Vemula Ramakrishna, vs The State Of Ap Rep By Its Pp Hyd.,
2022 Latest Caselaw 7470 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

        CRIMINAL REVISION CASE No.1121 OF 2007

ORDER:

This Criminal Revision Case is filed under Sections 397 and

401 of the Code of Criminal Procedure, 1972 (for short, „the

Cr.P.C‟) on behalf of the petitioner, who is accused in Calendar

Case No.209 of 2002 on the file of the Court of Judicial First Class

Magistrate, Alamuru (for short, „the trial Court‟), and appellant in

Criminal Appeal No.193 of 2006 on the file of the Court of VI

Additional Sessions Judge (Fast Track Court), East Godavari

District, Rajahmundry (for short, „the learned Additional Sessions

Judge‟) with a prayer to revise the judgment, dated 08.08.2007, in

Criminal Appeal No.193 of 2006; where under the learned

Additional Sessions Judge, dismissed the Criminal Appeal filed by

the petitioner herein confirming the judgment, dated 21.07.2006,

in C.C. No.209 of 2002 of the learned Judicial Magistrate,

Alamuru.

2. The petitioner faced trial in C.C. No.209 of 2002 under

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

Act‟) and the learned Judicial Magistrate found the petitioner

guilty of the charge under Section 34(a) of the Excise Act and

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convicted him under Section 248(2) Cr.P.C. and on hearing about

the quantum of sentence, sentenced him to suffer Simple

Imprisonment for six (6) months and to pay a fine of Rs.5,000/-, in

default to suffer Simple Imprisonment for 45 days.

3. The case of the prosecution, in brief, before the trial Court,

as set out in the charge sheet, is that on 07.09.1999 at about

07:00 A.M. the Prohibition and Excise Sub-Inspector, Alamuru

along with Prohibition and Excise Sub-Divisional Officer,

Rajahmundry and other Prohibition and Excise officials in the

course of detecting the prohibition and excise offences reached at

the veranda of the house of Pitani Tatarao bearing Door No.5-649,

located at Vemulapalli village in Bangaramma colony and searched

the house of the petitioner in the presence of mediators and found

the Indian Made Liquor bottles, whose description is made

hereunder:

"1) Old Monk XXX Rum bottles - 48 pints in two cases

2) Hywards Fine Wisky - 48 pints in two cases

3) Kerala Malt Whisky - 24 quarts 48 pints and 1200 nip bottles

4) No.1 Mc. Brandy - 24 pints in one case

5) Golden Horse Brandy - 60 quarts 48 pints in 7 cases"

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4. Thereupon the Prohibition and Excise Sub-Inspector

arrested the petitioner and seized the entire liquor bottles from his

possession. He drawn one liquor bottle from each carton and kept

the remaining liquor bottles in total 41 cartons under the

mediators report at the scene of offence and sent them for

chemical analysis. He brought the petitioner along with the

contraband and registered mediators report as a case in Crime

No.166/98-99 under Section 34(a) of the Excise Act. He produced

the sample bottles before the Court and the Sub-Divisional

Prohibition and Excise Officer, Rajahmundry sent the same to the

Chemical Examiner, Kakinada. The Chemical Examiner, after

examining the samples found them as Indian Liquor. Hence the

Charge sheet.

5. Learned Judicial Magistrate, took cognizance of the case

under Sections 8(b), 7-A R/w.8(e) of the A.P. Prohibition Act, 1995

(for short, „the Prohibition Act‟). After appearance of the

petitioner/accused and after complying the necessary formalities

as required under Section 207 Cr.P.C., the Court examined the

accused under Section 239 Cr.P.C. for which he denied the offence

and as such framed a charge under Section 34(a) of the A.P.

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Excise Act, read over and explained the same to him in Telugu, for

which he pleaded not guilty and claimed to be tried.

6. Before the trial Court, the prosecution examined PWs.1 to 3

and got marked Exs.P-1 to P-4 and MOs.1 to 40. The trial Court

examined the accused under Section 313 Cr.P.C. during which he

denied the incriminating circumstances and reported no defence

evidence.

7. The learned Judicial Magistrate, on hearing both sides and

considering the oral as well as documentary evidence on record,

found the petitioner herein guilty of the charge under Section 34(a)

of the Excise Act and accordingly convicted and sentenced him as

above. Later, the Criminal Appeal filed by the petitioner before the

learned Additional Sessions Judge in Criminal Appeal No.193 of

2006 was also dismissed on merits. Aggrieved by the same, he

filed the present Criminal Revision Case.

