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2023 DIGILAW 479 (AP)

Nakka Ramana v. State Of A. P.

2023-03-01

V.R.K.KRUPA SAGAR

body2023
ORDER: Two convicts who were tried together by the trial Court preferred these two revisions questioning the correctness of findings of two Courts below in finding them guilty and for convicting them and sentencing them. C.C.No/ Appeal No Name of the Court Name of the accused Date of Judgment Result/ Sentence imposed C.C.17/2005 (Old C.C.No.42/02 on the file of Spl.JFCM Court for Proh. & Excise Kakinada) in Cr.No.161/99 of Timmapuram Police Station. Chief Judicial Magistrate Court (Prl. Assistant Sessions Judge) Rajahmundry 1. Palika Chakram (A1) 2. Nakka Ramana (A2) 28.2.06 A1 and A2 are found guilty for the offence punishable under Section.8(e) r/w. 7(A) of A.P.P.Act and they are sentenced to suffer rigorous imprisonment for two years each and pay a fine of Rs.10,000/- each for the said offence. In default of payment of fine each of them shall suffer simple imprisonment for six months. Crl.A.No.47 of 2006 IV-Additional Sessions Judge, Kakinada Palika Chakram (A1) 28.11.08 Appeal dismissed confirming the judgment of the trial Court. Crl.A.No.50 of 2006 IV-Additional Sessions Judge, Kakinada 2. Nakka Ramana (A2) 28.11.08 Appeal dismissed confirming the judgment of the trial Court. 2. Since both revisions arise out of the common trial and judgment, both the revisions are disposed of together. In both the revisions State is the Respondent. Learned counsel for revision petitioners submitted oral arguments and filed written arguments and cited legal authorities and the learned Special Assistant Public Prosecutor appearing for the respondent submitted oral arguments and supported the impugned judgments. 3. The point that falls for consideration in these revisions is:- Whether the convictions recorded by Courts below suffered from illegality or irregularity in appreciating the evidence and in overlooking the principles concerning search and seizure and the absence of independent witness? 4. POINT:- Sub-Inspector of Police Timmapuram police station/Pw.1 and his staff which include a police constable/Pw.3 and an independent panch witness/mediator/Pw.2, by virtue of a credible information the police received, formed a search party and at about 6-30 PM on 18.12.1998 they reached agricultural fields near Mathalanka Puntha of Unduru Village and they found two accused/A1 and A2 manufacturing illicitly distilled liquor. On seeing the police party, both the accused started running away from the spot but A1 was caught and A2 was successful in his escape. On seeing the police party, both the accused started running away from the spot but A1 was caught and A2 was successful in his escape. Infact the Sub-Inspector/Pw.1 recognized A2 and shouted calling him by name and directed him to stop but he did not oblige it and left the place. They questioned A1 and he confirmed the name of the person escaped as A2. They searched the place and found 30 mud pots among which 18 contained fermented jaggery wash and also found a white plastic can containing 10 liters illicit distilled arrack. They further found copper wire, aluminium bucket. The Sub Inspector of Police took up the samples of the illicitly distilled liquor as well as fermented jaggery wash and took all the precautions in labelling them and in evidence of the entire process they prepared Ex.P1 report. They arrested A1 and seized all the material items/MOs.1 to 5 and along with samples, they reached back to police station. The report that was prepared at the spot was also signed by the independent mediator/Pw.2 and acting upon that Ex.P2 F.I.R was registered. The samples that were collected were forwarded to expert for chemical examination along with Ex.P3 letter of advice. The laboratory report/Ex.P4 disclosed that MO.4 and MO.5 samples are illicit distilled arrack and fermented jaggery wash respectively. All the investigation was verified by the succeeding Sub-Inspector/Pw.4 and he found that the investigation was satisfactory and having concluded the investigation, he laid the charge sheet. By the time the charge sheet was filed A2 was also arrested. Initially the proceedings took place before the learned Judicial First Class Magistrate and he took cognizance for the offence under Section 8(e) r/w.7(A) of Andhra Pradesh Prohibition Act, 1995. After furnishing copies of documents and after duly following the procedure and after charging the accused and recording their plea of not guilty, the learned Magistrate recorded the evidence of Pws.1 to 4 and got marked Exs.P1 to P4 and the material evidence as MOs.1 to 5 and sought for explanation from the accused under Section 313 Cr.P.C. where they merely denied the truth of the evidence. Despite invitation defence did not adduce any evidence. After hearing arguments on both sides, the learned Magistrate rendered his judgment finding guilt of both the accused. Despite invitation defence did not adduce any evidence. After hearing arguments on both sides, the learned Magistrate rendered his judgment finding guilt of both the accused. However, considering that was a case of manufacturing of illicit distilled arrack and the length of sentence is available from the statute the learned Magistrate, in terms of Section 325 Cr.P.C. submitted the case to the learned Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Rajahmundry. The learned Chief Judicial Magistrate having heard the learned Additional Public Prosecutor and the learned counsel for defence and independently appreciated the entire evidence on record and found that both the accused were guilty and convicted them and sentenced them as indicated earlier. 