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IN THE COURT OF II ADDL. JUDL. MAGISTRATE OF FIRST CLASS: Kovvur

Present : Smt N. Sree Lakshmi,
II Addl. Judl. Magistrate of I Class,
Kovvur

Wednesday, this the 22nd day of May, 2019

C.C.No.150/2019

Between:

State represented by the Prohibition and Excise Sub-Inspector,

Polavaram.
…Complainant.
And

Chellinkula Srinivas, S/o.Duggiraju, 42 years, Settibaliji, R/o.Rajampalem village,

Gopalapuram mandal.
… Accused.
This case coming on today i.e., 22.05.2019 for hearing arguments
before me in the presence of learned Assistant Public Prosecutor for the State
and of Sri Y.Prakash Rao, Advocate for the accused and the matter having
stood over for consideration till this day, this Court delivered the following:

JUDGMENT

The Sub Inspector of Police, Prohibition & Excise, Poilavaram filed

charge sheet against the accused for the offence punishable U/Sec.34(a) of A.P.

Excise Act, 1968 in Crime No.13/2019 with the following allegations:

2. That on 30-01-2019 at about 11.30.pm L.W.3 the Proh., & Excise Sub-

Inspector, Polavaram (PW3) along with staff and mediators (PW.’s 1 and 2) for

detection of Prohibition and Excise, offences near Dommara Cheruvu in

Rajampalam village of Gopalapuram mandal found the accused in possession and

selling of unauthorized Any Time Fine Whisky 180 ml (9) bottles of IML bottles.

Batch No.633, Dt.25.01.2019. The EAL nos. are torn off from the IML bottles and

printed as for sale to APBCL (A.P) only on the labels affixed on the bottles and

all the bottles are duty paid liquor bottles. On enquiry the accused furnished his

address particulars as noted above and stated that he is purchasing the bottles

on MRP rates in various Brandy Shops and selling it at higher price for his
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livelihood and he is not having any license or permit. The PW3 issued notice to

the accused under Section 41(1)(a) Cr.P.C, he complied after informing him that

possession and selling of unauthorized IML bottles is an offence under A.P Excise

Act 1968, Seized the property and drawn one bottle from each brand as sample

for chemical analysis, sealed and affixed identity slips to the sample and entire

property under a cover of mediator report drafted at the scene of offence. Basing

on mediators report, PW3 registered a case in Cr.No.13/2019 U/Sec.34(a) of A.P.

Excise Act, 1968 and released the accused on self bail and submitted the case

record to Hon’ble Court and investigated into. Subsequently, during the course of

investigation submitted the property confiscation proposals to the Deputy

Commissioner of Proh., & Excise, Eluru U/Sec.13(1) of A.P.P. Act, 1995 and

forwarded the sample to the Government Chemical Examiner, Regional Proh., &

Excise Laboratory, Kakinada for analysis. The chemical examiner after due

analysis opined that the samples are Indian Liquor vide C.E.No.190/2019,

SI.No.2180. The case property was destroyed vide e-file.No.1490748/2018/A7,

dt.15.02.2019 order given by the Proh., & Excise Deputy Commissioner, Eluru.

The PW3 further investigated into and filed charge sheet against the accused.

Hence charge sheet.

3. Upon consideration of the material placed before the Court,

cognizance for the offence punishable U/Sec.34(a) of A.P. Excise Act was taken

against the accused. On appearance of Accused, he was supplied with the copies

of case documents as required U/Sec.207 of Criminal Procedure Code (for short

Cr.P.C.) and he was examined U/Sec.239 Cr.P.C. with reference to the allegations

made in the charge sheet. Then a charge U/Sec.34(a) of A.P. Excise Act was

framed against the accused for which he denied the same, pleaded not guilty and

claimed to be tried.

4. The Prosecution, in order to prove its case against the accused has

examined PW1 to P.W.3 and got marked Exs.P1 to P6 and MO.1. LW4 A.Rajesh,

Prohibition and Excise Constable, Polavaram is given up by learned APP. After

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closure of the Prosecution evidence, Accused is examined U/Sec.313 Cr.P.C.,

explaining the incriminating evidence against him in the Prosecution evidence, for

which he denied as being false and pleaded not guilty and reported no defence

evidence.

