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Andhra High Court · body

2002 DIGILAW 389 (AP)

Kalidindi Ramaraju v. State Of A. P.

2002-03-08

body2002
GOPALA KRISHNA TAMADA, J. ( 1 ) THE petitioner herein is A-1 in C. C. No. 141 of 1996 on the file of the Judicial I Class Magistrate for Prohibition and Excise, Kakinada. He along with another accused person i. e. , A-2 was tried for the offence punishable under Section 34 (a) of the A. P. Excise Act and ultimately found both of them guilty of the said offence and accordingly sentenced each of them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 20,000. 00 in default to undergo simple imprisonment for a period of three months. In appeal, the learned III Additional Sessions Judge, Kakinada, confirmed the same. ( 2 ) THE case of the prosecution according to the complaint filed by the Excise Sub Inspector, Peddapuram, is that on 11-4-995 at about 3. 30 p. m. , the excise officials proceeded to the tiles factory under the occupation of the petitioner herein and found the petitioner therein. After serving the search proceedings, the excise officials entered into the mill along with the petitioner and found A-2 with some cardboard boxes. When questioned, A-2 informed them that he is the watchman working under the petitioner and the said cardboard boxes belong to the petitioner. When counted, the cardboard boxes numbered 104 and on opening them, they found in all 4,880 nips of Indian made liquor having company cap seals and labels with inscription as distilled and bottled at Kedianagar, Madhya Pradesh, "for sale in Madhya Pradesh only". Pursuant to that, the petitioner made a confession that he purchased the liquor bottles from an unknown person and that he does not have any licence or permit to possess them. Later, the bottles were seized by the excise police and after following the further procedure such as drafting the mediators report etc. , the excise officials registered a case in Crime No. 41/1993-94 for the offence punishable under Section 34 (a) of the A. P. Excise Act and the petitioner and another were arrested and produced before the court for remand. Later, the samples were sent to analyst, who issued a report after analysis opining that they are Indian made liquor. After investigation, the complainant filed the complaint against the petitioner and another as aforesaid. Later, the samples were sent to analyst, who issued a report after analysis opining that they are Indian made liquor. After investigation, the complainant filed the complaint against the petitioner and another as aforesaid. ( 3 ) PURSUANT to the court orders, the entire seized liquor was sold in public auction and the sale proceeds of Rs. 1,04,800. 00 was deposited into court. ( 4 ) IN all, the prosecution examined P. Ws. 1 to 9 and got marked Exs. P-1 to P-7 in support of its case. After appraising the entire evidence on record, the trial court as well as the appellate court held that the petitioner and A-2 possessed huge quantity of liquor without any valid licence or permit and as such they are liable for punishment under Section 34 (a) of the A. P. Excise Act and accordingly sentenced the petitioner and A-2 as aforementioned. ( 5 ) THE learned senior counsel Sri C. Padmanabha Reddy strenuously contended that the prosecution miserably failed to establish that the petitioner is the owner of the tiles factory from where the contraband was allegedly seized and that in the absence of proof that the petitioner is the owner of the said factory, it is highly improbable to connect the accused to the crime and to convict him for the offence punishable under Section 34 (a) of the A. P. Excise Act as if he is in conscious possession of the said contraband. His further submission is that excepting the alleged confession of the petitioner, there is no other incriminating evidence to connect the petitioner to the offence and the said alleged confession is not admissible in evidence as per Section 25 of the Evidence Act. ( 6 ) ON the contrary, the learned Public Prosecutor tried to impress upon this court contending that the petitioner alone was present in the tiles factory along with the 2nd accused. If really the petitioner does not have any connection with the contrabands that were seized by the excise officials, he could not have accepted the search proceedings marked as Ex. P-4, of which notice is given by the excise officials as if the petitioner is the owner of the said tiles factory. If really the petitioner does not have any connection with the contrabands that were seized by the excise officials, he could not have accepted the search proceedings marked as Ex. P-4, of which notice is given by the excise officials as if the petitioner is the owner of the said tiles factory. He further submitted that if really it is to be true that there is no nexus between the petitioner and the offence alleged against him, the petitioner would not have kept quiet and participated in the search proceedings. He summed up his arguments stating that the evidence of P. W. 8, the Assistant Superintendent of Excise, is to the effect that the tiles factory originally belonged to one G. Kondala Rao from whom one P. V. Krishnam Raju, who is examined as P. W. 9, took on lease and subsequently, the said P. V. Krishnam Raju (P. W. 9) sub-let the premises to the petitioner herein. According to him, this aspect is amply established by Exs. P-5 and P-6 documents, marked on behalf of the prosecution. ( 7 ) IN the light of the rival contentions, it is necessary for this court to look into the entire evidence on record to find out whether the petitioner has anything to do with the tiles factory from where the entire contraband was seized on 11-4-1994. ( 8 ) THE evidence of P. Ws. 1 to 6 is about the seizure of the liquor bottles, arrest of the accused, preparation of mediators report etc. Their evidence, therefore, is not of much help for the purpose of establishing the fact whether the petitioner was the owner of the tiles factory at the time of seizure. The evidence of P. W. 7, who worked as Bill Collector in Peddapuram Municipality till September 1995, is to the effect that as per the records of the Municipality, the premises in Door No. 19-1-461 having assessment No. 7731 i. e. , the tiles factory, belongs to one Goli Kondala Rao. The tax is assessed at Rs. 1,661. 