5. Each accused preferred separate appeals and by two separate judgments, the learned IV-Additional Sessions Judge, Kakinada found no merits in those two appeals and approved the judgments of the trial Court and maintained the conviction and sentence. 6. Questioning them these two revisions have come up. 7. Production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is prohibited by Section 7-A. One who indulges in any such activity can be punished in terms of Section 8(e) of Andhra Pradesh Prohibition Act, 1995. Any prohibition officer or any police officer not below the rank of Sub-Inspector is empowered by Section 21 of Andhra Prohibition Act, 1995 to arrest without warrant any person found committing an offence under Section 7-A and may seize any liquor or other article which is liable for confiscation and may also search any person, vessel, vehicle etc. when he entertained a reasonable suspicion that the arrack or other article for manufacturing of arrack are concealed. Thus, the investigating Sub Inspector can discharge his duties without obtaining any warrant for search. 8. One may also notice Section 17 and Section 18 of Andhra Pradesh Prohibition Act, 1995. When there was a prior information about distillation of illicit arrack having been committed the Magistrate or Prohibition Officer or Collector in terms of Section 17 may hold an inquiry and then issue a warrant for search authorising an officer to proceed further for search, seizure and arrest etc. If these competent officers are of the opinion that taking up of inquiry in terms of Section 17, in the given facts and circumstances, may occasion delay, then the inquiry could be dispensed with and after recording reasons, issue a search warrant for the required purposes. If these competent officers are of the opinion that taking up of inquiry in terms of Section 17, in the given facts and circumstances, may occasion delay, then the inquiry could be dispensed with and after recording reasons, issue a search warrant for the required purposes. Section 23 of the Act, makes a provision that in case of arrest, detention and search etc if the Act does not make a provision, the authorities acting under this Act are obliged by the relevant provisions made in The Code of Criminal Procedure, 1973. 9. When a search is to be made in a closed place the procedure to be followed include associating two respectable persons of neighbourhood to be in attendance at the time of search is what is contemplated under Section 100 Cr.P.C. These are some of the statutory provisions which have been argued by the learned counsel for the petitioners in this case. 10. All the four material witnesses examined by the trial Court supported the case of prosecution and their oral evidence was in harmony with contents contained in the contemporaneously prepared Ex.P1 mediators report. The article seized contained items which are used and which could be used in illicit distillation of arrack. The contraband seized was subjected to chemical analysis and was found to be fermented jaggery wash which could be used in distilling arrack. The other sample was found to be illicitly distilled arrack. Throughout the trail and appeal and this revision the scientific reports are not under challenge and the principles of procedure to be adopted for a fair trial are also not under challenge. 11. Learned counsel for revision petitioners argued that both the Courts below found the so called panch witness or mediator/Pw.2 as a stock witness and in that view of the matter they should have disbelieved the evidence of Pws.1 and 3. That the procedure meant for arrest and seizure were not complied with by Pw.1 and therefore the accused should have been acquitted. The further argument is that it was on confession of A1 the other accused/A2 was implicated and placing reliance on confession of co-accused is impermissible. A2 was not arrested at the spot and nothing was seized from him at the spot of offence and no test identification parade was held to establish his identity, yet he was found guilty and that is erroneous. A2 was not arrested at the spot and nothing was seized from him at the spot of offence and no test identification parade was held to establish his identity, yet he was found guilty and that is erroneous. Learned counsel further argued that conducting search without the presence of respectable persons of the neighbourhood is in violation of Section 100(4) Cr.P.C. and such illegal or irregular searches should not be and countenanced and conviction recorded based on such search is amenable for reversal and placed reliance on T.Subbanna vs. State of A.P., 2003(2) APLJ 96 (HC). Learned counsel, for the same preposition also cited judgment dated 06.07.2021 in Crl.R.C.No.1758 of 2005 and judgment dated 30.03.2022 in Crl.R.C.No.1691 of 2006 of the learned Judges of this Court. 