Uram Surendra, vs The State Of Ap Rep By Its Pp Hyd.,
2023 Latest Caselaw 106 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

           CRIMINAL REVISION CASE No.18 OF 2008

ORDER:

This Criminal Revision Case came to be filed, under Sections

397 and 401 of the Code of Criminal Procedure, 1973 (for short,

„the Cr.P.C.), by the petitioner herein, who was the accused No.1

in C.C. No.62 of 2004 on the file of the Court of Additional Judicial

First Class Magistrate, Kothapeta (for short, „the trial Court‟) and

who was the appellant in Criminal Appeal No.196 of 2006, on the

file of the Court of II Additional District and Sessions Judge, East

Godavari District at Amalapuram (for short, „the learned

Additional Sessions Judge‟), challenging the judgment therein,

dated 28.12.2007, whereunder the learned Additional Sessions

Judge, dismissed the Criminal Appeal confirming the judgment of

the trial Court in C.C. No.62 of 2004, dated 24.07.2006.

2. The petitioner herein faced charge under Section 7-A R/w.

8(e) of the Andhra Pradesh Prohibition Act, 1995 (for short, „the

APP Act‟) before the Court below for which he was found guilty and

convicted and sentenced to suffer Rigorous Imprisonment for a

period of one year and also to pay a fine of Rs.10,000/- in default

to suffer Simple Imprisonment for a period of three months.

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3. Felt aggrieved of the same, he filed Criminal Appeal No.196

of 2006 before the learned Additional Sessions Judge, which came

to be dismissed on merits.

4. The parties to this Criminal Revision Case will hereinafter be

referred to as arrayed before the trial Court, for the sake of

convenience.

5. The case of the prosecution, in brief, according to the charge

sheet filed by the Sub-Inspector of Police, Kothapeta Police

Station, pertaining to Crime No.9 of 2004 for the offence under

Section 7-A R/w. 8(e) of the APP Act is that the accused Nos.1 and

2 are residents of Pedapeta, Vedapalem Village, Kothapeta Mandal.

They used to live by manufacturing illicit arrack for selling

purpose. On 20.01.2004 at about 05:00 PM, LW.6 Sri P. Eswarlu,

SI of Police, Kothapeta conducted raid along with his staff i.e.,

LWs.1 to 3 namely R.V.N. Murthy, K. Rajamohana Rao and

S.M.Pasha in the presence of LWs.4 and 5 - Madhunapanthula

Satyanarayana Murthy and Sattiraju Adithya Kiran and arrested

the accused near nidraganneru chettu situated at the burial

ground. They also found another person by name Chodapaneedi

Krishnakanth @ Chilakaraju, who was a juvenile, who absconded.

The Sub-Inspector of Police, Kothapeta seized two black coloured

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plastic tins from the possession of accused No.1. Each tin was

consisting of 15 liters of arrack. The total arrack was 30 liters

worth Rs.3,000/-. The Police seized the said arrack and

aluminium vessels and Rs.500/-, after lifting samples for chemical

analysis. Basing on the mediators report, the Sub-Inspector of

Police registered the aforesaid Crime under the provisions of law

and took up investigation. During investigation, he forwarded the

accused No.1 to the Court for remand. He also sent samples to the

Chemical Examiner for Exercise, Kakinada through SDPO-AMP

under a letter of advice. He received the Chemical Analysis report

stating that the samples are of illicitly distilled liquor.

Subsequently, he arrested the accused No.2 on 25.02.2004 and

sent him for remand. A separate charge sheet is being filed before

the learned III Additional Judicial First Class Magistrate,

Rajahmundry (Juvenile Court) against A-3 who is a juvenile.

6. The learned Magistrate took cognizance of the case under

Section 7-A R/w. 8(e) of the APP Act against the accused Nos.1

and 2 and after completing necessary formalities under Section

207 Cr.P.C., a charge under Section 7-A R/w. 8(e) of the APP Act

was framed against the accused Nos.1 and 2, for which they

pleaded not guilty and claimed to be tried.

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7. During the course of trial, on behalf of the prosecution,

PWs.1 to 3 were examined and Exs.P-1 to P-3 and MOs.1 and 2

were marked.

8. Accused were examined under Section 313 Cr.P.C with

reference to the incriminating circumstances in the evidence let in

by the prosecution for which they denied the same.

