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2009 Supreme(AP) 635
HIGH COURT OF ANDHRA PRADESH
THE HONble SRI JUSTICE B. CHANDRA KUMAR
S. BABU SAHEB ALIAS BABU
VS.
STATE OF A. P.
Criminal Revision Case No. 492 of 2004
Decided On : SEPTEMBER 11, 2009
T.C. KRISHNAN,
Headnote:
A. P. Prohibition Act - Section 8 (b) (ii) - A. P. Excise Act - section 34 (a) – Criminal Procedure Code - Sections 100 (4) and 161 - Indian Evidence Act, 1872 - Sections 25,27 - Appeal against conviction - imprisonment - entire material on record - Petitioner herein was convicted for offence under Section 8 (b) (ii) of A. P. Prohibition Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of in default to suffer rigorous imprisonment for three months by learned Additional Judicial Magistrate of first Class by his Judgment - Being aggrieved by same he filed an Appeal in on file of III Additional Sessions Judge and same was dismissed by impugned Judgment - Being aggrieved by same he preferred this Revision Case challenging conviction and sentence passed against him - petitioner will be referred to as accused hereinafter - case of prosecution is that on at about while Prohibition and Excise Inspector along with his staff and was conducting route watch on near he noticed Ambassador Car bearing coming from side - Car was stopped by Excise Inspector - accused was driving car and he was alone in car – Held, He has not explained as to why he could not sent sample bottle to chemical examination till other lacuna pointed by learned counsel for petitioner is that though charge sheet is filed for offence under Section 34 (a) of Excise Act lower Court proceeded against Accused for offence under Section 8 (b) (ii) of the A. P. Prohibition Act - other point raised is that PW-2 had drawn sample from only one bottle - Evidence let in by prosecution must create confidence and must be reliable - Since no efforts were made to take independent mediator in this case it appears that it is not desirable to convict accused on evidence of Court below did not consider importance of taking local respectable independent mediators hence their judgments resulted in miscarriage of justice and liable to be set a side - Appears that there is no need to consider other points referred above raised by learned counsel for the petitioner - IN view of above discussion conviction and sentence passed against petitioner-Accused cannot sustain - Criminal Revision Case is allowed Consequently judgments of courts below stands set aside - Criminal Revision Case is allowed
( 2 ) THE petitioner will be referred to as accused hereinafter. The case of the prosecution is that on 08-08-1997 at about 3-30 PM while the Prohibition and Excise Inspector, Srikalahasti along with his staff and panchayatdars was conducting route watch on Srikalahasti-Pitchatur road near Ramachandrapuram colony, he noticed the Ambassador Car bearing No. AP 26 4466 coming from pitchatur side. The Car was stopped by the Excise Inspector. The accused was driving the car and he was alone in the car. The Prohibition and Excise inspector served search proceedings on the accused. The car was searched and five card board boxes containing 115 pints of white mischief Vodka MDP Vodka liquor (non duty paid liquor) was found in the dicky of the car. The accused had no license or authority for transporting the said liquor. The samples were drawn and the contraband was seized under a cover of mahazar attested by the panchayatdars. The accused was arrested. A case in Crime no. 362/96-97 of Prohibition and Excise station, Srikalahasti, was registered for the offence punishable under Section 34 (a) of the A. P. Excise Act. The samples were sent to the Government Regional Prohibition and Excise Laboratory, chittoor, for analysis wherein it was confirmed that the sample is Indian made liquor. The car used in the commission of the offence owned by the Accused was confiscated by separate proceedings by the Deputy Commissioner of Prohibition and Excise, Ananthapur. The accused was charge sheeted for the offence under section 34 (a) of the A. P. Excise Act. The case was taken on file under Section 8 (b) (ii) of the A. P. Prohibition Act. The accused pleaded not guilty for the charges framed against him.
( 3 ) THE prosecution, in order to prove its case, examined Pws. 1 and 2 and marked Exs. P-1 to P-4. The stand of the accused is that he was falsely implicated in this case due to the disputes between himself and one Munuswamy.
( 4 ) THE learned Magistrate, after considering the entire material on record, held that the prosecution proved its case and accordingly convicted the accused for the offence under Section 8 (b) (ii) of the A. P. Prohibition Act and sentenced him as indicated above.
( 5 ) THE learned counsel for the petitioner submitted that the accused was falsely implicated in this case due to enmity with Munuswamy, an Excise contractor. It is also his case that one of the mediator, Janakiramaiah, is friend of Munuswamy. Thus the persons who are inimical and interested were taken as mediators. It is also submitted that no independent mediators were taken. It is also his case that PW-1, who was working at Srikalahasti, is a stock witness of the prosecution and that the Excise Inspector (PW-2) did not follow the prescribed procedure under Section 100 (4) of Cr. P. C. His main submission is that, while making search, the local mediators ought to have been taken. It is also his submission that except the evidence of PW-2, who is an interested witness, there is no other evidence to connect the accused with the crime. He has also submitted that when the police filed the charge sheet for the offence under Section 34 (1) of the A. P. Excise Act, the trial Court committed an irregularity in framing the charge under Section 8 (b) (ii) of
