appeal period.

SD/-V.THARANI

JUDICIAL MAGISTRATE OF I CLASS

ALUR

Copy submitted to: The Hon'ble Chief-Judicial Magistrate-cum- Principal Assistant

Sessions Judge, Kurnool.

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS, ALUR

Present:-Ms. V.Tharani,

Judicial Magistrate of I Class, Alur.

Thursday, the 6th day of April, 2023

C.C.No.294/2022

The State repd. by Sub Inspector of Police,

Holagunda P.S.....Complainant

AND

1. Paigeri Devendra, 27 years, S/o P. Eranna, r/o Kogilathota village, Holagunda mandal, Kurnool District.

2. Boya Mallikarjuna, 22 years, S/o Thimappa, r/o Neraniki Thanda village, Holagunda mandal, Kurnool District.

...... Accused

This case came on 28-04-2023 for final hearing and disposal in the presence of learned Assistant Public Prosecutor for the State/Complainant; and of Sri K.Ravi & Sri K. Vijaya Bhaskar, Advocates for the Accused and having stood over for consideration till this day, this court delivered the following:

:: JUDGEMENT ::

1.The Sub Inspector of Police, Holagunda P.S filed a charge sheet in

Crime No. 70/2020 alleging that the accused committed the offence punishable under Sec.188 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

2. The case of the prosecution as unfolded in the charge sheet is stated as follows :

On 23-04-2020, the Accused no.1 violated the orders promulgated by the government which was given on the eve of containment of covid 19 and purchased 8 litres of ID Arrack from the Accused no.2 and while he was selling the same to the public by huge gathering, L.W.3 caught him near Neem tree situated in Linga

Reddy’s field at the outskirts of Kogilathota village on the same day at 14.00 hours with the assistance of L.W.1 and L.W.2 and arrested the accused and seized 8 litres of I.D Arrack from his possession under cover of police proceedings.

Based on the police proceedings, L.W.3 registered a case in Cr.No.70/2020

U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act. L.W.3 then issued 41(A) notice to both the accused who complied with the same. Then L.W.3 forwarded the samples for chemical examiner, RPEL, Kurnool received the report, wherein the examiner opined that the samples sent were illicitly distilled liquor, unfit for human consumption. After receipt of destruction of S.P., Kurnool L.W.3 destroyed the case property under cover of destruction panchanama dt. 08-11-2021.

Based on the investigation, L.W.3 filed the charge sheet against the accused for the offence U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act. Hence, the case.

3. This court took cognizance, on the police report, of the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 against the accused and issued summons to the accused.

4.On the appearance of the accused before the Court, copies of documents were furnished to them as required under section 207 Cr.P.C. The accused were then examined U/Sec.239 Cr.P.C. and the charges under section 269 of IPC and

Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 were framed, read over, and explained to the accused in Telugu to which they denied the same and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W.3 was examined as P.W.1 and Exs.P.1 to

P.5 were marked. In view of the evidence of P.W.1, the learned A.P.P. has given up the evidence of L.Ws.1 and 2.

6.After the closure of prosecution evidence, the accused was examined

U/Sec.313 Cr.P.C. The incriminating evidence adduced by P.W.1 was readover to them, to which they completely denied and stated that they do not want to produce any evidence on their behalf. Hence, defence evidence was closed.

7.Heard learned APP on behalf of the prosecution and the learned defence counsel on behalf of the accused.

8. The point for determination is:

Whether prosecution has brought home the guilt of the accused for the

offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995, beyond all reasonable doubt?

9. 7A of AP Prohibition Act, 1995 reads as follows:- “The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.”

Section 8(e) of the same act reads as follows:

“Whoever contravenes the provisions of section 7A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence”.

10. Section 269 of I.P.C reads as follows:

“Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

According to the prosecution, A1 was in possession of 8 litres of ID Arrack and A2 was the one who sold it to A1 making them liable under section 7(A) of AP

Prohibition Act and they were roaming outside during the corona period which is likely to spread coronavirus infection in contravention of section 269 of I.P.C.

11.In support of the prosecution, the S.I of police was examined as P.W.1.

Police proceedings were marked as Ex.P.1. Original F.I.R was marked as Ex.P.2.

The Chemical Analysis report was marked as Ex.P.3. Proceedings issued by the

S.P, Kurnool, vide C.No.147/SEB/2021, dt.06-05-2021 was marked as Ex.P.4.

Panchanama, dt.08-11-2021 was marked as Ex.P.5.

12.The learned Assistant Public Prosecutor submitted his arguments, contending that the evidence of prosecution witness i.e P.W.1 and the exhibits manifestly proves that the accused have committed offences under sections 269 of

IPC and Sec. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 and hence they are liable for conviction.

13.On the other hand, the learned counsel for the accused contended that the police failed to follow the procedure prescribed U/Sec.100(4) of Cr.P.C. He further contended that no independent witnesses have been examined and all the prosecution witnesses are interested witnesses who are interested in the conviction of the accused. He further contended that there is no iota of evidence against A2 and the link between A1 and A2 is not established. Further he contended that the entire case of prosecution solely relied upon the confessional statement of the accused no.1 to the police which is inadmissible in evidence. Therefore, according to him, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, and the accused are entitled to benefit of the doubt.

14.According to the prosecution, the search, seizure and arrest of the accused occurred in the presence of only P.W.1, who is the investigating officer.