9. The learned Magistrate, on hearing both sides and on

consideration of the oral and documentary evidence on record,

found the petitioner herein (A-1) guilty of the charge under Section

7-A R/w. 8(e) of the APP Act, convicted him under Section 248(2)

Cr.P.C and after questioning him about the quantum of sentence,

sentenced him to suffer Rigorous Imprisonment for one year and

to pay a fine of Rs.10,000/- in default to suffer Simple

Imprisonment for three months. The learned Magistrate found the

accused No.2 not guilty of the charge and acquitted him under

Section 248(1) Cr.P.C.

10. Challenging the said judgment, accused No.1 preferred an

Appeal before the Appellate Court, which came to be dismissed on

merits.

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11. Challenging the judgment of the learned Additional Sessions

Judge, the unsuccessful appellant (A-1) filed the present Criminal

Revision Case.

12. Now in deciding this Criminal Revision Case, the point that

arises for consideration is as to whether the impugned judgment

suffers with any illegality, irregularity and impropriety and

whether there are any grounds to interfere with the same?

13. POINT: Ms. M. Anusha, learned counsel, representing

learned counsel for the petitioner, would contend that PW.3 was a

stock mediator to the Police, who used to support the case of the

prosecution by just obliging himself to sign the mahazarnama at

the request of the Police. The contraband which was alleged to be

seized from the possession of the petitioner was not at all

produced before the Court below. The evidence of PWs.1 and 2 is

interested in nature. The learned Magistrate instead of acquitting

the accused convicted them. The Court below failed to apply the

provisions of the Probation of Offenders Act, 1958 (for short, „the

PO Act‟). Even the learned Additional Sessions Judge also failed to

appreciate the evidence in proper perspective as such the Criminal

Revision Case is liable to be allowed. In support of the contention

that the prosecution did not produce the property, she would rely

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upon the decision of the Hon‟ble Supreme Court of India in State

of Rajasthan v. Sahi Ram1. Learned counsel for the petitioner

contends that in the event of the confirmation of the judgment of

learned Additional Sessions Judge, sentence may be converted

into fine.

14. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public prosecutor, sought to support the judgments of

both the Courts below by contending that the evidence of PW.3

corroborated the evidence of PWs.1 and 2 and the Police duly lifted

the sample and sent it for chemical analysis and Excise

Authorities had every power to destroy the remaining contraband

and the failure to produce the property before the Court cannot be

a circumstance to doubt the case of the prosecution as such the

Criminal Revision Case is liable to be dismissed.

15. PWs.1 and 2 are admittedly Prohibition and Excise Officials.

PW.3 is an independent witness, who claimed to be a Panchayat

Secretary. The case of the prosecution is that the Prohibition and

Excise Officials conducted raids on 20.01.2004 at 05:00 PM and

found the present petitioner and others but the present petitioner

1 LAWS(SC)-2019-9-109

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could be caught hold of, who was in possession of illicit ID liquor

as such after lifting samples they arrested the present petitioner.

16. Turning to the testimony of PW.1 he is Police Constable. He

deposed that on 20.01.2004 at 05:00 PM he along with the SI of

Police and other staff and mediators reached Chinnapayi near

ganneru tree and found three persons. The other two persons

absconded. They apprehended A-1, who was holding two plastic

cans. On interrogation, accused revealed his identity. They found

three aluminium vessels, one is big one, another is medium one

and last one is small one and also one pipe. They found 15 liters of

ID arrack each in two cans. They lifted one liter of ID arrack from

each can in a separate plastic bottle. SI of Police got drafted

mediators report which was attested. MOs.1 and 2 are the sample

bottles. A-1 revealed the identity particulars of other persons.

17. PW.2, the SI of Police, spoken the facts as disclosed by

PW.1. He testified about the raid conducted on 20.01.2004 at

05:00 PM along with his staff and mediators and noticing of three

persons and that two persons absconded and they could detain

A-1 and they interrogated him and found 15 liters of ID arrack. He

lifted samples and affixing identity slips under the cover of

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mahazarnama. After returning to the station, they registered FIR.

Ex.P-2 is the FIR. They forwarded A-1 to the Court for remand. He

sent the samples to the chemical analysis. He has spoken about

the subsequent investigation as regards arrest of A-2 and A-3.

According to him, Ex.P-3 is the chemical analysis report.

18. PW.3, the mediator, testified that he at the request of Police

on 20.01.2004 accompanied them and found three persons and

Police apprehended A-1 and others absconded. A-1 was holding

two plastic tins each consisting of 15 liters of ID arrack. PW.1

interrogated A-1 and lifted samples under the cover of

mahazarnama and seized the contraband.

