HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE Nos.2078 OF 2006, 2084 OF 2006 & 2085 OF 2006 Dated 22-4-2014 Crl.R.C.No.2078 of 2006:
Between:
1. Nakkala Reddeppa and another.
Petitioners.
And:
The State of A.P. represented by its Public Prosecutor, High Court of A.P., Hyderabad.
…Respondent.
Crl.R.C.No.2084 of 2006:
Between:
1. Mandyam Gangulappa and others.
Petitioners.
And:
The State of A.P. represented by its Public Prosecutor, High Court of A.P., Hyderabad.
… Respondent.
Crl.R.C.No.2085 of 2006:
Between:
1. Takkala Bhaskar.
And:
Petitioner.
The State of A.P. represented by its Public Prosecutor, High Court of A.P., Hyderabad.
… Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE Nos.2078 OF 2006, 2084 OF 2006 & 2085 OF 2006 COMMON ORDER:
These three revisions arise out of judgment in C.C.No.275 of 2002 on the file of II Additional Judicial Magistrate of First Class, Madanapalle whereunder seven accused are tried for the offence under Section 34(a) of A.P.Excise Act and all of them are convicted after trial and six convicted accused preferred three appeals to the court of Sessions and VII Additional District and Sessions Judge, Fast Track Court, Madanapalle decided those three appeals, whereunder the judgment of the trial court is confirmed and aggrieved by the dismissal of three appeals, these three revisions are filed.
2. A.2 and A.3 preferred appeal No.192 of 2005 against the judgment of trial court. A.4 to A.6 preferred Criminal Appeal No.193 of 2005 and A.1 preferred Criminal Appeal No.162 of 2005. Against the dismissal of these appeals, A.2 and A.3 preferred Criminal Revision Case No.2078 of 2006, A.4 to A.6 preferred Criminal Revision Case No.2085 of 2006 and A.1 preferred Criminal Revision Case No.2085 of 2006 and all the revisions are heard together.
3. Brief facts leading to these three revisions are as follows:
Inspector of Prohibition and Excise Madanapalle filed charge sheet alleging that Inspector of Police along with panchayatdars and staff on information reached near a Bridge situated at Madanapalle to Cheekulaballu bus road near Gnanareddy bricks factory found one white car bearing No.AP 03 A 3056 parked at the bridge in which A.1 was in the driving seat and A.2 to A.5 are transporting card board box to load in the car dicky and on seeing the Excise Officials, accused tried to ran away. But Excise Officials apprehended A.1 to A.3 whereas A.4 to A.6 ran away. On interrogation, A.1 to A.3 disclosed their identify and also identity of the accused who fled away and on that, Excise Inspector served search proceedings on A.1 and obtained his acknowledgment and searched the car and found 10 card board boxes in the back seat of car, 4 card board boxes in the car dikky, and also found two card board boxes under the bridge and two card board boxes abandoned by A.4 and A.5 underneath the bridge and totally they are 22 card board boxes. Out of 20 boxes, 17 boxes contained 716 nips of Dolphin fine whisky, 3 card board boxes containing 144 nips of Dolphin brandy, two boxes which were abandoned by A.4 and A.5 are containing 96 nips of Dolphin brandy and these items are seized in the presence of mediators under a panchanama and thereafter, crime is registered and investigation revealed that all the accused have committed offence under Section 34(a) of A.P.Excise Act. During trial, five witnesses are examined and 11 documents are marked besides 18 Material Objects and no witness is examined and no document is marked on behalf of accused. On an over all consideration of oral and documentary evidence, trial court found A.1 to A.6 guilty for the offence under Section 34(a) of A.P.Excise Act and sentenced A.1 and A.6 for one year imprisonment with a fine of Rs.10,000/- each, and sentenced A.2 to A.5 with six months imprisonment with a fine of Rs.5000/- each. Trial court found A.7 not guilty and acquitted her. All the convicted accused A.1 to A.6 preferred appeals in three sets and VII Additional District Judge, Fast Track Court, Madanapalle dismissed all the three appeals confirming conviction and sentence recorded against A.1 to A.6 by the trial court. Aggrieved by the same, three sets of revisions are filed by A.1 to A.6.
4. Heard both sides.
5. Advocate for revision petitioners mainly contended that the Excise Officials failed to follow Section 100(4) Cr.P.C. and same is fatal to the prosecution case. It is further contended that independent witnesses have not supported prosecution case and relying on the evidence of officials witnesses, convicting revision petitioners is not at all legal.
6. The other objection of the revision petitioners is that Excise Officials have not followed Section 55 of A.P.Excise Act for search and seizure.
7. On the other hand, learned Public Prosecutor contended that these objections were raised before the trial court and appellate court and both courts after considering legal position discarded the objection of revision petitioners and that there are no grounds to interfere with the concurrent findings of the courts below.
8. Now the point that would arise for my consideration in these revisions is whether the judgments of the trial courts are legal, correct and proper?
9. POINT:
According to prosecution, on 21-10-1997 on credible information, Excise Officials proceeded along with mediators to Gnana Reddy bricks factory situated at Cheekulabailu bus road and there they found one white car bearing No.A.P.03 A 3056 parked on the road side and found loading of card board boxes into it and on search it is found that those boxes contained contraband i.e., brandy and whisky bottle. According to prosecution, these articles are prohibited articles and on seeing the police, out of these accused, three escaped and they could apprehend three persons only. To prove its case, prosecution has examined five witnesses. P.Ws.1 and 2 are the mediators who accompanied Excise Officials and they have not supported prosecution case and they are treated as hostile. P.W.3 is the Excise Official who returned the car from which contraband is seized, to the owner as per the proceedings of Deputy Commissioner of Prohibition and Excise as interim custody. P.Ws.4 And 5 are the Excise Officials who participated in the raid and investigated into the case.
