HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRL.R.C.NO.5 OF 2005 BETWEEN Pedakapu Thavudu .. Petitioner And The State, rep.by Public Prosecutor .. Respondent * HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL.R.C.NO.5 OF 2005 % Date: 07-08-2009 Between: # Pedakapu Thavudu .. Petitioner and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Sri Taddi Nageswar Rao ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: 1. 2004(2)ALT Crl. 160 2 1981 CrlL.J 1170 3 1982 Rri.LJ2246 4 1976 Crl LJ 1327 HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRL.R.C.NO.5 OF 2005 ORDER: This revision is directed against the Judgment dated 08.12.2004 in Crl.A.No.120 of 2004 passed by the learned Additional Sessions Judge, Vizianagaram, whereby and whereunder the learned Sessions Judge dismissed the appeal and confirmed the judgment passed by the Special Judicial Magistrate of First Class (Excise), Vizianagaram, dated 19.07.2004 in C.C.No.44 of 2004 convicting the petitioner for the offence punishable under Section 7(a) read with 8(e) of the A.P. Prohibition Act (Amended Act) and sentencing him to suffer rigorous imprisonment for one year to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for three months. 2. The petitioner herein shall be referred as accused hereinafter for the sake of convenience. 3. The petitioner herein is Pedakapu Thavudu is arrayed as A4 before the trial Court. The prosecution case in brief is that on 07.02.1997 at about 11.30 A.M. While the Prohibition and Excise Inspector along with staff conducting raids proceeded towards Neelamrajupeta Village and noticed some smoke coming from the bushes at hill area. They went towards hill area, found A1 sitting before a live still, A2 collecting ID arrack from the still, pouring into a can and A3 and A4 coming towards still carrying pots with FJ wash. On seeing the raiding party A3 and A4 tried run away, but they were caught. Then the Prohibition and Excise Inspector sent PW.1 – Head Constable to secure mediators from the village, but after some time, he returned and informed that nobody was willing to act as mediator. Then, search proceedings were conducted and the contraband was seized. The samples were collected under seizure proceedings. The samples were sent to the laboratory and analyst opined that one sample was ID liquor and another sample was FJ wash fit for distillation. After completing investigation, charge sheet was filed against the accused for the offence punishable under Section 7(a) read with 8(e) of the A.P. Prohibition (Amendment) Act. 4. Since the accused denied the charge, the prosecution examined PWs.1 to 4 and got marked Exs.P.1 to P.3 and MOs 1 to 5. None were examined on behalf of the accused. 6. The case against A1 was abated as he died. The case against A3 was separated as NBW was pending as he was bed ridden and could not be move. Hence, the case against A2 and A4 was proceeded. During the trial, A2 and A4 were found guilty for the charge under Section 7(a) read with 8(e) of the A.P.P. (Amendment) Act. As far as A2 is concerned, the learned Magistrate considering the circumstances that A2 was an old man, aged about 60 years and eking out his livelihood by doing coolie work and that he was regularly attending the Court, extended the benefit under Section 4(1) of the Probation of Offenders Act and released thereunder. When the learned Magistrate questioned A4 i.e. the petitioner herein with regard to the quantum of sentence, the petitioner represented that he is having wife and two children. However, holding that the petitioner was produced on PT warrant and in custody from 24.03.2004 and not entitled for the benefit of P.O. Act, sentenced him to undergo imprisonment for a period of one year and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of three months. The remand period undergone by A4 was given set off. Aggrieved by the same, A4 filed an appeal before the Additional Sessions Judge, Vizianagaram in Crl.A.No.120 of 2004. The learned Sessions Judge has also taken the similar view and dismissed the appeal filed by the petitioner/A4. Aggrieved by the same the present appeal is filed. 7. Learned counsel for the petitioner raised two issues. His first submission is that none of the independent witnesses were examined and that the report of the analyst was not marked and in the absence of analyst report the conviction cannot be sustained. The second submission is that when the benefit under the provisions of P.O. Act was extended to the co-accused, the trial Court ought to have extended the same benefit to the petitioner/A4 also, who is aged about 20 years as is shown in the charge sheet. He has also relied on the Judgment of this Court in RAMISETTY VENKATESWARA RAO v STATE[1]. 