But Sec.23 of Andhra Pradesh Prohibition Act, 1995 provides that any search, seizure or arrest has to happen in accordance with the Criminal Procedure Code.

The relevant provision in Cr.P.C with respect to search, Sec.100 Cr.P.C may be looked into to see whether the police have compiled with the provision.

15. Sec. 100(4) of Cr.P.C reads as: “Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Thus, P.W.1 in the instant case had to either call upon two independent witnesses of that locality or if no one is available in the locality, from any other locality or if no one is willing to come forward has to at the least issue an order to them to attend and witness the search.

16.In the instant case, the search did not happen in the presence of independent witnesses. No plausible explanation was given as to why an independent witness was not procured. P.W1 deposed that he sent L.W.1 to procure panchaytdars but he could not get anyone. L.W.1 was not examined to corroborate the testimony of P.W1. Further, assuming that some people were asked to be mediators but no one came forward, he failed to explain as to why in such a case an order was not issued against them to attend and witness the search.

17. The Hon’ble High court of A.P in the case of “Yeduru Sreenivasulu

Reddy Vs State of A.P 2002(1) A.L.D (Crl) 347 (A.P)” held in an excise case that, in case where no one was willing to act as panchwitness, the police should have, for the purpose of conducting the search and seizure, passed a written order. In the absence of such written order, the evidence of prosecution witnesses that no one came forward to witness the panchanama, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.

18.The above authority is related to the A.P. Excise Act, 1968 but is also relevant to the case at hand. In the instant case also P.W.1 merely told that no one came forward to be witnesses, no reason was adduced as to why an order was not passed. Hence, the non compliance of the legislative safeguards under Cr.P.C, casts a doubt regarding the genuineness of the prosecution’s case.

19.The prosecution further relied upon the confession of the accused. In any case, according to Sec.25 of Indian Evidence Act, confession made to a police-officer, shall not be proved as against a person accused of any offence.

Further as per Sec.26 of the Evidence Act, confession by accused while in custody of police not to be proved against him. In view of sections 25 and 26 of the Indian

Evidence Act, 1860, confession of the accused shall not be used against them, as such the alleged confession of the accused in the instant case cannot be looked into.

20.The learned counsel for the accused contended that the P.W.1 is an investigating officer and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He further contended that except for the self-serving oral testimony of the investigating officer, absolutely there is no evidence on record to prove the recovery of property.

21. In the instant case, it is true that except the evidence of the S.I of

Police i.e, P.W.1, there is no evidence of any other witness, let alone an independent witness. Thus, in the absence of any corroborative evidence from an independent source as to the recovery of the contraband from the possession of the accused, or about the arrest of the accused at the scene of the offence, it is difficult to believe the prosecution’s contention that that A1 was in possession of the contraband and A2 was the one who sold it to A1.

22.In the light of the discussion in the preceding paragraphs and on careful consideration of the entire material available on record, it appears that the prosecution could not prove the guilt of the accused for the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, beyond all reasonable doubt. Accordingly, this point is answered in favour of the accused and against the prosecution.

23.As a result, the accused are not found guilty for the offences punishable by under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after appeal time.

Directly typed to my dictation by Typist, corrected and pronounced by me in open court, on this the 06th of April, 2023.

SD/-V.THARANIV.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Y.Vijaya KumarNone

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P.1: Police proceedingsNil Ex.P.2: Original F.I.R. Ex.P.3: Chemical Analysis report

Ex.P.4: Proceedings issued by the S.P., Kurnool, vide C.No.147/SEB/2021, dt.06-05-2021

Ex.P.5: Panchanama, dt.08-11-2021.

M.Os.MARKED

-Nil

SD/-V.THARANI

, JUDICIAL MAGISTRATE OF I CLASS

ALUR // True Copy //

CALENDAR AND JUDGEMENT

IN THE JUDICIAL MAGISTRATE OF I CLASS, ALUR

C.C.NO.198/2022

1 Date of offence21-04-2020 2 Date of complaint21-04-2020 3 Date of apprehension of accused21-04-2020 Sec.41(A) Cr.P.C. notice

4 Date of release on bail of accused-

5 Date of commencement of trial09-03-2023 6 Date of close of trial28-03-2023 7 Date of Judgment 06-04-2023 ComplainantS.I. of Police, Holagunda PS in Cr.No.112/2020 of Holagunda PS

Accused1. Kuruva Podalakunta Gadhilinga, 33 years, S/o Bheemanna, r/o Yellarthy village, Holagunda mandal, Kurnool District.

2. Pujari krishna Naik, 36 years, S/o Babu Naik, r/o Neraniki Thanda village, Holagunda mandal, Kurnool District.

OffenceNegligent act likely to spread infection of disease dangerous to life and the possession of ID arrack.

Section of Law U/Sec.269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995

FindingAccused are found not guilty

Sentence or As a result, the accused are not found guilty for the offences order punishable under section 269 of Indian Penal Code and section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after the lapse of appeal period.

SD/- V.THARANI

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

Copy submitted to: The Hon'ble Chief-Judicial Magistrate-cum- Principal Assistant

Sessions Judge, Kurnool.

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS, ALUR

Present:-Ms. V.Tharani,

Judicial Magistrate of I Class, Alur.

