ELIPE DHARMA RAO, J.

( 1 ) THE petitioner herein was prosecuted for the offence under section 34 (a) of the A. P. Excise Act, 1968 (for brevity the Act) in CC No. 442 of 1996 before the learned Special Judicial Magistrate of I Class for Prohibition and Excise offences, Cuddapah, on the allegation that on 19-9-1993 at about 10-00 p. m. , on suspicion, the Excise Inspector, Proddatur, along with his staff and Sub-Inspector of police, Proddatur II Town intercepted the jeep of the petitioner bearing No. TCK 1728 coming from Jinnah Road towards Mydukur and on verification found 18 card board boxes containing different varieties of liquor, which was non-duty paid and the petitioner failed to produce either permit or licence for transporting the contraband. Therefore, they arrested the petitioner, seized the property under cover Special Report, drawn samples from each variety and sent it to the Chemical Examiner. The Analysis report revealed that the samples are beer and Indian Liquor. Therefore, the petitioner was charge-sheeted for transporting non-

( 2 ) TO substantiate the charge, the prosecution examined PWs. 1 to 3 and marked Exs. Pl to P6 and MOs. 1 to 6. The trial Court has considered the fact that on interception by the police officers, the petitioner was found in possession of contraband, that the incident took place in a busy road surrounded by cinema theatre and other business establishment and that no body came forward to act as panch witness-mediators and that the residence of the VAO is situated one kilometer away from that place and therefore, Special report was drafted and having regard to the analysis report, found the petitioner guilty for the offence under Section 34 (a) of the Act, convicted and sentenced him as stated supra.

( 3 ) AGGRIEVED of the said conviction and sentence, the petitioner herein preferred criminal Appeal No. 40 of 1997 before the learned Sessions Judge, Cuddapah, who by his judgment dated 17-3-1999, which is impugned in this revision, dismissed the appeal confirming in toto the conviction and sentence awarded by the trial Court.

( 4 ) AGGRIEVED by the said conviction and sentence, the present criminal revision case is filed.

( 5 ) THE learned Counsel for the petitioner, Sri M. Sriramulu Reddy, contended that the vehicle of the accused was stopped and in conducting search and seizure of the contraband, the officials have not followed the provisions of Section 55 of the Act, which is mandatory. It is further contended that the owner of the jeep was not informed, that according to the evidence of PW1 when nobody came forward to act as panch witness, the officials should have resorted to the provisions of section 100 (4) of the Code of Criminal procedure (for brevity the Code ). Therefore, conviction and sentence passed by the trial court and confirmed by the appellant Court are liable to be set aside.

( 6 ) FOR better appreciation of the contentions, it is relevant to extract section 55 of the A. P. Excise Act, 1968, which reads as under:"power to search without warrant : whenever the Commissioner or a Collector or any Police Officer not below the rank of an officer-in-charge of a Police Station or any Excise Officer not below the rank of an Excise Sub-Inspector, has reason to believe that an offence under Sections 34, 35, section 36, 37 or 37-A, has been, is being or likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief:- (a) at any time by day or of by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. . . . . . ,

( 7 ) AS per the testimony of PWs. 1 to 3, on suspicion they intercepted t

Click Here to Read the rest of this document