8. Now, in deciding the present Criminal Revision Case, the

points that arise for consideration are:

1) Whether the prosecution has proved beyond

reasonable doubt before the trial Court that the

Prohibition and Excise Officials raided the house of

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the petitioner/accused and seized the contraband,

which was in his possession i.e., Indian Made Liquor

bottles on 07.09.1999 at 07:00 A.M. as contended by

the prosecution?

2) Whether the judgment of the learned VI Additional

Sessions Judge (FTC), East Godavari District at

Rajahmundry in Criminal Appeal No.193 of 2006

suffers with any illegality, irregularity and impropriety

and whether there are any grounds to interfere with

such an order?

9. M. Anusha, learned counsel, appearing on behalf of Sri Ch.

Dhanamjaya, learned counsel for the petitioner, would contend

that the trial Court erroneously recorded conviction and the

appellate Court erroneously confirmed the same. Both the Courts

below did not look into the fact that the prosecution failed to prove

the guilt of the petitioner for the offence under Section 34(a) of the

Excise Act. The trial Court did not look into the fact that PW.3 did

not support the case of the prosecution and turned hostile and

that PW.1 is a stock mediator, who admitted that he written more

than 200 mediatornamas. PW.2, the Investigating Officer was

interested in the case of the prosecution but the trial Court relied

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on the evidence of PW.2. There was admission from PW.1 in cross-

examination that a constable brought from 41 bottles from outside

half an hour after the search of the house but the trial Court did

not look into the same. The house in question was searched

without any search warrant. The trial Court ought to have seen

that the seized stock belongs to one Raja Rajeswari Wine Shop, in

which accused was only a worker. The trial Court failed to look

into the fact that the owner of the house was not examined by the

Investigating Officer and search was not done in the presence of

the independent mediators. She would further contend that

alternatively, if for any reason, this Court is going to confirm the

judgment of the appellate Court, petitioner/accused may be

exonerated by imposing fine alone.

10. Sri Dheera Kanishka, learned counsel, appearing on behalf

of learned Public Prosecutor, would contend that PW.1 was the

Revenue Official, who supported the case of the prosecution and

PW.2 was the Investigating Officer and their evidence is consistent.

Simply because PW.3 did not support the case of the prosecution,

evidence of PWs.1 and 2 cannot be disbelieved. A duty is cast

upon the revenue officials like PW.1 either under the provisions of

the Prohibition Act or the Excise Act to assist the Police in

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detection and investigation of the offences, as such PW.1 was duty

bound to assist the Police, as such assisted him. He cannot be

branded as a stock mediator. Though PW.1 made an admission

due to confusion or slip of tongue that after reaching to the house

of the accused, one constable brought liquor bottles from outside

but that itself is not sufficient because he categorically supported

the case of the prosecution in his chief-examination and the trial

Court recorded cogent reasons negating the contention of the

defence counsel before the trial Court. The judgment of the trial

Court is exhaustive with cogent reasons, which was rightly

confirmed by the appellate Court, as such there are no merits in

the Revision. The learned trial as well as appellate Judges rightly

appreciated the evidence and the legal principles; as such

Criminal Revision Case is liable to be dismissed.

11. The substance of the allegations in the case of the

prosecution is that the Prohibition and Excise officials during the

course of detection of the offences conducted raid at the house of

one Pithani Tatarao bearing Door No.5-649, in which the

petitioner/accused was found in possession of the Indian Made

Liquor and that the Prohibition and Excise officials recovered the

same under the cover of mediatornama, lifted the samples and

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sent them to the Chemical Analyst and the Chemical Examiner

found that they were Indian Made Liquor.

12. Admittedly, PW.1 was a Revenue Official as on the date of

raid. Even PW.3 was also cited as a mediator witness but did not

support the case of the prosecution. PW.2 was the Prohibition and

Excise official, who conducted raid.

13. Turning to the evidence of PW.1, admittedly, he supported

the case of the prosecution. His evidence in substance is that

Alamuru Excise Sub-Inspector took him and A.V.V.