10. One of the contentions of the revision petitioners is that the Excise Officials have not followed Section 100(4) Cr.P.C.
11. Learned counsel for the revision petitioners argued that as per this provision, police officials have to secure mediators from the locality where the search is conducted but in this case, admittedly they have not collected any persons from the area near Gnanareddy brick Factory. He further submitted that from the evidence, it is clear that there are about 40 workers working in the brick factory and residing there itself and none of them are called as mediators or examined as witnesses. For this, learned Public prosecutor replied that the Excise Officials while proceeding towards the scene called mediators and left the police station with mediators and therefore, it is not necessary to again call any mediators from the locality. He further submitted that it is not the case of the revision petitioners that the mediators accompanied the Excise Officials are interested to prosecution but in fact, they have not supported the prosecution case and therefore, the objection of revision petitioners is not tenable.
12. Here both mediators are examined as P.Ws.1 and 2 and they have not supported prosecution case they only admitted their signatures on panchanama and with regard to averments, they denied knowledge. During cross examination of P.Ws.4 and 5, nothing is suggested with regard to interestedness of P.Ws.1 and 2. Further, when the Excise Officials proceeded to the spot on reliable information, there is nothing wrong in collecting mediators at the police station itself before proceeding towards scene. This objection is raised before the trial court and appellate court and both courts have considered the legal position and discarded the objection of revision petitioner and I do not find any wrong findings in the judgments of the courts below on this aspect.
13. The other objection of revision petitioners is that there is no evidence of any independent witnesses and relying on interested testimony of Excise Officials, both the courts have convicted the revision petitioners and the same is not legal.
14. No doubt, there is no evidence from any independent witnesses because both the independent witnesses have turned hostile and they have not supported the prosecution case.
15. Now the objection of the revision petitioners is that relying on the testimony of Excise Officials, convicting the revision petitioners is not legal. This objection is raised before the trial court and the learned trial judge by relying on a decision of this court overruled the objection on the ground that the evidence of P.Ws.4 and 5 is trustworthy and not tainted. On a scrutiny of evidence of P.Ws.4 and 5, I am of the view that learned trial judge is right in overruling the objection and there are no incorrect findings in its judgment.
16. Here the evidence of P.Ws.4 and 5 is supported and corroborated with the contents of panchanama and other circumstances. Therefore, the objection of the revision petitioners with regard to evidence of P.Ws.4 and 5 cannot be sustained.
17. The other objection of the revision petitioners is that Excise Officials have not followed Section 55 of A.P.Excise Act.
18. Learned Advocate for revision petitioners submitted that it is mandatory on the part of Excise Officials to record grounds for search and failure to record the grounds vitiate the entire trial and conviction.
19. To support his argument, advocate for revision petitioners cited ruling of this court in YEDURU
[1]
SREENIVASUL REDDY v. STATE OF A.P. ( ). In that case, Excise Officials intercepted jeep of accused therein and conducted search and seizure without recording grounds before search and seizure and under these circumstances, this court held that the Excise Officials have given a go-bye to the mandatory provisions and for that reason, acquitted the accused therein.
20. Here in our case, as seen from the evidence, P.W.5 has issued search proceedings as contemplated under Section 55 and recorded the grounds and served it on A.1 who was found in the driver seat of the car. The served search proceeding is marked as Ex.P.7. So from the evidence of P.W.5 which is supported and corroborated by Ex.P.7, it is clear that the Excise Officials have duly followed the mandatory provisions of Section 55 of A.P.Excise Act. This Ex.P.7 bears the signature of A.1 and there is no denial of signature of A.1 on this Ex.P.7 document. So, in view of this evidence, the ruling relied on by the revision petitioners has no application.
21. The other contention of the advocate for revision petitioners is that the trial court ought to have followed the provisions of Section 360 Cr.P.C. for extending the benefits under the said provision. He submitted that according to the decision of this court, it is mandatory on the part of the trial court to consider applicability of Section 360 Cr.P.C. where the proposed punishment is less than seven years. In support of his argument, he has drawn my attention to the decision of
[2]
this court reported in ( ). In that decision, this court observed that the courts at the time of conviction of accused has to consider the applicability of Section 360 Cr.P.C. where the proposed punishment is less than seven years.
22. But here in our case, learned trial court has considered the applicability of benefits of probation of offenders which are similar to the provisions of Section 360 Cr.P.C. and held that it is not a fit case to extend those benefits to the accused.
23. On a scrutiny of the material, I do not find any wrong with the trial court in not extending benefits of Probation of Offenders Act or provisions of Section 360 Cr.P.C., to the petitioners because of the nature and gravity of the offence. When the trial court has considered the applicability of provisions of benefits of Probation of offenders Act, the contention of the revision petitioners for not extending the benefits of Section 360 Cr.,P.C. which are equivalent to the provisions of Probation of Offenders Act cannot be sustained. As the trial court has considered the feasibility of the provisions, the decision relied on by the revision petitioners has no application.
24. On a scrutiny of the material on record, I am of the view that both trial court and appellate court have not committed any error in convicting the revision petitioners and there are no incorrect findings in the judgments of the courts below.
25. For these reasons, I am of the view that all the revisions are devoid of merits and liable to be dismissed.
26. In the result, all the three Criminal Revision Cases are dismissed. The trial Court shall take steps to apprehend the accused to undergo the unexpired portion of the sentence.
27. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 22-4-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE Nos.2078 OF 2006, 2084 OF 2006 & 2085 OF 2006 Dated 22-4-2014 Dvs
[1] 2002 (1) ALT (CRL.) 251 (A.P.)
[2] 2007 (2) ALT (Crl.) 286 (A.P.)