THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1697 of 2006 Date:20.01.2014 Between:
A. Sathaiah Goud . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1697 of 2006 JUDGMENT:
This revision is preferred against judgment dated 09-10-2006 in Crl.A.No.70 of 2005 on the file of I Additional Sessions Judge, Mahaboobnagar whereunder judgment dated 30-03-2005 in C.C.No.3 of 2005 on the file of Judicial Magistrate of First Class for trial of Cases under Prohibition and Excise Act, Mahaboobnagar was confirmed.
2. The brief facts leading to filing of this revision are as follows:-
Sub-Inspector of Prohibition and Excise, S.H.O., Kothakota filed charge sheet against the revision petitioner alleging that on 12-09-2004, Prohibition and Excise Inspector, Athmakur along with staff proceeded to Janampet and there secured two independent mediators and proceeded to a hut and found the accused there, on which the Inspector after serving search memo on the accused conducted search in the hut and found one mud pot of 30 litters toddy without any licence and that he seized the toddy and collected samples of 350 ML each under the cover of a panchanama in the presence of mediators sealed the samples and destroyed the remaining contraband. The Inspector arrested accused later produced him before the Magistrate. During investigation, the sample collected was sent to chemical examiner who certified that the sample is fermented toddy and adulterated with chloral hydrate, thereby the accused committed offence under Section 37 (A) (3) of A.P. Excise Act (herein after referred to as ‘Act) and liable for punishment. The learned trial Judge examined three witnesses and marked five documents on behalf of prosecution besides one material object. On a overall consideration of oral and documentary evidence, trial Court found the accused guilty for the offence under Section 37 (A) (3) of Act and sentenced him to suffer one year imprisonment with a fine of Rs.3,000/-. Aggrieved by the said conviction and sentence, accused preferred appeal to the Court of Sessions and the learned I Additional District Judge, Mahaboobnagar confirmed the conviction and sentence. Aggrieved by the same, present revision is preferred.
3. Heard both sides.
4. Point:- It is the contention of the revision petitioner that both the Courts failed to see that testimony of investigating officer is not at all corroborated by any independent witnesses. It is further contended that according to prosecution sample was collected on 01-09-2004, but it was deposited in Court on 02-11-2004 and there is no evidence to show that some preservative is added to the sample, therefore, this itself is sufficient to suspect the conduct of raid and seizure. It is further contended that both the Courts failed to consider that the prosecution has miserably failed to prove the guilt of the accused. On the other hand, learned Public Prosecutor submitted that both the Courts concurrently held and found the accused guilty for the offence under Section 37 (A) (3) of Act and that there are no grounds to interfere with the judgments of the Courts below.
5. Now the point that would arise for my consideration is whether the Judgments of the Courts below are legal, proper and correct.
6. Point:- It is the specific case of prosecution that Inspector of Police, Athmakur proceeded to Janampet Village on information and there seized 30 liters of toddy and that he collected samples of 350 ML each and then destroyed the contraband. On behalf of prosecution, three witnesses were examined. P.W.1 is S.H.O., of Kothakota at relevant point of time who deposed that he received case papers along with the accused from Excise Inspector, Athmakur and that he registered the F.I.R. In the cross-examination, he stated that he has not conducted any investigation and that he deposited the sample before the Court on 02-11-2004. One of the mediator is examined as P.W.2 and he is not supported the prosecution case and he was treated hostile and cross- examined on behalf of prosecution. He denied the suggestion that he was presented at the time of raid conducted on 12-09-2004 and seizure of 30 liters of toddy from the possession of accused. Investigating officer is examined as P.W.3 and he deposed that on 12-09-2004, he conducted search in the hut of the accused and found one mud pot containing 30 liters of toddy and that he seized the same and drawn sample under the cover of panchanama, later he destroyed the remaining toddy on the spot. In the cross- examination, he deposed that he received information at Kothakota Excise Police Station and that he has not made any G.D entry. He also deposed that the boundaries of the hut and exact spot from where the toddy was seized is not recorded.
He further deposed that he did not examine the consumers present at the hut, which is used as a shop. He further deposed that he did not seize any empty bottles or cash.
He also stated that has not seized any material used for manufacturing toddy. He deposed that samples were drawn into the bottles that were collected from the shop of the accused. He denied the suggestion that he foisted the case against the accused.
7. As seen from the record, the analyst received sample through letter in Dis.No.1982, dated 03-11-2004.
According to prosecution, the sample was collected on 12-09-2004. Admittedly, the investigating officer has not carried any sample bottles with him. It is also clear from the evidence of P.W.3 that samples were drawn into the bottles that were collected from the shop of the accused. P.W.3 has not stated anywhere that those bottles were clean and hygienic before collecting samples. P.W.3 also not stated that he has added preservative into the sample. Prosecution has not examined the analyst to know whether the sample is with preservative or without preservative, whether the sample is fit for analysis in spite of delay in sending without adding preservative. As rightly pointed out by the learned Advocate for revision petitioner that there is no independent evidence to prove the allegations levelled against the revision petitioner.
The mediator examined has not supported the prosecution case and the other mediator is not examined. No doubt some explanation is offered for non-examination of the other mediator namely; A. Narayana on the ground that he is bedridden. But prosecution has not taken any steps to get the other mediator examined at least on commission. P.W.1 admitted in his cross- examination that he has not conducted any investigation and he simply registered the F.I.R. So here is the case where the only evidence available for the prosecution is that of investigating officer whether such evidence cannot be relied on to convict a person for the offence punishable under Section 37 (A) (3) of A.P. Excise Act is the point to be decided. From the cross-examination of P.W.3, it is clear that there were some customers at the place of seizure at the time of arrest and seizure. Admittedly, those persons are not examined and no explanation is offered by the investigating officer for their non- examination. It is also clear from the evidence of P.W.3 that the samples were taken mechanically without observing the procedure and rules for drawing samples. It is also clear from the evidence that the samples were not immediately sent for analysis and it was only sent 1½ months after seizure. It is not known whether the sample was fit for analysis even after 1½ months after collecting the sample without adding preservative. All these aspects throw any amount of doubt as to the correctness of the prosecution case, but both the trial Court and the appellate Court without considering these aspects, mechanically accepted the self serving testimony of P.W.3 and convicted revision petitioner, which in my view is illegal and not in accordance with law.
8. Therefore, for the above reasons, I am of the view that both the Courts committed error in convicting the accused and the findings of trial Court and the appellate Court are not based on acceptable and convincing evidence. Therefore, both the Courts committed illegality in convicting the accused and their judgments are liable to be set aside.
9. Accordingly, Criminal Revision Case is allowed. Judgments of trial Court and appellate Court are hereby set aside and the revision petitioner is acquitted under Section 248 (1) Cr.P.C for the offence under Section 37 (A) (3) of A.P. Excise Act. His bail bonds shall stand cancelled and fine amount shall be refunded.
10. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand disposed of.
JUSTICE S. RAVI KUMAR
Date:20.01.2014 mrb