Varanasi Gowri Sankara Rao

O.S.NO.142/2016 PJCJ-CUM-JMFC, NSP.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present : Sri V.Gowri Sankara Rao, Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

Tuesday, this the 18th day of April, 2023.

O.S.NO.142/2016

Between Smt. Melam Varalakshmi, S/o. late Rama Rao, Aged 70 years, D.No.9-50, Perupalem, Mogalthur Mandal, W.G.District.

...Plaintiff

And

Mekala Sattibabu, S/o. Swamynaidu, Aged 45 years, Hindu, Male, Cultivation, D.No.9-52, Perupalem, Mogalthur Mandal. …Defendant

This suit is coming on for final hearing before me on 04.04.2023 in the presence of Sri V.Venkatacharyulu,Advocate for the plaintiff and Sri T.Venkateswara Rao, Advocate for the defendant, and after perusing the material available on record and upon hearing arguments, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This suit is instituted by the plaintiff seeking the Court to grant a decree of permanent injunction restraining the defendant and his henchmen or followers or successors from ever interfering with the possession and enjoyment of the plaintiff over plaint schedule property, and costs thereof.

2. The averments made in the plaint, in brief, are that plaintiff is the absolute owner of the plaint schedule property, and she got the same through her ancestors and thereby the plaint schedule property is her ancestral property; and that the plaintiff and her predecessors have been in possession and enjoyment of the plaint schedule property since the time immemorial, and during the life time of her husband, he constructed a shed with asbestos sheets by removing the century old thatched house, and since then he had been in possession and enjoyment of the plaint schedule property till his death; and that after the death of her husband, the plaintiff has been in possession and enjoyment of the plaint schedule property by paying taxes to

Perupalem Panchayat, and she also obtained electricity service connection to the house and has also been paying electricity consumption charges therefor; and that the plaintiff also got mutated her name in the Revenue and Panchayat records in respect of the plaint schedule property, which is a dry land, and the revenue record also

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2 establishes that the plaint schedule property is in the possession and enjoyment of the plaintiff, who is aged about 70 years; and that the plaintiff has no male assistance and she has been living in the house along with her deserted daughter.

3. It is also averred therein that while things stood thus, the defendant with a mala fide intention demanded the plaintiff to sell away the plaint schedule property to him, for which she refused to do so, as she has only the plaint schedule property; and that since then the defendant bore grudge against the plaintiff and is trying to dispossess her from the plaint schedule property highhandedly and is also trying to use force on her, and the defendant is highly influential and wealthy person, who does not care for law and order; and that the plaintiff is an old woman, who has no capacity to resist the illegal acts of the defendant, who has been proclaiming from 09.07.2016 onwards that he would dispossess the plaintiff from the plaint schedule property highhandedly; and that if the plaintiff is evicted from the plaint schedule property, she would be on roads in her old age. Hence, the suit.

4.On the contrary, the defendant filed his written statement denying the averments made in the plaint on the ground that they are not true and correct, and the suit is not maintainable under law. It is averred therein that the description and the extent given in the plaint schedule are not true and correct, and the same are misconceived and misleading; and that one Kommuri Mohini Kumari instituted a suit in O.S.No.34/2000 on the file of the Hon’ble Senior Civil Judge, Narsapur, against the plaintiff herein along with one Yerramsetti Rama Lakshmi (died), Pulaparthi Eswari,

Balla Gayatri, Yerramsetti Padmaji Rao and Yerramsetti Udaya Rama Lakshmi for partition of the properties into 10 equal shares and to allot 6 such contiguous shares to the plaintiff etc.; and that the plaint schedule property herein was shown as Item

No.3 in the plaint schedule of the suit in O.S.No.34/2000, and the Hon’ble Court of the Senior Civil Judge, Narsapur, was pleased to pass a preliminary decree dated 14.01.2002 in O.S.No.34/2000; and that subsequent to such preliminary decree, the said Kommuri Mohini Kumari filed F.D.I.A. No.189/2003 in O.S.No.34/2000 on the file of the Hon’ble Senior Civil Judge, Narsapur, in which final decree was passed on 29.04.2005; and that in the said final decree petition an Advocate Commissioner was appointed, and as per his report, the extent of the plaint schedule property herein

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3 which was mentioned as Item No.3 of the plaint schedule in O.S.No.34/2000 is only an extent of Ac.0.23 cents but not Ac.0.51 cents as mentioned in the plaint schedule of the present suit; and that accordingly the Hon’ble Court of the Senior Civil Judge,

Narsapur, allotted the said extent of Ac.0.23 cents in R.S.No.253/4 of Perupalem and a thatched house situated therein, and an extent of Ac.0.14 cents covered under

R.S.No.65/1M of Perupalem (Item No. 1 of the plaint schedule in O.S.No.34/2000); and that therefore the extent of the plaint schedule property is Ac.0.23 cents only but not Ac.0.51 cents, and subsequent to the said final decree, when the plaintiff put the said Ac.0.23 cents in R.S.No.253/4 of Perupalem for sale, one Smt.Tangella Sirisha purchased the same under registered sale deed dated 04.10.2006 under document

No.2556/2006 for consideration; and that the plaintiff delivered the said property to the said Smt.Tangella Sirisha and since then, she has been in peaceful possession and enjoyment of the same; and that in the said registered sale deed dated 04.10.2006, the plaintiff in O.S.No.34/2000 also signed as one of the attestors as well as one of the identifying witnesses.

5. It is also averred therein that while the things stood thus, the said Smt.Tangella

Sirisha sold away the property in an extent of Ac.0.19 cents out of Ac.0.23 cents in

R.S.No.253/4 of Perupalem to one Sri Melam Seshu Narayana Simhaji, S/o Sri

Narasimha Swamy of Perupalem by way of a registered sale deed dated 07.01.2013 under document No.44/2013 of SRO, Mogalthur; and that since the date of the said registered sale deed, Sri Melam Seshu Narayana Simhaji has been in peaceful possession and enjoyment of the same, and subsequent to the purchase of the said property in an extent of Ac.0.23 cents in R.S.No.253/4 of Perupalem, the said

Smt.Tangella Sirisha raised an asbestos sheet shed bearing door No.9-50 in an extent of Ac.0.04 Cents out of the said Ac.0.23 cents; and that when the plaintiff requested the said Smt.Tangella Sirisha and her husband to reside in the said shed for nominal rent in November, 2009 as the plaintiff has no other shelter and she maintained cordial relationship with the said Smt.Tangella Sirisha and her husband; and that accordingly the plaintiff has been residing in the said shed bearing door No.9-50 from

November, 2009, and as the plaintiff sold away her Ac.0.23 cents to the said

Smt.Tangella Sirisha, she has no property of her own in R.S.No.253/4 of Perupalem,

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4 and thereby the plaintiff has no right or title over the plaint schedule property including the shed therein; and that the said shed is situated on the southern side of the property purchased by the said Sri Melam Seshu Narayana Simhaji, who after purchase of the said property, gave the said property to the defendant on lease for a sum of Rs.3,000/- per year in May, 2013 and since then, the defendant has been in possession and enjoyment of the same as a tenant or lessee; and that the defendant is a resident of Perupalem having house nearby the disputed property and he has been enjoying the usufruct of the coconut trees therein and has been cultivating vegetables in the said land as a tenant or lessee; and that by suppressing all those facts, the plaintiff instituted the present suit with all false and untenable allegations and with a view to achieve her ulterior motives, and the plaintiff has no prima facie case and balance of convenience is not in her favour, and the suit is also bad for non-joinder of necessary parties. It is thus sought for dismissal of the suit with compensatory costs.

6.On the basis of the above pleadings, the following issues were settled by my learned predecessor for trial:

1)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ?

2)To what relief ?

7. During the course of trial, in order to prove the case of the plaintiff, she herself examined as PW.1 and got marked Exs.A.1 to A.10. As the defendant was not reporting readiness to proceed with the matter in spite of conditional order, the evidence on the side of the defendant came to be treated as nil.