12. As against that the learned Special Assistant Public Prosecutor submits that on credible evidence, facts were recorded to have been proved by both the Courts below and there is neither error on facts nor error on law and the conclusions of two convicting Courts do not deserve any interference. 13. On a thoughtful consideration of the material on record and findings of the Courts below and the approach adopted under law by both the Courts below and the factual legal submissions made by learned counsel for revision petitioner the following aspects are required to be recorded. 14. Search of a person or a closed place which include search of a house or premises or a vehicle is a category by itself. On witnessing certain things visible in an open field and conducting the verification of open field resulting in collection of certain material objects is a different category. The provision indicates that Section 100 Cr.P.C concerns with search of closed places. Section 18 of Andhra Pradesh Prohibition Act also indicates search of a place of that nature. It is in the context of such provisions the precedent cited earlier by the learned counsel for revision petitioner emerged. In T.Subbanna’s case referred earlier it was a house and a hayrick by the side of the house and it was searched and it was there the illegal liquor was found concealed and that was seized. In other two cases, in the first one it was a thatched house that was raided where arrack business was conducted without permit or licence and that was a closed place. In other two cases, in the first one it was a thatched house that was raided where arrack business was conducted without permit or licence and that was a closed place. In the next case cited, search of an auto rickshaw was done and thus it was a case of closed vehicle search. It was in those circumstances when the independent panch witnesses/mediators did not support the case of prosecution, this Court was unable to put faith in the evidence of police officers and principles of law concerning search of such closed place were considered and finally it was held that in the given facts and circumstances the contraband allegedly recovered under those illegal searches could not be believed. 15. In the case at hand, it is not a case of search of a house or any closed premises or any vehicle. Open agricultural fields is the place of offence and what has been happening there was visible to anyone who stood there. It is at that place the process of manufacturing of arrack was going on and it was at that place the mud pots and plastic can and other articles were found and seized. One does not call it a search requiring compliance with what is mandated in Section 100 Cr.P.C. namely associating respectable persons of the neighbourhood. Applicability of Section 18 of the Prohibition Act and applicability of Section 100 Cr.P.C. was not there in the present case. Therefore, the precedent cited renders no help to the revision petitioners. In fact, the evidence of Pw.1 and Pw.3 was considered by both the Courts below and they stated that the raiding police officers have really brought along with them an independent mediator/Pw.2 and he also supported the case of the prosecution. At about 7-00 PM in such village at such agricultural fields, they did not find any inhabitation around that place and therefore associating a respectable person from the neighbourhood was not really possible. It was in such circumstances both the Courts below found the evidence credible with reference to seizure of MOs.1 to 5 and arrest of accused. It is not the case of defence that a particular person was available around the alleged place of offence or a particular person was really a witness to the fact and his evidence was not tendered by the prosecution. It is not the case of defence that a particular person was available around the alleged place of offence or a particular person was really a witness to the fact and his evidence was not tendered by the prosecution. Therefore, any argument in the absence of relevant facts is only academic and the arguments advanced on behalf of revision petitioners are within the realm of academic discussion. 16. Writing a special report before conducting raid is absent in this case and one of the arguments for the revision petitioners is rested on it. Be it noted, that an irregular or illegal search by itself does not render what was seized as inadmissible piece of evidence and that part of the law has not been in any dilemma. State of Maharashtra vs. Natwarlal Damodardas Soni, 1980 (4) SCC 669 lays down the ratio to this effect. In the case at hand, strictly speaking it is not a case of search of anything. It is a case of seizure of articles that are visible to the naked eye lying in open agricultural fields. It is in these circumstances, the belief of both the Courts below about seizure of MOs.1 to 5 and participation of accused in distilling arrack illicitly has to be approved as correct as correct on facts and law. 17. A1was caught at the spot. In his presence seizure of articles took place. Coming to A2, admitted case of the prosecution is A2 was not arrested at the spot. Nothing was seized from A2 from his possession. The connection between A2 and the offence is by virtue of evidence of Pw.1. In his evidence Pw.1 the Sub-Inspector stated that he saw A1 and A2 and they saw him and they started running away and they were able to catch A1 and he knew A2 and therefore shouted him by