Thursday, the 6th day of April, 2023

C.C.No.198/2022

The State repd. by Sub Inspector of Police,

Holagunda P.S.....Complainant

AND

1. Kuruva Podalakunta Gadhilinga, 33 years, S/o Bheemanna, r/o Yellarthy village, Holagunda mandal, Kurnool District.

2. Pujari krishna Naik, 36 years, S/o Babu Naik, r/o neraniki Thanda village, Holagunda mandal, Kurnool District.

...... Accused

This case came on 28-03-2023 for final hearing and disposal in the presence of learned Assistant Public Prosecutor for the State/Complainant; and of Sri K. Ravi, Advocates for the Accused and having stood over for consideration till this day, this court delivered the following:

:: JUDGEMENT ::

1.The Sub Inspector of Police, Holagunda P.S filed a charge sheet in

Crime No.112/2020 alleging that the accused committed the offence punishable under Sec.188 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995.

2. The case of the prosecution as unfolded in the charge sheet is stated as follows :

On 21-04-2020, the Accused no.1 violated the orders promulgated by the government which was given on the eve of containment of covid 19 and purchased 8 litres of ID Arrack from the Accused no.2 and while he was selling the same to the public by huge gathering, L.W.3 caught thim near Ayyappa Swamy Temple at the outskirts of Yellarthi village on the same day at 14-15 hours with the assistance of L.W.1 and L.W.2 and arrested the accused and seized 8 litres of I.D Arrack from his possession under cover of police proceedings.

Based on the police proceedings, L.W.3 registered a case in Cr.No.69/2020

U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act. L.W.3 then issued 41(A) notice to both the accused who complied the same. Then L.W.2 forwarded the samples for chemical examiner, RPEL, Kurnool. L.W.3 obtained the report, wherein the examiner opined that the samples sent were illicitly distilled liquor, unfit for human consumption. After receipt of destruction of S.P., Kurnool L.W.3 destroyed the case property under cover of destruction panchanama. Based on the investigation, L.W.3 filed the charge sheet against the accused for the offence

U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act. Hence, the case.

3.This court took cognizance, on the police report, of the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 against the accused and issued summons to the accused.

4.On the appearance of the accused before the Court, copies of documents were furnished to them as required under section 207 Cr.P.C. The accused were then examined U/Sec.239 Cr.P.C. and the charges under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 were framed, read over, and explained to the accused in Telugu to which they denied the same and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W.3 was examined as P.W.1 and

Exs.P.1 to P.5 were marked. In view of the evidence of P.W.1, the learned A.P.P. has given up the evidence of L.Ws.1 and 2.

6.After the closure of prosecution evidence, the accused was examined

U/Sec.313 Cr.P.C. The incriminating evidence adduced by P.W.1 was readover to them, to which they completely denied and stated that they do not want to produce any evidence on their behalf. Hence, defence evidence was closed.

7.Heard learned APP on behalf of the prosecution and the learned defence counsel on behalf of the accused.

8. The point for determination is:

Whether prosecution has brought home the guilt of the accused for the

offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995, beyond all reasonable doubt?

9. 7A of AP Prohibition Act, 1995 reads as follows:- “The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.”

Section 8(e) of the same act reads as follows:

“Whoever contravenes the provisions of section 7A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence”.

10. Section 269 of I.P.C reads as follows:

“Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

According to the prosecution, A1 was in possession of 8 litres of ID Arrack and A2 was the one who sold it to A1 making them liable under section 7(A) of AP

Prohibition Act and they were roaming outside during the corona period which is likely to spread coronavirus infection in contravention of section 269 of I.P.C.

11.In support of the prosecution, the S.I of police was examined as P.W.1.

Police proceedings were marked as Ex.P.1. Original F.I.R was marked as Ex.P.2.

The Chemical Analysis report was marked as Ex.P.3. Proceedings issued by the

S.P, Kurnool, vide C.No.147/SEB/2021, dt.06-05-2021 was marked as Ex.P.4.

Panchanama, dt.08-11-2021 was marked as Ex.P.5.

12.The learned Assistant Public Prosecutor submitted his arguments, contending that the evidence of prosecution witness i.e P.W.1 and the exhibits manifestly proves that the accused have committed offences under sections 269 of

IPC and Sec. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 and hence they are liable for conviction.

13.On the other hand, the learned counsel for the accused contended that the police failed to follow the procedure prescribed U/Sec.100(4) of Cr.P.C. He further contended that no independent witnesses have been examined and all the prosecution witnesses are interested witnesses who are interested in the conviction of the accused. He further contended that there is no iota of evidence against A2 and the link between A1 and A2 is not established. Further he contended that the entire case of prosecution solely relied upon the confessional statement of the accused to the police which is inadmissible in evidence. Therefore, according to him, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, and the accused are entitled to benefit of the doubt.

14.According to the prosecution, the search, seizure and arrest of the accused occurred in the presence of only P.W.1, who is the investigating officer.

But Sec.23 of Andhra Pradesh Prohibition Act, 1995 provides that any search, seizure or arrest has to happen in accordance with the Criminal Procedure Code.

The relevant provision in Cr.P.C with respect to search, Sec.100 Cr.P.C may be looked into to see whether the police have compiled with the provision.

15. Sec. 100(4) of Cr.P.C reads as: “Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Thus, P.W.1 in the instant case had to either call upon two independent witnesses of that locality or if no one is available in the locality, from any other locality or if no one is willing to come forward has to at the least issue an order to them to attend and witness the search.

