HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Revision Case No.746 of 2005 ORDER: The appellant-accused in Criminal Appeal No.158 of 2004 on the file of the Court of Principal Sessions Judge, Kurnool, aggrieved by the judgment of the said court dated 19.4.2005 preferred this Criminal Revision Case. The first appellate court had confirmed the conviction and sentence imposed by the court of Special Judicial Magistrate of First Class for Prohibition and Excise, Kurnool in C.C.No.28 of 2003 by which the accused was convicted and sentenced to undergo simple imprisonment for a period of one year and also a fine of Rs.2,000/-, in default, simple imprisonment for a period of 15 days for the offence under Section 37(A)(3) of A.P. Excise Act,1968 ( for short ‘the Act’). 2. The facts of the case in brief are that on 11.8.2002, PW.4 - Excise Sub Inspector along with his staff and mediators found the accused possessing a red colour plastic vessel at Chowdamma Bunk in the outskirts of Ulchala village of Kurnool Mandal and District. On seeing them the accused tried to run away, however, he was apprehended and on interrogation he admitted having possession of toddy in the plastic vessel. The toddy was tested by mini kit and it revealed that the toddy was mixed with chloral Hydrate and two samples were drawn under cover of panchanama and the remaining toddy was destroyed. The accused was arrested and a case in Crime No.P.R. 199/02-03 was registered and the accused was sent for remand. The sample was sent to Chemical Examiner through the Court of local Magistrate after following required procedure. Ex.P.6 is the Chemical Examiner Report. In Ex.P.6, it was opined that the sample of toddy was mixed with chloral hydrate and free from Diazopam. After completing investigation, charge sheet was laid against the accused in to court for the offence under Section 34(a) and 37 (a) of the Act. Since the accused pleaded not guilty, he was put on trial and a charge under Section 37(A) (3) of the Act was framed against him. 3. In support of the case of the prosecution, it had examined PWs 1 to 4 and got marked Exs.P.1 to P.8, and M.Os 1 and 2 on its behalf. However, no witnesses were examined and no documents were marked on behalf of the accused. 4. The trial court, taking into consideration the evidence of prosecution witnesses and other material on record, found the accused guilty for the offence under Section 37(A) (3) of the Act, and convicted and sentenced as has already been stated in Para No.1 supra and the same was confirmed by the first appellate court by the impugned judgment dated 19.4.2005. 5. It is as against the said impugned judgment the appellant- accused preferred this revision before this court. 6. It is the case of the petitioner-accused that Talaries of Ulchala village, who were mediators to the seizure of adulterated toddy/contraband, were examined as PWs 1 and 2, however, both of them did not support the case of the prosecution. They were declared hostile. It is further case of the petitioner-accused that the head constable who was examined as PW.3 has stated in his evidence that PW.4 - Sub-Inspector had drawn two samples of the toddy in 350 ml. bottles of each 250 ml. quantity, sealed and labelled, whereas PW.4 the Sub-Inspector of Police, Prohibition and Excise stated in his evidence that he had drawn three samples in 650 ml. bottles of 560 ml. each from the said contraband, sealed and labelled. Therefore, it is contended that there is contradiction and/or inconsistency in the evidence of PWs 3 and 4 as to the number of samples drawn and also as to the quantity thereof. It is further contended that since there is a discrepancy and disagreement between the two witnesses as to the quantity of the sample drawn, it is doubtful which of the sample was sent to the chemical examiner whether it is the sample alleged to have been drawn from the accused or from some other person. It is further contended that in view of the discrepancy in the evidence of PWs 3 and 4 , their evidence should not have been accepted and acted upon by both the courts below, it is more so, that PWs 3 and 4 are the official and interested witnesses, being Investigating Officers. More over, PWs 1 and 2- mediators did not support the case of the prosecution. They have only stated in their evidence that the Excise Police called them to the Station and obtained signatures on some papers and they did not know the contents of the said papers and they did not know the facts of the case also. Moreover, after lifting two samples, the remaining contraband i.e. toddy was destroyed at the scene of offence itself, which act is in contravention of the provisions of Section 45 of the Act, which lays down mandatory provision for destroying the seized contraband. Therefore, it is contended that the case of the prosecution must fall to the ground since PWs 3 and 4 who are the officials, interested witnesses and also being Investigating Officers and moreover, in view of the fact that PWs 1 and 2 - mediators did not support the case of prosecution. In the circumstances, he relied on a decision in Podduturi Satyam Reddy Vs. State of A.P.[1], wherein it was held to the effect that the trial court was not justified in relying on the evidence of excise officials, there being no supporting or corroborative evidence from any other independent witnesses. Lastly, it is contended that in view of the contradictions, variations and the statutory provisions being contravened, the findings of both the courts below are unsustainable, as such, the impugned judgment may be set- aside by extending benefit of doubt to the petitioner-accused. 7. On the other hand, it is the case of the prosecution that though PWs 1 and 2 - mediators did not support its case, their turning hostile is not fatal to the prosecution in view of the fact that the accused and they (PWs 1 and 2) belong to the same village. It is contended that as per contents of Ex.P.7- the orders of Deputy Commissioner, Excise, it is evident that the plastic vessel which was containing contraband- adulterated toddy at the time of seizure, was produced before him and accordingly he ordered to destroy the same. According to the evidence of PWs 3 and 4 - Excise officials and Investigating Officers, the contraband was destroyed soon after drawing the sample. Lastly, the learned Public Prosecutor supported both the impugned orders of both the courts below stating that the prosecution has proved its case, therefore, the accused was convicted and sentenced by the trial court and the same was confirmed by the first appellate court and as such, the impugned judgment is not liable to be interfered with. 8. Heard both sides and perused the record. 9. It is to be seen that PW.4 along with mediators found the accused in possession of adulterated toddy in light red colour plastic vessel and the accused was apprehended and toddy was tested with the help of mini kit. It was revealed that the toddy was mixed with chloral hydrate and it was free from diazopam. Two samples were drawn from it and remaining toddy was destroyed after securing orders of the Deputy Commissioner, Prohibition and Excise, Kurnool. The adulterated toddy/contraband was destroyed then and there because it cannot be preserved. Further since PWs 1 and 2 are residents of the same village, the courts below are justified in placing reliance on the evidence of PWs 3 and 4, though they are official witnesses, since A.P. Excise Act being a special law. In the circumstances, this court is of the view that the contentions raised by the petitioner-accused cannot be sustained and as such the impugned judgment of the first appellate court does not suffer from any infirmity in confirming the orders of the trial court. Therefore, the Criminal Revision case is liable to be dismissed. 10. In the result, the Criminal Revision Case is dismissed. _______________ B.N.RAO NALLA,J -03-2011 Stp HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Revision Case No.746 of 2005 -03-2011 [1] 2001 ((1) ALT (Crl.) 66 (A.P.)