8. The point that arises for consideration is: 1. Whether the conviction can be sustained when the report of the analyst is not marked? 2. Whether the accused is entitled to the beneficial provisions of the Probation of Offenders Act 9. As seen from the evidence let in, PW.1 was working as the Excise Constable at Chepurupalli during the relevant period. On 07.02.1997, he accompanied the Assistant Excise Superintendent – K.L.Bhaskar and ESI – P.Chalapathi Rao and other excise officials for conducting patrolling duty. They reached Neelamrajupeta of Nellimarla Mandal at about 11.15 or 11.30 a.m and noticed smoke coming from bushes from the northern side of the Village. Then they proceeded towards that side and found A1 to A4 preparing ID liquor. They noticed the mud pots, FJ wash collected samples and destroyed FJ wash arrested the accused. The accused were brought to the Excise Station. PW.2 is the Excise Inspector, Cheepurupalli. PW.3 is the Excise Inspector, Vizianagaram. PW.4 is the Prohibition and Excise Inspector, Cheepurupalli. They have deposed that they participated in the raid and found the accused preparing ID liquor. The case of PWs.1 and 2 is that PW1 was sent for securing mediators, but he returned and informed that no body come forward to act as mediator. Therefore, the seizure proceedings were conducted by the officials, themselves. It is settled law that the evidence of official witnesses has to be appreciated on par with any other witness. If the facts and circumstances reveal that there is no possibility of taking mediators (eg. When the accused is arrested in a forest area or lonely place) and even after making sincere efforts mediators could not be secured, then the police are Excise Officials may be justified in conducting seizure proceedings in the absence of mediators. Each case has to be considered on its own facts and circumstances. 10. Admittedly, the analyst report was not marked by the prosecution, however, the trial Court as well as appellate Court observed that since analyst report is available in the record, they can go through the contents of the same and rely upon the same for convicting the accused. The approach of both the Courts below appears to be against the well settled principles of law. No Court can rely on any document, which is not marked at the time of trial. Evidence as defined in Section 3 of the Evidence Act means and includes all the statements, which the Court permits and all documents produced for inspection of the Court. The Courts are not expected to rely on any material, which is not brought in the evidence. Because the other side would have no opportunity to challenge the said document and to cross examine the witnesses, who produced the same. Thus, both Courts seem to have committed irregularity in relying upon a report, which was not marked by the prosecution. In view of the same, the conviction and sentence passed against the accused cannot be sustained and the same is liable to be set aside. As rightly pointed out by the learned counsel for the accused, when the benefit under the provisions of the P.O. Act was given to the other accused, the lower Court ought to have extended the same benefit to the accused, who was aged about 20 years on the date of filing of the charge sheet. It also appears that the benefits of P.O. Act have to be extended to the persons, who are in their young age particularly below 21 years on the date of commission of offence. In AMMINI v STATE OF KERALA[2], SATAR MASIAH v STATE[3], INDERJIT v STATE OF PUNJAB[4], it was held that the accused who are charged for the offences Excise and Prohibition Laws are entitled to the benefit of the Probation of Offenders Act, 1995 are also entitled for the benefit of provisions of P.O.Act. Since the Criminal Revision case is allowed on some other ground, there is no need to extent the provisions of the P.O.Act in this case. 11. In view of the above discussion, the conviction and sentence passed by the Courts below are set aside and the accused is acquitted. 12. In the result, the Criminal Revision Case is allowed setting aside the judgments of the Courts below. _________________________ B. CHANDRA KUMAR,J Dated: 07.08.2009 Note: L.R. Copy to be marked B/o kvrm HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRL.R.C.NO.5 OF 2005 DATED: 07.08.2009 [1] 2004(2)ALT Crl. 160 [2] 1981 CrlL.J 1170 [3] 1982 Rri.LJ2246 [4] 1976 Crl LJ 1327