* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 492 OF 2004 % 11-09-2009 # S. Babu Saheb @ Babu. ..… Petitioner/Accused Vs. $ The State of A.P., rep. by Public Prosecutor, High Court Building, (through Proh.& Excise PS., Srikalahasti) Hyderabad. …Respondent !Counsel for the Petitioner : Sri T.C. Krishnan ^Counsel for the Respondent : Public Prosecutor <Gist : >Head Note: ?Cases Referred: 1. 2005(3) ALT (Crl.) 1 (AP) 2. 2002 (1) ALT (Crl.) 437 (AP) 3. AIR 2003 SC 801 HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.492 of 2004 Date: 11-09-2009 Between S. Babu Sahed @ babu Petitioner And The State of A.P. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.492 of 2004 ORDER: The petitioner herein was convicted for the offence under Section 8 (b) (ii) of the A.P. Prohibition Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for three months by the learned Additional Judicial Magistrate of First Class, Srikalahasti by his Judgment, dated 21-12-2001 in C.C.No.234 of 2000. Being aggrieved by the same, he filed an Appeal in Crl.A.No.14 of 2002 on the file of the III Additional Sessions Judge, Tirupati and the same was dismissed by the impugned Judgment, dated 08-01- 2004. Being aggrieved by the same, he preferred this Revision Case challenging the conviction and the sentence passed against him. 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 the A.P. Prohibition Act. It is also his submission that when the Accused is charged for a particular offence under a particular Act, the Courts are not empowered to proceed against him under a different enactment. It is also his submission that no reasons were assigned by the trial Court for proceeding against the accused under Section 8 (b) (ii) of the A.P. Prohibition Act. 6. The learned counsel relied on GAJAMKER NARAYANA v. STATE OF A.P. [1]. 7. His next submission is that the sample was collected from only one bottle and the Excise Inspector ought to have collected samples from other bottles also. In support of his contention that the prosecution must prove that all the sachetscontain I.D. liquor, he has relied upon a Judgment of this Court in MUDAVATH MOTHIA v. STATE OF A.P. [2]. It is also his submission that the seized property was not produced before the Court. 8. The learned Public Prosecutor, supporting the Judgments of the Courts below, submitted that since the ingredients of Section 8 (b) (ii) of the A.P. Prohibition Act and 34 (a) of the A.P. Excise Act are one and the same, there is no irregularity in proceeding against the accused for the offence under Section 8 (b) of the A.P. Prohibition Act though the Accused was charge sheeted for the offence under Section 34 (a) of the A.P. Excise Act. His second submission is that the prosecution examined PW-1, VAO, who is the independent witness, and there is no irregularity in conducting search of the vehicle. It is also his submission that the property was destroyed as per the proceedings of the Commissioner, Excise and in the above circumstances, the property was not produced before the Court. 9. The points that arise for consideration are: 1. Whether the prosecution has proved its case beyond reasonable doubt?; 2. Whether it is necessary to take independent respectable local mediator at the time of seizure? And 3. Whether an accused charged for the offence under Section 34 (a) of the A.P. Excise Act could be tried and punished for the offence under Section 8 (b) (ii) of the A.P. Prohibition Act? 10. As seen from the evidence, PW-2 was working as Excise Inspector, Srikalahasti, during the relevant period. PW-1 was working as VAO, Srikalahasti. PWs.1 and 2 were only examined. According to prosecution case there were three other excise officials and another mediator by name P. Janakiramaiah. 11. Admittedly the other excise officials and another mediator were not examined. Admittedly the car of the accused was intercepted at Ramachandrapuram Colony. Admittedly no local mediator was taken from Ramachandrapuram Colony. Admittedly both the mediators accompanied excise officials from Srikalahasti. 12. It was suggested to PW-2 that the other mediator P. Janakiramaiah was running a toddy Co-op Society and that the said P. Janakiramaiah was related to one P. Munuswamy, Excise Contractor, Srikalahasti, who had close relationship with the excise department. It was also suggested to PW-2 that the car of the Accused was engaged by the said Munuswamy and as differences arose between the Accused and the said Munuswamy with regard to the rent of the car, a false case is foisted against the Accused. 13. According to PW-1, himself and another mediator Janakiramaiah accompanied the excise officials and that they were present during entire proceeding and singed in the seizure panchanama. He has denied a suggestion that the Accused was taken to the Excise station from his house and that he had signed the seizure panchanama at the Excise Station. He had also denied a suggestion that at the instance of one T. Munaswamy, the Accused was falsely implicated in this case. 14. Admittedly charge sheet was filed under Section 34 (a) of the A.P. Excise Act. No efforts were made to secure local mediators from Ramachandrapuram colony where the seizure was made. PW-2 deposed that he did not observe whether there are any houses near the place of arrest or not. This statement itself creates a doubt as to whether PW-2 in fact intercepted the car of the Accused at Ramachandrapuram Colony and seized the contraband, because if at all seizure proceedings were conducted at Ramachandrapuram Colony, PW-2 would have been in a position to tell whether there were houses near the place of seizure or not. 15. Section 100 (4) and (5) of Cr.P.C. is as follows: 100.Persons in charge of closed place to allow search.