8. Heard the learned counsel on either side. Perused the material available on record.

ISSUE NO.1:

9. The learned counsel for the plaintiff, while referring to the averments made in the plaint and the evidence adduced on behalf of his client, contended that the plaintiff is the absolute owner of the plaint schedule property, which is her ancestral property, and herself and her predecessors have been in possession and enjoyment of the same from the time immemorial; and that during the life time of the husband of the plaintiff, he raised a shed with asbestos sheets by removing the age old thatched

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5 house in the plaint schedule property, and after his death, the plaintiff has been in possession and enjoyment of the plaint schedule property by paying taxes to

Perupalem Panchayat; and that the plaintiff also obtained electricity connection and she has been paying electricity consumption charges therefor, and she also got mutated her name in the revenue record which reflects that she has been in possession and enjoyment of the plaint schedule property. The learned counsel further argued that the defendant demanded the plaintiff to sell away the plaint schedule property to him for which the plaintiff refused to do so and thereby the defendant bore grudge against her, and as a result the defendant has been proclaiming in the village that he would dispossess the plaintiff from the plaint schedule property highhandedly, and as the plaintiff being an old woman, who has no male assistance, is unable to resist the illegal and highhanded acts of the defendant. The learned counsel further put forth that the defendant having filed written statement did not prefer to come into witness box to testify the same and as a consequence thereof, the case set up by him in the written statement is to be treated as utter false and comprehensively ruse. In support of his contentions, the learned counsel relied upon the Judgment of the

Hon’ble Supreme Court rendered in VIDHYADHAR v. MANIKRAO [AIR 1999 SC

1441 = 1999 (3) ALT 1 (SC)], and the Judgment of our Hon’ble High Court rendered in INDIAN BANK, CHITTOOR v. V.R.VENKATARAMAN [2004 (3) ALT 665 (DB)]. The learned counsel thus requested the Court that the present suit may be decreed as prayed for, in the interest of justice.

10. Per contra, the learned counsel for the defendant referring to the averment made in the written statement and the cross-examination made to PW.1, argued that the plaintiff is not in possession and enjoyment of the plaint schedule property and theentire case set up by the plaintiff is out and out false; and that one Sri Melam

Seshu Narayana Simhaji purchased the land in an extent of Ac.0.19 cents in a part of the plaint schedule property, who leased out the said property to the defendant for a sum of Rs.3,000/- per annum in May, 2013 and since then the defendant has been in possession and enjoyment of the same as a tenant or lessee. The learned counsel also asserted that though his client did not come into witness box, it is for the plaintiff to prove her case before the Court according to law; which she completely failed to do so.

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The learned counsel therefore requested the Court to dismiss the suit with compensatory costs in the interest of justice.

11. Turning to the evidence adduced before the Court, the plaintiff filed her evidence affidavit as PW.1 almost reiterating the averments of the plaint and she was examined-in-chief as PW.1 and Exs.A.1 to A.10 were marked on behalf of the plaintiff.

Ex.A.1 is the house property tax receipt dated 06.10.2010; Ex.A.2 is the house property tax receipt dated 15.03.2016; Ex.A.3 is the electricity consumption charges payment receipt dated 18.06.2016; Ex.A.4 is the adangal/pahani dated 17.03.2015 in respect of the plain schedule property; Ex.A.5 is the electricity consumption charges demand notice dated 18.05.2014; Ex.A.6 is the electricity consumption charges payment receipt dated 29.05.2014; Ex.A.7 is the electricity consumption charges demand notice dated 19.03.2016; Ex.A.8 is the electricity consumption charges payment receipt dated 21.03.2016; Ex.A.9 is the electricity consumption charges demand notice dated 18.06.2016; and Ex.A.10 is the electricity consumption charges payment receipt dated 25.06.2016.

12. During the cross-examination of PW.1 made by the learned counsel for the defendant, she stated that in the year 2006 they demolished the old house and raised new house in the plaint schedule property, and one Smt.Kommuri Mohini Kumari is her daughter, who instituted a partition suit in O.S.No.34/2000 on the file of the

Hon’ble Senior Civil Judge, Narsapur, against her and others, and in the said suit, the

present plaint schedule property was shown as item No.3; and that she did not know whether her daughter filed a petition in the said suit seeking to deliver item No.3 in

O.S.No.34/2000 to her, and she did not know whether the learned Advocate

Commissioner visited the plaint schedule property in order to partition the properties in O.S.No.34/2000; and that her daughter got land in an extent of Ac.0.23 cents in

R.S.No.253/4, who sold the same one Smt.Tangella Sirisha by way of a registered sale deed, and the said extent of land in Ac.0.23 cents is situated adjacent to the plaint schedule property; and that she did not know the said Tangella Sirisha in turn sold an extent of Ac.0.19 cents out of Ac.0.23 cents to one Sri Melam Seshu Narayana Simhaji by way of registered sale deed dated 07.01.2013, and she leased out the coconut garden, and she could not say as to when they leased out the said garden but it was

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7 during the lifetime of her husband. She denied the suggestion that from 04.10.2006

Smt.Tangella Sirisha has been in possession and enjoyment of the plaint schedule property; and that the said Sri Simhaji has been in possession and enjoyment of the same; and that they have no right whatsoever over the plaint schedule property, and

Exs.A1 to A10 documents have nothing to do with the plaint schedule property.

13. It is well settled principle of law that in a suit for permanent injunction, the vital and important issue is as to whether the plaintiff is in possession of the plaint schedule property and whether there was an attempt by the defendant to interfere with such possession of the plaintiff, and the burden is entirely on the plaintiff to bring convincing and cogent evidence on record [Vide PENTA URMILA v. KARUKOLA

KUMARA SWAMY [2005 (1) ALT 811]].

14. As can be seen from the record, it is the specific case of the plaintiff that the plaint schedule property is her ancestral property, and herself and her predecessors have been in possession and enjoyment of the plaint schedule property from the time immemorial. The plaintiff as PW.1 also clearly deposed the same in her chief- examination. A perusal of Exs.A.1 and A.2 house property tax receipts reveals that the plaintiff paid house property tax to Perupalem Gram Panchayat in respect of the house situated in the plaint schedule property. So also, a perusal of Exs.A.5, A.7 and A.9 reflects that the electricity consumption charges demand notices were issued to the plaintiff and she paid the said electricity consumption charges vide Exs.A.3, A.6, A.8 and A.10 electricity consumption charges payment receipts. That apart, a perusal of

Ex.A.4 adangal/pahani dated 17.03.2015 demonstrates that the plaintiff has been in possession and enjoyment of the plain schedule property, which is her ancestral property. All these documents discloses clearly that the plaintiff has been in lawful possession and enjoyment of the plaint schedule property as on the date of institution of the present suit. Nothing worthwhile is elicited from the cross-examination of PW.1 in order to disbelieve her evidence adduced before the Court.

15. That being so, it may be noted here that once the suit was coming up for the evidence on the side of the defendant, as mentioned supra, the defendant was not reporting readiness to proceed with the matter in spite of conditional order, for the reasons best known to him, and thereby the evidence on the side of the defendant

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8 came to be treated as nil. Later, the learned counsel on either submitted their arguments before the Court. That is how, the mater is taken up for adjudication on merits on the basis of the material available on the record and in the light of the submissions made by the learned counsel on either side.

16. Coming to the Judgment of the Hon’ble Supreme Court rendered in

VIDHYADHAR v. MANIKRAO (referred to supra), which was relied upon by the learned counsel for the plaintiff,wherein it was inter alia held illuminatingly thus:

“16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, [AIR 1927 PC 230]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, [AIR 1930 Lahore 1] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, [AIR 1931 Bombay 97]. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, [AIR 1970 Madh Pra 225], also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, [AIR 1971 Allahabad 29] held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, [AIR 1974 Punj and Har 7], drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”

17. In INDIAN BANK, CHITTOOR v. V.R.VENKATARAMAN (referred to supra), which was also relied upon by the learned counsel for the plaintiff,wherein while referring to the above cited Judgment of the Hon’ble Supreme Court, it was inter alia held succinctly thus:

“10. ……… The Supreme Court has categorically stated in the aforesaid decision that presumption has to be drawn under Section 114 of the Evidence Act against a party who did not enter into witness box to prove the case set up by him. Such a presumption has to be drawn under Section 114 of the Evidence Act insofar as the 2nd defendant is concerned. Hence, it is rightly contended by the learned Counsel for the appellant that presumption has to be drawn for the non-examination of the 2nd defendant and her version raised in her pleading has to be disbelieved.”

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18. Bearing in mind the said settled legal position and turning to the case on hand, it is no doubt true that the defendant filed a written statement as narrated supra which is more or less denial of the plaint averments as a whole and the defendant thus prayed for dismissal of the suit with compensatory costs. Be that as it may. The fact remains that the averments of the defendant in the written statement having not been testified before the Court by adducing cogent and convincing evidence, remained not proved and consequently the defendant failed to disprove the case of the plaintiff by adducing cogent and convincing evidence before the Court. In the backdrop of such a factual scenario, once the law laid down by the Hon’ble Supreme Court and our

Hon’ble HighCourt in the aforesaid decisions is applied to the facts of the case on

hand, what follows necessarily therefrom is that a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box would arise and as a corollary thereof the case set up by the defendant herein is wholly incorrect.

