THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL NO.223 OF 2008 JUDGMENT: 1 This appeal is directed against the judgment dated 07.02.2008 rendered in NDSC No.41 of 2005 by the learned I Additional Sessions Judge, Mahabubnagar whereby the appellant herein was convicted and sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs.10,000/- in default, to suffer simple imprisonment for a period of six months for the offence punishable under section 8 (c) r/w Sec.22 of N.D.P.S. Act and was further sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.3,000/- in default, to suffer simple imprisonment for a period of six months for the offence punishable under section 34 (a) of the A.P. Excise Act. 2 The facts in brief are that on 16.06.1999 the Prohibition and Excise Inspector, Enforcement, R.R. District Zone along with staff and mediators i.e. P.Ws.1 & 2 herein raided the Sendhi tope of one Kurma Nagappa and found the land owner Kurma Nagappa and the appellant herein. They served the search memo on them and searched the tope and found one wooden tub having the capacity of 300 liters, which was containing 20 liters of toddy and one plastic hand bag containing two polythene covers with white crystals and powder about 2 kgs and 1 kg respectively, which was found, on spot inspection, mixed with chloral hydrate. Then appellant confessed that he was toddy taper and working under TFT members of counter Nos.3, 4, 26 and 28 for toddy shop No.3 of Kalwakurthy, which belong to A.2 to A.5 in the said case. The appellant further confessed that A.2 to A.4 kept raw chloral hydrate and other powder to mix the same in the toddy and sell adulterated toddy in their respective counters. Then the officials drew samples of toddy of 350 ml each in three bottles and samples of raw chloral hydrate of 50 grams each in two packets and samples of white powder each in two packets. The Excise officials seized the same under panchanama in the presence of mediators and destroyed the toddy on the spot and arrested the appellant. In that connection a case in Cr.No.327/98-99 was registered and investigated into. Subsequently the samples were sent to the public analyst, who, after examination, issued a report opining that the sample of toddy was fermented and adulterated by chloral hydrate, the crystals are chloral hydrate and white powder was sodium bicarbonate. After completion of investigation, the charge sheet was filed against A.1 to A.5 and the same was taken on file as NDSC No.41 of 2005. 3 During the course of trial, in order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.6. The learned I Additional Sessions Judge at Mahabubnagar, while appreciating the entire evidence available on record, found the accused 2 to 5 not guilty of the said offences, but, however, found the appellant herein guilty of the said offences and accordingly convicted and sentenced him as stated supra. 4 The learned counsel for the appellant contended that when the mediators i.e. P.W.1 & 2 turned hostile and did not support the case of the prosecution, the learned trial judge ought not to have given much credence to the evidence of P.Ws.2 to 6, who are the official witnesses. He further contended that the confession alleged to have been made by the appellant was not marked and hence there is any amount of doubt with regard to the search conducted on the said date. He further contended that even if the alleged confession is taken into consideration, the same is not admissible in evidence in view of the ratio laid down by this court in Shaik Beebi and another Vs. State Rep. By Excise Inspector[1]. He also relied on the judgment of the Allahabad High Court held between Rajendra Kumar Vs. State[2]. 5 In the light of the above submissions made by the learned counsel for the appellant, this court looked into the record. As seen from the evidence of the prosecution witnesses, it is clear that P.Ws.1 & 2 who are cited as mediators for the entire occurrence turned hostile and they did not support the case of the prosecution. In that view of the matter the only evidence available on record for proving the guilt of the appellant is the evidence of the official witnesses. No doubt, P.Ws.3 to 6 have stated about the search conducted on the said date and seizure of the contraband. But it is to be seen whether their evidence can in any way be taken into consideration in the absence of corroboration from the independent witnesses. 6 Firstly it should be remembered that the trial court acquitted the other accused who were tried along with the appellant for all the charges levelled against them. The case of the prosecution is that basing upon the confession made by the appellant only, the remaining accused were charge sheeted. When the trial court came to the conclusion that the prosecution failed to bring home the guilt of the other accused for the charges framed against them, it ought not to have convicted the appellant alone since the other accused were roped into the case basing on the alleged confession made by the appellant only and that the appellant was said to be working under the other accused. Further, as contended by the learned counsel for the appellant, the alleged confession made by the appellant was not marked during the course of trial. Hence the said confession cannot be given much credence. 