Failure to follow mandatory provisions under the A.P. Excise Act and Cr.P.C. led to a manifest error of law and a flagrant miscarriage of justice.

ORDER:

Assailing the judgment dated 12.06.2009 in Crl.A.No.59 of 2004 on the file of the Court of learned I Additional Sessions Judge, Vizianagaram, confirming the conviction and sentence imposed by the judgment dated 22.03.2004 in C.C.No.352 of 2002 on the file of the Court of learned Special Judicial Magistrate of First Class (Excise), Vizianagaram, for the offence under section 34(a) r/w.14(2) of A.P. Excise Act (hereinafter referred to as “the Act”), the petitioner/accused No.1 filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.P.C.”).

2. The revision case was admitted on 19.06.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1321 of 2009.

3. The petitioner along with other accused were arrayed as accused in Cr.No.308 of 2000-01 of Prohibition and Excise Police Station, Vizianagram and after completion of investigation, Inspector of Police laid charge sheet against the accused and the same was numbered as C.C.No.352 of 2002 on the file of the Court of learned Special Judicial Magistrate of First Class (Excise), Vizianagaram. After full-fledged trial, the trial Court found the accused Nos.1 and 2 guilty of the charge under Section 34(a) r/w.14(2) of the Act and sentenced the petitioner/accused No.1 to undergo rigorous imprisonment for a period of one (1) year and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment of two (2) months and sentenced accused No.2 to undergo rigorous imprisonment for a period of six (6) months and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment of two (2) months, for the said charge.

However, accused No.3 is acquitted of the said charge.

4. Aggrieved by the same, the petitioner/accused No.1 preferred an appeal, vide Crl.A.No.59 of 2004, before the Court of learned I Additional Sessions Judge, Vizianagaram and the same was dismissed by confirming the judgment of the trial Court.

5. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused No.1.

6. Heard Sri Y.Srinivasa Murthy, learned Senior Counsel appearing on behalf of Sri Ashok Kondeti, learned counsel for the petitioner/accused No.1 and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent.

7. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

8. Sri Y.Srinivasa Murthy, learned Senior counsel appearing on behalf of Sri Ashok Kondeti, learned counsel for the petitioner/accused No.1, brought to the notice of this Court that Ex.P.1 (search proceedings) does not contain signature of any witness and Ex.P.2 (search list) is mandated that copy of Exs.P.1 and P.2 shall be handed over to the accused, but herein this case no such service was made, that itself creates any amount of doubt regarding search and seizure of the contraband as per Section 100(4) of Code of Criminal Procedure. 9. Learned Senior Counsel further submits that both the trial Court as well Appellate Court while considering the aspect of non-corroboration of mediators report/occurrence report have misdirected by holding that such non corroboration is not fatal to the case of the prosecution and the evidence of official witnesses would be sufficient for accepting the seizure of contraband; that so many inconsistencies found from the evidence of P.Ws.2 and 4, who are only crucial witnesses to the prosecution case and their evidence and contents in the occurrence report as well Exs.P.1 and P.2 creates any amount of doubt regarding the alleged raid and seizure of contraband; that there are no mediators at all to the proceedings covered under Ex.P.3 and the same is hit by Section 27 of Indian Evidence Act and there is no legally admissible evide