HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No. 31 of 2005 ORDER: The appellants in Criminal Appeal No.147 of 2001 on the file of the Court of VII Additional District and Sessions Judge, (Fast Track Court), Vijayawada filed this Criminal Revision Case assailing the impugned orders dated 11.01.2005 passed by the said court whereby and whereunder the conviction and sentence passed by the trial Court was modified by reducing the sentence of A1 and A2 from two years rigorous imprisonment to one year and acquitting A3 and A4. Initially, A1 to A5 were tried for the offence punishable under Section 8(b)(ii) of A.P. Prohibition Act (for short ‘ the Act’) in C.C. No.437 of 2000 on the file of III Metropolitan Magistrate, Vijayawada and A1 to A 4 were convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/- each, in default, to suffer S.I. for six months for the said offence, while acquitting A5. 2. The prosecution case, in brief, is that all the accused were residents of Vijayawada. They used to procure Indian made liquor and supply the same to the customers in and around Vijayawada. Prohibition was in force in the State at that time. A3 was a former licencee of M/s.Padmaja Wines and A4 and A5 were his associates. They were using rented premises bearing D.No.21-1-8-3 at Madhuranagar, Vijayawada for their clandestine business. On 26.05.1995, at about 6.00 p.m., having received information, the Assistant Commissioner of Prohibition and Excise, the Asst. Excise Superintendent (Task Force), Krishna, the Asst. Excise Superintendent, Vijayawada along with their staff, entered the aforesaid premises. On seeing them, A3 and A4 ran away while A1 and A2 were apprehended. They searched the northern portion of the house after serving search proceedings on A1 and A2. They found 26 card board boxes containing 48 nips (180 ml) in each box of Hayward Fine Whisky. They also found 114 card-board boxes containing 48 nips in each box of Haywards Old Tavern Whisky. A1 and A2 admitted before the mediators that they along with A3 and A4 were dealing in the liquor sales clandestinely. The excise officials seized the contrabands, sealed them and pasted identity slips to each cardboard box as well as the sample bottles. They also seized two two-wheelers vehicles in the presence of mediators under a cover of Ex.P1 - mediator’s report. They also arrested A1 and A2 and sent them for remand. A3 and A4 had surrendered before the Court of III Metropolitan Magistrate, Vijayawada, however A5 was absconding. On 01.05.1997, all the accused were examined under Section 239 Cr.P.C. and on their pleading not guilty, charges were framed against them under Section 8(b)(ii) of the Act. Thereafter, a crime in PR.No.82/94-95 under Section 34(a) of A.P. Excise Act was registered and sample bottles were forwarded to Chemical Examiner for analysis and report under a cover of letter of advice. The statements of PW3, Bill Collector and PW4, the owner of the premises, were examined and their statements were recorded. Ex.P6 – analysis report was received on 01.08.1995 wherein it was opined that the contents of the sample bottles were found to be IML liquor. 3. The prosecution in support of its case, examined PWs.1 to 6 and got marked Exs.P1 to P6 and M.Os.1 to 5, on its behalf. 4. The trial Court, taking into consideration the entire material on record, including the evidence of the prosecution witnesses, had found A1 to A4 guilty of the offence punishable under Section 8(b)(ii) of the Act and accordingly, convicted and sentenced them as has already been stated in paragraph No.1 supra. On their appeal, the Court of VII Additional District and Sessions Judge, Fast Track Court, Vijayawada, modified the sentence of A1 and A2 by reducing the same to one year while acquitting A3 and A4. A1 and A2, aggrieved by the impugned order, preferred this revision. 5. It is the case of the revision petitioners that the trial court erred in considering the evidence of PWs 1, 2 and 5 and that PWs 1 and 2 are the Mediators to Ex.P.1 under which the contraband was seized. That PW.1 having admitted in his cross examination that he had drafted not less than 15 mediator reports is bound to be stock witness. Therefore, his evidence ought not to have been believed by the trial court. That PW.2 was village administrative officer, who was also a mediator to Ex.P.1. He has stated in his evidence that he was not aware whether Ex.P.1 mediators’ report was served on any of the accused. He has categorically stated in his cross examination that no such proceedings were served on any of the accused in his presence. He also stated that he could not identify any one of the accused persons alleged to be present at the scene of offence. That if in fact, he was present at the alleged scene of offence and that he was a party and signatory to Ex.P.1, being one of the mediators, he ought to have known as to the serving or non-serving of Ex.P.1 on the accused. Therefore, it is contended that the presence of PW.2 at the alleged scene of offence at the relevant time is doubtful. That even as per the evidence of PW.1 that all the accused were present at the scene of offence when the Excise police accompanied by him and PW.2 reached the scene of offence, however, the case of the prosecution is that the Excise police already reached the spot and on seeing them, A3 and A.4 escaped fromthere and it was only A1 and A.2 who were present there. Therefore, the presence of PW.1 at the scene of offence is also doubtful at the relevant time. Moreover, PW.1 has testified that he did not seek the permission of MRO before conceding to the request of the Excise police accompanying them to the scene of offence as a mediator. Further PW.1 has stated in his evidence that Madurwada area of Vijayawada was not within his jurisdiction as such it seems that the police without securing the presence of local mediators secured the presence of PW.2 from the office of MRO which goes against the mandatory provision of Section 100 of the Code of Criminal Procedure. Therefore, it is doubtful that PWs 1 and 2 were present at the scene of offence at the time of the drafting of Ex.P.1-mediator report (search and seizure report). Therefore, it is contended that the evidence of PWs 1 and 2 is not reliable and trustworthy and it has got to be rejected in toto. That instead of doing so, both the courts below erred in relying on their evidence. 