Satyanarayana (LW.2) on 07.09.1999 to Bangaramma

Rajyalakshmi colony of Vemulapalli village to the house of Pitani

Tata Rao. He came to know that Ramakrishna is sleeping in the

said house and that he kept the liquor in the house. The Police

issued notice to Ramakrishna stating that they are going to search

the house. Then they entered into the house and found cardboard

boxes 41 were in number. PW.2 opened the said boxes, verified the

same and noticed Old Mank, Haywards whisky, Kerala Malt and

other two varieties of liquor bottles with seals and affixed labels

with Government seals. On questioning, the said person confessed

that he brought the same from Samalkota but he may not identify

him but the said person revealed that he has no papers in support

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of possession. PW.2 informed him that the possession of the liquor

is an offence and taken one bottle from each box as sample. He

affixed slips on the bottles with the signatures and seized all the

bottles and arrested the petitioner. He drafted mahazarnama.

Ex.P-1 is the mediatornama. PWs.1 to 3 and others signed on

Ex.P-1. MOs.1 to 40 are the sample bottles.

14. Coming to the evidence of PW.2, who was the Sub-Inspector

of Police, Alamuru Excise Police Station, he deposed that on

07.09.1999 they conducted patrolling at Rajyalakshmi

Bangaramma colony and visited the house of Pithani Tatarao

bearing door No.5-649 along with mediators PW.1 and PW.3. PW.2

called the inmates of the house and then accused came out and G.

Satyanarayana Rao (LW.5), Prohibition and Excise Sub-Divisional

Officer, Rajahmundry issued search proceedings to accused. They

entered into the house and found 41 carton boxes in the room

corner and on verification noticed liquor bottles in the said

cardboard boxes and found (1) Old Monk XXX rum bottles-48

pints in two cardboard boxes, (2) Haywards fine whisky 48 nip

bottles in two cardboard boxes, (3) Kerala Malt whisky 24 quarts

48 pints and 1200 nip bottles in total 29 cases, (4) No.1 M.C.

Brandy 24 pints bottles in one case box and (5) Golden Horse 60

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quarts, 48 pints total 7 boxes. All the bottles contain adhesive

labels of Excise department and respective company seals and

labels. He identified that all the bottles are duty paid liquor bottles

and on questioning the accused stated that he is having permit

and license to possess the liquor bottles and that he worked at

Rajarajeswari Wines at Vemulapalli as Nowkarnama holder and he

brought the liquor bottles from A.P.B.C.L., Samalkota. The

accused did not show any permit or licence to them. PW.2 arrested

the accused after informing the grounds of his arrest and had

taken one bottle from one carton as sample and affixed labels to

the sample bottles and the cardboard boxes containing the

signature of accused and them. Accordingly, mediator report was

drafted in the presence of PW.1 and LW.7. Ex.P-1 is the mediator

report and later he brought accused along with seized contraband

to Police Station and registered a case and sent the accused to

Court for remand, sent the sample bottles to Chemical Examiner

through S.D.P.O. Rajahmundry and received analyst report on

30.04.2000 opining that the sample are Indian Made Liquor. After

completion of investigation, he filed charge sheet.

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15. Admittedly, PW.3 totally turned hostile to the case of the

prosecution. So, before the trial Court there was evidence of PWs.1

and 2.

16. Now, I would like to proceed to appreciate the contention of

the revision petitioner. Firstly, the contention of the revision

petitioner is that PW.1 was a stock mediator and the trial Court

erroneously believed his evidence. Admittedly, the trial Court

relied upon Section 28 of the A.P. Prohibition Act stating that a

duty was cast upon the officials of all Departments like PW.1

herein to assist any Prohibition or Police Officer in detection of the

offences.

17. Though the charge sheet was laid under the provisions of

the A.P. Prohibition Act but charges were framed under Section

34(a) of the A.P. Excise Act. It is to be noticed that the provisions

of the A.P. Prohibition Act as well as the A.P. Excise Act contain

certain provisions casting a duty upon the revenue officials to

assist the Police in carrying out the provisions of the Act. Turning

to Section 51 of the A.P. Excise Act, it is the bounden duty of the

Village Officers or servants including the members of the Village

Police, Sarpanches, Members and Officers of the Gram Panchayat

to assist the Excise Officials in carrying out the provisions of the

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Act. So, when such a statutory duty is cast upon the revenue

officials like PW.1, it is quite clear that in day to day discharge of

the duties there may be occasions for them to assist the Police. So

in carrying out the provisions of the A.P. Excise Act, when PW.1

assisted the Police number of times, he cannot be branded as a

stock witness. In my considered view, simply because PW.1 acted

in several cases as mahazar witness, as admitted by him, but he

cannot be branded as a stock witness because a statutory duty is

cast upon him to assist the Excise Police in carrying out the

provisions of the A.P. Excise Act. So, his evidence cannot be

disbelieved branding his evidence as interested in nature.

