IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1153 OF 2004 Between: Miriyam Venkateswarlu. - - - Petitioner/ Appellant/ Accused. AND The State of A.P., Rep by its Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Respondent/Complainant. The Court made the following: THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1153 OF 2004 ORDER: This Criminal Revision Case is filed under Sections 397 and 401 of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) by the Petitioner-Accused against judgment dated 06-07-2004, rendered in Criminal Appeal No.237 of 2001 by the VI Additional District and Sessions Judge (Fast Track Court) Ongole, Prakasam District. 2. The Petitioner (for short, ‘the accused’) was prosecuted in C.C. No.200 of 2000 for offence punishable under Section 8 (b) of A.P. Prohibition Act, 1995. After due trial, the learned Additional Munsif Magistrate, Kandukuru, Prakasam District convicted the accused for offence punishable under Section 8 (b) of A.P. Prohibition Act, 1995 under Section 248 (2) Cr.P.C. and sentenced him to undergo Simple Imprisonment for a period of one year and to pay a fine of Rs.20,000/- and in default of payment of the fine to undergo simple imprisonment for three months and so on vide judgment dated 15- 11-2001. 3. As against the said conviction and sentence, the accused filed the Criminal Appeal No.237 of 2001 on the file of VI Additional District and Sessions Judge (Fast Track Court) Ongole, Prakasam District and the learned Additional Sessions Judge, having gone through both oral and documentary evidence, dismissed the Criminal Appeal confirming the conviction and sentence imposed by the trial Court vide judgment, dated 06-07-2004, whereas challenging the same, the accused has preferred this Revision. 4. The brief facts that are necessary for the disposal of the present Revision may be stated as follows : On 23-04-1997, while PW.2, Prohibition and Excise Inspector, Singarayakonda along with PW.1, Prohibition and Excise Sub-inspector and other Excise Officials were patrolling to detect prohibition and excise offences at about 01-30 A.M. found the accused being in possession of two bags in his hands and coming towards them near Premier Tobacco Power Company (for short, ‘PTP Company’) on Madras-Calcutta High Way, on suspicion, PW.2 stopped the accused with the assistance of his staff and questioned about the contents of the bags. PW.2 sent PW.1 to secure mediators for conducting panchanama but PW.1 returned back and informed that no one was available to act as mediator. Thereupon, PW.2 got opened one bag green in colour containing wooden handle and found one cardboard box and on opening the cardboard box they found 12 750 ml capacity of sealed Bag piper whisky bottles covered with newspaper B.No.597, dated 31-03-1997. Then PW.2 opened the other bag and found one cardboard box and on opening it they found 22 sealed bottles each of 375 ml capacity of old monk XXX rum. PW.2 questioned the accused about the possession of the contrabend and collected one bottle each from each cardboard box as sample for the purpose of analysis affixing identity slips. Then the accused was arrested. 5. Whereas charge under Section 8 (b) of A.P. Prohibition Act, 1995 was framed against the accused, read over and explained to him, for which, he pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution examined P.Ws.1 and 2 and marked Exs.P-1 to P-6 and Mos.1 and 2 and on behalf of the accused, no body was examined and no documents were marked. 6. After considering the evidence on record, the trial Court found the accused guilty of the charge under Section 8 (b) of A.P. Prohibition Act, 1995 and accordingly, convicted the accused as referred above, whereas on appeal, the appellate Court confirmed the conviction and sentence awarded by the trial Court and challenging the same, the present Criminal Revision Case is filed. 7. Now, the points for consideration are : 1) Whether the prosecution placed sufficient evidence to substantiate the charge? 2) Whether the Courts below examined the matter properly and arrived at correct conclusions? And 3) Whether the conviction and sentence imposed by the Courts below are sustainable or not? 8. Learned counsel for the Accused submits that the Officer who caught hold of the accused and seized the property also conducted the investigation of the case which is not permissible under law as laid down in decisions reported in 1) Maddu Lakshmana Rao Vs. State of A.P.[1], 2) Xavier Vs. State of Kerala[2], 3) Bhagwan Singh Vs. The State of Rajasthan[3] and 4) Ram Kumar Singh Vs. State of Rajasthan[4]. Further the evidence adduced on behalf of the prosecution amply provides that the driver of the Jeep an independent witness was available to stand as witness to the incident and PTP Company was at a distance of 50 yards from the scene of offence and there was also National High Way and a way bridge near by the scene of offence and the V.A.O.s of Somarajupalli and Mulguntapadu villages which are at 100 yards from the scene of offence were available but no steps were taken to take any body from the said institutions or any of them as mediators for the proceedings and in fact, no explanation was given for not doing so and just basing upon certain slips alleged to be signed by the accused, which in fact were obtained by threatening the accused a false case was foisted and hence the conviction and sentence recorded by the Courts below are not sustainable. 9. On the other hand, learned Public Prosecutor has contended that there was nothing for PW.2 to investigate after the initial proceedings and hence non appointment of separate investigating officer in the case is not fatal. 