5. Heard.

6. It is the case of the prosecution that prosecution has examined

P.W.1 to P.W.3 and got marked Exs.P1 to P6 and M.O.1. P.W.’s 1 and 2 are the

mediators in this case. They turned hostile to the case of the prosecution.P.W.3 is

the Investigation officer. He deposed about the conducting of raid, arrest of the

accused and seizure of the property and registration of case and investigation

done by him. The evidence of PW.3 is reliable and it is sufficient to convict the

accused. Hence, the prosecution has proved the guilt of the accused beyond all

reasonable doubt and the accused is liable for conviction.

7. The learned counsel for accused contended that PW.’s 1 and 2 who

are the independent witnesses for arrest and seizure of bottles from the

accused turned hostile to the case of the prosecution as such the evidence of

P.W.3 is not believable and not trustworthy. Hence the prosecution failed to

prove the guilt of the accused and as such the accused is entitled for acquittal.

8. Now the points for consideration are:

i) Whether the accused is found in possession of Any Time Fine Whisky

180 ml (9) bottles of IML bottles. Batch No.633, Dt.25.01.2019 and
thereby committed the offence under Sec.34(a) of A.P. Excise Act?

ii) Whether the prosecution is able to prove the guilt of the accused for
the offence U/S 34(a) of A.P. Excise Act beyond all reasonable doubt?

9. POINT No.(i):- In order to bring home the guilt of the accused, the

prosecution examined PW1 to PW.3 and got marked Exs.P1 to P6 and Mo.1

sample bottles. The case of the prosecution is that PW3 arrested the accused and

seized Any Time Fine Whisky 180 ml (9) bottles of IML bottles, each sealed

capsules wherein he was not having any bill and license and selling the same to

eke out his livelihood and prepared, Ex.P4 is the FIR. PW3 sent the sample for
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Chemical Analysis and received the Analyst report under Ex.P5. Ex.P6 is

Destruction Proceedings.

10. P.W.3 is the Investigation Officer. He deposed about the conducting

of raid, seizure of bottles from the possession of the accused, registration of case

and investigation done by him in the present case. During the course of cross-

examination, he admitted that he did not mention the time in Ex.P3 when he

received the information and that he did not mention the way of transport in

Ex.P3 and that he did not mention about the directions in Ex.P3. He further

admitted that the scene of offence is a residential locality and that he had not

prepared rough sketch and that Rajampalem village is an independant

panchayat . He denied that he had conducted table investigation and filed false

case against the accused for statistical purpose. It is the case of the prosecution

that accused was allegedly found in possession of unauthorized Any Time Fine

Whisky 180 ml (9) bottles of IML bottles. It is admitted case of the prosecution

that possessing liquor bottles is not an offence and one can possess minimum of

six bottles without any bill or license. However, it is specific case of the

prosecution that the accused was selling liquor so as to eke out his livelihood.

However, Pws.1 and 2 who are cited as mediators turned hostile to the case of

the prosecution. Further, PW3 did not secure any other independent mediators

though they were available at the scene of offence and that he also did not issue

any notice to them to act as mediators and also did not do any investigation

whether the accused was dealing in selling of liquor in the village. Thus, the

evidence of PW3 cannot be believable without there being any independent

witnesses that accused was allegedly dealing in sale of liquor to eke out his

livelihood. More so, the scene of offence is a busy locality and further PW3 did not

take any pains to issue any notice to the persons who refused to act as mediators

at the scene of offence. The evidence of PW3 also disclosed that he did not note

down the names of the persons who refused to act as mediators. According to

Sec.100(4) Cr.P.C., at the time of search and seizure, it is the obligation on the

part of the officer who conducted the search and seizure to secure local
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inhabitants to prove the seizure when the officials failed to secure the

independent witnesses, the search and seizure is not free from doubt and the

accused is entitled for benefit of doubt.

11. At this juncture, this court has relied on the decision reported by

Honourable High Court of A.P. in a case of

Y.Sreenivasulu Reddy Vs. State of AP

2002(1) LS 242

where in it was held that

“if no one was willing to act as punch witness, a written order should be passed

for the purpose of conducting search and seizure and in the said case entire

search conducted by the Prosecution is vitiated”.

