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2005 DIGILAW 507 (AP)

Gajamker Narayana v. State Of A. P.

2005-06-15

M.VENKATESWARA REDDY

body2005
( 1 ) THIS Criminal Revision Case is filed against the judgment dated 02-06-2001 passed in crl. A. No. 77 of 1998 on the file of the additional Sessions Judge, Medak at sangareddy, confirming the conviction and sentence of six months simple imprisonment and fine of Rs. 5,000/- imposed by the Judicial magistrate of First Class, Special Court for prohibition and Excise Offences, sangareddy, for the offence under section 8 (b)of the A. P. Prohibition Act, 1995. ( 2 ) THE case of the prosecution is that on 03-09-1995, at Rangadampally village, the excise Officials apprehended the accused as he was found in possession of a plastic can containing 10 litres of I. D. liquor. The same was seized in the presence of panchas under the cover of Panchanama, Ex. P-1, after drawing samples. On analysis, the contents were found to be I. D. Liquor. Therefore, the accused was charge-sheeted for the offence punishable under Sec. 34 (a) of the A. P. Excise Act and Section 8 (b) of a. P. Prohibition Fraught Act, 1995. In support of the case of prosecution, P. Ws. 1 to 3 were examined and Exs. P-1 to P-5 were marked. The trial Court after consideration of the material on record found him guilty of the offence punishable under Section 8 (b) of the a. P. Prohibition Act, 1995 and the same was confirmed in appeal. ( 3 ) LEARNED Counsel for the revision petitioner urged two points before me. Firstly, the provisions of Section 100 (4) Cr. P. C. were not followed while seizing the alleged I. D. liquor from the possession of the accused. Secondly, there is no independent testimony to show that the accused was found in possession of 10 litres of I. D. liquor. ( 4 ) SO far as the first point is concerned, section 100 (4) Cr. P. C. lays down that before making a search, the officer of 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 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. ( 5 ) HERE, in the case on hand, the accused was found in possession of I. D. liquor at bypass road Rangadampally near Siddipet. The evidence of P. W. 1, the Excise Sub- inspector, discloses that there are residential houses at a distance of 25 yards from the scene of offence. There are hotels also near the scene of offence. As per the evidence of p. W. 1, they took the panch witnesses along with them to the scene. The distance between the scene of offence and the police station is about three kilometers as perthe evidence of p. W. 3, the then Excise Inspector, Siddipet. Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P. W. 1 nor that of P. W. 3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex. P-1, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100 (4) Cr. P. C. are not followed by the Excise Officials while seizing the plastic can containing I. D. liquor. Therefore, the seizure made in this case is illegal. ( 6 ) COMING to the second point, it must be pointed out that the mediator (P. W. 2) in whose presence the plastic can containing i. D. liquor was seized has turned hostile. He did not support the case of the prosecution. Nevertheless, both the Courts below relied upon the evidence of P. W. 1, the Excise Sub- inspector and P. W. 3, the Excise Inspector and found the accused guilty. If the evidence of mediator (P. W. 2) who turned hostile is excluded, there remains the evidence of p. Ws. 1 and 3, the Excise Officials, who are certainly interested witnesses. Their evidence runs in a routine manner. It was during the routine watch, they saw the accused coming from Husnabad road to Siddipet on foot along with plastic container (M. O. 1 ). 1 and 3, the Excise Officials, who are certainly interested witnesses. Their evidence runs in a routine manner. It was during the routine watch, they saw the accused coming from Husnabad road to Siddipet on foot along with plastic container (M. O. 1 ). ( 7 ) I have gone through the evidence. Their evidence sounds too artificial and routine. On point No. 1, held that the seizure was not carried out in accordance with the provisions of Section 100 (4) Cr. P. C. The accused was carrying only 10 litres of I. D. liquor, it is sledge hammering an insect. A reading of the evidence of P. Ws. 1 and 3 does not inspire confidence and believing their evidence is always fraught with the danger of miscarriage of justice. Therefore, in the circumstances of the case, I feel that in the absence of independent testimony, the evidence of P. Ws. 1 and 3 cannot be relied upon. Accordingly, I answer both the points against prosecution and in favour of the accused. In the result, the Criminal Revision Case is allowed setting aside the Judgment dated 2-6-2001, confirmed in Crl. A. No. 77 of 1998 of the JMFC, Special Court for prohibition and Excise offences as on the file of the additional Sessions Judge, Medak at sangareddy. The accused is acquitted of the offence under Section 8 (b) of the A. P. Prohibition Act. The fine amount shall be returned to him. The bail bonds furnished by him shall stand cancelled.