Andhra Pradesh High Court - Amravati
Pothabathula Abbulu, vs The State Of Andhra Pradesh, ... on 6 July, 2021
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CRIMINAL REVISION CASE No.1758 OF 2005
ORDER:-
A raid was conducted by the Prohibition and Excise
Inspector, Enforcement, Kakinada along with his staff on a
thatched house in Bhirawapalem village, where accused Nos.1
to 3 were found conducting liquor and arrack business without
permit or license and about 20 lts of I.D liquor in a white plastic
can with another 50 lts of ID liquor in three black plastic cans
were found. Apart from this, four cardboard boxes containing
about 92 bottles of Rum, 3 bottles of 180 ml Whisky and 8
bottles of 375 ml Whisky were found. On the basis of recovery of
the above alcohol, Crime No.32/2001-02 was registered against
eight accused persons for the offences under Sections 7(A) r/w 8
(e) of A.P.Prohibition Act and Section 34(a) of A.P.Excise Act.
Thereafter, the crime was taken up as C.C.No.395 of 2001 by
the Judicial Magistrate of First Class, Mummidivaram. During
the course of the trial, Accused No.3 had passed away and the
case abated against Accused No.3. The case against Accused
Nos.5 and 8 were separated and registered as a fresh case vide
C.C.No.373 of 2002. Trial was taken up for Accused Nos.1, 2, 4,
6 and 7. After the trial, the trial Judge found that the accused
were not guilty for the offence punishable under Section 34(a) of
A.P.Excise Act and acquitted them in relation to the said
offence. However, Accused Nos.1 and 2 were found guilty for the
offence punishable under Section 7(A) r/w 8 (e) of
2
A.P.Prohibition Act and were sentenced to undergo rigorous
imprisonment for one year and to pay fine of Rs.5,000/- each
after setting of the period of detention, already undergone by the
Accused Nos.1 and 2.
2. Aggrieved by the same, Accused Nos.1 and 2 filed
Crl.A.No.91 of 2004 before the I Additional Sessions Judge, East
Godavari District at Rajahmundry. This appeal was dismissed
on 17.10.2005. The Accused no. 1 and 2 have now filed the
present revision case.
3. Sri C.Sharan Reddy, learned counsel for the
petitioners, would raise a preliminary issue that the judgment of
the appellate Court requires to be set aside on a short ground.
He submits that the trial Judge had acquitted the petitioners for
the offence under Section 34(a) of A.P.Excise Act and had
convicted the petitioners for the offence under Section 7(A) r/w
8 (e) of A.P.Prohibition Act. There was no appeal from the
prosecution. In the appeal filed by the petitioners against the
conviction under Section 7(A) r/w 8 (e) of A.P.Prohibition Act,
the appellate Judge had found the petitioners guilty of the
charge under Section 34(a) of A.P.Excise Act. He submits that
this would show clear non application of mind as there was no
appeal against any conviction under Section 34(a) of A.P.Excise
Act, and the appeal was only against the conviction under
Section 7(A) r/w 8 (e) of A.P.Prohibition Act.
4. Sri C.Sharan Reddy, learned counsel for the
petitioners, making submissions on the merits of the case,
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would submit that the raid was allegedly conducted in the
presence of P.W.3, who was the mediator. It is submitted that
P.W.3 had turned hostile and refused to corroborate or affirm
the mediator report and the factum of the raid. It is submitted
that in view of the refusal of P.W.3 to corroborate the mediator
report and in view of the hostile evidence of P.W.3, no recovery
of illicit alcohol can be proved. In the absence of such proof, the
petitioners cannot be convicted. The learned counsel for the
petitioners relied upon Section 100 of Cr.P.C and a judgment of
the erstwhile High Court of Andhra Pradesh reported as
T.Subbanna Vs. State of Andhra Pradesh1.