19. At this stage, it is imperative to refer to the Judgment of the Hon’ble Supreme

Court rendered in RAME GOWDA v. M.VARADAPPA NAIDU [2004 SAR (CIVIL) 107] wherein it was inter alia held thus:

“8. …...… Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a filmsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

20. In MOHD. ASHRAR AHMED SHAREEF v. STATE OF A.P. [2009 (5) ALT 403] our Hon'ble High Court held inter alia thus:

“9. Once the appellants are found to be in possession of the property claimed by them, as a matter of course the relief of perpetual injunction ought to have been granted leaving it always open to the respondents to evict the appellants by taking recourse to the procedure prescribed by law. It can be either by initiating proceedings under the A.P.Land Encroachment Act, 1905 or by instituting proceedings under the A.P.Land Grabbing (Prohibition) Act or other similar proceedings. The denial of relief to a person, who is found to be in possession, that too on the strength of certain documents, cannot be

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10 countenanced. It is a different thing that the appellants have to prove their title as and when the situation warrants.”

21. In YACHAMANENI RAJAIAH NAIDU v. YACHAMANENI MUNIKRISHNAIAH [2013 (3) ALT 243] our Hon'ble High Court held inter alia thus:

“7. In a suit for injunction, what becomes material is the state of affairs, pertaining to possession as on the date of filing of the suit. The title is certainly important, but assumes significance only after possession. The appellant, no doubt, purchased eight items of property through four contemporaneous sale deeds in the year 2005. The respondents, however, pleaded that about three decades earlier to that, the father of the vendor of the petitioner conveyed the lands through three sale letters, marked as Exs.B-1 to B-3. Though the title to the respective properties is yet to be established, if the appellant was able to prove his possession over the property, the relief of injunction could have certainly been granted.

In the light of the law laid down in the above Judgments, the contention raised by the learned counsel for the defendant that the defendant is in possession and enjoyment of the some extent of the plaint schedule property as a lessee or tenant as on the date of institution of the present suit cannot be accepted in the absence of any cogent and convincing evidence, brought on record therefor.

22. Furthermore, it is relevant to point out here that nothing is specifically pleaded in the written statement about the suppression of the facts by the plaintiff and no evidence is also brought on record in that context to demonstrate that the evidence adduced by the plaintiff is contrary to her pleadings. Thus, the contention raised by the learned counsel for the defendant about the alleged suppression of material facts by the plaintiff cannot be countenanced.

23. Having due regard to the facts and circumstances of the cases discussed hereinbefore and after carefully analyzing the entire evidence brought on record in the backdrop of the Judgments referred to hereinabove and going by the doctrine of preponderance of probabilities, this Court has no hesitation to hold that the plaintiff is able to successfully prove that she is in possession and enjoyment of the plaint schedule property as on the date of the institution of the present suit; and that she is entitled to the decree of permanent injunction in her favour in respect of the plaint

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11 schedule property as prayed for. Accordingly, Issue No.1 is answered in favour of the plaintiff and against the defendant.

ISSUE NO.2:

24. In view of the finding recorded on Issue No.1 hereinbefore, and in the result and for the aforementioned reasons, the suit is decreed with costs and consequently there shall be a permanent injunction in favour of the plaintiff and against the defendant restraining the defendant and his henchmen or followers or successors from ever interfering with the possession and enjoyment of the plaintiff over plaint schedule property.

Typed to my dictation to the Stenographer, corrected, and pronounced by me in the open Court, on this the 18th day of April, 2023.

Sd/- Sri V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Appendix of Evidence

Witnesses Examined

For Plaintiff For Defendant

PW.1: Smt. Melam Varalakshmi.None

Documents Marked

For Plaintiff For Defendant

Ex.A.1: House property tax receipt dated 06.10.2010.Nil

Ex.A.2: House property tax receipt dated 15.03.2016.

Ex.A.3: Electricity consumption charges payment receipt dated 18.06.2016. Ex.A.4: Adangal/Pahani dated 17.03.2015.

Ex.A.5: Electricity consumption charges demand notice dated 18.05.2014. Ex.A.6: Electricity consumption charges payment receipt dated 29.05.2014. Ex.A.7: Electricity consumption charges demand notice dated 19.03.2016. Ex.A.8: Electricity consumption charges payment receipt dated 21.03.2016. Ex.A.9: Electricity consumption charges demand notice dated 18.06.2016. Ex.A.10: Electricity consumption charges payment receipt dated 25.06.2016.

Sd/- Sri V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present : Sri V.Gowri Sankara Rao, Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

Wednesday, this the 19th day of April, 2023

C.C.NO.300/2022

Between: State represented by the Sub-Inspector, Special Enforcement Bureau Station, Narsapur. …Complainant.

And: Sri Kadali Ramesh, S/o. Satyanarayana, Age 35 years, Caste: Settibalija, R/o. Jettipalem village, Mogalthur Mandal. …Accused.

This case is coming on for final hearing before me on 17.04.2023 in the presence of the Assistant Public Prosecutor for the State and Sri D.Subhash Babu, Advocate for the accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This case arises out of Crime No.330/2021 of Special Enforcement Bureau

Station, Narsapur, registered against the accused for the offence under Section 7B read with Section 8B of the A.P.Prohibition Act, 1995, as amended by the

A.P.Prohibition (Amendment) Act, 2020, (for brevity 'the APP Act, 1995') on the basis of

Ex.P.1 special report.

2. PW.1, the Sub-Inspector, Special Enforcement Bureau Station, Narsapur, laid the charge sheet against the accused under Section 7B read with Section 8B of the

APP Act, 1995 with the following averments:

3. On 15.11.2021 at about 04.30 P.M. PW.1 along with Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2), went for conducting raids in Jettipalem

Village limits of Mogalthur Mandal, and they found the accused while he was in possession of a plastic bottle and on seeing them, the accused perturbed and ran away therefrom by leaving a plastic bottle there. On suspicion, PW.1 searched the surroundings with the help of the staff and found a plastic bottle containing 2 litres of

I.D.Liquor therein. Later he enquired with the people gathered there about the absconded accused and they revealed his identity to him. Then PW.1 deputed Sri

K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure mediators but it was

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 2 in vain. He seized the contraband. Later, he drew 300 ml. of I.D.Liquor into a separate bottle as a sample for the purpose of analysis, sealed and labelled the sample bottle as well as the remaining seized property under the cover of Ex.P.1 special report drafted thereat, as none came forward to act as mediators. Then he brought the case record and the case property to the SEB Station, Narsapur, and basing on Ex.P.1 report, he registered a case against the accused under Section 7B read with Section 8B of APP

Act, 1995 and issued Ex.P.2-FIR. On 29.11.2021 he arrested the accused and produced him before the Court for remand. Later, he sent the sample to the Chemical

Examiner, Kakinada, for analysis under the cover of Ex.P.3 letter of advice and received Ex.P.4 analysis report indicating that the said I.D.Liquor was unfit for human consumption and injurious to health. Then he destroyed the remaining seized property as per the orders of the Deputy Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB, Bhimavaram, as contemplated under Section 13 of the

A.P.Prohibition Act, 1995 vide Ex.P.5 proceedings. After completion of further investigation, he laid the charge sheet before the Court against the accused. Thereby, the accused is liable for punishment under the above Section of law.

4. Cognizance was taken for the offence under Section 7B read with Section 8B of the APP Act, 1995 against the accused.

5. After furnishing the copies of the relevant documents as contemplated under

Section 207 of the Cr.P.C., the accused was examined under Section 239 of the

Cr.P.C. and he denied the offence. Charge under Section 7B read with Section 8B of the APP Act, 1995 was framed and the same was read over and explained to him in

Telugu for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, in order to prove its case, the prosecution examined

PWs.1 and 2 and marked Exs.P.1 to P.5 and M.O.1, the details of which are mentioned at the appendix of evidence.

7. After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of the Cr.P.C., he denied the same and reported no defence evidence.

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8. Heard the learned Assistant Public Prosecutor for the State and the learned counsel for the accused. Perused the material available on record.

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

1)Whether the accused ran away from the scene of offence and a plastic bottle is found at the scene of offence containing I.D.Liquor ?

2)Whether the said bottle is seized from the scene of the offence as per the procedure laid down under law ?

3)Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 beyond all reasonable doubt ?

4)Whether the accused is liable for conviction and sentence for the said offence?

POINT NOS.1 TO 4:

10. In order to make out an offence under Section 7B read with Section 8B of the

APP Act, 1995, the prosecution shall prove that an accused is found in selling, exporting, importing or transporting of illicitly distilled alcoholic liquor and the same is seized from his possession as per the procedure laid down under law.

