whether the evidence of P.W.1 is liable to be disbelieved. As seen from Section 28 of the A.P. Prohibition Act, 1995 officials of all departments of government and of all local bodies shall be legally bound to assist in prohibition or police officer in carrying out the provisions of this Act. Thus, on the date of offence there was a statutory obligation on the part of P.W.1 to assist the Prohibition Police or regular police. So, when such a statutory is cast upon P.W.1, his evidence 2024:APHC:7511 12 cannot be branded as interested. Absolutely, nothing was brought out during the course of cross examination of P.W.1 that he was acting as a stock mediator in several cases.

APHC010526602010

IN THE HIGH COURT OF ANDHRA

PRADESH :: AMARAVATI

MONDAY ,THE TWENTY SIXTH DAY OF

FEBRUARY

TWO THOUSAND AND TWENTY FOUR

3364

PRESENT

THE HONOURABLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL REVISION CASE NO: 187 OF 2010

Between:

1. PAMARTHI VENKATESWARA RAO, S/o Ramarao, Coolie, R/o

Bhogapuram (V), Pedavegi Mandal, West Godavari District.

2. Pamarthi Subbaiah, S/o Krishnayya, Coolie, R/o Bhogapuram (V),

Pedavegi Mandal, West Godavari District.

3. Pamarthi Mangeswara Rao, S/o Venkata Subbaiah, Coolie, R/o

Bhogapuram (V), Pedavegi Mandal, West Godavari District.

...PETITIONERS

AND

1. THE STATE OF A.P., rep. by its Public Prosecutor, High Court of

A.P., at Hyderabad.

...RESPONDENT

The Court made the following:

O R D E R:

The challenge in this Criminal Revision Case is to the

judgment, dated 03.02.2010 in Criminal Appeal No.242 of 2007,

on the file of I Additional District & Sessions Judge, West Godavari

at Eluru (“Additional Sessions Judge” for short), whereunder the

learned Additional Sessions Judge, dismissed the Criminal Appeal

filed by the appellant Nos.1 to 3, confirming the conviction and

2024:APHC:7511

2

sentence, dated 17.10.2007 imposed against the appellant Nos.1

to 3 in C.C.No.7 of 2006, on the file of Chief Judicial Magistratecum-Principal Assistant Sessions Judge, West Godavari, Eluru

(“Chief Judicial Magistrate” for short).

2) The parties to this Criminal Revision Case will

hereinafter be referred to as described before the learned Chief

Judicial Magistrate for the sake of convenience.

3) The case of the prosecution, in brief, in C.C.No.7 of

2006, on the file of Chief Judicial Magistrate, (originally

corresponding to C.C.No.298 of 2005, on the file of Special Judicial

Magistrate of First Class (Excise), West Godavari, Eluru), is that on

19.12.2004 in between 5-00 p.m. and 6-00 p.m., P.W.2 along with

his staff and mediators found A.1 to A.3 involved in manufacturing

of arrack in violation of A.P. Prohibition Act, without any licence or

permit. P.W.2 found A.1 sitting at a live hearth and raising fire in

the hearth and A.2 exchanging hot water to cold water on the

condenser and A.3 putting all the cans in one place. On seeing

P.W.2 and his staff, A.1 to A.3 tried to ran away. P.W.2 with the

assistance of his staff apprehended A.1 to A.3 and interrogated

them in the presence of panchas, P.W.1 and another person.

P.W.2 seized 30 liters of F.J. Wash contained in 50 liters capacity

boiler Aluminum vessel and one receiver, one mud pot with two

2024:APHC:7511

3

liters of I.D. Liquor and one 20 liters capacity Aluminum vessel

with water. Four plastic cans of ten liters capacity total 40 liters of

I.D. Liquor, one plastic mug and one 10 liters capacity empty black

plastic can under the cover of mediators report. P.W.3 collected

four samples each 300 ml. from seized four black plastic cans.

P.W.3 also collected 300 ml. of hot F.J. Wash from boiler and 300

ml. from receiver pot. P.W.2 seized sample bottles and 5 cans.

P.W.2 destroyed the remaining wash from boiler vessel and other

material seized with the permission of Deputy Commissioner of

Excise, Kakinada, under the cover of Ex.P.4- attested copies of

orders. P.W.2 forwarded the samples to Laboratory for analysis.

The analysis report, Ex.P.3, shows that the samples are illicitly

distilled liquor injurious to health and other sample is fermented

wash fit for distillation. P.W.2 forwarded the appellants/A.1 to A.3

to the Court for the purpose of remand. On completion of

investigation, P.W.2 filed charge sheet against the appellants/A.1

to A.3 for the offence under Section 8(e) of A.P. Prohibition Act.