his name, yet he ran away. Both the Courts below recorded that the evidence of Pw.1 indicated his prior acquaintance with A2. They also recorded that there was no suggestion from the defence that Pw.1 never knew A2 at all. It is that evidence which made the Courts below to believe participation of A2 in this offence of manufacturing of illicit arrack. The argument of revision petitioners is to the effect that in the confession of A1 he disclosed the name of A2 and such evidence is impermissible. It is that evidence which made the Courts below to believe participation of A2 in this offence of manufacturing of illicit arrack. The argument of revision petitioners is to the effect that in the confession of A1 he disclosed the name of A2 and such evidence is impermissible. Learned trial Court recorded a finding on this arguments stating that without considering any such confession of A1 there was evidence of identity of A2 and therefore the argument was negatived. Learned first appellate Court made a little more discussion with reference to Section 10 of Indian Evidence Act and proof of conspiracy between A1 and A2 stating that, to that particular extent about name of A2, the confession of his co-accused/A1 is permissible. However, the learned first appellate Court, guardedly also recorded that irrespective of any such confession of A1 there was enough evidence of Pw.1 for it to find complicity of A2. Since Pw.1 knew A2, there was no need or occasion for convening any Test Identification Parade. It was never the defence that Pw.1 or any of the prosecution witnesses have got any animosity against A2. This Court sitting in revision finds nothing illegal or irregular in the findings of the Courts below about involvement of A2 in this offence. Therefore, this argument of revision petitioners is negatived. 18. Learned counsel for revision petitioners submits that it was almost 24 years ago this offence allegedly took place and the accused have their own dependants and now they are aged about 50 years and therefore the sentence may be reduced, to the extent of sentence the accused underwent and cited for this V.K.Verma vs. Central Bureau of Investigation, (2014) 3 SCC 485 . That was a case of corruption where the Hon’ble Supreme Court of India found that the statute prescribed minimum sentence and statute further provided reduction of minimum sentence when there were special reasons and the facts disclosed special reasons which include long delay in prosecution and old age of the convict and his serious ill-health and then corrupt money involved was only Rs.265/- and the accused was aged about 76 years by the time their Lordships considered the case and he was suffering from cardiovascular problems and he underwent physical incarceration for about three months and mental incarceration for about 30 years and therefore sentence of imprisonment was reduced from 1½ years to three months and fine of Rs.5,000/- was enhanced to Rs.50,000/-. In the case at hand, nothing about investigative or prosecutional delays or trial delays are argued or atleast demonstrated through record and the health status of these accused is quite normal. The punishment prescribed provided minimum sentence and no provision for permitting for reduction of sentence because of special reasons is brought to my notice. For these reasons the precedent cited does not help the revision petitioners. Looking at the length of sentence provided by the statute which permits imprisonment for five years and looking at length of incarceration of two years inflicted by the Courts below and looking at the grave offence such as the act of illicit distillation of liquor, this Court observes that the sentence inflicted by both the Courts below is in tune with doctrine of proportionality and therefore there is no need to revise the length of sentence or altering the nature of sentence. 19. The judgments of the Courts below indicate that the evidence was properly appreciated and correct conclusions were arrived at and in considering the matter both the Courts below acted in accordance with law, requiring no interference. Point is answered against the revision petitioners. 20. In the result, both the Criminal Revision Cases are dismissed confirming the judgments dated 28.11.2008 of IV-Additional Sessions Judge, Kakinada in Criminal Appeal No.47 of 2006 and Criminal Appeal No.50 of 2006. Revision petitioners/A-1 and A-2 ie., Palika Chakram and Nakka Ramana shall surrender before the trial Court and submit themselves on or before 10.03.2023, failing which the learned Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Rajahmundry shall take coercive process against them and secure their presence for execution of punishment. 21. Revision petitioners/A-1 and A-2 ie., Palika Chakram and Nakka Ramana shall surrender before the trial Court and submit themselves on or before 10.03.2023, failing which the learned Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Rajahmundry shall take coercive process against them and secure their presence for execution of punishment. 21. Registry is directed to dispatch a copy of this judgment along with the lower Court record, if any, to the Courts below on or before 09.03.2023. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. As a sequel, miscellaneous applications pending, if any, shall stand closed.