18. Turning to the contention of the revision petitioner that

there was an admission on the part of PW.1 that one of the excise

constables brought the bottles from outside after they reached to

the place of offence, this Court would like to make it clear that the

evidence of PW.1 is to be appreciated with reference to the

contents in Ex.P-1 as well as his chief-examination and cross-

examination. As evident from the evidence of PW.1, he

categorically deposed that he had informed that PW.2. is going to

search the house in which Ramakrishna (accused) is there, as

such Police issued a notice and opened the doors and entered into

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the house and noticed cardboard boxes. They found 41 cardboard

boxes in the said house. PW.2 opened the boxes and verified. So,

this is the categorical evidence of PW.1 in his chief-examination

and his evidence has corroboration from the contents of Ex.P-1 -

mahazarnama. Now, turning to the evidence of PW.1 in his cross-

examination, he deposed that „Constable brought the 41 bottles

from the outside half an hour after our arrival to the house of

offence‟. If his chief-examination is considered, it is consistent with

Ex.P-1. This portion of the evidence of PW.1 is without any basis

whatsoever. The learned trial Court Judge had a better

opportunity to observe the demeanor of the witness. The learned

trial Judge closely observed the demeanor of the witness and at

Para 17 of the judgment mentioned that „I observed the demeanor

of the witness during this suggestion by defence counsel to this

witness. He say 'Yes' when the defence counsel suggested this

point to PW.1 mechanically by moving the head due to confusion‟.

So the learned trial Judge opined that this discrepancy in the

cross-examination of PW.1 cannot be taken into consideration.

The trial Court Judge has furnished cogent reasons to take into

consideration the evidence of PW.1. Under the circumstances, this

Court is also of the considered view that the admission of PW.1 in

this regard is slip of tongue or due to utter confusion and his

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demeanor was closely observed by the trial Court Judge. Hence,

on this count itself the case of the prosecution cannot be

disbelieved. As evident from Ex.P-2 which was a search notice

issued to the accused, it contains the signature of the accused.

Apart from it, Ex.P-1 bears his signature. In other words, Ex.P-1

mahazarnama and Ex.P-2 search notice purported to have

contained the signatures of the accused. Ex.P-2 contained

signatures of the accused as occupant of the said house. The

accused never disputed his signatures on Exs.P-1 and P-2. The

presence of the accused at the house of the Pitani Tatarao is not in

dispute. Though PW.1 deposed that he cannot identify the person

who was in the house of Tatarao but according to PW.1, the Sub-

Inspector of Police revealed his name as that of accused. PW.1 had

knowledge of the contents of Ex.P-1 panchanama. Accused had no

probable version to say how he was there in the house of Tatarao.

He had no probable explanation as to the circumstances why

Exs.P-1 and P-2 contain his signatures. In the absence of

disputing his signatures on Exs.P-1 and P-2, his presence in the

house of Tatarao is quietly established by the prosecution. During

the course of 313 Cr.P.C. examination he revealed that the Police

called him in the evening and implicated him in the case. In the

absence of the challenge to his purported signatures on Exs.P-1

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and P-2, such a contention is not tenable, in my considered view.

The accused also canvassed before the trial Court that the

prosecution did not examine Tatarao, owner of the house. Such a

contention before the trial Court was not accepted by the trial

Court for the reason that mere possession of liquor by a person is

sufficient to constitute the offence and non-examination of the

owner did not vitiate the trial. In my considered view, the reasons

furnished by the trial Court in this regard are tenable when Ex.P-2

contained the signature of the accused as occupant of the house.

Admittedly, it is a case where the contraband was claimed to have

been seized from a residential house. So, when a residential house

is contemplated for search, one has to follow the procedure

contemplated under Section 100(4) Cr.P.C. According to Section

100(4) of Cr.P.C., before making a search, the Officer who is 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. It also contemplates that if no such persons

are available, the Investigating Officer can secure the presence of

other locality.

19. Here the case of the prosecution is that at the scene of

offence nobody was willing to come as mediators. Apart from this,

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as this Court already pointed out Section 51 of the A.P. Excise Act

casts a duty upon the revenue officials to assist the Police in

carrying out the provisions of the Excise Act.

