HONOURABLE SRI JUSTICE P. SWAROOP REDDY CRIMINAL REVISION CASE No.1511 OF 2004 JUDGMENT: This Criminal Revision Case is filed by the accused, Jasthi Sivaiah, assailing the judgment in Criminal Appeal No.632 of 2001 dated 01-09-2004 passed by the learned VII Additional Sessions Judge, Guntur, confirming the conviction and sentence imposed by the learned Judicial Magistrate of First Class, Guntur in C.C. No.148 of 2000 dated 05-12-2001 for the offence under Section 34(a) of the A.P. Excise Act (for short “the Act”). 2. The case of the prosecution, in brief, is as follows: On 17-09-1999, the excise officials, on information, raided the house of the accused bearing Door No.13-8-24, 7th Line, Guturivari Thota, Guntur, and found the accused there with huge quantity of Indian Made Foreign Liquor i.e. 934 bottles of 180 ml., 38 bottles of 375 ml., and 2 bottles of 750 ml. The period of offence, during which the raid was done and liquor was seized, was just before elections for the legislative assembly. A case in PR No.164/98-99 was registered against the accused for the offence under Section 34(a) of the Act, seized the liquor bottles, arrested and interrogated him and filed charge sheet against him. 3. For the charge framed against the accused for the offence under Section 34(a) of the Act, he pleaded not guilty. 4. To substantiate its case, prosecution got examined PWs.1 to 4 and got marked Exs.P-1 to P-12 apart from MOs.1 to 26. On behalf of the accused, no evidence was adduced. 5. After closure of evidence of the prosecution, when examined under Section 313 Cr.P.C., accused denied the incriminating material against him in the evidence of the prosecution. 6. Based on the evidence on record, the trial Court found the accused guilty of the offence under Section 34(a) of the Act and accordingly convicted him for the same and sentenced him to suffer rigorous imprisonment for a period of two years and to pay minimum fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for a period of six (6) months. Challenging the same, accused preferred criminal appeal and the same was dismissed by the lower appellate Court confirming the conviction and sentence imposed by the trial Court. Aggrieved of the same, this revision is filed by the accused. 7. Heard the learned counsel for the accused Sri K. Suresh Reddy and the learned Additional Public Prosecutor and perused the material on record. 8. Now the point for consideration is whether there are any grounds for allowing this revision ? 9. PWs.1 and 2 are the mediators, PW.3 is the Prohibition & Excise Inspector and PW.4 is Prohibition and Excise Head-Constable, who raided the house of the accused. However, PWs.1 and 2 turned hostile. But, PW.3 spoke about presence of the accused and recovery of the liquor and his evidence is supported by PW.4. 10. Now the contention of the learned counsel for the accused is that PWs.1 and 2, panch witnesses, turned hostile and it is not recorded in the mediators report that “on information, house of the accused was searched” and on account of such omission, case of the prosecution is vitiated. Further, PW.3 is the complainant as well as the investigating officer, as such, investigation conducted by him is vitiated and that the prosecution has not produced any evidence by examining the landlord etc., to show that the accused was a tenant in the house from where liquor was allegedly recovered; hence the accused is entitled to acquittal. 11. As far as the question of non-examination of the landlord is concerned, in my opinion, the same cannot come to the rescue of the accused as there appears to be no dispute about presence of the accused and his signatures were also taken on the documents concerned and even he never explained in his examination under 313 Cr.P.C. or by way of suggestions in cross-examination of the prosecution witnesses as to why he was present at the premises in question at the time of incident, if he has no custody over the liquor. 12. Coming to the question of there being no reference about “search and seizure on information of liquor being found at the premises in question” in the mediators report, in my opinion, it cannot go to the root of the case when the mediators were examined and when there is no serious dispute about the liquor being found in the house, where the accused is residing. 13. With regard to the question of the complainant himself being the investigating officer, no prejudice is caused to the accused on account of the complainant being investigating officer of the case, as such, the same cannot vitiate the case of the prosecution. 14. The contention of the learned counsel for the accused that the complainant would be having interest in conviction of the accused when he investigates the case and naturally it would be prejudicial to the accused, cannot be accepted in a case of this nature, where huge quantity of liquor was found in a house where the accused was admittedly present. 15. It is a case where apparently liquor was stored for being distributed to the voters during elections and on information, the excise officials seized the same. 16. Both the Courts below found the case of the prosecution to be acceptable and at this stage, I do not intend to interfere with the concurrent finding of the Courts below in view of the nature of material placed on record, where there appears to be no serious dispute about the accused being custodian of the house when the liquor was found there. 17. For the aforesaid reasons, the revision is liable to be dismissed. 18. Learned counsel for the accused also contends that report of the Probation Officer was called for by the trial Court and the Probation Officer recommended for release of the accused on probation under the Probation of Offenders Act (for short “PO Act”) stating that he has no earlier criminal record, but in spite of the same, the Courts below did not give the benefit of the same to the accused. 19. In this case, the offence was committed by the accused in 1999 during legislative assembly elections. Apparently, accused was not a person dealing with illicit liquor, but during elections for being distributed to the voters on behalf of a contesting candidate, he was in possession of the same. 20. In the circumstances and as the Probation Officer has recommended for release of the accused under the PO Act, I am inclined to release him on probation under Section 4 of the PO Act by imposing the penalty under Section 5 of the PO Act. 21. Accordingly, it is directed that the accused shall be released on probation on his executing a personal bond for a sum of Rs.5,000/- (Rupees five thousand only) with two sureties for the like sum each with an undertaking to keep peace for a period of two years. Further, as no person is directly affected and only the society in general is affected due to the offence committed by the accused, it is directed that under Section 5 of the PO Act he shall pay a sum of Rs.10,000/- (Rupees ten thousand only) to the District Legal Services Authority, Guntur, along with execution of the bonds under the PO Act, as referred above, simultaneously, apart from the fine of Rs.10,000/- imposed by the trial Court, within two months from the date of receipt of a copy of this judgment. In case, accused failed to execute the bonds or deposit the amount of Rs.10,000/- within two months, as ordered above, he shall undergo sentence of imprisonment imposed by the Courts below. 22. With the above directions, the Criminal Revision Case is dismissed. ______________________ P. SWAROOP REDDY, J June 24, 2010. PV