16.In the instant case, the search did not happen in the presence of independent witnesses. No plausible explanation was given as to why an independent witness was not procured. P.W1 deposed that he sent L.W.1 to procure panchaytdars but he could not get anyone. L.W.1 was not examined to corroborate the testimony of P.W1. Further, assuming that some people were asked to be mediators but no one came forward, he failed to explain as to why in such a case an order was not issued against them to attend and witness the search.

17. The Hon’ble High court of A.P in the case of “Yeduru Sreenivasulu

Reddy Vs State of A.P 2002(1) A.L.D (Crl) 347 (A.P)” held in an excise case that, in case where no one was willing to act as panchwitness, the police should have, for the purpose of conducting the search and seizure, passed a written order. In the absence of such written order, the evidence of prosecution witnesses that no one came forward to witness the panchanama, cannot be believed and relied upon.

Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.

18.The above authority is related to the A.P. Excise Act, 1968 but is also relevant to the case at hand. In the instant case also P.W.1 merely told that no one came forward to be witnesses, no reason was adduced as to why an order was not passed. Hence, the non compliance of the legislative safeguards under Cr.P.C, casts a doubt regarding the genuineness of the prosecution’s case.

19.The prosecution further relied upon the confession of the accused. In any case, according to Sec.25 of Indian Evidence Act, confession made to a police-officer, shall not be proved as against a person accused of any offence.

Further as per Sec.26 of the Evidence Act, confession by accused while in custody of police not to be proved against him. In view of sections 25 and 26 of the Indian

Evidence Act, 1860, confession of the accused shall not be used against them, as such the alleged confession of the accused in the instant case cannot be looked into.

20.The learned counsel for the accused contended that the P.W.1 is an investigating officer and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He further contended that except for the self-serving oral testimony of the investigating officer, absolutely there is no evidence on record to prove the recovery of property.

21.In the instant case, it is true that except the evidence of the S.I of Police i.e,

P.W.1, there is no evidence of any other witness, let alone an independent witness.

Thus, in the absence of any corroborative evidence from an independent source as to the recovery of the contraband from the possession of the accused, or about the arrest of the accused at the scene of the offence, it is difficult to believe the prosecution’s contention that A1 was in possession of the contraband and A2 was the one who sold it to A1.

22.In the light of the discussion in the preceding paragraphs and on careful consideration of the entire material available on record, it appears that the prosecution could not prove the guilt of the accused for the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995, beyond all reasonable doubt. Accordingly, this point is answered in favour of the accused and against the prosecution.

23.As a result, the accused are not found guilty for the offences punishable by under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after appeal time.

Directly typed to my dictation by Typist, corrected and pronounced by me in open court, on this the 06th of April, 2023.

SD/- V.THARANI /- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Y.Vijaya KumarNone

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P.1: Police proceedingsNil Ex.P.2: Original F.I.R. Ex.P.3: Chemical Analysis report

Ex.P.4: Proceedings issued by the S.P., Kurnool, vide C.No.147/SEB/2021, dt.06-05-2021

Ex.P.5: Panchanama, dt.08-11-2021.

M.Os.MARKED

-Nil-

SD/- V.THARANIni

JUDICIAL MAGISTRATE OF I CLASS , JUDICIAL MAGISTRATE OF I CLASS,

ALUR ALUR

CALENDAR AND JUDGEMENT

IN THE JUDICIAL MAGISTRATE OF I CLASS, ALUR

C.C.NO.198/2022

1 Date of offence26-04-2020 2 Date of complaint26-04-2020 3 Date of apprehension of accused 26-04-2020

Sec.41(A) Cr.P.C. notice

4 Date of release on bail of accused-

5 Date of commencement of trial29-03-2023 6 Date of close of trial03-04-2023 7 Date of Judgment 06-04-2023

ComplainantS.I. of Police, Holagunda PS in Cr.No.75/2020 of Holagunda PS

Accused1. Vendikatla Basavaraja, 36 years, S/o Pakeerappa, r/o Suluvai village, Holagunda mandal, Kurnool District.

2. Pujari Mallesh Naik, 20 years, S/o Krishna Naik, r/o Neraniki Thanda village, Holagunda mandal, Kurnool District.

OffenceNegligent act likely to spread infection of disease dangerous to life and the possession of ID arrack.

Section of Law U/Sec.269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 FindingAccused are found not guilty

Sentence or As a result, the accused are not found guilty for the offences order punishable under section 269 of Indian Penal Code and section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after the lapse of appeal period.

SD/- V.THARANI

JUDICIAL MAGISTRATE OF FIRST CLASS

ALUR

Copy submitted to: The Hon'ble Chief-Judicial Magistrate-cum-Principal Assistant

Sessions Judge, Kurnool.

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS, ALUR

Present:-Ms. V.Tharani,

Judicial Magistrate of I Class, Alur.

Thursday, the 6th day of April, 2023

C.C.No.295/2022

The State repd. by Sub Inspector of Police, Holagunda P.S.

....Complainant

AND 1.Vendikatla Basavaraja, 36 years, S/o Pakeerappa, r/o Suluvai village, Holagunda mandal, Kurnool District.