11. Coming to the evidence adduced before the Court, PW.1 stated that on 15.11.2021 at about 04.30 P.M. he along with Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), went for conducting raids in Jettipalem Village limits of

Mogalthur Mandal, and they found the accused while he was in possession of a plastic bottle and on seeing them, the accused perturbed and ran away therefrom; and that on suspicion, PW.1 searched the surroundings with the help of the staff and found a plastic bottle containing 2 litres of I.D.Liquour therein; and that later he enquired with the people gathered there about the absconded accused and they revealed his identity to him, and he sent Sri K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure the presence of independent mediators and he (LW.2) went to Jettipalem Village and requested some of the villagers to act as mediators but nobody came forward to act as mediators and he returned back to the scene of offence and informed the same to him; and that he arrested the accused after informing him about the grounds therefor and seized the contraband and later he drew 300 ml. of I.D.Liquor from the seized property into a separate bottle as sample for the purpose of analysis, sealed and seized the sample bottle as well as the remaining seized property under the cover of

Ex.P.1 special report drafted thereat by him, as none came forward to act as

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 4 mediators; and then he brought the case record and the case property to the SEB

Station, Narsapur, and basing thereon, he registered a case under Section 7B read with Section 8B of the APP Act, 1995 and issued Ex.P.2 FIR; and that on 29.11.2021 he arrested the accused and produced him before the Court for remand, and he sent the sample (M.O.1) to the Chemical Examiner, Kakinada, under the cover of Ex.P.3 letter of advice for analysis and received Ex.P.4 analysis report; and that they destroyed the remaining seized property as per the orders of the Deputy

Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB,

Bhimavaram, as contemplated under Section 13 of the A.P.Prohibition Act, 1995 vide

Ex.P.5 proceedings; and that after completion of further investigation, he laid the charge sheet against the accused before the Court.

12. During the course of cross-examination of PW.1, he stated that scene of offence is busy and residential locality, and the names of the owners of the houses situated nearby the scene of offence were not mentioned in Ex.P.1 special report; and that the mode of transport and route particulars were not mentioned in Ex.P.1 special report, and the full descriptive particulars of the scene of offence were also not mentioned in

Ex.P.1 report; and that he could not say as to how many houses are there approximately in Jettipalem Village, and that Sri K.Sudhakar, Constable, SEB Station,

Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who failed to act as such, and there was a delay of 25 days in reaching the sample to the chemical examiner, Kakinada, and the same was not properly explained in the charge sheet. However, he denied the suggestions that they had not conducted any raid on 15.11.2021 at about 04.30 P.M. and they had falsely implicated the accused for the purpose of statistics; and that the entire case record was prepared at SEB Station, Narsapur, in order to suit the present case with the help of staff members, and they had not seized any I.D.Liquor from the scene of offence, and later they had not arrested him; and that the accused did not commit any offence as alleged.

13. The learned APP contended that the evidence on record clearly proves the guilt of the accused for the offence with which he is charged and that the accused may be convicted and sentenced accordingly.

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 5

14. On the other hand, the learned counsel for the accused submitted that the accused did not commit any offence as alleged and that the accused was brought from his house and this case was foisted falsely against him for statistical purpose. He further submitted that no independent witnesses were examined in this case and thus the so-called seizure is against the provisions of Section 100(4) of the Cr.P.C. He thus prayed that the accused is entitled to acquittal.

15. It may be seen from the evidence on record that PW.1 sent Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2),to secure the presence of independent mediators once the property was found at the scene of offence as the accused ran away therefrom but after some time he returned back to the scene of offence and informed to him that nobody came forward to act as mediators. In the cross- examination of PW.1, he categorically deposed that Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who refused to do so. It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether really PW.1 sent Sri K.Sudhakar, Constable, SEB Station,

Narsapur (LW.2), to secure the presence of independent mediators once the case property was alleged to have been found at the scene of offence as the accused ran away therefrom. Even otherwise, PW.1 is Excise Official and his evidence manifestly demonstrates that he did not make any sincere efforts to secure the presence of independent mediators albeit it was obvious from the evidence before the Court that the scene of offence is a busy and residential locality. According to the provisions of

Section 100(4) of the Cr.P.C., whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the scene of offence is in flagrant contravention of the provisions of Section 100(4) of the Cr.P.C. Furthermore, in the evidence of PW.1 the

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 6 colour and special identification marks of the plastic bottle which is said to have been seized from the surroundings of the scene of offence are also not deposed.

16. In MUDAVATH MOTHIA v. STATE OF A.P. [2002 (1) ALT (Crl.) 437 (A.P.)], our Hon'ble High Court inter alia held thus:

“Adverting to the same, the offence under Section 34 of the A.P.Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. …......The non-examination of independent mediators is fatal to the prosecution version. …...... It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt……”

17. Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3) ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held thus:

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

18. In the light of the discussion made hereinabove and in view of the aforementioned decisions, non-examination of the independent mediators/witnesses in this case from the locality whereat the property is said to have been seized, is fatal to the case of the prosecution.

19. Further, a perusal of the record shows that the sample was reached to the

Chemical Examiner, Kakinada, on 10.12.2021 but as per the evidence on record the alleged offence took place on 15.11.2021 when the alleged sample was drawn. Thus, there was a delay of about 25 days in reaching the sample to the Chemical Examiner,

Kakinada, for analysis and the said delay was not explained properly and therefore

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 7 such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1) ALT (Crl.) 32].

20. From the above it is crystal clear that except the evidence adduced by the

Excise Official-PW.1, who is very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused ran away from the scene of offence and a plastic bottle containing I.D.Liquor was found at the scene of offence and the same was seized therefrom is highly doubtful inasmuch as the evidence of excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently,

Point Nos.1 to 4 are accordingly answered in favour of the accused and against the prosecution.

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

Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under

Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Typed to my dictation to the Stenographer, corrected, and pronounced by me in open Court, on this the 19th day of April, 2023.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 8

Appendix of Evidence

Witnesses Examined

For Prosecution For Defence PW.1: Sri Y.Gowri Sankar, Sub-Inspector, SEB Station, Narsapur.None

Exhibits Marked

For Prosecution For Defence Ex.P.1: Special report.Nil Ex.P.2: FIR in Crime No.330/2021. Ex.P.3: Letter of advice. Ex.P.4: Analysis report dated 13.12.2021. Ex.P.5: Destruction proceedings dated 30.03.2022

Material Objects Marked

M.O.1: Sample bottle.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.300/2022 PJCJ-CUM-JMFC, NSP. 9

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, NARSAPUR

---------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of Accused Release on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------- 15.11.2021 15.11.2021 29.11.2021 01.12.2021 ---------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------- 10.04.2023 17.04.2023 19.04.2023 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.300/2022 on the file of Principal Junior Civil Judge- cum-Judicial Magistrate of the First Class, Narsapur. ---------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector, Special Enforcement Bureau, Narsapur. ---------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ----------------------------------------------------------------------------------------------------------

Sri Kadali Ramesh, S/o. Satyanarayana, Age 35 years, Caste: Settibalija, R/o. Jettipalem village, Mogalthur Mandal.

---------------------------------------------------------------------------------------------------------- Offence : Under Section 7B read with Section 8B of APP Act, 1995. Finding : Accused is found not guilty. Sentence :In the result, the accused is found not guilty for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to the I Additional District Judge, West Godavari, Eluru. Copy to the Superintendent, Special Enforcement Bureau Station, Bhimavaram.

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present : Sri V.Gowri Sankara Rao, Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

Friday, this the 21st day of April, 2023

C.C.NO.185/2022

Between: State represented by the Sub-Inspector, Special Enforcement Bureau Station, Narsapur. …Complainant.

And: Sri Donga Yedukondalu, S/o. Subba Rao, Age 37 years, Caste: Settibalija, R/o. Geddadavaripalem of Mutyalapalli village, Mogaltur Mandal. …Accused.

This case is coming on for final hearing before me on 18.04.2023 in the presence of the Assistant Public Prosecutor for the State and Sri D.Subhash Babu, Advocate for the accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This case arises out of Crime No.277/2021 of Special Enforcement Bureau

Station, Narsapur, registered against the accused for the offence under Section 7B read with Section 8B of the A.P.Prohibition Act, 1995, as amended by the

A.P.Prohibition (Amendment) Act, 2020, (for brevity 'the APP Act, 1995') on the basis of

Ex.P.1 special report.