7 Apart from that though P.Ws.3 to 6 have unequivocally stated about the seizure of the contraband and other articles at the time of search and about the commission of the offence by the appellant their evidence is not corroborated by any independent witness to prove the alleged search. When there is no corroboration from the mediators on the aspect of search and seizure, the reliance placed by the trial court on the confession allegedly made by the appellant before P.W.3 is wrong and cannot sustain in view of the ratio laid down by this court in Shaik Beebi case (1 supra) wherein this court while dealing with Section 53 of the Andhra Pradesh Excise Act, 1968 (for short ‘the Act’) gives power to arrest without warrant, to seize articles liable for confiscation and to make searches, held at para No.6 as under: “A bare perusal of this provision would show that the power of the Officers under this Section can be exercised only after the officer concerned has suspicion about an offence taking place in a premises. He can also arrest a person without warrant provided he has some material with him that the said person has committed an offence. In the present case, we have seen from the testimony of P.W.4 himself that there was no material with him. He just entered into the house of the accused and arrested a lady i.e. accused No.1 and seized articles. There was no first information report registered by him nor any information was received by him prior to his search. Section 53 of the Act does not give power to the officers to enter anybody’s house any time without any basis. Section 53 has to be understood in the context that if there is any reasonable suspicion with an officer that an offence punishable under sections 27 or 34 or 35 or 36 or 37 or 37-A or 40-A or 50 or 50-A of the Act is being committed, he can exercise the power under Section 53 of the Act. The testimony of P.W.4 discloses that after making a search and after arresting accused No.1, he registered a case. He conducted the search on 26.6.1994 at 6.30 p.m. The first information report was registered by him at 9.30 p.m. i.e. after three hours of having made search and arrest and this first information report reached the Magistrate on 27.6.1994 at 2.00 p.m. Therefore, in my view, the prosecution, on this ground, alone could not sustain. It is further pointed out by the learned counsel for the petitioners that there was no evidence except the evidence of this Inspector, but the learned Sessions Judge has relied on a confession and the so called confession was made before the same Inspector, which was not admissible in evidence. The learned Sessions Judge was clearly wrong in relying on the confession allegedly made by accused No.1 before the Inspector.” 8 Further, the confession allegedly made by the appellant is inadmissible in evidence under section 25 of the Evidence Act. This view of mine is fortified by the ratio laid down in In Rajendra Kumar case (2 supra) wherein it was observed as under: “………….an officer performing ‘police’ functions of investigation and arrest would be a police officer within the meaning of Section 25 of the Evidence Act. These functions are conferred upon the Excise Officers under the provisions of S. 21(ii) of the Indian Central Excises and Salt Act, which invests Excise Officers with the powers of Inspectors of Police investigating eases and entrusts them with the duties of such investigating officers acting under the Code of Criminal Procedure. I, therefore, hold that the view taken by the trial court was quite correct, and this confession was rightly excluded from evidence on the ground that the Superintendent of Central Excise was a ‘police officer’ for purposes of S. 25 of the Evidence Act. Nevertheless, there is overwhelming evidence in this case to justify the findings arrived at by the trial court with which I concur.” 9 Another aspect to be noted is that at the relevant point of time when the prosecution team entered the house of the appellant, they found one person by name Nagappa along with the appellant. When it is the case of the prosecution that there were two persons when the Excise officials reached the shandi of the appellant, why the other person by name Nagappa who allegedly present at the time of their visit was not figured as accused in the charge sheet is not explained by the prosecution because the said Nagappa was physically present on the spot and more over he is the owner of the said property and he is also having knowledge that the illicit liquor business was being carried on in the said premises. Because of this lach, some doubt is spreading cloud over the case of the prosecution. 10 In view of my foregoing discussion, I am of the opinion that the trial court erred in convicting the appellant for the offences punishable under sections 8 (c) r/w Sec.22 of N.D.P.S. Act and under section 34(a) of the A.P. Excise Act. 11 Accordingly this appeal is allowed and the conviction and sentence imposed by the trial court on the appellant are hereby set aside. ---------------- .12.2010 Kvsn [1] 2007 (1 ALT (Crl.) 168 (A.P) [2] AIR 1966 Allahabad 42 (Vol.53, C.12)