Andhra Pradesh High Court - Amravati
Kesuboyina Kanakayya, vs The State Of Ap Rep By Its Pp Hyd., Trgh ... on 29 January, 2024
THE HON'BLE SRI JUSTICE V.SRINIVAS
Criminal Revision Case No.2145 of 2009
ORDER:
This Revision is filed by the petitioner/accused aggrieved by the judgment dated 14.12.2009 in Crl.A.No.104 of 2007 passed by the learned VII Additional Sessions Judge, at Kakinada, East Godavari, wherein the learned Judge has dismissed the appeal by confirming the conviction and sentence imposed against the revision petitioner/accused for the offence punishable under Section 8(e) read with 7(A) of Andhra Pradesh Prohibition Act (hereinafter referred to as "the Act"), in the judgment dated 03.04.2007 in C.C.No.455 of 2003 passed by the learned Additional Junior Magistrate of First Class, Peddapuram.
2. The shorn of facts of the case are as follows:
On 14.10.2003 at 05.00 pm, the accused was arrested while he was manufacturing I.D.liquor and seized three (03) liters of I.D.liquor. On seizure of the contraband, a case in Crime No.83 of 2003 was registered. Two (02) samples were drawn from I.D.liquor and Jaggery wash and sent to chemical examiner for analysis. After receipt of laboratory analysis report, charge sheet was filed.2
3. During the course of trial, the prosecution examined Ex.PW.1 to PW.3 and marked Ex.P1 to Ex.P3 and M.O.1 and M.O.2. After closure of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. and he denied the incriminating evidence and reported no defense.
4. The trial Court held that the accused found guilty for the charge under Section 8(e) read with 7(A) of the Act and sentenced him to undergo Imprisonment for a period of one year and a fine of Rs.10,000/-, in default, to suffer Simple Imprisonment for a period of one month.
5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.104 of 2007, before the Court of learned VII Additional Sessions Judge, at Kakinada, and the same was dismissed by confirming the judgment of the trial Court.
6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.
7. Heard Sri V.Sai Kumar, learned counsel for the petitioner and Sri Dheera Kanishk, learned Counsel, representing State Public Prosecutor for the respondent-State.
8. Now the point that arises for determination in this revision is:
"Whether there is any flaw in the findings recorded by the first Appellate Court in confirming the conviction and sentence passed against the petitioner?"3
9. Learned counsel for the petitioner, submits that the learned Judge should have seen that the ingredients to constitute the said offences are not made out by the prosecution. He further submits that the learned Judge should have seen that there is no another witness except the witness of Stock mediator, who is the PW-1 in the case. He also submits that if in case this Court opines that the Courts below rightly held that the petitioner said to have committed the offence, some lenient view can be taken by imposing fine as the offence said to have committed by the petitioner is compoundable in nature.
10. Per contra, learned Special Assistant Public Prosecutor, submits that the trial Court as well first appellate Court followed the rule of law, perused the evidence placed on record and with sound reasons came to a conclusion that the accused found guilty of the offence, resulting conviction and sentenced the accused and that even first appellate Court also gave categorical finding that the charge made against the accused is properly established by the prosecution and nothing on record to interfere with the findings of the trial Court.
11. Learned Special Assistant Public Prosecutor further submits that, however, in view of the amendment of Andhra Pradesh Prohibition Act 1995, it is a compoundable offence and Court can commute the sentence and impose fine on the petitioner under Section 11.B of the Act. 4
12. In view of the above submissions, this Court perused the material on record.
13. The trial Court, after considering the entire material placed on record, rightly, came to the conclusion that the accused found guilty of the charge leveled against him and convicted the accused and the same was upheld by the first Appellate Court. The testimony of prosecution witnesses coupled with Exs.P.1 to P.3 established the charge leveled against the petitioner. Now, there is nothing on record to interfere with the findings recorded by both the Courts below.
14. However, this Court perused amended provisions of the Act and Section 11.B of the Act, reads as follows:
"4. Insertion of new section 11B.- In the principal Act, after section 11A, the following section shall be inserted, namely:-
"Compounding of Offences: 11.B(1) The Collector or any Prohibition and Excise Officer specially empowered "in that behalf may accept from any person ??? is reasonably suspected of having committee ??? offence falling under clause (a) or sub-clause (i) of clause (b) or the proviso to Sub-clause (ii) of clause (b) it was is force, of section or ??? a sum of money as may be prescribed ??? not exceeding the maximum fine which can be imposed for the of fence under the provisions of the Act, by way of compensation for the offence which may have been committed and in all cases in 5 which any property has been seized as liable for confiscation under this Act, may release the same on payment of the value thereof as estimated by such officer:
Provided that where the property so seized is a liquor produced or manufactured in contravention of this Act, such liquor shall not be released but shall be disposed of in such manner, as may be prescribed:
Provided further, that such sum of money shall not be accepted from any person who is reasonably, suspected of having committed an offence under sub-clause (i) of clause
(b) of section 8 without the prior approval of the Commissioner of Prohibition and Excise.
(2) On the payment by the person the sum of money or the value or both, as the case may be, such person, if in custody shall be set at liberty, and all the property seized may be released and no proceedings shall be instituted or continued against such person in any Criminal Court. The acceptance of compensation shall be deemed to amount to an acquittal and in no case any farther proceedings be taken against such person or property with reference to the same Act."
15. In the instant case, the petitioner was sentenced to undergo rigorous imprisonment for one (1) year and also to pay a fine of Rs.10,000/-, in default simple imprisonment for one month. However, it should be kept in mind that almost twenty (20) years have been lapsed from the date of offence.
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16. In this context, it is relevant to refer the judgment of the Hon'ble Supreme Court in Santosh Kumar v. Municipal Corporation1, wherein the Apex Court taken a view that though there is a minimum sentence prescribed, the Court can commute the sentence in appropriate cases.
17. In view of Section 11.B of the Act, as the offence is compoundable in nature, this Court is of the considered opinion that this is a fit case to commute the sentence of rigorous imprisonment of one (1) year as fine in exercise of powers under Section 433 Cr.P.C.
18. Accordingly, the Criminal Revision Case is partly allowed by directing the petitioner/accused to deposit a further sum of Rs.5,000/- (Rupees Five Thousand only) as fine in addition to the fine already imposed, instead of awarding sentence of imprisonment of one (1) year for the charge leveled against her, and the said fine amount shall be paid within a period of six (6) weeks from the date of receipt of a copy of this order before the Court of learned Additional Judicial Magistrate of First Class, Peddapuram, in default of payment of fine to suffer simple imprisonment for a period of fifteen (15) days.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
JUSTICE V.SRINIVAS Date: 29.01.2024 Mkk 12000 (4) Crime 32 (SC) 7 THE HON'BLE SRI JUSTICE V.SRINIVAS Criminal Revision Case No.2145 of 2009 DATE: 29.01.2024 Mkk