2. PW.1, the Sub-Inspector, Special Enforcement Bureau Station, Narsapur, laid the charge sheet against the accused under Section 7B read with Section 8B of the

APP Act, 1995 with the following averments:

3. On 12.09.2021 at about 06.30 A.M. PW.1 along with Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2), went for conducting raids in Mutyalapalli

Village limits of Mogalthur Mandal, and they found the accused while he was in possession of a plastic can and on seeing them, the accused perturbed and ran away therefrom by leaving a plastic can there. On suspicion, PW.1 searched the surroundings with the help of the staff and found a plastic can containing 10 litres of

I.D.Liquor therein. Later he enquired with the people gathered there about the absconded accused and they revealed his identity to him. Then PW.1 deputed Sri

K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure mediators but it was

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 2 in vain. He seized the contraband. Later, he drew 300 ml. of I.D.Liquor into a separate bottle as a sample for the purpose of analysis, sealed and labelled the sample bottle as well as the remaining seized property under the cover of Ex.P.1 special report drafted thereat, as none came forward to act as mediators. Then he brought the case record and the case property to the SEB Station, Narsapur, and basing on Ex.P.1 report, he registered a case against the accused under Section 7B read with Section 8B of APP

Act, 1995 and issued Ex.P.2-FIR. On 13.09.2021 he arrested the accused and produced him before the Court for remand. Later, he sent the sample to the Chemical

Examiner, Kakinada, for analysis under the cover of Ex.P.3 letter of advice and received Ex.P.4 analysis report indicating that the said I.D.Liquor was unfit for human consumption and injurious to health. Then he destroyed the remaining seized property as per the orders of the Deputy Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB, Bhimavaram, as contemplated under Section 13 of the

A.P.Prohibition Act, 1995 vide Ex.P.5 proceedings. After completion of further investigation, he laid the charge sheet before the Court against the accused. Thereby, the accused is liable for punishment under the above Section of law.

4. Cognizance was taken for the offence under Section 7B read with Section 8B of the APP Act, 1995 against the accused.

5. After furnishing the copies of the relevant documents as contemplated under

Section 207 of the Cr.P.C., the accused was examined under Section 239 of the

Cr.P.C. and he denied the offence. Charge under Section 7B read with Section 8B of the APP Act, 1995 was framed and the same was read over and explained to him in

Telugu for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, in order to prove its case, the prosecution examined

PW.1 and marked Exs.P.1 to P.5 and M.O.1, the details of which are mentioned at the appendix of evidence.

7. After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of the Cr.P.C., he denied the same and reported no defence evidence.

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 3

8. Heard the learned Assistant Public Prosecutor for the State and the learned counsel for the accused. Perused the material available on record.

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

1)Whether the accused ran away from the scene of offence and a plastic can is found at the scene of offence containing I.D.Liquor ?

2)Whether the said can is seized from the scene of the offence as per the procedure laid down under law ?

3)Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 beyond all reasonable doubt ?

4)Whether the accused is liable for conviction and sentence for the said offence?

POINT NOS.1 TO 4:

10. In order to make out an offence under Section 7B read with Section 8B of the

APP Act, 1995, the prosecution shall prove that an accused is found in selling, exporting, importing or transporting of illicitly distilled alcoholic liquor and the same is seized from his possession as per the procedure laid down under law.

11. Coming to the evidence adduced before the Court, PW.1 stated that on 12.09.2021 at about 06.30 A.M. he along with Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), went for conducting raids in Mutyalapalli Village limits of

Mogalthur Mandal, and they found the accused while he was in possession of a plastic can and on seeing them, the accused perturbed and ran away therefrom; and that on suspicion, PW.1 searched the surroundings with the help of the staff and found a plastic can containing 10 litres of I.D.Liquour therein; and that later he enquired with the people gathered there about the absconded accused and they revealed his identity to him, and he sent Sri K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure the presence of independent mediators and he (LW.2) went to Mutyalapalli

Village and requested some of the villagers to act as mediators but nobody came forward to act as mediators and he returned back to the scene of offence and informed the same to him; and that he seized the contraband and later he drew 300 ml. of

I.D.Liquor from the seized property into a separate bottle as sample for the purpose of analysis, sealed and seized the sample bottle as well as the remaining seized property under the cover of Ex.P.1 special report drafted thereat by him, as none came forward to act as mediators; and then he brought the case record and the case property to the

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 4

SEB Station, Narsapur, and basing thereon, he registered a case under Section 7B read with Section 8B of the APP Act, 1995 and issued Ex.P.2 FIR; and that on 13.09.2021 he arrested the accused and produced him before the Court for remand, and he sent the sample (M.O.1) to the Chemical Examiner, Kakinada, under the cover of Ex.P.3 letter of advice for analysis and received Ex.P.4 analysis report; and that they destroyed the remaining seized property as per the orders of the Deputy

Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB,

Bhimavaram, as contemplated under Section 13 of the A.P.Prohibition Act, 1995 vide

Ex.P.5 proceedings; and that after completion of further investigation, he laid the charge sheet against the accused before the Court.

12. During the course of cross-examination of PW.1, he stated that scene of offence is busy and residential locality, and the names of the owners of the houses situated nearby the scene of offence were not mentioned in Ex.P.1 special report; and that the mode of transport and route particulars were not mentioned in Ex.P.1 special report, and the full descriptive particulars of the scene of offence were also not mentioned in

Ex.P.1 report; and that he could not say as to how many houses are there approximately in Mutyalapalli Village, and that Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who failed to act as such, and there was a delay of 27 days in reaching the sample to the chemical examiner, Kakinada, and the same was not properly explained in the charge sheet. However, he denied the suggestions that they had not conducted any raid on 12.09.2021 at about 06.30 A.M. and they had falsely implicated the accused for the purpose of statistics; and that the entire case record was prepared at SEB Station, Narsapur, in order to suit the present case with the help of staff members, and they had not seized any I.D.Liquor from the scene of offence, and later they had not arrested him; and that the accused did not commit any offence as alleged.

13. The learned APP contended that the evidence on record clearly proves the guilt of the accused for the offence with which he is charged and that the accused may be convicted and sentenced accordingly.

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 5

14. On the other hand, the learned counsel for the accused submitted that the accused did not commit any offence as alleged and that the accused was brought from his house and this case was foisted falsely against him for statistical purpose. He further submitted that no independent witnesses were examined in this case and thus the so-called seizure is against the provisions of Section 100(4) of the Cr.P.C. He thus prayed that the accused is entitled to acquittal.

15. It may be seen from the evidence on record that PW.1 sent Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2),to secure the presence of independent mediators once the property was found at the scene of offence as the accused ran away therefrom but after some time he returned back to the scene of offence and informed to him that nobody came forward to act as mediators. In the cross- examination of PW.1, he categorically deposed that Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who refused to do so. It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether really PW.1 sent Sri K.Sudhakar, Constable, SEB Station,

Narsapur (LW.2), to secure the presence of independent mediators once the case property was alleged to have been found at the scene of offence as the accused ran away therefrom. Even otherwise, PW.1 is Excise Official and his evidence manifestly demonstrates that he did not make any sincere efforts to secure the presence of independent mediators albeit it was obvious from the evidence before the Court that the scene of offence is a busy and residential locality. According to the provisions of

Section 100(4) of the Cr.P.C., whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened. Therefore, the very seizure of the property from the scene of offence is in flagrant contravention of the provisions of Section 100(4) of the Cr.P.C. Furthermore, in the evidence of PW.1 the

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 6 colour and special identification marks of the plastic can which is said to have been seized from the surroundings of the scene of offence are also not deposed.

16. In MUDAVATH MOTHIA v. STATE OF A.P. [2002 (1) ALT (Crl.) 437 (A.P.)], our Hon'ble High Court inter alia held thus:

“Adverting to the same, the offence under Section 34 of the A.P.Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. …......The non-examination of independent mediators is fatal to the prosecution version. …...... It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt……”

17. Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3) ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held thus:

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

18. In the light of the discussion made hereinabove and in view of the aforementioned decisions, non-examination of the independent mediators/witnesses in this case from the locality whereat the property is said to have been seized, is fatal to the case of the prosecution.

19. Further, a perusal of the record shows that the sample was reached to the

Chemical Examiner, Kakinada, on 09.10.2021 but as per the evidence on record the alleged offence took place on 12.09.2021 when the alleged sample was drawn. Thus, there was a delay of about 27 days in reaching the sample to the Chemical Examiner,

Kakinada, for analysis and the said delay was not explained properly and therefore

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 7 such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1) ALT (Crl.) 32].

20. From the above it is crystal clear that except the evidence adduced by the

Excise Official-PW.1, who is very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused ran away from the scene of offence and a plastic bottle containing I.D.Liquor was found at the scene of offence and the same was seized therefrom is highly doubtful inasmuch as the evidence of excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently,

Point Nos.1 to 4 are accordingly answered in favour of the accused and against the prosecution.

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

Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under

Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Typed to my dictation to the Stenographer, corrected, and pronounced by me in open Court, on this the 21st day of April, 2023.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 8

Appendix of Evidence

Witnesses Examined

For Prosecution For Defence PW.1: Sri Y.Gowri Sankar, Sub-Inspector, SEB Station, Narsapur.None

Exhibits Marked

For Prosecution For Defence Ex.P.1: Special report.Nil Ex.P.2: FIR in Crime No.277/2021. Ex.P.3: Letter of advice. Ex.P.4: Analysis report dated 23.11.2021. Ex.P.5: Destruction proceedings dated 30.03.2022

Material Objects Marked

M.O.1: Sample bottle.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.185/2022 PJCJ-CUM-JMFC, NSP. 9

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, NARSAPUR

---------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of Accused Release on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------- 12.09.2021 12.09.2021 13.09.2021 15.09.2021 ---------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------- 10.04.2023 18.04.2023 21.04.2023 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.185/2022 on the file of Principal Junior Civil Judge- cum-Judicial Magistrate of the First Class, Narsapur. ---------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector, Special Enforcement Bureau, Narsapur, ---------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ----------------------------------------------------------------------------------------------------------

Sri Donga Yedukondalu, S/o. Subba Rao, Age 37 years, Caste: Settibalija, R/o. Geddadavaripalem of Mutyalapalli village, Mogaltur Mandal.

