THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
Crl.R.C.No.193 of 2013 ORDER:-
The Prohibition and Excise Inspector, Peddapuram filed charge sheet against the petitioner/accused for the offence under section. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act.
2. The crux of the case of the prosecution is that on 27.11.2009 PW2 along with independent mediators, PW1 and other staff members during patrolling reached 9 km milestone on the road leading from Rangampeta to Singamapalli and noticed the accused at 6:20 A.M. The accused was carrying a gunny bag on his shoulder. On seeing the excise police the accused tried to skulk away. On suspicion the excise police detained the accused and noticed 12 polythene covers in the bag. Each cover contains 5 litres of ID arrack. On questioning the accused disclosed his name and identity particulars. The accused confessed that he purchased the contraband for retail sale on profit. PW2 arrested the accused and seized 60 litres of I.D. arrack under the cover of mediators report. PW2 has drawn the sample of 300 ml of I.D. arrack into MO1 sample bottle, sealed and affixed with identification slips. Basing on Ex P1, PW2 registered a case in Crime No.724/09-10 and issued Ex P2- F.I.R. PW2 produced the accused before the Court for judicial remand along with Ex P2.
3. In order to establish the guilt of the accused, the prosecution examined PW1-VRO, Peddapuram and PW2, who is the Investigating Officer.
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4. Learned Magistrate after conducting trial found the accused guilty for the offence under Sections. 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act and sentenced him to undergo rigorous imprisonment for a period of one year and pay a fine amount of Rs.10,000/- (Rupees Ten thousand only). In default of payment of fine, the accused shall undergo simple imprisonment for two months.
5. Learned counsel for the petitioner submits that PW1, VRO, Peddapuram is not an independent witness and the evidence of PW1 cannot be considered and the trial Court erred in convicting the accused basing on the evidence of PW1.
6. Aggrieved by the said conviction, the petitioner herein preferred an appeal vide Criminal Appeal No.114 of 2011 on the file of learned III Additional District & Sessions Judge, Kakinada. The lower appellate Court confirmed the judgment of the Court below stating that the evidence of PW1 and PW2 cannot be brushed aside on the ground that PW2 did not secure independent mediators of the locality and secured only PW1-V.R.O., Peddapuram.
7. This Court as per the order dated 07.02.2020 in Crl.R.C.No.711 of 2007 07.02.2020, held that due to the non- examination of the independent witness by the prosecution, a doubt arises as to the incident in question. In "S. Babu Saheb @ Babu V. State of Andhra Pradesh1" this Court acquitted the accused on the ground that no efforts were made to take independent mediator and it is not desirable to convict the accused. 1 2009 (4) A.P.L.J. 57 (HC) 3
8. Relying on the afore mentioned judgments this Court feels that when there is no independent mediator examined, the case of the prosecution cannot be relied upon basing on the evidence of PW1- V.R.O., who is not an independent witness. Hence, the prosecution failed to prove the case of the accused in non-examining the independent witness.
9. In the result, the Criminal Revision Case is allowed. The conviction and sentence recorded against the Revision Petitioner/accused in the Judgment dated 30.09.2010, in C.C.No.126 of 2010 on the file of the learned Additional Judicial First Class Magistrate, Peddapuram, which was confirmed in Criminal Appeal No.114 of 2011 by the learned III Additional District & Sessions Judge, Kakinada on 31.01.2013 is set aside. Consequently, the accused shall be set at liberty, forthwith, if he is not required in any other case or crime.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 22-03-2022 EPS 4 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 80 Crl.R.C.No.193 OF 2013 Date: 22-03-2022 EPS