Allowed

Nalla Padmanabham v. the State of A.P.

Andhra Pradesh HC7 Feb 2020CRLRC/711/2007

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, setting aside the conviction and sentence under the Andhra Pradesh Prohibition Act. The judgment held that the entire case relied on official police witnesses who were also interested parties, and the absence of an independent witness and a mediator in the night-time seizure report created insurmountable doubt regarding the incident.

What did the court decide?

The conviction and sentence were set aside, and the accused was set at liberty.

Nalla Padmanabham Vs the State of A.P. — Andhra Pradesh HC (2020) — LawSathi Research

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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Criminal Revision Case No. 711 of 2007

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ORDER:

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The present Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., challenging the conviction and sentence imposed by Trial Court in C.C. No. 73 of 2004, dated 24.02.2006, on the file of the Judicial Magistrate of First Class, Mummidivaram, which was confirmed in Criminal Appeal No. 83 of 2006 by the II Additional District & Sessions Judge, East Godavari District, Amalapuram, on 01.06.2007.

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The record shows that, the Petitioner herein who was tried for the offence punishable under Section 7A read with 8(e) of the Andhra Pradesh Prohibition Act [the ‘ Act ’] was convicted and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,000/- in default to suffer simple imprisonment for a period of two months. On Appeal, the learned Sessions Judge while confirming the conviction and sentence, reduced the fine amount from Rs.10,000/- to Rs.5,000/-.

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1. The facts, in issue, are as under:

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(i) On 06.11.2003 at about 8.30 PM, the PW1 [Sub-Inspector of Police, Prohibition & Excise] and PW2 [Head Constable, Prohibition & Excise] of Mummidivaram village along with staff were patrolling at Godavari Ferry in Pusuvullanka

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village of I.Polavaram village. At that time, they found the accused in possession of 20 liters of I.D. liquor in polythene covers in his right hand. On enquiry, the accused while furnishing his particulars and address, stated that he purchased I.D. liquor from unknown person for onward sale. He seized the property from the possession of the accused and about 300 ML of I.D. was taken from each polythene cover, as sample, and after following the statutory requirements sent the same to an analyst for opinion. Accused was arrested under the special report and thereafter a case in Cr. No. 79 of 2003-04 came to be registered for the offence punishable under Section 7A read with 8(e) of the Act. Later, police investigated into the matter and filed a charge-sheet.

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On appearance of the Accused, copies of all the documents, as required under Section 207 Cr.P.C. were furnished. He was examined under Section 251 Cr.P.C., to which he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PW1 and PW2 and got marked Ex.P1 to Ex.P3 and MO1 and MO2. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. No defence evidence was adduced by the accused.

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Relying upon the evidence of PW1 and PW2, the trial court convicted the accused as referred to supra . On Appeal, the learned Sessions Judge while confirming the conviction and sentence, reduced the fine amount from Rs.10,000/- to Rs.5,000/-. Challenging the same, the present Criminal Revision Case came to be filed.

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Sri. G. Rama Gopal, Counsel for the Petitioner would contend that, the court ought not to have believed the evidence of PW1 and PW2 who are the official witnesses. According to him, no effort was made to secure independent witnesses. He pleads that, it is not a case where the seizure took place in isolated locality and at an odd time. According to him, as per prosecution case, the accused was said to have been apprehended near Godavari Ferry at 8.30 PM, which is the time for the ferry to cross from one end to another end. Therefore, non examination of any independent witnesses shows any amount of doubt with regard to the prosecution case.

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On the other hand, the learned Public Prosecutor opposed the same contending that since it was dark and late in night the prosecution could not secure any independent witnesses. Therefore, pleads that there is no justification to disbelieve the evidence of PW1 and PW2.

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The facts show that PW1 and PW2 are the official witnesses, namely, PW1 is the Sub-Inspector of Police, Prohibition & Excise while PW2 is the Head Constable, Prohibition & Excise, working

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under PW1. According to him, the scene of offence is near Godavari Ferry in Pusuvullanka village of I.Polavaram village. The accused is said to have been in possession of two [02] polythene covers of 10 liters each. It is stated that, PW2 made every effort to trace the mediators but he was not successful in getting any person to act as mediator, for the seizure of the contraband.

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It is to be noted here that, the incident in question took place at 8.30 PM. It is said that every effort was made by PW2 to get a mediator but the same proved futile. The special report which is marked as Ex.P1 does not indicate such an effort being made by the police officer for getting the mediator. If really the version of prosecution is true that every effort was made to get the mediators, it should have been reflected in special report, which was prepared at the scene. In the absence of any independent witness for search and seizure, a doubt arises as to whether really the accused was present at Godavari Ferry in Pusuvullanka village of I.Polavaram village, with two bags containing 10 liters of I.D. liquor. Things would have been different had any independent mediator was examined. In-fact, the Trial Court called for report from the Additional District Probation Officer about the character and conduct of the petitioner. A report came to be submitted that accused is having good conduct. But, the relief of Probation of Offenders Act was not extended on the ground that the accused was having 20 liters of I.D. liquor.

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As observed by us earlier, no independent witness was examined to prove the search and seizure of I.D. liquor and the entire case rests on the evidence of PW1 and PW2 who are interested witnesses. Having regard to the facts and circumstances of the case and taking into consideration the place and time where the incident took place, more particularly, the non mentioning of the effort made by PW2 in the special report, a doubt arises as to the incident in question.

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In the result, the Criminal Revision Case is allowed . The conviction and sentence recorded against the Revision Petitioner/ accused in the Judgment, dated 24.02.2006, in C.C. No. 73 of 2004 on the file of the Judicial Magistrate of First Class, Mummidivaram, which was confirmed in Criminal Appeal No. 83 of 2006 by the II Additional District & Sessions Judge, East Godavari District, Amalapuram, on 01.06.2007 is set aside. Consequently, accused shall be set at liberty, forthwith, if he is not required in any other case or crime.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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______________________________ JUSTICE C.PRAVEEN KUMAR

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Date: 07.02.2020 SM.

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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Criminal Revision Case No. 711 of 2007

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Date: 07.02.2020

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SM.

Nalla Padmanabham v. the State of A.P.

Case brief

What is this about?

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Nalla Padmanabham v. the State of A.P.

Case brief

What is this about?

What did the court decide?

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