Manthena Subbraju vs The State Of Andhra Pradesh
2022 Latest Caselaw 8697 AP

              HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                          Crl.P.No.8105 of 2022

ORDER:

The petitioner is accused No.3 in Crime No.101 of 2021 of Special

Enforcement Bureau (SEB) Station, Ongole for the offences punishable

under Section 34(a) of A.P. Excise Act, 1968 (for short 'the Act').

2. The case of the prosecution is that accused Nos.1 and 2

were found in possession of non duty paid liquor bottles during the course

of raids conducted in the village of the said accused on 16.12.2021. Upon

being questioned, accused Nos.1 and 2 are said to have confessed that

the liquor bottles in their possession had been purchased from the

petitioner herein, who had bought the bottles from Bangalore and sent the

same to accused Nos.1 & 2, for selling the same in and around their

village for higher prices. Thereafter, the profits were being distributed

between the petitioner and accused Nos.1 and 2. On the basis of the said

confession the petitioner was included as accused No.3 in the above

crime.

3. The petitioner has now challenged the criminal complaint on

the ground that no offence can be made out against the petitioner under

Section 34(a) of the Act, even if the allegations made in the confessional

statement are taken to be true. Apart from this, the petitioner would also

contend that the petitioner could not have been included as an accused

merely on the basis of a confessional statement made by the fellow 2 RRR,J Crl.P.No.8105 of 2022

accused and relies upon a judgment of the Hon'ble Supreme Court in the

case of Nanjappa vs. State of Karnataka in Criminal Appeal

No.1867 of 2012 dated 24.07.2015.

4. Sri Y. Ramesh, learned counsel appearing for the petitioner,

would submit that Section 34(a) of the Act would not be applicable to the

petitioner as none of the ingredients required under the said provision, to

attract the offence under Section 34(a) of the Act, are made out against

the petitioner. He would also submit that in view of the definition under

Section 2(31) of the Act, the petitioner cannot be accused for transporting

non duty paid liquor.

5. Learned Public Prosecutor submits that the petitioner had

been arrayed as accused No.3 on the basis of the confessional statements

made by accused Nos.1 and 2. Thereafter, further investigation has

revealed the involvement of the petitioner in the transport and sale of non

duty paid liquor in the State of Andhra Pradesh, and as such, stopping the

investigation at this stage would not serve the ends of justice.

6. Section 34(a) of the Act reads as under:

34. Penalties for illegal import, etc., - Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-

(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or 3 RRR,J Crl.P.No.8105 of 2022

7. The allegation against the petitioner is that he is involved in

transport of non duty paid liquor, which would be in contravention of the

provisions of the A.P. Excise Act, 1968.

8. The term "transport" has been defined in Section 2(31) in

the following manner.

2(31) "Transport" means to move from one place to another within the State, whether or not the intervening area lies wholly within the State, and includes, to move from one place outside the State to any other place outside in through the intervening area lying within the State.

9. Sri Y. Ramesh, learned counsel for the petitioner, contends

that the allegation against the petitioner is that he was transporting liquor

from Bangalore to Prakasam District in Andhra Pradesh, which would

mean that he has purchased the non duty paid liquor from a place outside

the State and was transporting the same to a place inside the State and

such transport is not covered by the definition under Section 2(31) of the

Act.

10. The language of Section 2(31) commences with the word

"means" which would, in the normal course, be an exhaustive which

cannot take into account any other terms beyond the words contained in

the definition. However, there has been an amendment to the provision by

which the words "and includes to move from a place outside ...." were

included. It is a settled principle of interpretation of statutes that the word 4 RRR,J Crl.P.No.8105 of 2022

"includes" indicates an inclusive definition, which would mean that the

definition is not exhaustive and is only indicative.

11. In the circumstances, it cannot be held that the transport

would not include transport of non duty paid liquor from outside the state

to a place within the state.

12. Sri Y. Ramesh, learned counsel for the petitioner would also

submit that the petitioner cannot be roped into the offence merely on the

basis of a confession by a co-accused and relies upon the judgment of the

Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel vs. State

of Gujarat and Anr.,1.

13. The judgment of the Hon'ble Supreme Court arose in a case

where a trial had been conducted and the accused had been acquitted.

Thereafter, the High Court, on appeal, had reversed the judgment of the

trial Court, resulting in an appeal being filed before the Hon'ble Supreme

Court. The Hon'ble Supreme Court took the view that an accused cannot

be convicted merely on the basis of the confession of a co-accused, unless

there is corroborative evidence requiring conviction of the accused person.

14. In the present case, the matter is still at the stage of

investigation and cannot be compared with the facts of the case before

the Hon'ble Supreme Court. It is also settled law that investigation ought

not to be thwarted at the inception and the parameters of testing the

(2019) 16 SCC 547 5 RRR,J Crl.P.No.8105 of 2022

maintainability of a complaint are different from the parameters of testing

whether a charge sheet ought to be quashed or not. In the circumstances,

it cannot be said that the investigation can be stopped at this stage when

the investigating officer is seeking to gather necessary corroborative

material.

15. In the circumstances, this criminal petition is dismissed. As a

sequel, pending miscellaneous petitions, if any, shall stand closed.

_________________________ R. RAGHUNANDAN RAO, J.

14th November, 2022 Js.

                          6                            RRR,J
                                       Crl.P.No.8105 of 2022


      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




               Crl.P.No.8105 of 2022




                14th November, 2022
Js.