Andhra Pradesh High Court - Amravati
Neelisikhari Chandra And Another, vs The State Of A.P., Rep By Pp., on 14 February, 2024
IN THE HIGH COURT OF ANDHRA
PRADESH :: AMARAVATI
(Special Original Jurisdiction) [
3
3
WEDNESDAY ,THE FOURTEENTH 6
7
DAY OF FEBRUARY
]
APHC010032702009 TWO THOUSAND AND TWENTY
FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 1195 OF 2009
Between:
NEELISIKHARI CHANDRA AND ANOTHER, AND
...PETITION
OTHERS ER(S)
AND
THE STATE OF A P REP BY PP ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. RAMAKRISHNA
AKURATHI
Counsel for the Respondents: PUBLIC PROSECUTOR
The Court made the following:
ORDER:
Assailing the judgment dated 16.07.2009 in Crl.A.No.128 of
2007 of learned I Additional Sessions Judge, Kurnool, in confirming
the conviction and sentence imposed against the petitioners vide
judgment dated 19.11.2007 in C.C.No.53 of 2006 passed by the
learned Special Judicial Magistrate of First Class (Prohibition and
Excise), Kurnool, for the offences under sections 7(A) r/w.8(e) of the
A.P. Excise Act (hereinafter referred to as "the Act"), the
petitioners/A1 and A2 filed this revision.
2. The brief case of the prosecution is that on 21.12.2005 at
about 8.30 p.m. while the police conducting raids, near Hundri river
bank, they found A1 and A2 along with a can with five litres of I.D.
liquor. Hence, a case in Crime No.426/05-06 of Prohibition and Excise
Police Station, Kurnool was registered and after completion of
investigation, charge sheet was laid against A1 and A2 and the same
was numbered as C.C.No.53 of 2006 on the file of the Court of
learned Special Judicial Magistrate of First Class (Prohibition and
Excise), Kurnool. After full-fledged trial, the trial Court found A1 and
A2 guilty of the above charges and sentenced them to undergo
simple imprisonment for a period of one (1) year each and to pay fine
of Rs.10,000/- each , in default to suffer simple imprisonment of two
(2) months.
3. Aggrieved by the same, petitioners/A1 and A2 preferred an
appeal, vide Crl.A.No.128 of 2007, before the Court of learned I
Additional Sessions Judge, Kurnool and the same was dismissed by
confirming the judgment of the trial Court.
4. Against the said judgment of the first Appellate Court, the
present criminal revision case was preferred by the petitioners/A1
and A2.
5. Heard Sri Rama Krishna Akurathi, learned counsel for the
petitioners/A1 and A2 and Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent-State.
6. Now the point that arises for determination in this revision is:
"Whether there is any manifest error of law or flagrant
miscarriage of justice in the findings recorded by the
Trial Court as well the first Appellate Court?"
7. Learned submits that there are no independent mediators at
all to the proceedings covered under Ex.P.1 and the same is hit by
Section 27 of the Indian Evidence Act and there is no legally
admissible evidence to find the guilt of the accused. The police did
not secure any independent responsible inhabitant in that locality,
therefore, in the absence of specific evidence in that regard, it
clearly and clinchingly holds that Section 100(4) Cr.P.C. is not
followed by the Excise Officials while seizing the contraband in this
case, thereby, the so-called seizure in this case cannot be believable.
He further submits that the petitioners/A1 and A2 possessed small
quantity of the property. In support of his contentions, he relied upon
judgments of this Court in Munna Lal v. State of Uttar Pradesh1.
8. Against the same, Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent, submits that the
evidence of prosecution witnesses consistently shows that the Excise
Officials have seized the contraband, drawn the samples, registered
AIR 2023 SC 634
the F.I.R. and thereafter sent the sample for analysis and that the
investigating officer tried to secure the mediators and he went to
nearby area at the scene of offence, but nobody come forward to act
as a mediator and the Trial Court as well the first Appellate Court
concurrently find A1 and A2 committed the said offences.