5. Learned counsel for the petitioner would also submit
that both the trial Court and the appellate Court while
considering the aspect of non corroboration of mediator report
by P.W.3, had misdirected themselves by holding that such non-
corroboration is not fatal to the case of the prosecution and that
the evidence of the official witnesses would be sufficient for
accepting the recovery of the illicit alcohol.
6. The appellate Judge relied upon the Judgment of the
Apex Court in Ronny v. State of Maharashtra2 to hold that
even if local panch witnesses were not called at the time of
recovery panchanama, it would not amount to non-compliance
with sub-Sec.(4) or (5) of Sec.100 Cr.P.C. in view of the
presumption under illustration (e) of Sec.114 of the Indian
1
2003 Crl.L.J. page 2150
2
(1998) 3 SCC 625
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Evidence Act. In that case, the offences took place in Pune and
certain articles were recovered from the Accused in a search
conducted in Mumbai. The recovery of the articles was crucial to
prove the circumstantial case against the accused as there was
no direct evidence available against the accused. The defence
argued that the search and recovery of the articles was in
violation of the provisions of Section 100 (4) and Section 166 (3)
& (4) Cr.P.C., on the ground that the panch witness was not
from the locality where the search was carried out and had been
brought from Pune for a search to be conducted in Bombay.
This objection was overruled on the ground that the evidence of
such panch witness cannot be set-aside only on the ground that
he was not from the locality as his testimony could not be
discredited during the cross examination. It is not clear as how
the said judgement would apply to the facts of the present case
which revolves on the effect of the panch witness turning
hostile.
7. In the present case, the panch witness had turned
hostile and as such, the seizure of illicit liquor is not proved.
The further evidence by the members of raiding party, in the
absence of corroboration from the panch witness, would not be
acceptable.
8. Further, the Judgments of the Hon'ble Supreme
Court, cited in the appeal, by the revision petitioners, being
Ganjamker Narayana vs. State of A.P.3, Mudavath Mothia vs.
3
(2005 3 ALT. (CRL.) 1 A.P.)
5
State of A.P.4 , T.Subbanna vs. The State of A.P.5, Yeduru
Sreenivasul Reddy vs. State of A.P.6 and Prohibition and
Excise Inspector, Kovvur vs. Madaparthi Srinivasulu7, were
cases where seizure of articles was not accepted by the Courts
on account of discrepancies or lack of panch witness at the time
of seizure. Conviction of the accused on the basis of such
evidence would not be appropriate.
9. The Petitioners herein have been acquitted for the
offence under section 34 (a) (i) of the A.P. Excise Act. The appeal
was against the conviction under Section 7(A) r/w 8 (e) of the
A.P. Prohibition Act. There was no appeal before the appellate
judge against the acquittal of the Petitioners under section 34
(a) (i) of the A.P. Excise Act. The appellate judge convicted the
petitioners under the A.P.Excise and did not convict the
petitioners under the A.P. Prohibition Act. In the circumstances
the conviction of the petitioners under the A.P. Prohibition Act
does not appear to have been confirmed by the appellate judge
and is fatal to the case of the prosecution.
10. In the circumstances, the Criminal Revision Petition
is allowed and the conviction and sentence against the revision
petitioners by the Judicial Magistrate of First Class,
Mummidivaram in C.C.No.395 of 2001, as confirmed by the
I Additional Sessions Judge, East Godavari District at
4
(2002 (1) ALT) 437)
5
(2003 CRL.L.J.2150)
6
(2002 (1) ALD. (CRL.) 347 (A.P)
7
(2004 (2) ALD. (CRL.) 366 (A.P.)
6
Rajahmundry in Criminal Appeal No.91 of 2004, dated
17.10.2005
are set-aside.
As a sequel, Interlocutory Applications pending, if
any, shall stand closed.
_________________________________
JUSTICE R.RAGHUNANDAN RAO
Date :06-07-2021
RJS
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CRIMINAL REVISION CASE No.1758 OF 2005
Date : 06-07-2021
RJS
