Ragir Narasimha vs The State Of A.P.
2023 Latest Caselaw 816 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
                  CRL.R.C.No. 1121 of 2009
ORDER:

This criminal revision case is directed against the

judgment of the learned Metropolitan Sessions Judge,

Hyderabad, in Crl.A.No.300 of 2008, dated 07.07.2009,

confirming the conviction and sentence of rigorous

imprisonment for a period of four months for the offence

punishable under Section 34 (a) of A.P. Excise Act imposed

against the revision petitioner/accused by the learned XI

Additional Chief Metropolitan Magistrate, Secunderabad, in

C.C.No.419 of 2005 dated 28.08.2008.

2. It is the case of the prosecution that on 11.11.2004 on

reliable information, P.W.2-Prohibition and Excise Sub

Inspector procured panch witnesses including P.W.1 and

proceeded to the road opposite to Military Hospital,

Trimulgherry, Secunderabad, and that at about 6.00 A.M.

they found the accused coming on a Scooter bearing

No.A.P-28A-3959 from AOC side and on verification and

search of his Scooter, they found 105 litres of toddy in three

plastic cans and that it was found to be free from Chloral

Hydrate and that P.W.2 had drawn two samples from the

contraband and seized the samples and the vehicle and that

the accused was arrested. The Government Chemical

Examiner for Excise after analysis of one of the samples

opined that it was fermented toddy free from Chloral

Hydrate and Diazepam.

3. A Charge under Section 34 (a) of A.P. Excise Act was

framed against the accused and he pleaded not guilty and

claimed to be tried. The prosecution, in order to prove its

case against the accused, examined P.Ws.1 to 3 and got

marked Exs.P1 to P3. Neither oral nor documentary

evidence was adduced on behalf of the accused.

4. On a perusal of the entire evidence, both oral and

documentary, the trial Court found the revision

petitioner/accused guilty of the offence punishable under

Section 34 (a) of A.P. Excise Act and accordingly convicted

and sentenced him to suffer rigorous imprisonment for a

period of four months for the said offence.

5. In an appeal preferred by the revision

petitioner/accused against the said conviction and sentence,

the learned Metropolitan Sessions Judge, Hyderabad,

confirmed the conviction and sentence recorded by the trial

Court for the offence punishable under Section 34 (a) of A.P.

Excise Act. Aggrieved by the said conviction and sentence,

the revision petitioner/accused preferred this criminal

revision, inter alia, contending that the appellate Court

failed to consider the petition filed by the revision

petitioner/accused under Section 391 Cr.P.C. in proper

perspective and recorded the findings in a mechanical way

by dismissing the petition. The appellate Court ought to

have given an opportunity to the revision

petitioner/accused for cross-examination of P.Ws.1 to 3 and

as such the appellate Court erred in convicting the revision

petitioner/accused basing on the prosecution evidence,

which caused much prejudice to the accused. Therefore, he

requested this Court to remand the matter to the trial Court

by giving an opportunity to the revision petitioner/accused

to cross-examine P.Ws.1 to 3.

6. Heard both sides and perused the entire material

available on record.

7. P.W.1 is the panch witness, P.W.2 is the Investigating

Officer and P.W.3 is the Prohibition and Excise Sub

Inspector, who registered the case against the accused. A

perusal of the evidence of P.W.2 would disclose that on

11.11.2004 he found three plastic cans containing 105 litres

of toddy from the possession of the accused while he was

coming on a Scooter bearing No.A.P-28A-3959 from AOC

side opposite to Military hospital, Trimulgherry and then he

secured the presence of two mediators and seized the toddy

and Scooter under Ex.P1-Seizure Panchanama and also

drawn two samples from the seized toddy for analysis. The

evidence of P.W.2 was not shaken in the cross-examination

with regard to the seizure of toddy under cover of Ex.P1.

P.W.1, who is the panch witness present along with P.W.2

also supported the evidence of P.W.2. He stated that the

Excise officials seized three cans of toddy and Scooter from

the possession of the accused under cover of Ex.P1-Seizure

Panchanama and that he signed on Ex.P1. P.W.1 also

identified the accused and stated that he was driving the

Scooter on the date of incident. However, P.W.1 was not

cross-examined by the Counsel for the accused and hence

his cross-examination was recorded as Nil. Therefore, the

evidence of P.Ws.1 and 2 is consistent in all material

aspects. According to the evidence of P.W.3, he arrested the

accused and sent him for remand and thereafter he seized

the case property and forwarded one sample of toddy to the

Chemical Examiner, who in turn sent Ex.P3-Chemical

analysis report stating that the sample is fermented toddy

free from Chloral Hydrate and Diazepam. P.W.3 was also

not cross-examined and his cross-examination was reported

as Nil.

8. The main contention of the learned Counsel for the

revision petitioner/accused is that the appellate Court

failed to consider the petition filed by the revision petitioner

for cross-examination of P.Ws.1 to 3 in proper perspective

and as such it caused serious prejudice to the accused.

9. A perusal of the case record would disclose that the

revision petitioner/accused engaged an advocate in the trial

Court to defend his case, however, he did not cross-examine

P.Ws.1 to 3. One R.Subramanyam and A.Shiva Raj,

advocates filed memo of appearance on behalf of the

accused originally in the trial Court. The trial Court

examined P.W.1 on 03.07.2008, P.W.2 on 10.07.2008 and

P.W.3 on 31.07.2008. However, the Counsel for the accused

did not cross-examine the witnesses for the reasons best

known to them. Further, the said A.Shiva Raj, advocate

filed Crl.M.P.No.1496 of 2008, under Section 70 (2) Cr.P.C.,

on 21.02.2008 seeking to recall Non Bailable Warrant issued

against the accused and the same was allowed. That apart,

subsequent to conviction and sentence of accused by the

trial Court, the same advocate along with another advocate

filed a petition under Section 389 (3) Cr.P.C. for suspension

of sentence of the accused. Therefore, sufficient opportunity

was given by the trial Court to the accused to cross-examine

the witnesses, however, the accused and his Counsel failed

to utilise the said opportunity for the reasons best known to

them. Therefore, I find no force in the contention of the

learned Counsel for the revision petitioner that the revision

petitioner/accused is entitled for another opportunity to

cross-examine the witnesses.

10. For the aforementioned reasons, this Court of the view

that the Courts below have rightly applied its mind and

came to the conclusion that the revision petitioner/accused

was guilty of the offence punishable under Section 34 (a) of

the A.P. Excise Act.

11. However, since the offence took place in the year 2004

and almost 19 years have passed and during this period the

revision petitioner/accused must have repented for what he

did, this Court deems it appropriate to reduce the

conviction and sentence of rigorous imprisonment of four

months imposed against the revision petitioner/accused to

One month and further imposes a fine of Rs.25,000/- , in

default, to suffer simple imprisonment for a period of 15

days for the offence punishable under Section 34 (a) of A.P.

Excise Act.

12. With the above modification in the sentence, the

Criminal Revision Case is dismissed.

Miscellaneous petitions, if any, pending, shall stand

closed.

________________________ JUSTICE P.SREE SUDHA

17.02.2023 Gsn.