IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.43 of 2005 DATE:19.03.2010 Between: Patnam Basha, …… Petitioner/Appellant/Accused And: State of A.P., rep. by Public Prosecutor …..Respondent/Respondent/Complainant HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.43 of 2005 ORDER: This revision petition is filed by A-1 questioning conviction and sentence passed by the Judicial Magistrate of the First Class, Thamballapalle in C.C. No.241 of 2000 for offence under Section 34(a) of the A.P. Excise Act imposing simple imprisonment of one year and fine of Rs.5,000/-, which were confirmed in appeal by the VII Additional Sessions Judge, Madanapalle in Crl.A.No.134 of 2004. A-2 in this crime was acquitted by the Magistrate. 2) It is alleged that A-1 was resident of house bearing Door No.10-137 of Umashankar Colony, Mulakalacheruvu village which belongs to A-2 and that on 02.11.1998 at about 10.30 A.M when the excise officials raided the house, A-1 was in the house and after following procedure, when the excise officials searched the house, they found 25 cartons of 40 bottles each of 180 ml of Redson fine whisky and Dolphin fine whisky and that the said liquor was seized under cover of mediators’ report. It is alleged that the said liquor bottles were containing fake and forged adhesive labels of the department and that it was non duty paid Indian Made Liquor (I.M.L). 3) Relying upon Kalidindi Rama Raju @ Rambabu Vs. State of A.P[1], it is contended by the petitioner’s counsel that the prosecution did not lead any evidence to show that the petitioner is owner or lessee of the premisis from which contraband is staid to have been seized. No doubt, as per evidence of P.W-3 and Ex.P-3 certificate issued by him, the said house belongs to A-2’s wife. When the raid took place, neither A- 2 nor A-2’s wife was in the house. It was only A-1 who was available in the house and no others. Neither mediators’ report nor evidence on record reveal that any person other than A-1 was available in the house. I.M.L bottles were found in second room of the said house. The raid was commenced with service of search proceedings issued by the competent excise officer to A-1 and searching the house in the presence of two mediators and one revenue official. Production of the entire seized liquor before the Magistrate is not pre-requisite of penal law. It is sufficient if the prosecution proved search and seizure of the contraband in accordance with law. They were proved by the prosecution in this case. 4) It is contended that the prosecution did not establish connection for A-1 with the house bearing door No.10-137, either as tenant or as owner. As observed earlier, A-1 was not owner of that house, because it was A-2’s wife who is its owner. When there were no other persons in the house, except A-1 and when the house was in open condition while A-1 was in the house, it can be safely concluded that A-1 was in possession of the house in which the contraband was found and from which it was seized. Secondly the contraband seized in this case is not of small quantity like 1 kg or 1 bottle secreted in any corner of that house or underneath any material. The contraband in this case is 25 cartons of I.M.L each carton containing 40 bottles of 180 ml each. It was stored in second room of the house. Therefore, it cannot be said that the prosecution could not prove conscious possession of the contraband by A-1. 5) It is contended by the petitioner’s counsel that there is discrepancy in evidence of P.Ws 4 and 5. P.W-4 is the revenue official, who accompanied the excise party. According to P.W-4, A-1 was coming out of the house when the excise party approached the house. According to P.W-5, A-1 was sitting in front of the house on pial. This discrepancy cannot have any bearing on search and seizure of contraband in this case, because it is not on any material aspect relating to search and seizure. Irrespective of the above minor discrepancy, it is evidence of both P.Ws 4 and 5 that A-1 was physically present in or at the house when the excise party raided the house. Therefore, this Court is of the opinion that it was A-1 who was resident of that house and it was A-1 who was in possession of the seized contraband from that house. 6) It is contended by the petitioner’s counsel relying upon Siripuri Appa Rao Vs. State of A.P[2] that application of Probation of Offenders Act to A-1 may be considered. I am of the opinion that this is not a fit case to invoke provisions of the Probation of Offenders Act because storing of huge quantity of non-duty paid I.M.L was for purpose of doing business and not for purpose of personal consumption. Conviction and sentence recorded by the Courts below against the petitioner/A-1 are valid and legal. 7) In the result, the Criminal Revision Case is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J March 19, 2010 KSH [1] 2002(1) ALD (Crl.) 863 (AP) [2] 2007(2) ALT (Crl.) 286 (A.P)