2. Pujari Mallesh Naik, 20 years, S/o Krishna Naik, r/o Neraniki Thanda village, Holagunda mandal, Kurnool District.

...... Accused

This case came on 03-04-2023 for final hearing and disposal in the presence of learned Assistant Public Prosecutor for the State/Complainant; and of Sri B.Lakshmi Kanth, Sri R.S.Vali, Sri C.Praveen Kumar, Advocates

for the Accused and having stood over for consideration till this day, this

court delivered the following:

:: JUDGEMENT ::

1.The Sub Inspector of Police, Holagunda P.S filed a charge sheet in Crime No. 75/2020 alleging that the accused committed the offence punishable under Sec.188 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995.

2. The case of the prosecution as unfolded in the charge sheet is stated as follows :

On 21-04-2020, the Accused no.1 violated the orders promulgated by the government which was given on the eve of containment of covid 19 and purchased 8 litres of ID Arrack from the Accused no.2 and while he was selling the same to the public by huge gathering, L.W.3 caught him near

Edega at the outskirts of Suluvai village on the same day at 17.00 hours with the assistance of L.W.1 and L.W.2 and arrested the accused and seized 8 litres of I.D Arrack from his possession under cover of police proceedings.

Based on the police proceedings, L.W.3 registered a case in

Cr.No.75/2020 U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition

Act. L.W.3 then issued 41(A) notice to both the accused who complied with the same. Then L.W.3 forwarded the samples for chemical examiner, RPEL,

Kurnool received the report, wherein the examiner opined that the samples sent were illicitly distilled liquor, unfit for human consumption. After receipt of destruction of S.P., Kurnool L.W.3 destroyed the case property under cover of destruction panchanama dt. 08-11-2021. Based on the investigation, L.W.3 filed the charge sheet against the accused for the offence U/Sec.188 of IPC and Sec.7(A) r/w 8(e) of AP Prohibition Act.

Hence, the case.

3.This court took cognizance, on the police report, of the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995 against the accused and issued summons to the accused.

4.On the appearance of the accused before the Court, copies of documents were furnished to them as required under section 207 Cr.P.C.

The accused were then examined U/Sec.239 Cr.P.C. and the charges under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 were framed, read over, and explained to the accused in Telugu to which they denied the same and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W.3 was examined as P.W.1 and

Exs.P.1 to P.5 were marked. In view of the evidence of P.W.1, the learned

A.P.P. has given up the evidence of L.Ws.1 and 2.

6.After the closure of prosecution evidence, the accused was examined U/Sec.313 Cr.P.C. The incriminating evidence adduced by P.W.1 was readover to them, to which they completely denied and stated that they do not want to produce any evidence on their behalf. Hence, defence evidence was closed.

7.Heard learned APP on behalf of the prosecution and the learned defence counsel on behalf of the accused.

8. The point for determination is:

Whether prosecution has brought home the guilt of the accused for

the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act, 1995, beyond all reasonable doubt?

9. 7A of AP Prohibition Act, 1995 reads as follows:- “The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.”

Section 8(e) of the same act reads as follows:

“Whoever contravenes the provisions of section 7A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to eight years and with fine which shall not be less than rupees two lakhs for the first offence and which shall not be less than rupees five lakhs for the second offence”.

10. Section 269 of I.P.C reads as follows:

Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

According to the prosecution, A1 was in possession of 8 litres of ID

Arrack and A2 was the one who sold it to A1 making them liable under section 7(A) of AP Prohibition Act and they were roaming outside during the corona period which is likely to spread coronavirus infection in contravention of section 269 of I.P.C.

11.In support of the prosecution, the S.I of police was examined as

P.W.1. Police proceedings were marked as Ex.P.1. Original F.I.R was marked as Ex.P.2. The Chemical Analysis report was marked as Ex.P.3.

Proceedings issued by the S.P, Kurnool, vide C.No.147/SEB/2021, dt.06-05- 2021 was marked as Ex.P.4. Panchanama, dt.08-11-2021 was marked as

Ex.P.5.

12.The learned Assistant Public Prosecutor submitted his arguments, contending that the evidence of prosecution witness i.e P.W.1 and the exhibits manifestly proves that the accused have committed offences under sections 269 of IPC and Sec. 7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995 and hence they are liable for conviction.

13.On the other hand, the learned counsel for the accused contended that the police failed to follow the procedure prescribed

U/Sec.100(4) of Cr.P.C. He further contended that no independent witnesses have been examined and all the prosecution witnesses are interested witnesses who are interested in the conviction of the accused. He further contended that there is no iota of evidence against A2 and the link between

A1 and A2 is not established. Further he contended that the entire case of prosecution solely relied upon the confessional statement of the accused no.1 to the police which is inadmissible in evidence. Therefore, according to him, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, and the accused are entitled to benefit of the doubt.

14.According to the prosecution, the search, seizure and arrest of the accused occurred in the presence of only P.W.1, who is the investigating officer. But Sec.23 of Andhra Pradesh Prohibition Act, 1995 provides that any search, seizure or arrest has to happen in accordance with the Criminal

Procedure Code. The relevant provision in Cr.P.C with respect to search,

Sec.100 Cr.P.C may be looked into to see whether the police have compiled with the provision.

15. Sec. 100(4) of Cr.P.C reads as: “Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Thus, P.W.1 in the instant case had to either call upon two independent witnesses of that locality or if no one is available in the locality, from any other locality or if no one is willing to come forward has to at the least issue an order to them to attend and witness the search.