10. It is pertinent to note here that admittedly, PW.2 not only involved in arresting the accused and seizing the property but he also acted as the investigating officer and filed the corresponding charge sheet in the case before the concerned Court admittedly. In Maddu Lakshmana Rao’s case (cited 1st supra) it is observed under similar circumstances with regards to offences punishable under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption of Act, 1988, registered on the ground of amassing disproportionate assets by illegal means that the complainant gave the corresponding report and also acted as the Investigating Officer in the case which would have far reaching significance affecting the credibility of the prosecution which is not tenable. Further in Xavier’s case (cited 2nd supra) it is observed under similar circumstances with regards to offence punishable under Section 51 (a) of Kerala Police Act, with reference to disorderly behaviour and uttering rubbish language and also obstructing traffic of the accused concerned that the Assistant Sub-Inspector on duty not only filed the complaint but also investigated the case which is not tenable. Further in Ram Kumar Singh’s case (cited 4th supra) it is observed by the Rajasthan High Court : “18. I had also an occasion to deal with a similar circumstance in Nathiya & Anr. Vs. The State of Rajssthan (1991 W.L.N. 62. Dealing with this contention I had observed : “Justice and fair play require that the investigation should have been carried out by an independent officer, who was not in any way a party to the recovery proceedings.” 20. Thus there are catena of rulings of this Court based on the observations of the apex Court that an officer making recovery should not investigate into the matter but investigation should be made by an independent officer and preferably by a superior officer.” 11. The same principles hold good here also. When PW.2 along with other Excise Officials is said to have arrested the accused and seized the property from them and on the corresponding police proceedings the case was registered by him there would have been a separate investigating officer in order to check the genuineness of the arrest and seizure of the property and the consequential registration of the case and when it was not done it can not be held that the investigation of the case was done fairly and without causing any prejudice to the accused. The argument of learned Public Prosecutor that there was nothing to appoint separate investigating officer is not correct because he got a duty to ascertain at least whether the alleged arrest and seizure were in fact true to file his final report before the concerned Court. 12. Further, it is elicited in the evidence of PWs. 1 and 2 that the driver of the jeep was available at the scene of offence and PTP Company was at a distance of 50 yards away and the V.A.O.s of Somarajupalli and Muluguntapadu were available at a distance of 5 Kilometers from the scene of offence but none of them or none from the said institutions was taken to act as mediator for the alleged arrest and seizure and in fact no explanation has been given, as to why it was not done, for which adverse inference is to be drawn. 13. As the incident is said to have taken place in open area and the accused was found there, the police proceedings are tenable if they are found to be trustworthy. The procedure to be adopted under Section 100 Cr.P.C. with regards to search in closed places has no application here in the strict sense. But in the cases of this nature the police officers should take all necessary precautions to secure independent persons to stand as mediators in such proceedings and depose accordingly when necessary occasion arises, when no such steps are taken even though they are available it gives suspicion about the genuineness of the proceedings. The police officers are given authority to maintain law and order and book cases against the criminals. They may have some personal interest one way or the other in the cases. Hence, utmost care is to be taken in order to accept their testimonies even with regards to the arrest of criminals and seizure of properties from them. In the circumstances narrated the evidence of PWs. 1 and 2 is to be viewed with suspicion. 14. Further, a perusal of the record provides that the signatures of the accused were obtained on the special report Ex.P2 and identity slips affixed to the sample bottles and also the bags containing the remaining liquor bottles. It is also not true that no complaint was made against the Excise Personnel by the accused when produced before the concerned Magistrate for remand but on this basis alone the accused cannot be convicted and punished for the alleged offence in view of the settled principle of law that the prosecution has to establish the charge leveled against the accused beyond reasonable doubt. There may be reasons for the accused for not informing the Magistrate who remanded him about obtaining his signature by making threats on the special report Ex.P1 and slips. In other words, when there are grave irregularities otherwise in taking up necessary steps as referred earlier which are fatal to the prosecution, the said grounds of not informing the Magistrate about obtaining his signatures by threats cannot be taken seriously. 15. The Courts below failed to appreciate the matter properly and arrived at incorrect conclusions and therefore the conviction and sentences imposed by the Courts below are liable to be set aside. Accordingly, the Criminal Revision Case is allowed. __________________________ G. KRISHNA MOHAN REDDY, J June 30, 2011. Dsh THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 220 CRIMINAL REVISION CASE No.1153 OF 2004 Date:30.06.2011 Dsh. [1] 2000 (2) L.S. 325 A.P. [2] 1998 (2) ALT (Crl.) 35 (Ker.) [3] (1976) 1 SCC 15 [4] S.B. Crl. Appeal Nos.181 & 182 of 1993 decided on 05-01-1994 by Rajasthan High Court