00 and the same was paid by the said Kondala Rao upto 13-9-1995. The tax is assessed at Rs. 1,661. 00 and the same was paid by the said Kondala Rao upto 13-9-1995. Further, the evidence of P. W. 9, P. V. Krishnam Raju, is to the effect that one Goli Kondala Rao is the absolute owner of the tiles factory and he took the said premises on lease from the said Kondala Rao for the purpose of running Industrial Training Institute with a shed and vacant land of about 8 acres on a monthly rent of Rs. 5,000. 00 but they could not run the institute as no permission was granted by the Government. He deposed that he did not execute any lease deed in favour of the said Kondala Rao. He further stated that he did not sub-lease the said premises to anybody. From the evidence of P. Ws. 7 and 9, it is clear that the tiles factory from where the entire contraband was seized belong to Goli Kondala Rao and the same was let out to P. W. 9. However, P. W. 8, the Assistant Superintendent of Excise stated that Kondala Rao is the owner of the premises in question and it is leased out to Krishnam Raju (P. W. 9), who in turn sub-leased the same to the petitioner herein. P. W. 8 further deposed that Kondal Rao submitted a xerox copy of the leased deed executed by him in favour of P. W. 9 and that P. W. 9 also gave him a xerox copy of the lease deed executed by him in favour of the petitioner herein and those two xerox copies of the lease deeds were marked as Exs. P-5 and P-6. Of course, P. W. 8 could not give any positive answer in his cross-examination to the question whether Exs. P-5 and P-6 really relate to the premises in question. Further, the original owner of the tiles factory i. e. , Kondala Rao, though cited as L. W. 9, for reasons best known to the prosecution, was not examined as a prosecution witness. Though Krishnam Raju was examined as P. W. 9, he never stated that he sub-let the premises in question in favour of the petitioner. In the absence of any positive evidence from P. W. 9, it is not known as to how P. W. 8 could obtain Exs. P-5 and P-6 xerox copies. Though Krishnam Raju was examined as P. W. 9, he never stated that he sub-let the premises in question in favour of the petitioner. In the absence of any positive evidence from P. W. 9, it is not known as to how P. W. 8 could obtain Exs. P-5 and P-6 xerox copies. Apart from that, the alleged lease deeds, marked as Exs. P-5 and P-6 are only the xerox copies and no explanation is forthcoming as to why the original documents could not be produced in court. In the absence of any conclusive evidence from the owner of the tiles factory, who was not examined, and in the light of the evidence of P. W. 9, it is not safe to believe the oral evidence of P. W. 8 and Exs. P-5 and P-6 xerox copies. When once those two documents and the oral evidence of P. W. 8 are discarded from consideration, there is absolutely no evidence on record to come to a conclusion that the petitioner took the premises in question on sub-lease from P. W. 9, excepting the confession of the petitioner allegedly made by him at the time of search proceedings and the same is not admissible in evidence in view of Section 25 of the Evidence Act. It is settled law that an excise officer is a police officer within the meaning of Section 25 of the Evidence Act and a confession made by the accused person before an excise official, if otherwise not proved, is inadmissible in evidence. In identical circumstances, in a case reported in MOHD. ASLAM KHAN V. NARCOTICS CONTROL BUREAU AND ANOTHER, 1996 Criminal L. J. 2001, their Lordships of the apex court held thus:we have considered the rival submissions. We do not think that the learned Additional Solicitor General is right in invoking the aid of Section 66 of the NDPS Act, for Section 66 (1) visualizes the production of a document which has been seized from the custody or control of any person or furnished by any person. In this case, the document namely the agreement has not been seized from the custody of the appellant or it has been furnished by him. In order to invoke the aid of Section 66, the prosecution should have established that the appellant is the owner and was in actual possession of the flat in question. In this case, the document namely the agreement has not been seized from the custody of the appellant or it has been furnished by him. In order to invoke the aid of Section 66, the prosecution should have established that the appellant is the owner and was in actual possession of the flat in question. Therefore, we are not able to accept the argument of the learned Additional Solicitor General. It is not in dispute that the appellant did not admit his signature in the agreement in question. The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from the Registrar s office concerned or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the panchanama. Only one of them was examined as P. W. 5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High court. " ( 9 ) IN the light of the above discussion, I am of the view that the approach of both the courts below in accepting the evidence of P. W. 8 and the confession statement allegedly made by the petitioner, to base conviction is not at all sustainable in law. Therefore, the judgments of both the courts below are liable to be set aside. ( 10 ) IN the result, the criminal revision case is allowed and the judgments of conviction and sentence passed against the petitioner herein by both the courts below are hereby set aside. The petitioner herein is acquitted of the charge framed for the offence punishable under Section 34 (a) of A. P. Excise Act. His bail bonds shall stand cancelled and the fine amount shall be refunded to him forthwith. ( 11 ) THE amount of Rs. 1,04,800. The petitioner herein is acquitted of the charge framed for the offence punishable under Section 34 (a) of A. P. Excise Act. His bail bonds shall stand cancelled and the fine amount shall be refunded to him forthwith. ( 11 ) THE amount of Rs. 1,04,800. 00 being the sale proceeds of the contraband liquor bottles, which were auctioned pursuant to the court orders, shall be confiscated to the State.