16.In the instant case, the search did not happen in the presence of independent witnesses. No plausible explanation was given as to why an independent witness was not procured. P.W1 deposed that he sent L.W.1 to procure panchaytdars but he could not get anyone. L.W.1 was not examined to corroborate the testimony of P.W1. Further, assuming that some people were asked to be mediators but no one came forward, he failed to explain as to why in such a case an order was not issued against them to attend and witness the search.

17. The Hon’ble High court of A.P in the case of “Yeduru

Sreenivasulu Reddy Vs State of A.P 2002(1) A.L.D (Crl) 347 (A.P)” held in an excise case that, in case where no one was willing to act as panchwitness, the police should have, for the purpose of conducting the search and seizure, passed a written order. In the absence of such written order, the evidence of prosecution witnesses that no one came forward to witness the panchanama, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.

18.The above authority is related to the A.P. Excise Act, 1968 but is also relevant to the case at hand. In the instant case also P.W.1 merely told that no one came forward to be witnesses, no reason was adduced as to why an order was not passed. Hence, the non compliance of the legislative safeguards under Cr.P.C, casts a doubt regarding the genuineness of the prosecution’s case.

19.The prosecution further relied upon the confession of the accused. In any case, according to Sec.25 of Indian Evidence Act, confession made to a police-officer, shall not be proved as against a person accused of any offence. Further as per Sec.26 of the Evidence Act, confession by accused while in custody of police not to be proved against him. In view of sections 25 and 26 of the Indian Evidence Act, 1860, confession of the accused shall not be used against them, as such the alleged confession of the accused in the instant case cannot be looked into.

20.The learned counsel for the accused contended that the P.W.1 is an investigating officer and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He further contended that except for the self-serving oral testimony of the investigating officer, absolutely there is no evidence on record to prove the recovery of property.

21.In the instant case, it is true that except the evidence of the S.I of

Police i.e, P.W.1, there is no evidence of any other witness, let alone an independent witness. Thus, in the absence of any corroborative evidence from an independent source as to the recovery of the contraband from the possession of the accused, or about the arrest of the accused at the scene of the offence, it is difficult to believe the prosecution’s contention that A1 was in possession of the contraband and A2 was the one who sold it to A1.

22.In the light of the discussion in the preceding paragraphs and on careful consideration of the entire material available on record, it appears that the prosecution could not prove the guilt of the accused for the offence under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra Pradesh

Prohibition Act, 1995, beyond all reasonable doubt. Accordingly, this point is answered in favour of the accused and against the prosecution.

23.As a result, the accused are not found guilty for the offences punishable by under section 269 of IPC and Sec.7(A) r/w 8(e) of Andhra

Pradesh Prohibition Act, 1995. The accused are acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437-A Cr.P.C. The unmarked property, if any, shall be destroyed after appeal time.

Directly typed to my dictation by Typist, corrected and pronounced by me in open court, on this the 06th of April, 2023.

SD/-V.THARANIV.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Y.Vijaya KumarNone

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P.1: Police proceedingsNil

Ex.P.2: Original F.I.R.

Ex.P.3: Chemical Analysis report

Ex.P.4: Proceedings issued by the S.P., Kurnool, vide C.No.147/SEB/2021, dt.06-05-2021

Ex.P.5: Panchanama, dt.08-11-2021.

M.Os.MARKED

-Nil-

SD/-V.THARANI

JUDICIAL MAGISTRATE OF SS , JUDICIAL MAGISTRATE OF I CLASS,

ALUR ALUR

Judicial Magistrate of I Class, Alur 1 C.C.No.1470/2022

CALENDAR AND JUDGMENT

IN THE JUDICIAL MAGISTRATE OF I CLASS, ALUR

C.C.NO.1470/2022

1 Date of offence09-05-2022 2 Date of complaint09-05-2022 3 Date of apprehension of accused09-05-2022 4 Date of release on bail of accused16-05-2022 5 Date of commencement of trial16-06-2023 6 Date of close of trial20-06-2023 7 Date of Judgment 28-06-2023

ComplainantS.I. of Police, Chippagiri PS in Cr.No.38/2022 of Chippagiri PS

AccusedBoya Konda Sanjeevarayudu @ Konda Sanjeevarayudu, S/o late Boya Konda Chinna Anjinaiah, 35 years, r/o Kundanakurthy village, Chippagiri mandal.

OffencePossession of liquor in contravention of A.P. Excise Act.

Section of Law U/Sec.34 (a) of A.P. Excise Act, 1968

FindingAccused is found not guilty

Sentence or As a result, the accused is found not guilty for the offence punishable order by U/Sec.34(a) of Andhra Pradesh Excise Act, 1968. The accused is acquitted U/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of 6 months as per Sec.437-A Cr.PC. Since there is no property produced in the instant case, there is no order as to property.

// True Copy //

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR Copy submitted to: The Hon'ble Chief-Judicial Magistrate-cum- Principal Assistant

Sessions Judge, Kurnool.