12. In view of the law laid down by the Hon’ble High Court in Sri Y.

Srinivasulu Reddy’s case, in the present case, P.W.3 ought to have passed written

order in this case before conducting search and seizure when no one was willing

to act as punch witnesses. However, PW3 did not take any valid reasons for

securing any mediators from the scene of offence which is a busy locality and also

PW3 did not take any pains to investigate into the offence by examining any

independent witnesses whether the accused is allegedly dealing in sale of liquor

as alleged by the PW3 and his party. PW3 did not follow the provisions as

contemplated u/sec.100(4) Cr.P.C and also above law laid down by the Hon’ble

High Court in Y. Srineevalusu Reddy’s case. In the said circumstances, the entire

seizure becomes doubtful. It is settled law that when there is a doubt in the

prosecution case, then benefit of doubt should be given to the accused. If it is so,

the prosecution has no case at all. Hence, this court is of the opinion that

prosecution failed to prove that the accused is found in possession of

unauthorized Any Time Fine Whisky 180 ml (9) bottles of IML bottles. Batch

No.633, Dt.25.01.2019. Accordingly, this point is answered against the

prosecution.
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13. POINT No.(ii) : In view of my findings in point No.(i), the evidence

of prosecution is not free from doubtful circumstances as such, the accused is

entitled for benefit of doubt. Hence, this court is of the considered opinion that

the prosecution failed to prove that accused committed the offence punishable

U/Sec. 34(a) of A.P. Excise Act. Accordingly, this point is answered in favour of

the accused and against the prosecution.

14. In the result, Accused is found not guilty for the offence punishable

U/Sec.34(a) of A.P. Excise Act. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C.

The bail bonds of the accused shall stand cancelled after Six months from today

in view of Section 437-A of Cr.P.C. M.O. 1 and unmarked property, if any, shall

be destroyed after expiry of appeal time.

Typed to my dictation to my Stenographer(Grade-III), corrected, signed and pronounced

by me in the open Court, this the 22nd day of May, 2019.

II Addl. Judl. Magistrate Of I Class,

Kovvur

APPENDIX OF EVIDENCE
Witnesses examined.
For Prosecution: For Defence:
PW.1: D.Mahesh - None -
PW.2 :P.Narendra
PW.3: C.Bhargava, P&ESI

DOCUMENTS MARKED
For Prosecution:
Ex.P1 Signature of PW1 on Mediators Report dt.30.01.2019;
Ex.P2 Signature of PW2 on Mediators Report dt.30.01.2019;
Ex.P3 Mediators report dated 30.01.2019;
Ex.P4 FIR in Cr.No.13/2019, dt.30.01.2019;
Ex.P5 Chemical Analyst Report,dt.07.02.2019
Ex.P6 Destruction Proceedings, 15.02.2019;

For Defence: - Nil -

MATERIAL OBJECTS MARKED

M.O.1: Sample of Any Time Fine Whisky 180 ml - 9 bottles;

II Addl. Judl. Magistrate Of I Class

Kovvur.
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CALENDAR AND JUDGMENT

Calendar cases tried by the II Addl. Judicial Magistrate of I Class,Kovvur.

Date of Offence : 30.01.2019;

Date of report or Complaint : 30.01.2019;
Date of apprehension of accused : Sec.41-A Cr.P.C. notice on
the accused
Date release on bail, if any : --
Date of commencement of trail : 18-04-2019
Close of trial : 02-05-2019
Date of sentence or other order : 22-05-2019
Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.150/2019 on the file of II Addl. Judicial

Magistrate of I Class, Kovvur.
Complainant : State represented by the Sub-Inspector of Police, Prohibition &
Excise, Polavaram, in Crime No.13/2019, U/s 34(a) of A.P. Excise Act.

Name of the accused, Father name, Age, calling, Religion, Village and Mandal.

Chellinkula Srinivas, S/o.Duggiraju, 42 years, Settibaliji, R/o.Rajampalem village,

Gopalapuram mandal.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
=-=-

Offence : U/s 34(a) of A.P. Excise Act.

Finding : Not guilty.
Sentence : Accused is found not guilty for the offence punishable U/Sec.34(a)
of A.P. Excise Act. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail
bonds of the accused shall stand cancelled after Six months from today in view of
Section 437-A of Cr.P.C. M.O1 and unmarked property, if any, shall be destroyed
after expiry of appeal time.
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II Addl. Judicial Magistrate of I Class,

Kovvur.

Copy submitted to
The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.