4) Originally, the learned Special Judicial Magistrate of

First Class (Excise), West Godavari, Eluru, took cognizance under

Section 8(e) r/w 7(A) of A.P. Prohibition Act and after examination

of the accused under Section 239 of the Code of Criminal

Procedure (“Cr.P.C.” for short), framed a charge under Section

2024:APHC:7511

4

8(e) r/w 7(A) of A.P. Prohibition Act and explained to them in

Telugu, for which they pleaded not guilty and claimed to be tried.

5) During the course of trial before the learned Special

Judicial Magistrate of First Class (Excise), West Godavari, Eluru,

P.W.1 and P.W.2 were examined and Ex.P.1 to Ex.P.5 and M.O.1

to M.O.6 were marked. During Section 313 of Cr.P.C. examination,

the accused denied the incriminating circumstances and stated

that they were implicated falsely. Later, the learned Special

Judicial Magistrate of First Class (Excise), West Godavari, Eluru, on

considering the evidence on record came to a conclusion that the

prosecution is able to prove the charge against the accused, but

the accused ought to have received punishment more severe than

the Court is empower to impose, as such, submitted the

proceedings to the Court of Chief Judicial Magistrate under Section

325 of Cr.P.C. Before the Chief Judicial Magistrate at the instance

of the accused, P.W.1 and P.W.2 were recalled and cross examined

and later the learned Chief Judicial Magistrate after hearing both

sides, came to a conclusion that the prosecution was able to prove

the charge against the accused, as such, convicted them under

Section 248(2) of Cr.P.C. and after questioning A.1 to A.3 about

the quantum of sentence, sentenced them to suffer rigorous

imprisonment for two years each and to pay a fine of Rs.10,000/-

2024:APHC:7511

5

each, in default to suffer simple imprisonment for six months for

the charge.

6) Felt aggrieved of the aforesaid conviction and

sentence, the unsuccessful A.1 to A.3 filed the Criminal Appeal

No.242 of 2007, which came to be dismissed on merits. Further

felt aggrieved of the aforesaid judgment of the learned Additional

Sessions Judge in Criminal Appeal No.242 of 2007, the

unsuccessful appellants filed the present Criminal Revision Case.

7) Therefore, in deciding this Criminal Revision Case, the

point for determination is whether the judgment, dated

03.02.2010 in Criminal Appeal No.242 of 2007, on the file of the

learned Additional Sessions Judge, is legally sustainable under law

and facts and whether it suffers with any illegality, irregularity or

impropriety and whether there are any grounds to interfere with

the same?

Point:-

8) Sri Shaik Mohammad Ismail, learned counsel,

representing M/s.G. Sangeetha Reddy, learned counsel appearing

for the revision petitioners, would canvass a contention that P.W.1

was a revenue employee who was in the cadre of Village Secretary

and he was indulging in acting as mahazar witness in the

Prohibition & Excise cases, as such, he was interested witness.

2024:APHC:7511

6

The Prohibition & Excise party did not secure any independent

witnesses to witness the occurrence. The procedure as

contemplated under Section 100 (4) of the Criminal Procedure

Code (“Cr.P.C.” for short) was not followed and it was violated by

the investigating officer. Both the trial Court as well as the

Appellate Court basing on the interested testimony of the

witnesses maintained the conviction.

9) In support of his contention, the learned counsel for

the revision petitioners, would rely upon the orders of this Court in

Criminal Revision Case No.1758 of 2005 and Criminal Revision

Case No.1691 of 2006. However, he would further submit that in

the event of confirmation of the judgment of the appellate Court

for any reasons, this Court may consider to reduce the term of

imprisonment as of now the Revision Petitioner Nos.1 and 2 are

aged about 60 years.

10) Smt. D. Prasanna Lakshmi, learned counsel,

representing the learned Public Prosecutor, would contend that

P.W.1 being an employee in the revenue department was bound to

assist the Excise Police in view of the provisions of the Act and it

was rightly dealt with by both the trial Court as well as the

Appellate Court. Section 100(4) of Cr.P.C. has no application

because the offence in question was detected in open place when

2024:APHC:7511

7

A.1 to A.3 were manufacturing I.D. Liquor. All these aspects were

rightly considered by both the trial Court as well as the Appellate

Court, as such, the Criminal Revision Case liable to be dismissed.

The decisions cited by the learned counsel for the Revision

Petitioners obviously stand in a different footing.

