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2002 DIGILAW 239 (AP)

Mudavath Mothia v. State Of A. P.

2002-02-15

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THIS revision is directed against the conviction and sentence of imprisonment of six months rigours imprisonment and fine of rs. 10,000/- awarded by the learned II additional District and Sessions Judge, rangareddy District in Criminal Appeal no. 119 of 1998 dated 30th June 2000. ( 2 ) IT is the case of the prosecution that the revision petitioners were found in possession of 66 I. D. Liquor Sachets containing 90 ml. each on 16-12-1994 at about 9. 40 p. m. by the Assistant Excise Superintendent. Enforcement, Rangareddy District and others and proceedings were drafted on interrogation which led to the confession. The charge-sheet was laid under Sec. 34 (a) of the A. P. Excise Act against the revision petitioners after receipt of report dated 20-1-1995 from the Chemical Examiner and after completing the investigaton. ( 3 ) IT is contended by the revision petitioner s counsel that the independent mediators were not examined and therefore the proceedings are hit by Section 27 of the indian EVIDENCE ACT, 1872 and, as there is no legal evidence, the accused/revision petitioner is entitled for acquittal. ( 4 ) THE learned Public Prosecutor has vehemently contended that this is a case where the revision petitioner was caught red handed with sachets and charge-sheeted and both the courts have properly apprised the evidence. ( 5 ) 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. When once they become police officials, the confession recorded by them in the proceedings is inadmissible. Moreover, ex. P-5 panchanama is hit by Sections 25,27 of the Indian EVIDENCE ACT, 1872 and Section 161 of cr. P. C. The benefit if any arises due to the invalidity of the investigation only goes to the accused and once the Ex. P-5 is hit by sections 25 and 27 of the Indian Evidence act, and Section 161 of Cr. P. C. and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. P. C. and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C. 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. Both the courts have not looked into the evidence from proper angle. The conviction and sentence awarded is, therefore, liable to be set aside due to the illegality of the proceedings drafted. Moreover, only one sample of sachet was produced before the court and not all the sachets seized and it is for the prosecution to establish that all the samples of sachets seized contain I. D Liquor and it is not proved. ( 6 ) IN the result, the conviction and sentence awarded by the Special Judicial First Class magistrate for Prohibition and Excise cases, rangareddy District at Saroornagar as modified by the II Additional District and sessions Judge, Rangareddy District at saroornagar to six months rigorous imprisonment while confirming the fine amount is set aside and the accused is acquitted of the charge under Section 34 (a) of the A. P. Excise Act. The revision petitioner is entitled for refund of the fine amount, if any paid by him. The bail bond shall stand cancelled.