IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE SIXTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 6 6 0 of 2004. Between: Borra Sreenu … Petitioner V/s. State of Andhra Pradesh, Represented by its Public Prosecutor, High Court of A.P. Hyderabad … Respondent Counsel for the Petitioner : Sri I.V.N. Raju Counsel for the Respondent : Public Prosecutor THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION No. 660 OF 2004 O R D E R : This Criminal Revision is directed against the conviction and sentence passed by the II-Additional District and Sessions Judge, Eluru, in Criminal Appeal No.208 of 2003, dated 01-4-2004, confirming the judgment of the II-Additional Judicial Magistrate of First Class, Bhimavaram in CC.No. 641 of 2000, dated 30-9- 2003, convicting the petitioner under section 8 of the A.P. Prohibition Act and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.5000/- in default to suffer three months simple imprisonment. 2. The brief facts of the case for the disposal of the present Criminal Revision Case are as follows : The gravaman of the charge against the accused 1 to 3 is that A1 found in possession of 10 litres of I.D. liquor in a can and A2 and A3 were indulging in manufacturing ID liquor and thereby A1 to A3 committed the offence punishable under section 8 (c) of the A.P. Prohibition Act. It is the case of the prosecution that on 21-10- 1990 at about 04:30 p.m. the Prohibition and Excise Party consisting of PW. The then Prohibition and Excise Sub-Inspector, Bhimavaram and other staff while they were on patrolling in Elurupadu village and by the time they reached Ramalayam of Solipeta, A-1 was found coming in opposite direction carrying a plastic can on his shoulder, on suspicion A-1 was detained. On verification of the can, 10 litres of I.D. liquor was found. It is the further case of the prosecution that A-1 confessed that A-2 and A-3 together indulged in manufacturing of ID liquor and he led PW-1 to Patimooda and showed a aluminum vessel and a lid of 50 litres capacity and that PW-1 seized the vessel and returned to Ramalayam and seized ten litres of ID liquor by arresting A-1 under cover of Ex.P1 special report. 300 ml of ID liquor was lifted as sample for analysis purpose. On the basis of Ex.P1, the original FIR Ex.P2 was issued. After receipt of analysis report Ex.P#, PW-4 the then Prohibition and Excise Sub-Inspector filed the charge sheet. Thus, A-1 to A3 are liable to be convicted under section 8 (c) of the AP Prohibition Act. 3. On appearance of the accused, the learned Magistrate complied with the formalities as contemplated under section 207 Cr.P.C., and examined the accused under section 239 Cr.P.C. alleging the substance of accusation. The accused denied the substance of accusation and pleaded not guilty. Charge under section 8 (c) of the A.P. Prohibition Act was framed, read over and explained to the accused, for which the accused pleaded not guilty and claimed tobe tried. 4. To substantiate the case of the prosecution, the prosecution examined PWs.1 to 4 and got marked Exs.P1 to P4 and MO-1 were marked. On behalf of the accused, no oral and documentary evidence let-in. 5. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C., for the incriminating evidence appearing against him. Accused denied the same. 6. Upon consideration of oral and documentary evidence placed on record, the trial court found the accused guilty of the offence punishable under section 8 (c) of the A.P. Prohibition Act and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.5000/- in default to suffer three months simple imprisonment 7. On appeal, the conviction and sentence recorded by the learned Magistrate were confirmed. Challenging the same, the present Criminal Revision is filed. 8. The point for determination is whether the judgment of both the courts below are true, correct and proper ? 9. The learned counsel for the petitioner submitted that the lower court acquitted A2 and A3 disbelieving the conviction of A-1 since it is not admissible in evidence. Convicting the accused only the basis of the evidence adduced by PWs.1 and 4. Among the four witnesses, who belongs to the Excise Department and Police Officials and further the petitioner unfortunately failed to cross-examine PWs 1 and 2. Since the learned Magistrate taken into consideration the unrebutted evidence adduced by PWs 1 and 2 and convicted the accused as stated above. But on perusal of the records and the evidence adduced by the prosecution it is seen that at the occurrence place the prosecution did not examine local villagers and the availability of independent witnesses is not mentioned. It is stated that the witnesses have refused to sign in the panchanama. There is no evidence to show that whether any action is taken against the person who refused to accept the request of the police and it is the duty of the public to co-operate the police officials in such circumstances. Placing reliance only on the evidence of the police officials, this court is of the view that it is unsafe to convict the petitioner. Hence, the conviction and sentence imposed by the trial court, which was confirmed by the appellate court is hereby set aside and the petitioner is acquitted from all the charges. 10. In the result, the Criminal Revision is allowed. The fine amount paid, if any, is directed to be returned to the petitioner. __________________________ JUSTICE RAJA ELANGO. 16-06-2010. I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 6 6 0 OF 2004 Circulation Entry No. 7 3 Date: 16-06-2010 Computer No. 43 Court Master: I s L