11) As seen from the evidence of P.W.1, he is a Village

Secretary, Bhogapuram. According to him, on 19.12.2004 at 5-00

p.m., at the instance of Sub-Inspector of Eluru Excise Station, he

accompanied along with another mediator to the Government

poramboke land, situated near the coconut garden of Kilaru

Sitharamaiah, at a distance of 1 K.M. away to Bhogapuram. They

reached by there by 6-00 p.m. and found A.1 to A.3 were

manufacturing I.D. arrack on a live still. There was oven upon

which there was a vessel of fermented jaggery (F.J.) wash in which

small mud pot was hung and also a water vessel on the big vessel

of F.J. wash with burning oven. The accused tried to escape on

seeing them and the excise party detained them. They confessed

about the manufacturing of I.D. arrack with F.J. wash. They found

4 tins with 10 liters of I.D. arrack in each tin, F.J. Wash in a big

vessel of about 30 liters and 2 liters of I.D. arrack in a small mud

pot. Sub-Inspector destroyed the F.J. Wash and poured with two

liters of I.D. arrack in another tin and lifted 300 ml. I.D. arrack

2024:APHC:7511

8

from each of 5 cans and also F.J. wash into bottles, sealed and

seized them after pasting identity slips under the cover of

mahazar. The signatures and left thumb impressions of the

accused were obtained on the slips and pasted on the sample

bottles. Accused were arrested under Ex.P.1. S.I. seized I.D.

Liquor and M.O.1 to M.O.6. He also seized and destroyed pots.

12) The prosecution examined P.W.2, the Sub-Inspector of

Police, whose evidence is consistent with the evidence of P.W.1.

He spoke of to the fact that he secured P.W.1 and another person

as mediators and during the course of raid, the present case was

detected. He spoke of the factum of A.1 to A.3 preparing I.D.

Liquor. His evidence is totally consistent with the evidence of

P.W.1. According to him further, after returning to the police

station, he registered the mahazar, as a case in Crime No.224 of

2004-05 and issued original FIR to the concerned and forwarded

the accused to the Court for remand. He also obtained the

proceedings under Ex.P.4 ordering destruction of the property, as

such, property was destroyed. After completion of investigation, he

filed charge sheet.

13) This Criminal Revision Case is against the concurrent

findings of both the trial Court as well as the Appellate Court. The

scope of this Criminal Revision Case is limited. This Court has to

2024:APHC:7511

9

look as to whether there was any illegality, irregularity or

impropriety in maintaining conviction of the accused.

14) Firstly, line of the contention of the revision petitioners

is that P.W.1 was interested in the case of the prosecution being a

person who acted as a mediator and that he was acting as

mediator in several cases. As evident from the cross examination

part of P.W.1, there was nothing suggested that he was a stock

mediator to the Prohibition & Excise police. The manner in which

P.W.1 was secured as a mediator along with another mediator was

consistent through the evidence of P.W.1 and P.W.2. The defence

of the accused before P.W.1 was denial simplicitor. They

contended that he did not act as a mediator and that he did not

accompany the excise police and they did not detect any raid and

that nothing was found by them and that he was not at all present.

It was categorically denied by him.

15) Turning to the evidence of P.W.2 also, the defence of

the accused was denial simplicitor. During cross examination P.W.2

deposed that he tried to secure local inhabitants of locality, but

none were available.

16) It is to be noted that the offence in question was

happened in a poramboke government land. Section 100 of Cr.P.C.

runs as follows:

2024:APHC:7511

10

Sec.100 persons in charge of closed place to allow

search.-

(1) Whenever any place liable to search of inspection under this

Chapter is closed, any person residing in, or being in charge of,

such place, shall, on demand of the officer or other person

executing the warrant, and on production of the warrant, allow

him free ingress thereto, and afford all reasonable facilities for a

search therein.

(2) xxxxxx

(3) xxxxxx

(4) Before making a search under this Chapter, the officer or other

person about to make it shall call upon two or more independent

and respectable inhabitants of the locality in which the place to be

searched is situate or of any other locality if no such inhabitant of

the said locality is available or is willing to be a witness to the

search, to attend and witness the search and may issue an order

in writing to them or any of them so to do.

17) Absolutely, it is a case where the offence in question

was detected far away from the village that too in bushes which

were located in government poramboke land. Thus, the compliance

of Section 100 (4) Cr.P.C. does not arise.

18) Turning to both the citations relied upon by the learned

counsel for the revision petitioners, the Criminal Revision Case

No.1785 of 2005 arose with a contention that the Court framed the

charge under Section 7(a) r/w 8(e) of Prohibition & Excise Act and

convicted them, but the learned Additional Sessions Judge

2024:APHC:7511

11

convicted them under Section 34(a) of A.P. Excise Act. Apart from

this, it is a case where in particular premises the accused were

found in possession of I.D. liquor and the place was searched.

Thus, obviously, the Criminal Revision Case No.1785 of 2005

cannot be made applicable to the case on hand. Similarly, Criminal

Revision Case No.1691 of 2006 also dealt with a situation that in

the village there was an auto transporting the liquor bottles and on

factual analyzation for non-compliance of Section 100(4) Cr.P.C.,

the Criminal Revision Case was allowed.

