Andhra Pradesh High Court - Amravati
Chaluvadi Masthana Rao , vs The State Of A.P., Rep By Pp on 13 February, 2024
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.977 of 2009
ORDER:
Assailing the judgment dated 12.06.2009 in Crl.A.No.59 of 2004 on the file of the Court of learned I Additional Sessions Judge, Vizianagaram, confirming the conviction and sentence imposed by the judgment dated 22.03.2004 in C.C.No.352 of 2002 on the file of the Court of learned Special Judicial Magistrate of First Class (Excise), Vizianagaram, for the offence under section 34(a) r/w.14(2) of A.P. Excise Act (hereinafter referred to as "the Act"), the petitioner/accused No.1 filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.").
2. The revision case was admitted on 19.06.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1321 of 2009.
3. The petitioner along with other accused were arrayed as accused in Cr.No.308 of 2000-01 of Prohibition and Excise Police Station, Vizianagram and after completion of investigation, Inspector of Police laid charge sheet against the 2 accused and the same was numbered as C.C.No.352 of 2002 on the file of the Court of learned Special Judicial Magistrate of First Class (Excise), Vizianagaram. After full-fledged trial, the trial Court found the accused Nos.1 and 2 guilty of the charge under Section 34(a) r/w.14(2) of the Act and sentenced the petitioner/accused No.1 to undergo rigorous imprisonment for a period of one (1) year and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment of two (2) months and sentenced accused No.2 to undergo rigorous imprisonment for a period of six (6) months and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment of two (2) months, for the said charge. However, accused No.3 is acquitted of the said charge.
4. Aggrieved by the same, the petitioner/accused No.1 preferred an appeal, vide Crl.A.No.59 of 2004, before the Court of learned I Additional Sessions Judge, Vizianagaram and the same was dismissed by confirming the judgment of the trial Court.
5. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused No.1.
6. Heard Sri Y.Srinivasa Murthy, learned Senior Counsel appearing on behalf of Sri Ashok Kondeti, learned counsel for 3 the petitioner/accused No.1 and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent.
7. Now the point that arises for determination in this revision is "whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?"
8. Sri Y.Srinivasa Murthy, learned Senior counsel appearing on behalf of Sri Ashok Kondeti, learned counsel for the petitioner/accused No.1, brought to the notice of this Court that Ex.P.1 (search proceedings) does not contain signature of any witness and Ex.P.2 (search list) is mandated that copy of Exs.P.1 and P.2 shall be handed over to the accused, but herein this case no such service was made, that itself creates any amount of doubt regarding search and seizure of the contraband as per Section 100(4) of Code of Criminal Procedure.
9. Learned Senior Counsel further submits that both the trial Court as well Appellate Court while considering the aspect of non-corroboration of mediators report/occurrence report have misdirected by holding that such non corroboration is not fatal to the case of the prosecution and the evidence of official witnesses would be sufficient for accepting the seizure of contraband; that so many inconsistencies found from the 4 evidence of P.Ws.2 and 4, who are only crucial witnesses to the prosecution case and their evidence and contents in the occurrence report as well Exs.P.1 and P.2 creates any amount of doubt regarding the alleged raid and seizure of contraband; that there are no mediators at all to the proceedings covered under Ex.P.3 and the same is hit by Section 27 of Indian Evidence Act and there is no legally admissible evidence to find the guilt of the accused.
10. Learned Senior Counsel further submits that P.Ws.2 and 4 did not secure any independent responsible inhabitant in that locality, therefore, in the absence of specific evidence in that regard, it clearly and clinchingly holds that Section 100(4) Cr.P.C. is not followed by the Excise Officials while seizing the contraband in this case, thereby, the so-called seizure in this case cannot be believable. In support of his contentions, he relied upon judgments of this Court in Gajamker Narayana v. State of A.P.1 and Mudavath Mothia v. State of A.P.2.
11. Against the same, Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent, submits that the evidence of prosecution witnesses consistently shows that the Excise Officials have seized the contraband, drawn the samples, 1 2006 (1) ALD (Crl.) 254 (AP) 2 2002 (1) ALT (Crl.) 437 (S.B.) 5 registered the F.I.R. and thereafter sent the sample for analysis and that the investigating officer tried to secure the mediators and he went to nearby area at the scene of offence, but nobody come forward to act as a mediator.
12. He further submits that as per the provisions of Section 2(11) of the Act, the contraband exceeding limit should not be transported from one place to another place except upon the permit issued by the competent officer of the Excise Department; that the accused herein as per Ex.P.3 occurrence report transporting 192 nips of IML bottles and 312 beer bottles and they did not give any valid reason for transporting the same nor produce any license or permit to transport such huge quantity and further accused No.1 knew that he is transporting IML bottles.
13. He further submits that as per Section 14(2) of the Act, a person can possess only six quarter bottles of IML and twelve bottles of beer and that six quart bottles will come up to twelve pint bottles and twenty four nip bottles; that in the present case on hand, Excise officials seized the property more than prescribed quantity and when a person can have in his possession over and above such prescribed quantity, it is burden on such person, from whom the property was seized, to 6 prove that how he has got the said property and in the present case, the said property seized from the possession of accused No.1 and it is deemed that he is taking the said property for selling the same without any license or permit and thereby, committed offence under Section 34(a) r/w.14(2) of the Act and the Trial Court as well first Appellate Court concurrently found that accused Nos.1 and 2 committed the said offence.