Judicial Magistrate of I Class, Alur 2 C.C.No.1470/2022

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS, ALUR

Present:-Ms. V.Tharani,

Judicial Magistrate of I Class, Alur

Wednesday, the 28th day of June, 2023

C.C.No.1470/2022

The State repd. by the Sub Inspector of Police,

Chippagiri P.S. .....Complainant

AND Boya Konda Sanjeevarayudu @ Konda Sanjeevarayudu, S/o late Boya Konda Chinna Anjinaiah, aged about 35 years,

r/o Kundanakurthy (V), Chippagiri (M)....... Accused

This case came on 20-06-2023 for final hearing and disposal in the presence of learned Assistant Public Prosecutor for the State/Complainant; and of Sri B.Lakshmi Kanth, Sri C.Praveen Kumar, Sri R.S.Vali, Advocates for the Accused and having stood over for consideration till this day, this court delivered the following:

:: JUDGMENT ::

1.The Sub Inspector of Police, Chippagiri P.S. filed a charge sheet in

Crime No.38/2022 alleging that the accused have committed the offence punishable

U/Sec.34(a) of Andhra Pradesh Excise Act, 1968.

2. The case of the prosecution, in brief, is that:

On 09-05-2022 at 09-00 hours, L.W.6/K.Mallikarjuna, S.I. of Police along with L.W.1/T.Chandranna, and L.W.2/N.Anil Babu, Police constables reached at water tank, outskirts of Kundanakurthy village, Chippagiri mandal, found the accused having in possession of one white plastic bag. On seeing the police, the accused tried to skulk away, but L.W.6 caught hold the accused with the assistance of his staff. On interrogation, the accused revealed his identity particulars and voluntarily confessed that he is in possession of 30 Haywards Cheers Whiskey (90 ml) tetra packets of Karnataka State with each accused, for selling the same at their village without any license or permission. Then L.W.6 arrested the accused, seized the property under cover of police proceedings

Judicial Magistrate of I Class, Alur 3 C.C.No.1470/2022

Based on the police proceedings, L.W.6 registered a case under

Cr.No.38/2022 U/Sec.34 (a) of A.P. Excise Act. and took up investigation. Later, he produced the accused before the Hon’ble court for judicial remand. L.W.6 forwarded the material objects to the chemical examiner, Prohibition and Excise

Laboratory, Kurnool and the analysis report sent by them opined that the sample is

Indian Liquor and destroyed the remaining property in the presence of panchayatdars. After completion of investigation, L.W.6 filed the charge sheet against the accused for the offence U/Sec.34(a) of Andhra Pradesh Excise Act, 1968. Hence, the case.

3.This court took cognizance, on the police report, of the offence

U/Sec.34(a) of Andhra Pradesh Excise Act, 1968 against the accused and issued summons to the accused.

4.On the appearance of the accused before the Court, copies of documents were furnished to them as required under section 207 Cr.P.C. The accused were then examined U/Sec.239 Cr.P.C. and the charge under section 34(a) of Andhra Pradesh Excise Act, 1968 was framed, read over, and explained to the accused in Telugu to which they denied the same and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W.6 was examined as P.W.1 and

Exs.P.1 to P.5 were marked. The learned A.P.P. has given up the evidence of

L.Ws.1 to 5.

6.After the closure of prosecution evidence, the accused were examined u/sec.313 Cr.P.C. The incriminating evidence adduced by P.W.1 was readover to him, to which he completely denied and stated that he does not want to produce any evidence on his behalf. Hence, defence evidence was closed.

7.Heard learned counsel for the parties.

8. The point for determination is: Whether prosecution has brought

home the guilt of the accused for the offence U/Sec.34(a) of Andhra Pradesh

Excise Act, 1968, beyond all reasonable doubt?

Judicial Magistrate of I Class, Alur 4 C.C.No.1470/2022

9. Section 34(a) read as follows as hereunder:

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or any of any license or permit granted or issued under this Act:- a. Imports, exports, transports, manufactures, collects or possesses or sells any intoxicant, established or continued under this Act shall on conviction be punished.

According to the prosecution, the accused possessed 30 Haywards Cheers

Whiskey (90 ml) tetra packets of Karnataka State bought from Karnataka and tried to sell the same in contravention of provisions of Excise Act.

10.In support of the prosecution, the S.I. of police was examined as P.W.1 and Exs.P.1 to P.5 were marked.

11.The case of the prosecution in a nutshell as can be seen from the chief- examination of P.W.1 is that on 09-05-2022 at around 08-30 am he along with his staff reached near water tank, situated at the outskirts of Kundanakurthy village and found the accused in possession of one white plastic bag. On seeing them, the accused tried to skulk away, but they apprehend the accused. On enquiry, the accused revealed his identity and confessed that the bag contains 30 Haywards

Cheers Whiskey (90 ml) tetra packets of Karnataka State to sell the same in their village at higher price. He sent L.W.1 to procure panchayatdars, but none came forward. He drew sample and seized the property, sealed and labeled and arrested the accused under cover of Ex.P.1 police proceedings and brought to the police station for further proceedings. Basing on Ex.P.1 he registered the case in

Cr.No.38/20221 U/Sec.34 (a) of A.P. Excise Act and issued Ex.P.2 FIR to all concerned. Later, he sent samples to RPEL, Kurnool for Ex.P.3 chemical analysis reports, in which the expert opined that the samples are Indian liquor. Later, on the

Ex.P.4 proceedings issued by S.P., Kurnool vide C.No.82/JD-SEB-KNL/2022, dt.23-09-2022, they destroyed the seized the property under cover of Ex.P.6 panchanama, dt.28-09-2022. Later, on completion of his investigation, he filed charge sheet against the accused.