19) As this Court already pointed out that the place of

offence was located far away from the village in government

poramboke land in bushes which was an open place. Hence, those

two Criminal Revision Cases are not coming in any way to help the

present Revision Petitioners.

20) Now, this Court has to look into as to whether the

evidence of P.W.1 is liable to be disbelieved. As seen from Section

28 of the A.P. Prohibition Act, 1995 officials of all departments of

government and of all local bodies shall be legally bound to assist

in prohibition or police officer in carrying out the provisions of this

Act. Thus, on the date of offence there was a statutory obligation

on the part of P.W.1 to assist the Prohibition Police or regular

police. So, when such a statutory is cast upon P.W.1, his evidence

2024:APHC:7511

12

cannot be branded as interested. Absolutely, nothing was brought

out during the course of cross examination of P.W.1 that he was

acting as a stock mediator in several cases.

21) The defence of the accused was denial simplicitor.

Ex.P.1 contains the purported signatures and thumb imprisons of

the accused. There was no defence before P.W.1 and P.W.2 that

their signatures or thumb imprisons were obtained with any force.

Absolutely, the entire case of the prosecution was properly

appreciated by the learned Chief Judicial Magistrate as well as the

learned Additional Sessions Judge. The way in which they have

appreciated the evidence cannot be said to be illegal or irregular.

22) Under the circumstances, on facts the prosecution was

able to prove the fact that A.1 to A.3 were caught hold of redhandedly while they were preparing I.D. Liquor. Though several

contentions were raised before the learned Additional Sessions

Judge that property was not produced, the learned Additional

Sessions Judge rightly negatived the contention of the appellants.

According to Ex.P.4-proceedings of Deputy Commissioner of

Excise, Kakinada, the property was ordered to be destroyed and

accordingly, it was destroyed. There is no dispute that according to

the chemical analyst, the samples were of I.D. Liquor and F.J.

wash. Under the circumstances, the judgment of the learned

2024:APHC:7511

13

Additional Sessions Judge does not suffer with any illegality,

irregularity and impropriety.

23) Turning to the contention of the Revision Petitioners

that this Court may reduce the imprisonment imposed by the

learned Additional Sessions Judge, this Court would like to make it

clear that the learned Special Judicial Magistrate of First Class

(Excise), West Godavari, Eluru, at the time of disposal arrived at a

conclusion that the accused has to be punished with more

imprisonment than the learned Special Judicial Magistrate was

empowered to impose and submitted proceedings to the Chief

Judicial Magistrate. However, as evident from the judgment of the

learned Chief Judicial Magistrate only rigorous imprisonment of two

years each and to pay fine of Rs.10,000/- each was imposed.

Hence, the learned Chief Judicial Magistrate also took a lenient

view. Under the circumstances, this Court is not persuaded to

reduce the term of imprisonment.

24) In the result, the Criminal Revision Case is dismissed

confirming the judgment, dated 03.02.2010 in Criminal Appeal

No.242 of 2007, on the file of I Additional District & Sessions

Judge, West Godavari at Eluru.

25) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to the

2024:APHC:7511

14

trial Court on or before 06.03.2024 and on such certification, the

trial Court shall take necessary steps to carry out the sentence

imposed against the appellants/accused and to report compliance

to this Court.

26) The Registry is directed to forward the record along

with copy of the order to the trial Court on or before 06.03.2024.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________

JUSTICE A.V. RAVINDRA BABU

Dt.26.02.2024

Note: L.R. Copy be marked.

B/o

PGR

2024:APHC:7511

15

THE HON’BLE SRI JUSTICE A.V. RAVINDRA BABU

CRLRC NO.187 OF 2010

Date: 26.02.2024

Note:

The Registry is directed to forward the record

along with copy of the order to the trial Court

on or before 06.03.2024.

PGR

2024:APHC:7511

16

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CRIMINAL REVISION CASE No.187 OF 2010

Between:

1. PAMARTHI VENKATESWARA RAO, S/o Ramarao, 50 years,

Coolie, R/o Bhogapuram (V), Pedavegi Mandal, West Godavari

District.

2. Pamarthi Subbaiah, S/o Krishnayya, 51 years, Coolie, R/o

Bhogapuram (V), Pedavegi Mandal, West Godavari District.

3. Pamarthi Mangeswara Rao, S/o Venkata Subbaiah, 21 years,

Coolie, R/o Bhogapuram (V), Pedavegi Mandal, West Godavari

District.

...PETITIONERS

AND

THE STATE OF A.P., rep. by its Public Prosecutor, High Court of A.P.,

at Hyderabad.

...RESPONDENT

DATE OF ORDER PRONOUNCED : 26.02.2024

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers

 may be allowed to see the order? Yes/No

2. Whether the copy of order may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 Fair copy of the order? Yes/No

 ______________________

 A.V.RAVINDRA BABU, J

2024:APHC:7511