---------------------------------------------------------------------------------------------------------- Offence : Under Section 7B read with Section 8B of APP Act, 1995. Finding : Accused is found not guilty. Sentence :In the result, the accused is found not guilty for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to the I Additional District Judge, West Godavari, Eluru. Copy to the Superintendent, Special Enforcement Bureau Station, Bhimavaram.

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present : Sri V.Gowri Sankara Rao, Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

Thursday, this the 20th day of April, 2023

C.C.NO.180/2022

Between: State represented by the Sub-Inspector, Special Enforcement Bureau Station, Narsapur. …Complainant.

And: Sri Gannabattula Veera Venkata Durga Rao, S/o. Veera Raghavulu, Age 43 years, Caste: Kapu, R/o. Rustumbada village, Narasapuram. …Accused.

This case is coming on for final hearing before me on 17.04.2023 in the presence of the Assistant Public Prosecutor for the State and Sri P.Durga Rao, Advocate for the accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This case arises out of Crime No.267/2021 of Special Enforcement Bureau

Station, Narsapur, registered against the accused for the offence under Section 7B read with Section 8B of the A.P.Prohibition Act, 1995, as amended by the

A.P.Prohibition (Amendment) Act, 2020, (for brevity 'the APP Act, 1995') on the basis of

Ex.P.1 special report.

2. PW.1, the Sub-Inspector, Special Enforcement Bureau Station, Narsapur, laid the charge sheet against the accused under Section 7B read with Section 8B of the

APP Act, 1995 with the following averments:

3. On 07.09.2021 at about 07.00 P.M. PW.1 along with Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2), went for conducting raids in Rustumbada

Village limits of Narsapur Mandal, and they found the accused while he was in possession of a plastic bottle containing 2 litres of I.D.Liquor in violation of the APP

Act, 1995. On questioning the accused, he revealed his identity. Then PW.1 deputed

Sri K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure mediators but it was in vain. Then PW.1 arrested the accused and seized the contraband. Later, he drew 300 ml. of I.D.Liquor into a separate bottle as a sample for the purpose of

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 2 analysis, sealed and labelled the sample bottle as well as the remaining seized property under the cover of Ex.P.1 special report drafted thereat, as none came forward to act as mediators. Then he brought the accused, the case record and the case property to the SEB Station, Narsapur, and basing on Ex.P.1 report, he registered a case against the accused under Section 7B read with Section 8B of APP Act, 1995 and issued Ex.P.2-FIR. Then he produced the accused before the Court for remand.

Later, he sent the sample to the Chemical Examiner, Kakinada, for analysis under the cover of Ex.P.3 letter of advice and received Ex.P.4 analysis report indicating that the said I.D liquor was unfit for human consumption and injurious to health. Then he destroyed the remaining seized property as per the orders of the Deputy

Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB,

Bhimavaram, as contemplated under Section 13 of the A.P.Prohibition Act, 1995 vide

Ex.P.5 proceedings. After completion of further investigation, he laid the charge sheet

before the Court against the accused. Thereby, the accused is liable for punishment

under the above Section of law.

4. Cognizance was taken for the offence under Section 7B read with Section 8B of the APP Act, 1995 against the accused.

5. After furnishing the copies of the relevant documents as contemplated under

Section 207 of the Cr.P.C., the accused was examined under Section 239 of the

Cr.P.C. and he denied the offence. Charge under Section 7B read with Section 8B of the APP Act, 1995 was framed and the same was read over and explained to him in

Telugu for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, in order to prove its case, the prosecution examined

PW.1 and marked Exs.P.1 to P.5 and M.O.1, the details of which are mentioned at the appendix of evidence.

7. After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of the Cr.P.C., he denied the same and reported no defence evidence.

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 3

8. Heard the learned Assistant Public Prosecutor for the State and the learned counsel for the accused. Perused the material available on record.

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

1)Whether the accused is found in possession of a plastic bottle containing I.D.Liquor?

2)Whether the said bottle is seized from the possession of the accused at the scene of offence as per the procedure laid down under law ?

3)Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 beyond all reasonable doubt ?

4)Whether the accused is liable for conviction and sentence for the said offence?

POINT NOS.1 TO 4:

10. In order to make out an offence under Section 7B read with Section 8B of the

APP Act, 1995, the prosecution shall prove that an accused is found in selling, exporting, importing or transporting of illicitly distilled alcoholic liquor and the same is seized from his possession as per the procedure laid down under law.

11. Coming to the evidence adduced before the Court, PW.1 stated that on 07.09.2021 at about 07.00 P.M. he along with Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), went for conducting raids in Rustumbada Village limits of

Narsapur Mandal, and they found the accused while he was in possession of a plastic bottle containing 2 litres of I.D.Liquor therein; and that on questioning the accused, he revealed his identity, and then he sent Sri K.Sudhakar, Constable, SEB Station,

Narsapur (LW.2),to secure the presence of independent mediators and he (LW.2) went to Rustumbada Village and requested some of the villagers to act as mediators but nobody came forward to act as mediators and he returned back to the scene of offence and informed the same to him; and that he arrested the accused and seized the contraband, and later he drew 300 ml. of I.D.Liquor from the seized property into a separate bottle as sample for the purpose of analysis, sealed and seized the sample bottle as well as the remaining seized property under the cover of Ex.P.1 special report drafted thereat by him, as none came forward to act as mediators; and then he brought the accused, the case record and the case property to the SEB Station,

Narsapur, and basing thereon, he registered a case under Section 7B read with

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 4

Section 8B of the APP Act, 1995 and issued Ex.P.2 FIR; and that he produced the accused before the Court for remand, and he sent the sample (M.O.1) to the Chemical

Examiner, Kakinada, under the cover of Ex.P.3 letter of advice for analysis and received Ex.P.4 analysis report; and that he destroyed the remaining seized property as per the orders of the Deputy Commissioner, SEB, Vijayawada, in the presence of the Superintendent, SEB, Bhimavaram, as contemplated under Section 13 of the

A.P.Prohibition Act, 1995 vide Ex.P.5 proceedings; and that after completion of further investigation, he laid the charge sheet against the accused before the Court.

12. During the course of cross-examination of PW.1, he stated that scene of offence is busy and residential locality, and the names of the owners of the houses situated nearby the scene of offence were not mentioned in Ex.P.1 special report; and that the mode of transport and route particulars were not mentioned in Ex.P.1 special report, and the full descriptive particulars of the scene of offence were also not mentioned in

Ex.P.1 report; and that he could not say as to how many houses are there approximately in Rustumbada Village, and that Sri K.Sudhakar, Constable, SEB

Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who failed to act as such, and there was a delay of 32 days in reaching the sample to the chemical examiner, Kakinada, and the same was not properly explained in the charge sheet. However, he denied the suggestions that they had not conducted any raid on 07.09.2021 at about 07.00 P.M. and they had falsely implicated the accused for the purpose of statistics; and that the entire case record was prepared at SEB Station, Narsapur, in order to suit the present case with the help of staff members, and they had not seized any I.D.Liquor from the accused, and they had not arrested him; and that the accused did not commit any offence as alleged.

13. The learned APP contended that the evidence on record clearly proves the guilt of the accused for the offence with which he is charged and that the accused may be convicted and sentenced accordingly.

14. On the other hand, the learned counsel for the accused submitted that the accused did not commit any offence as alleged and that the accused was brought from

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 5 his house and this case was foisted falsely against him for statistical purpose. He further submitted that no independent witnesses were examined in this case and thus the so-called seizure is against the provisions of Section 100(4) of the Cr.P.C. He thus prayed that the accused is entitled to acquittal.

15. It may be seen from the evidence on record that PW.1 sent Sri K.Sudhakar,

Constable, SEB Station, Narsapur (LW.2), to secure the presence of independent mediators once the property was found in the possession of the accused but after some time he returned back to the scene of offence and informed to him that nobody came forward to act as mediators. In the cross-examination of PW.1, he categorically deposed that Sri K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), did not state

before him the names of the persons to whom he requested to act as mediators and

who refused to do so. It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him.