14. After hearing both sides, this Court closely gone through the material placed on record. Admittedly, Ex.P.1 is a search proceedings covered under Section 165 of Cr.P.C., wherein, in the column of witnesses, there are no signatures at all. Ex.P.2. is a search list, wherein also at column No.8 and 9, in particularly column No.8 there are no witnesses mentioned and kept it blank and that the search list copy should be given to the accused and obtain an endorsement at column No.9, but no such signature or endorsement was there nor obtained.
15. Admittedly, in the present case, in Exs.P.1 and P.2, there were no mediators. In this regard, Section 100(4) Cr.P.C. lays down that before making a search, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such 7 inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
16. Herein this case, no doubt P.Ws.2 and 4 stated that they tried to secure independent mediators, but they could not secure them. As per the testimony of P.Ws.2 and 4 on 05.03.2001 at 10.00 p.m., while they were conducting raid at Gajularega Junction, noticed one Tata Indica Car coming from Gajapathinagaram side and then Inspector of Police stopped the sad vehicle and at that time accused No.2 was driving the car and accused No.1 was sitting in the front seat by the side of accused No.2. They identified that accused No.1 is the previous offender in their station crimes and in the back seat there were cartoon boxes thirty (30) in number. When they questioned accused No.1, he stated that the said boxes containing brandy and whisky bottles and they purchased the IML bottles at Gorlam Village and transporting the same to Vizianagaram for selling at Ambica Wines shop near RTC Complex, Vizianagaram.
17. But, as could be seen from Ex.P.1 search proceedings 'on credible information regarding Prohibition and Excise Crime being committed, they surprisingly conducted raid and seized the contraband from the possession of accused Nos.1 and 2'. 8 The evidence of PW 2 and 4 deposed on oath is altogether different to the document covered under Ex.P.1.
18. In particular, when P.W.2 is in the witness box and questioned about the contents of Ex.P.1, he deposed that: "We never had prior information about the alleged offence. In Ex.P.1, it is mentioned in the 1st paragraph that had prior information about the alleged offence. The information in Ex.P.1 that we had prior information is not correct", itself goes to the root of the case and gives any amount of doubt regarding prosecution case and that the search procedure contemplated under Section 100(4) Cr.P.C. is not at all taken care of by P.Ws.2 and 4. Moreover their own evidence (PWs.2 & 4) is totally against the own document covered under Ex.P.1.
19. Both P.Ws.2 and 4 deposed in their testimony on oath that when they were constituted route watch at Gajularega Junction on NH 43 road at about 09.00 p.m., noticed Tata India Car bearing Registration No.AP 35 T 4977 and seized the contraband from accused Nos.1 and 2. Whereas, Ex.P.1 shows that on some credible information went and held search proceedings under Section 165 Cr.P.C. In-order to do search proceedings, necessarily the Excise Officials are expected to follow Section 100(4) Cr.P.C., which mandates the officials to 9 secure the mediators, if no mediator is willing to be a witness to the search, then they have to secure any official witness for their search. Therefore, in the absence of specific evidence in this regard, prosecution miserably failed to prove that they followed Section 100(4) Cr.P.C. when they conducted search proceedings under Section 165 Cr.P.C. Therefore, the so-called seizure under the cover of Ex.P.3 is nothing but illegal.
20. Reading the evidence of P.Ws.2 and 4 along with Exs.P.1 to P.3 creates any amount of doubt against the prosecution case and these oral testimonies contradicting with the documents placed on record. Both the trial Court as well first Appellate Court failed to peruse the documents by comparing with the oral testimony, while evaluating the material on record, and erroneously conclude that prosecution proved the guilt of the accused for the said charge.
21. On close watch of Ex.P.3, the search and recovery of articles from accused No.1 was in violation of the provisions of Section 100(4),100(6) r/w.166(3) & (4) Cr.P.C. on the ground that no such witness was secured from the locality nor search was carried out in the manner prescribed under Section 100(4) & 100(6) Cr.P.C.
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22. In these circumstances, this Court found glaring and apparent mistake occurred in finding the guilt of the accused by the Trial Court as well first Appellate Court, as prosecution miserably failed to follow the mandatory provision contemplated under Section 100(4) r/w.165 & 166 Cr.P.C. and A.P. Excise Act as there is no legal evidence to convict the accused. Thereby, the Trial Court as well first Appellate Court went wrong in come to a conclusion that prosecution proved the guilt of the accused beyond all doubt and this revision has merits.
23. Having regard to the above, this Court has no hesitation to interfere with the judgments of Trial Court as well first Appellate Court and thereby, the conviction and sentence passed against the petitioner by the trial Court, which was confirmed by the first Appellate Court, for the said charge are liable to be set aside.
24. In the result, the Criminal Revision Case is allowed and the conviction and sentence imposed against the petitioner/accused No.1, vide judgment dated 22.03.2004 in C.C.No.352 of 2002 on the file of the Court of learned Special Judicial Magistrate of First Class (Excise), Vizianagaram, which was confirmed by the judgment dated 12.06.2009 in Crl.A.No.59 of 2004 on the file of the Court of learned I 11 Additional Sessions Judge, Vizianagaram, are hereby set aside. The revision petitioner/accused No.1 is acquitted of the charge under Section 34(a) r/w.14(2) of A.P. Excise Act. The fine amount paid by the petitioner/accused No.1, if any, shall be refunded to him.
Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ JUSTICE V.SRINIVAS Date: 13.02.2024 Krs 12 87 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.977 of 2009 DATE: 13.02.2024 Krs