6. PW.3-Bill Collector of Circle-II, Vijayawada at Madhuranagar (Ward No.21/6) was examined to prove that the scene of offence was situated in the premises of PW.4 and that the clandestine business activities were carried on therefrom by all the accused. However, the evidence discloses that he did reveal neither the door number nor ownership thereof and that he was declared hostile as he failed to support the case of the prosecution. Moreover, PW.4-owner of the house bearing Door No.21-18-3 has denied that he had let out his premises to any of the accused. Therefore, the question of all the accused dealing in clandestine business of sale of IML from the terrace of the said house does not arise. 7. PW.5, who is one of the Inspectors of Excise and who conducted the raid, has testified that Ex.P.1-mediator report was drafted by PW.1 on his own and that no one dictated the contents of Ex.P.1 to PW.1. However, PW.1 has categorically admitted in his cross examination that he drafted Ex.P.1 at the dictation of PW.5. Therefore, there is contradiction between both these witnesses as to the drafting of Ex.P.1-mediator’s report, at the scene of offence. Moreover, PW.5 being part and parcel of the raiding party, besides being an official witness, he is interested witness and his evidence is not corroborated by any other independent witness. Moreover, PW.5 has admitted that both the mediators PWs 1 and 2 are not residents of that locality and he did not examine any person of the said locality. The last witness is PW.6- Investigating officer. He has only stated as to recording the statements of PWs 3 and 4, and after concluding the investigation laying the charge sheet into the court. In the circumstances, it is contended that without there being any evidence or material particulars, the trial court erred in convicting them. It is not known from where the contraband was seized since there is no evidence to show that the accused were in possession thereof at the time of search and seizure. Further, the fact remains that A.3 and A.4 were acquitted when A1 and A2 also stood on par with them. Therefore, different treatment is offered to A3 and A.4 on the one hand and A.1 and A2 on the other. Further a perusal of the charge sheet reveals that it was A.3 and A.4 who took the premises on rent only and as such A1 and A2 had nothing to do with the said premises. Lastly it is contended that the appellants-accused-A1 and A2 were falsely implicated for the statistical purpose. 8. On the other hand, the learned Public Prosecutor submits that there is no material to show that PW.1 was a stock witness. His statement that he had drafted not less than 15 mediator reports cannot be construed that he was a stock witness. Further, non-identification of the accused by PW.2 was due to lapse of two years. That though PWs 3 and 4- Bill Collector and house owner did not support the prosecution case and though they were declared hostile, it is in the evidence of PW.5-Excise Inspector that Ex.P.4-panchanama bears the signatures of PWs 1 and 2. Therefore, Ex.P.4 does not lose its sanctity and lastly he contends that the evidence of PWs 1,2,5, and 6 conclusively proves the guilt of the accused and as such, the trial court was not in erred and in fact, it is justified in finding A1 and A2 guilty for the offence under Section 8(b)(ii) of the Act, as such, findings of the appellate court are not liable to be interfered with. 9. Heard both sides and perused the record. 10. The evidence of PW.1 is that on 26.5.1995 at about 6.00 .p.m. he accompanied the Commissioner & Superintendent of Excise along with his officials to Madhuranagar and when they entered into the terrace of the house of accused persons, they found 140 cardboard boxes containing contraband (IML liquor) in two rooms. All the boxes contained liquor bottles, each containing 45 bottles. All the boxes were seized. He drafted the mediators’ report at the scene of offence. The evidence of PW.2 is that he along with Excise officials proceeded to the house of the accused and found 140 cardboard boxes in both the rooms. The contraband was seized by the Excise officials. PW.1 drafted the mediators’ report at the scene of offence. He attested on Ex.P.1. The evidence of PW.5-Excise Inspector is that on information, he along with mediators under the supervision of the then Assistant Commissioner, P & E, and other officials reached the house bearing door No.21-8-3 situated at Madhuranagar,Vijayawada and found cardboard boxes containing IML liquor and accused failed to produce any permit or licence for possessing the same. So far as the acquittal of A3 and A.4 is concerned, the evidence of prosecution witnesses is that A.1 and A.2 disclosed the names of A3 and A4. There is no evidence adduced by the prosecution to corroborate the said disclosure by A1 and A.2. Therefore, the first appellate court acquitted A3 and A.4 for the offence under Section 8(b)(ii) of the Act. Under these circumstances, this court is of the view that the judgment of the first appellate court does not suffer from any infirmity warranting interference from this revisional court and as such, the Criminal Revision Case is liable to be dismissed. 11. Hence, the Criminal Revision Case is dismissed. __________________ B.N.RAO NALLA,J -03-2011 Bcj/Stp HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No. 31 of 2005 -03-2011