In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether really PW.1 sent Sri

K.Sudhakar, Constable, SEB Station, Narsapur (LW.2), to secure the presence of independent mediators once the case property was alleged to have been found in the possession of the accused. Even otherwise, PW.1 is Excise Official and his evidence manifestly demonstrates that he did not make any sincere efforts to secure the presence of independent mediators albeit it was obvious from the evidence before the

Court that the scene of offence is a busy and residential locality. According to the provisions of Section 100(4) of the Cr.P.C., whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened.

Therefore, the very seizure of the property from the alleged possession of the accused is in flagrant contravention of the provisions of Section 100(4) of the Cr.P.C.

Furthermore, in the evidence of PW.1 the colour and special identification marks of

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 6 the plastic bottle which is said to have been seized from the possession of the accused are also not deposed.

16. In MUDAVATH MOTHIA v. STATE OF A.P. [2002 (1) ALT (Crl.) 437 (A.P.)], our Hon'ble High Court inter alia held thus:

“Adverting to the same, the offence under Section 34 of the A.P.Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. …......The non-examination of independent mediators is fatal to the prosecution version. …...... It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt……”

17. Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3) ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held thus:

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

18. In the light of the discussion made hereinabove and in view of the aforementioned decisions, non-examination of the independent mediators/witnesses in this case from the locality whereat the property is said to have been seized, is fatal to the case of the prosecution.

19. Further, a perusal of the record shows that the sample was reached to the

Chemical Examiner, Kakinada, on 09.10.2021 but as per the evidence on record the alleged offence took place on 07.09.2021 when the alleged sample was drawn. Thus, there was a delay of about 32 days in reaching the sample to the Chemical Examiner,

Kakinada, for analysis and the said delay was not explained properly and therefore

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 7 such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1) ALT (Crl.) 32].

20. From the above it is crystal clear that except the evidence adduced by the

Excise Official-PW.1, who is very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused was found in possession of a plastic bottle containing

I.D.Liquor and the same was seized from his possession at the scene of offence is highly doubtful inasmuch as the evidence of excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures.

Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently, Point Nos.1 to 4 are accordingly answered in favour of the accused and against the prosecution.

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

Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under

Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Typed to my dictation to the Stenographer, corrected, and pronounced by me in open Court, on this the 20th day of April, 2023.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 8

Appendix of Evidence

Witnesses Examined

For Prosecution For Defence

PW.1: Sri Y.Gowri Sankar, Sub-Inspector, SEB Station, Narsapur.None

Exhibits Marked

For Prosecution For Defence Ex.P.1: Special report.Nil Ex.P.2: FIR in Crime No.267/2021. Ex.P.3: Letter of advice. Ex.P.4: Analysis report dated 23.11.2021. Ex.P.5: Destruction proceedings dated 30.03.2022

Material Objects Marked

M.O.1 is the sample bottle.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.NO.180/2022 PJCJ-cum-JMFC COURT, NSP. 9

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, NARSAPUR

---------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of Accused Release on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------- 07.09.2021 07.09.2021 08.09.2021 23.09.2021 ---------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------- 10.04.2023 17.04.2023 20.04.2023 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.180/2022 on the file of Principal Junior Civil Judge- cum-Judicial Magistrate of the First Class, Narsapur. ---------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector, Special Enforcement Bureau, Narsapur, ---------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ----------------------------------------------------------------------------------------------------------

Sri Gannabattula Veera Venkata Durga Rao, S/o. Veera Raghavulu, Age 43 years, Caste: Kapu, R/o. Rustumbada village, Narasapuram.

---------------------------------------------------------------------------------------------------------- Offence : Under Section 7B read with Section 8B of APP Act, 1995. Finding : Accused is found not guilty. Sentence :In the result, the accused is found not guilty for the offence punishable under Section 7B read with Section 8B of the APP Act, 1995 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to the I Additional District Judge, West Godavari, Eluru. Copy to the Superintendent, Special Enforcement Bureau Station, Bhimavaram.

C.C.NO.221/2022 PJCJ-cum-JMFC COURT, NSP. 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present : Sri V.Gowri Sankara Rao, Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

Friday, this the 21st day of April, 2023

C.C.NO.221/2022

Between: State represented by the Sub-Inspector, Special Enforcement Bureau Station, Narsapuram. …Complainant.

And: Sri Guduri Kanakachalam, S/o. Narasimha Rao, Age 63 years, Caste: Settibalija, R/o. Bokkagudem of K.P.Palem village, Mogaltur Mandal. …Accused.

This case is coming on for final hearing before me on 18.04.2023 in the presence of the Assistant Public Prosecutor for the State and Sri D.Subhash Babu, Advocate for the accused and after perusing the material available on record and upon hearing the arguments and having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This case arises out of Crime No.298/2021 of Special Enforcement Bureau

Station, Narsapur, registered against the accused for the offence under Section 7B read with Section 8A of the A.P.Prohibition Act, 1995, as amended by the

A.P.Prohibition (Amendment) Act, 2020, (for brevity 'the APP Act, 1995') on the basis of

Ex.P.1 special report.

2. PW.1, the Sub-Inspector, Special Enforcement Bureau Station, Narsapur, laid the charge sheet against the accused under Section 7B read with Section 8A of the

APP Act, 1995 with the following averments:

3. On 30.09.2021 at about 03.30 P.M., PW.1 along with Sri A.D.Prasad, Head

Constable, SEB Station, Narsapur (LW.2), went for conducting raids in K.P.Palem

Village limits of Mogalthur Mandal, and they found in front of the house of the accused 3 plastic drums kept in the nearby bushes. Then PW.1 deputed Sri

A.D.Prasad, Head Constable, SEB Station, Narsapur (LW.2), to secure mediators but it was in vain. Then he verified the said drums and found each containing 100 litres of

F.J.Wash, in all 300 litres of F.J.Wash. Later he enquired with the people gathered there about the absconded accused and they stated the said drums were belonged to

C.C.NO.221/2022 PJCJ-cum-JMFC COURT, NSP. 2 the accused but the accused absconded therefrom. He seized the contraband. Later, he drew 500 ml. of F.J.wash into a separate bottle as sample for the purpose of analysis, sealed and labelled the sample bottle, and destroyed the remaining seized property at the spot as it was unfit for transportation under the cover of Ex.P.1 mediators report drafted thereat. Basing on Ex.P.1 report, he registered a case against the accused under Section 7B read with Section 8A of the APP Act, 1995 and issued

Ex.P.2-FIR. On 04.10.2021 he arrested the accused and produced him before the

Court for remand. Later, he sent the sample to the Chemical Examiner, Kakinada, for analysis under the cover of Ex.P.3 letter of advice and received Ex.P.4 analysis report indicating that the said fermented wash was fit for distillation. After completion of further investigation, he laid the charge sheet before the Court against the accused.

Thereby, the accused is liable for punishment under the above Section of law.

4. Cognizance was taken for the offence under Section 7B read with Section 8A of the APP Act, 1995 against the accused.

5. After furnishing the copies of the relevant documents as contemplated under

Section 207 of the Cr.P.C., the accused was examined under Section 239 of the

Cr.P.C. and he denied the offence. Charge under Section 7B read with Section 8A of the APP Act, 1995 was framed and the same was read over and explained to him in

Telugu for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, in order to prove its case, the prosecution examined

PW.1 and marked Exs.P.1 to P.4 and M.O.1, the details of which are mentioned at the appendix of evidence.

7. After closure of the evidence on the side of the prosecution, when the accused was called upon to explain the incriminating circumstances appearing against him in the evidence of the prosecution as envisaged under Section 313 of the Cr.P.C., he denied the same and reported no defence evidence.

8. Heard the learned Assistant Public Prosecutor for the State and the learned counsel for the accused. Perused the material available on record.

C.C.NO.221/2022 PJCJ-cum-JMFC COURT, NSP. 3

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

1) Whether the accused ran away from the scene of offence and three plastic drums are found at the scene of offence containing F.J.Wash ?

2) Whether the said drums are seized from the scene of the offence as per the procedure laid down under law ?

3) Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 7B read with Section 8A of the APP Act, 1995 beyond all reasonable doubt ?

4) Whether the accused is liable for conviction and sentence for the said offence?

POINT NOS.1 TO 4:

10. In order to make out an offence under Section 7B read with Section 8A of the

APP Act, 1995, the prosecution shall prove that an accused is found in preparing, selling, exporting, importing or transporting of illicitly distilled alcoholic liquor and the same is seized from his possession as per the procedure laid down under law.