19. As seen from the cross-examination part of PW.1, accused

elicited about the location of burial ground. He deposed that they

reached to the scene of offence within five minutes. MOs.1 and 2

bears the signatures of the mediators and accused. They obtained

thumb impression of accused No.1 on the mahazarnama. Identity

slips were affixed on MOs.1 and 2. He denied that he is deposing

false.

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20. PW.2 during cross-examination denied that they affixed

identity slips on the sample bottles recently. He denied that he is

deposing false.

21. As seen from the evidence of PW.3 during the cross-

examination he also denied the case of the accused. During cross-

examination he deposed that Police called him at 04:40 PM. He

categorically deposed that the present accused was involved in

another crime also as such his evidence means that he had

occasion to identify A-1 at the spot. He denied that he is deposing

false.

22. It is to be noticed that under the provisions of APP Act, a

person like PW.3, who belonged to the Revenue Department, is

bound to assist the Police in detection of the illicit arrack cases.

So, PW.3 cannot be branded as a stock witness to the Police. His

evidence duly corroborated the evidence of PWs.1 and 2. Defence

of the accused is denial simplicitor. Admittedly, according to the

evidence of PWs.1 to 3, identity slips were affixed on MOs.1 and 2

and it bears the thumb impression of accused. The defence of the

accused is that just before the evidence recently they were affixed.

If that be the case, he has no explanation as to how he could put

his thumb impressions on the identity slips on MOs.1 and 2 when

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he was facing trial before the Court below. So, virtually the defence

of the accused is totally evasive. He failed to explain any

circumstances how thumb impression of him could be found on

the mahazarnama and identity slips on MOs.1 and 2. So, the

defence of the accused is denial simplicitor and it is nothing but

evasive. Virtually, PWs.1 to 3 have no reason to depose false

against the accused.

23. Turning to the contention of learned counsel for the

petitioner that the prosecution did not produce the property before

the Court below, admittedly MOs.1 and 2 were sent to Chemical

Analyst and according to Ex.P-3, chemical analysis report, the

samples are of illicit ID liquor.

24. The decision of the Hon‟ble Apex Court in State of

Rajasthan canvassed by petitioner arose under the provisions of

NDPS Act. When the trial Court Judge convicted the accused, it

was reversed by the High Court of Rajasthan. The State went for

Appeal and the Hon‟ble Apex Court allowed the Appeal reversing

the judgment of the High Court of Rajasthan, Dealing with non

production of the property under the NDPS Act, the Hon‟ble

Supreme Court categorically held that "if the seizure of the

material is otherwise proved on record, which is not doubted or

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disputed, entire contraband material need not be placed before the

Court. If the seizure is otherwise not in doubt, there is no

requirement that the entire material ought to be produced before

the Court". The aforesaid decision of the Hon‟ble Apex Court in

State of Rajasthan would not come to the rescue of the petitioner

as he did not dispute his presence and his thumb impressions on

MOs.1 and 2 and Ex.P-1. It is no doubt true that under the

provisions of APP Act, the authorities therein had every power to

destroy the contraband after lifting samples. Though the

prosecution did not place any material to show what was

happened to the property but the circumstances clearly proves

that the contraband was seized from the possession of the

accused. There is no doubt about the seizure in view of the

consistent evidence placed by the prosecution. So, in my

considered view, the decision of the Hon‟ble Apex Court in State

of Rajasthan goes against the contention of the petitioner.

25. As seen from the judgments of learned Additional Judicial

First Class Magistrate, Kothapeta and learned II Additional District

and Sessions Judge, East Godavari at Amalapuram, they rightly

appreciated the evidence on record. Hence, I see no reason to

interfere with the judgments of the Courts below.

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26. Turning to the contention advanced by learned counsel for

the petitioner that in the event of the confirmation of the judgment

of learned Additional Sessions Judge, sentence may be converted

into that of fine, such request cannot be considered because the

punishment under Section 7-A R/w. 8(e) of the APP Act should be

with imprisonment as well fine. The Court below imposed the

punishment duly looking into the provisions of Section 7-A R/w.

8(e) of the APP Act. The Court below imposed minimum

punishment prescribed under law. Hence, this Court cannot

interfere with the quantum of punishment imposed against the

petitioner (A-1).

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

28. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the order of this Court along with the

lower Court record, if any, to the Court below on or before

12.01.2023 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

petitioner (A-1) in C.C. No.62 of 2004, dated 24.07.2006, and

report compliance to this Court. A copy of this order be placed

before the Registrar (Judicial), forthwith, for giving necessary

instructions to the concerned Officers in the Registry.

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Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 05.01.2023 DSH