20. Section 100(4) Cr.P.C. even contemplates bringing the

residents of other locality if there is no possibility to secure the

residents of that particular locality. Viewing the same, the search

cannot be vitiated, simply because PW.1 was not the resident of

that locality where the contraband was seized. Apart from this the

trial Court furnished cogent reasons to believe the evidence of

PWs.1 and 2 in this regard. The judgment of the trial Court reveals

that the trial Court rightly appreciated the citations of this Court

in B. Subrahmanyam v. State of A.P. (1996 Crl.L.J. 1435 AP)

and Laxman Gown v. State of A.P. (2002 (2) ALT (Crl.) 496 (AP).

The trial Court rightly held that merely because punch witness

turned hostile, accused cannot escape the criminal liability. In my

considered view, the appellate Court rightly held that simply

because PW.3 turned hostile, the case of the prosecution cannot

be disbelieved. The trial Court further rightly held that it is not

desirable to eschew the testimony of the witnesses on the ground

that he is an excise officials and it cannot be accepted that all the

excise officials would speak untruth.

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21. It is a case where the prosecution has established the

seizure of contraband from the possession of the accused. Accused

has no probable explanation in terms of Section 15 of the A.P.

Excise Act. Apart from this, when the prosecution has established

initial burden i.e., recovery of contraband from the possession of

the accused, a presumption under Section 42 of the Excise Act

arises to the effect that it shall be presumed until contrary is

proved that the accused has committed the offence in respect of

any intoxicant for the possession of which he is unable to account

satisfactorily.

22. A perusal of the judgment of learned Additional Sessions

Judge reveals that the appellant also raised the contentions that

were canvassed before the trial Court and the learned Additional

Sessions Judge believed the evidence of PWs.1 and 2 with reasons

and negatived the contention of the appellant. The learned

Additional Sessions Judge negatived the contention of the defence

counsel that PW.1 was the stock mediator. The learned Additional

Sessions Judge did not accept the contention of the appellant that

house owner was not examined as a witness. The appellate Court

further observed that accused signed Ex.P-2 as occupant of the

house that was searched. The appellate Court did not accept the

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contention of the appellant that PW.1 was a stock mediator. The

learned Additional Sessions Judge also rightly appreciated the

evidence available on record and rightly appreciated the decisions

cited by the appellant‟s counsel. The appellant cited Kalidindi

Rama Raju @ Ramababu v. State of A.P1 before the appellate

Court and the appellate Court turned down the argument of

learned counsel for the appellant by distinguishing the same with

proper reasons. The further decision that was cited before the

appellate Court is T. Subbanna v. State of A.P2 and the facts

were that the contraband was recovered from hayrick and there

was no evidence to connect the hayrick with the accused. The

appellate Court rightly distinguished the same from the present

facts. The appellate Court further negatived the contention of the

appellant with regard to Mudavath Mothia v. State of A.P3 and

the facts were that independent witness of panchanama not

examined. The above said decisions stand on a different footing as

PW.1 was an independent witness pertaining to the facts before

the trial Court. Viewing from any angle, the learned Judicial

Magistrate recorded cogent reasons and rightly appreciated the

evidence on record and as such judgment of the learned Judicial

2002 (1) ALD (Crl.) 863 (AP)

2003 (1) ALD (Crl.) 805 (AP)

2002 (1) ALT (Crl.) 437 (AP)

AVRB,J Crl.R.C. No.1121/2007

Magistrate was rightly confirmed by the learned Additional

Sessions Judge. The punishment for Section 34(a) of the A.P.

Excise Act is imprisonment as well as fine. Hence the contention of

learned counsel for the petitioner that he may be exonerated with

fine alone is not tenable.

23. In the light of the above, in my considered view the

judgment, dated 08.08.2007, passed in Criminal Appeal No.193 of

2006 by the learned Additional Sessions Judge, Rajahmundry

cannot be said to be erroneous. Hence, I hold that the prosecution

proved the charge under Section 34(a) of the A.P. Excise Act before

the learned Judicial Magistrate beyond reasonable doubt which

was rightly confirmed by the learned Additional Sessions Judge.

Accordingly, the judgment under challenge in this Revision does

not suffer with any illegality, irregularity and impropriety.

In the result, the Criminal Revision Case is dismissed. The

Registry is directed to take steps immediately under Section 388

Cr.P.C. to certify the judgment of this Court to the trial Court and

on such certification, the trial Court shall take necessary steps to

carry out the sentence imposed against the petitioner/appellant in

C.C. No.209 of 2002, dated 21.07.2006 and to report compliance

to this Court.

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Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date : 29.09.2022 DSH