9. After hearing both sides, this Court closely gone through the
material placed on record. Admittedly, there were no mediators. In
this regard, Section 100(4) Cr.P.C. lays down that before making a
search, the officer or other person 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 or of any other locality
if no such inhabitant of the said locality is available or is willing to be
a witness to the search, to attend and witness the search and may
issue an order in writing to them or any of them so to do.
10. Here, in this case, no doubt P.Ws.1 and 2 stated that they tried
to secure independent mediators, but they could not secure them. As
per the testimonies of P.Ws.1 and 2 on 21.12.2005 at 3.30 p.m., while
they were conducting raid at K.E.Madanna Nagar, Bangarupeta,
Kurnool, they found A1 and A2 holding one can each and on seeing
them, when the accused tried to escape, they surrounded and caught
hold the accused. They examined the accused and verified the
contents of I.D. liquor containing 5 litres in each can. He deputed
PW.2, Head Constable to K.E.Madanna Nagar, Bangarupet for securing
mediators, but in vain. Then, PW.1 drawn samples (MO.1 and MO.2),
sealed, labeled, seized the property and arrested both the accused
under the cover of Ex.P1-Special report. A Case was registered in
Crime No.426/05-06 and issued Ex.P2-FIR to all the concerned. The
Analyst opined that the samples are I.D. liquor unfit for human
consumption. After completion of investigation, filed charge sheet.
The evidence of PW.2, Head Constable also corroborated with the
version of PW.1.
11. The above evidence of PW.1 and PW.2 clearly goes to show
that the search procedure contemplated under Section 100(4) Cr.P.C.
is not at all taken care by them.
12. In-order to do search proceedings, necessarily the Excise
Officials are expected to follow Section 100(4) Cr.P.C., which
mandates the officials to secure the mediators, if no mediator is
willing to be a witness to the search, then they have to secure any
official witness for their search. Therefore, in the absence of specific
evidence in this regard, prosecution miserably failed to prove that
they followed Section 100(4) Cr.P.C.
13. While evaluating the material on record, the trial Court and
the first appellate Court not appreciated the violation of the
provisions of Section 100(4) Cr.P.C. on the ground that no such witness
was secured from the locality nor search was carried out in the
manner prescribed under Section 100(4)&100(6) Cr.P.C.
14. In these circumstances, this Court found glaring and apparent
mistake occurred in finding the guilt of the accused by the Trial Court
as well first Appellate Court, as prosecution miserably failed to follow
the mandatory provision contemplated under Section 100(4) Cr.P.C.
and A.P. Excise Act as there is no legal evidence to convict the
accused. Thereby, the Trial Court as well first Appellate Court went
wrong in coming to the conclusion that prosecution proved the guilt
of the accused beyond all doubt.
15. Having regard to the above, this Court has no hesitation to
interfere with the judgments of Trial Court as well first Appellate
Court and thereby, the conviction and sentence passed against the
petitioners by the trial Court, which was confirmed by the first
Appellate Court, for the said charge are liable to be set aside.
16. In the result, the Criminal Revision Case is allowed and the
conviction and sentence imposed against the petitioners/A1 and A2
vide judgment dated 19.11.2007 in C.C.No.53 of 2006 passed by the
learned Special Judicial Magistrate of First Class (Prohibition and
Excise), Kurnool, which was confirmed by the judgment dated
16.07.2009 in Crl.A.No.128 of 2007 of learned I Additional Sessions
Judge, Kurnool, are hereby set aside. The revision petitioners/A1 and
A2 are acquitted of the charge under Section 7(A) r/w.8(e) of the A.P.
Excise Act. The fine amount paid by the petitioners/A1 and A2, if any,
shall be refunded to them.
Interim orders granted earlier if any, stand vacated.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
________________
JUSTICE V.SRINIVAS
Date: 14.02.2024
Pab
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.1195 of 2009
DATE: 14.02.2024
Pab