11. Coming to the evidence adduced before the Court, PW.1 stated that on 30.09.2021 at about 03.30 P.M. he along with Sri A.D.Prasad, Head Constable, SEB

Station, Narsapur (LW.2), went for conducting raids in K.P.Palem Village limits of

Mogalthur Mandal, and they found in front of the house of the accused 3 plastic drums kept in the nearby bushes; and that he sent Sri A.D.Prasad, Head Constable,

SEB Station, Narsapur (LW.2), to secure the presence of independent mediators and he (LW.2) went to K.P.Palem Village and requested some of the villagers to act as mediators but nobody came forward to act as mediators and he returned back to the scene of offence and informed the same to him; and that then he verified the said drums and found each containing 100 litres of F.J.Wash, in all 300 litres of F.J.Wash, and then he enquired with the people gathered there about the absconded accused and they stated the said drums were belonged to the accused but the accused absconded therefrom; and that he seized the contraband and later he drew 500 ml. of

F.J.wash from the seized property into a separate bottle as sample for the purpose of analysis, sealed and seized the sample bottle under the cover of Ex.P.1 special report drafted thereat by him, as none came forward to act as mediators; and that the remaining seized property of F.J.wash was destroyed at the spot as it was unfit for transportation, and he brought the case record and the case property to the SEB

C.C.NO.221/2022 PJCJ-cum-JMFC COURT, NSP. 4

Station, Narsapur; and that basing thereon, he registered a case under Section 7B read with Section 8A of the APP Act, 1995 and issued Ex.P.2 FIR; and that on 04.10.2021 he arrested the accused and produced him before the Court for remand, and he sent the sample (M.O.1) to the Chemical Examiner, Kakinada, under the cover of Ex.P.3 letter of advice for analysis and received Ex.P.4 analysis report; and that after completion of further investigation, he laid the charge sheet against the accused

before the Court.

12. During the course of cross-examination of PW.1, he stated that scene of offence is busy and residential locality, and the names of the owners of the houses situated nearby the scene of offence were not mentioned in Ex.P.1 report; and that the mode of transport and route particulars were not mentioned in Ex.P.1 report, and the full descriptive particulars of the scene of offence were also not mentioned in Ex.P.1 report; and that he could not say as to how many houses are there approximately in

K.P.Palem Village, and that Sri A.D.Prasad, Head Constable, SEB Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who failed to act as such; and that there was a delay of 9 days in reaching the sample to the chemical examiner, and the said delay was not properly explained in the charge sheet. However, he denied the suggestions that they had not conducted any raids on 30.09.2021 at about 03.30 P.M. and they had falsely implicated the accused for the purpose of statistics; and that the entire case record was prepared at SEB Station, Narsapur, in order to suit the present case with the help of staff members, and they had not seized any F.J.Wash from the scene of offence, and later he had not arrested him.

13. The learned APP contended that the evidence on record clearly proves the guilt of the accused for the offence with which he is charged and that the accused may be convicted and sentenced accordingly.

14. On the other hand, the learned counsel for the accused submitted that the accused did not commit any offence as alleged and that the accused was brought from his house and this case was foisted falsely against him for statistical purpose. He further submitted that no independent witnesses were examined in this case and thus

C.C.NO.221/2022 PJCJ-cum-JMFC COURT, NSP. 5 the so-called seizure is against the provisions of Section 100(4) of the Cr.P.C. He thus prayed that the accused is entitled to acquittal.

15. It may be seen from the evidence on record that PW.1 sent Sri A.D.Prasad, Head

Constable, SEB Station, Narsapur (LW.2), to secure the presence of independent mediators once the property was found at the scene of offence as the accused absconded therefrom but after some time he returned back to the scene of offence and informed to him that nobody came forward to act as mediators. In the cross- examination of PW.1, he categorically deposed that Sri A.D.Prasad, Head Constable,

SEB Station, Narsapur (LW.2), did not state before him the names of the persons to whom he requested to act as mediators and who refused to do so. It is well settled principle of law that a police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public who is legally bound to assist him, such police officer can take action against such a person under the law for declining to assist him. In this case apparently no such action is initiated against the persons who allegedly refused to act as mediators. It is therefore very doubtful whether really PW.1 sent Sri A.D.Prasad, Head Constable, SEB

Station, Narsapur (LW.2), to secure the presence of independent mediators once the case property was alleged to have been found at the scene of offence as the accused absconded therefrom. Even otherwise, PW.1 is Excise Official and his evidence manifestly demonstrates that he did not make any sincere efforts to secure the presence of independent mediators albeit it was obvious from the evidence before the

Court that the scene of offence is a busy and residential locality. According to the provisions of Section 100(4) of the Cr.P.C., whenever any property is to be seized the officer who seizes such property is under an obligation to call for two or more respectable inhabitants of that locality and in this case that has not happened.

Therefore, the very seizure of the property from the scene of offence is in flagrant contravention of the provisions of Section 100(4) of the Cr.P.C. Furthermore, in the evidence of PW.1 the colour and special identification marks of the drums which were said to have been seized from in front of the house of the accused kept in the nearby bushes are also not deposed.

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16. In MUDAVATH MOTHIA v. STATE OF A.P. [2002 (1) ALT (Crl.) 437 (A.P.)], our Hon'ble High Court inter alia held thus:

“Adverting to the same, the offence under Section 34 of the A.P.Excise Act is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. …......The non-examination of independent mediators is fatal to the prosecution version. …...... It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt……”

17. Again in GAJAMKER NARAYANA v. STATE OF A.P. [2005 (3) ALT (Crl.) 1 (AP)], our Hon'ble High Court inter alia held thus:

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

18. In the light of the discussion made hereinabove and in view of the aforementioned decisions, non-examination of the independent mediators/witnesses in this case from the locality whereat the property is said to have been seized, is fatal to the case of the prosecution.

19. Further, a perusal of the record shows that the sample was reached to the

Chemical Examiner, Kakinada, on 09.10.2021 but as per the evidence on record the alleged offence took place on 30.09.2021 when the alleged sample was drawn. Thus, there was a delay of about 9 days in reaching the sample to the Chemical Examiner,

Kakinada, for analysis and the said delay was not explained properly and therefore such delay is also fatal to the case of the prosecution, as has been inter alia observed in S.BABU SAHEB @ BABU v. STATE OF A.P. [2010 (1) ALT (Crl.) 32].

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20. From the above it is crystal clear that except the evidence adduced by the

Excise Official-PW.1, who is very much interested in the outcome of the case no independent witnesses were examined in support of their case. Thus, the case of the prosecution that the accused absconded from the scene of offence and three drums containing F.J.Wash were found at the scene of offence and the same were seized therefrom is highly doubtful inasmuch as the evidence of excise official does not inspire the credibility and confidence of the Court in the absence of corroboration from any independent witnesses. It is well established principle of law that no conviction can be based on mere assumptions and presumptions or on mere surmises and conjectures. Further, there must be concrete legal evidence to convict an accused and the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt with cogent and convincing evidence. In the present case, in the light of the above discussion, it is obvious that the prosecution has miserably failed to wholly bring home the guilt of the accused beyond all reasonable doubt. Consequently,

Point Nos.1 to 4 are accordingly answered in favour of the accused and against the prosecution.

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

Section 7B read with Section 8A of the APP Act, 1995 and he is acquitted under

Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Typed to my dictation to the Stenographer, corrected, and pronounced by me in open Court, on this the 21st day of April, 2023.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

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Appendix of Evidence

Witnesses Examined

For Prosecution For Defence PW.1: Sri Y.Gowri Shankar, SEB Sub-Inspector, Narasapuram.

Exhibits Marked

For Prosecution For Defence Ex.P.1: Special report.Nil Ex.P.2: FIR in Crime No.298/2021. Ex.P.3: Letter of advice. Ex.P.4: Analysis report dated 23.11.2021.

Material Objects Marked

M.O.1 is the sample bottle.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

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CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, NARSAPUR

---------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of Accused Release on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------- 30.09.2021 30.09.2021 04.10.2021 06.10.2021 ---------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------- 10.04.2023 18.04.2023 21.04.2023 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.221/2022 on the file of Principal Junior Civil Judge- cum-Judicial Magistrate of the First Class, Narsapur. ---------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector, Special Enforcement Bureau Station, Narsapur. ---------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ----------------------------------------------------------------------------------------------------------

Sri Guduri Kanakachalam, S/o. Narasimha Rao, Age 63 years, Caste: Settibalija, R/o. Bokkagudem of K.P.Palem village, Mogaltur Mandal.

---------------------------------------------------------------------------------------------------------- Offence : Under Section 7B read with Section 8A of the APP Act, 1995 Finding : Accused is found not guilty. Sentence : In the result, the accused is found not guilty for the offence punishable under Section 7B read with Section 8A of the APP Act, 1995 and he is acquitted under Section 248(1) of the Cr.P.C. of the said offence. The accused is directed to execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties for a like sum each which shall be in force for a period of six months from today as contemplated under Section 437-A of the Cr.P.C. in order to appear before the appellate Court if an appeal is preferred. M.O.1 sample bottle shall be destroyed after appeal time is over.

Sd/- V.Gowri Sankara Rao,

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to the I Additional District Judge, West Godavari, Eluru. Copy to the Superintendent, Special Enforcement Bureau Station, Bhimavaram.