Judicial Magistrate of I Class, Alur 5 C.C.No.1470/2022

12.The learned Assistant Public Prosecutor submitted his arguments, contending that the evidence of prosecution witnesses and exhibits manifestly proves that the accused had committed an offence under section Sec.34(a) of

Andhra Pradesh Excise Act, 1968 and they are liable for conviction.

13.On the other hand, the learned counsel for the accused contended that the police failed to follow the procedure prescribed U/Sec.100(4) of Cr.P.C. He further contended that no independent witnesses have been examined and all the prosecution witnesses are interested witnesses who are interested in the conviction of the accused. Further he contended that the entire case of prosecution solely relied upon the confessional statement of the accused to the police which is inadmissible in evidence. Therefore, according to him, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, and the accused is entitled to benefit of the doubt.

14.As already stated, according to the prosecution, the search, seizure and arrest of the accused occurred in the presence of only P.W.1, and L.Ws.1 and 2. But

Sec.59 of the Excise Act provides that any search, seizure or arrest has to happen in accordance with the Criminal Procedure Code. The relevant provision in Cr.P.C with respect to search, sec.100 Cr.P.C may be looked into to see whether the police have compiled with the provision.

15. Sec. 100(4) of Cr.P.C reads as:

“Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Thus, P.W.1 in the instant case had to either call upon two independent witnesses of that locality or if no one is available in the locality, from any other locality or if no one is willing to come forward has to at the least issue an order to them to attend and witness the search.

Judicial Magistrate of I Class, Alur 6 C.C.No.1470/2022

16.In the instant case, the search did not happen in the presence of independent witnesses. P.W.1 stated in his chief examination that he sent L.W.1 to procure panchayatdars but he could get not procure anyone. however, L.W.1 was not examined to corroborate the testimony of P.W.1.

17.The Hon'ble High court of A.P in the case of 'Yeduru Sreenivasulu

Reddy Vs State of A.P 2002(1) A.L.D (Crl) 347 (A.P) held in a similar case scenario that, in case where no one was willing to act as panchayatdars, the police should have, for the purpose of conducting the search and seizure, passed a written order. In the absence of such written order, the evidence of prosecution witnesses that no one came forward to witness the panchanama, cannot be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated, being without jurisdiction and as a necessary corollary, the conviction also vitiates.

18. The above authority is very much applicable to the case at hand. In the instant case also P.W.1 told that no one came forward to be witnesses, no reason was adduced as to why an order was not passed. Hence, the non compliance of the legislative safeguards under Cr.P.C, casts a long shadow on the prosecution evidence.

19.The prosecution further relied upon the confession of the accused.

According to P.W.1, the accused confessed to P.W.1 about his guilt and the contraband was recovered from the possession of the accused. But, according to sec.25 of Indian Evidence Act, confession made to a police-officer, shall not be proved as against a person accused of any offence. Further as per sec.26 of the

Evidence Act, confession by accused while in custody of police not to be proved against him. In view of sections 25 and 26 of the Indian Evidence Act, 1860, confession of the accused shall not be used against them, as such the alleged confession of the accused in the instant case cannot be looked into.

20.The learned counsel for the accused contended that the P.W.1 is police official and his evidence is not corroborated by the evidence of an independent witness, as such it is not sufficient to prove the case of the prosecution. He further contended that except for the self-serving oral testimony of the police officials, absolutely there is no evidence on record to prove the recovery of property.

Judicial Magistrate of I Class, Alur 7 C.C.No.1470/2022

21.In the instant case, except the evidence of S.I. of Police i.e, P.W.1, there is no evidence of another witness, let alone an independent witness. In the absence of any corroborative evidence from an independent source or any other witness for that matter, as to the recovery of the contraband from the possession of the accused, or about the arrest of the accused at the scene of the offence, it is difficult to believe the prosecution’s contention that the accused was in possession of the contraband.

22.In the light of the discussion in the preceding paragraphs and on careful consideration of the entire material available on record, it appears that the prosecution could not prove the guilt of the accused for the offence U/Sec.34(a) of

Andhra Pradesh Excise Act, 1968, beyond all reasonable doubt. Accordingly, this point is answered in favour of the accused and against the prosecution.

23.As a result, the accused is found not guilty for the offence punishable by under section 34(a) of Andhra Pradesh Excise Act, 1968. The accused is acquitted under Section 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of 6 months as per Sec.437-A Cr.PC. Since there is no property produced in the instant case, there is no order as to property.

Directly typed to my dictation by Stenographer, corrected and pronounced by me in open court, on this the 28 th day of June, 2023.

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: K.MallikarjunaNone

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P.1: Police proceedings Nil

Ex.P.2: Original F.I.R.

Ex.P.3: Chemical Analysis Report

Judicial Magistrate of I Class, Alur 8 C.C.No.1470/2022

Ex.P.4: Proceedings of Superintendent of Police, Kurnool vide CE.No.82/JD-SEB-KNL/2022, dt.23-09-2022

Ex.P.5: Panchanama, dt.28-09-2022 // True Copy //

JUDICIAL MAGISTRATE OF I CLASS,

ALUR

Sd/- V.Tharani

JUDICIAL MAGISTRATE OF I CLASS,

ALUR