— (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it. It has to be seen that the legislature in their wisdom have used the words “two or more independent and respectable inhabitants of the locality”. 16. Admittedly PW-1 accompanied the excise officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of Section 100 (4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case. 17. Of course it cannot be said that the evidence of a witness, who accompanied the police, cannot be always believed nor it can be discarded only on the ground that he accompanied the excise or police officials. But where, in a case, the excise officials, having an opportunity to take respectable mediators, did not make any effort to take such mediators certainly it casts a doubt about the prosecution version. In this case, admittedly no efforts were made to secure the presence of the local mediators. 18. Justice not only to be done, but also appears to have been done. Investigation must be fair and in accordance with the prescribed procedure. If respectable local mediators are taken the same would inspire confidence. 19. It may be noted that respectability does not connote any particular status or wealth or anything of that kind. Independent respectable mediator means who can stick to truth and depose honestly. Respectable means who are impartial and independent and not closely connected with the officials or under the influence of the officials. 20. In STATE v. ARUN [3], the Supreme Court held that: “Where there is no independent witness from the locality, the prosecution must offer reasonable explanation where it transfers that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts.” 21. This Court in GAJAMKER NARAYANA’s case (1 supra), while dealing with the case of a similar circumstance, observed as follows: “Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P. W. 1 nor that of P. W. 3 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex. P-1, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100 (4) Cr. P. C. are not followed by the Excise Officials while seizing the plastic can containing I. D. liquor. Therefore, the seizure made in this case is illegal.” 22. There are other reasons for disbelieving the testimony of PWs.1 and 2. Admittedly, there was another mediator by name B. Janakiramaiah and three other excise officials who accompanied PW-2. Neither the other mediator nor the excise officials were examined in this case. The prosecution has not assigned specific reasons for not examining those witnesses. For the reason of not making efforts to take independent respectable local mediator, the evidence of PW-1 loses it’s credibility. If we exclude the evidence of PW-1, there remains the evidence of PW-2 only. 23. This Court in MUDAVATH MOTHIA’s case (2 supra), observed that the seizure proceedings drafted also cannot be considered in view of the bar under Sections 25 and 27 of the Indian Evidence Act and Section 161 of Cr.P.C. 24. It was also observed that when the excise officials are entrusted with the investigation of cognizable offence, they become equal to the police officials. When once they become equal to police officials, the confession recorded by them in the proceedings become inadmissible. Therefore, Ex.P-5, seizure panchanama, is hit by Sections 25,27 of the Indian Evidence Act, 1872 and Section 161 of Cr. P. C. 25. There is another circumstance in this case i.e., the delay in sending the sample to the chemical examination. Admittedly, the seizure of the sample was made on 08-08-1997. According to PW-2, he had sent the sample to the Chemical Examiner on 11-11-1997. He has not explained as to why he could not sent the sample bottle to the chemical examination till 11-11-1997. 26. The other lacuna pointed by the learned counsel for the petitioner is that though the charge sheet is filed for the offence under Section 34 (a) of the A.P. Excise Act, the lower Court proceeded against the Accused for the offence under Section 8 (b) (ii) of the A.P. Prohibition Act. The other point raised is that PW-2 had drawn sample from only one bottle. 27. The evidence let in by the 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 the accused on the evidence of PWs.1 and 2. the Court below did not consider the importance of taking local respectable independent mediators, hence their judgments resulted in miscarriage of justice and liable to be set a side. In the circumstances, it appears that there is no need to consider the other points referred above, raised by the learned counsel for the petitioner. 28. In view of the above discussion, the conviction and sentence passed against the petitioner-Accused cannot sustain. 29. In the result, the Criminal Revision Case is allowed. Consequently, the judgments of the courts below stands set aside. _____________________ B. CHANDRA KUMAR, J Date: 11-09-2009 L.R. copy to be marked. YCR [1] 2005 (3) ALT (Crl.) 1 (A.P) [2] 2002 (1) ALT (Crl.) 437 (A.P.) [3] AIR 2003 SC 801