SHAIK BEEBI Vs. STATE OF ANDHRA PARADESH

JUDGEMENT

(1.) This is a revision against the judgment passed by the learned V-Additional Sessions Judge, Guntur, in Criminal Appeal No.541 of 1999. The Inspector of Excise, Narsaraopet, Suntur District, filed charge sheet against accused Nos.1 and 2. Accused Nos.1 and 2 are wife and husband, The allegations against them were that the Inspector of Prohibition & Excise searched the house of the accused on 26-06-1994 along with mediators and found a fivs-liter plastic can and 2 bottles of 750 ml capacity containing Illicit Distill (I.D) liquor. According to the charge sheet, occused No.2 was not present in the house at that time and his wife, accused No.l, was present. She was questioned by the Inspector about the possession of the I.D.liquor and she confessed to the guilt that they were manufacturing and selling I.D liquor in the village. After the Inspector arrested accused No.l and allegedly seized the I.D. liquor in the presence of the mediators and while he was returning, on his way, he found accused No.2on the road. Accused No.l identified her husband and he arrested accused No.2 also.

(2.) The mediators who were examined turned hoslile. Only P.WA the Inspector of Prohibition & Excise, who conducted the search and seizure, deposed against the accused persons. The trial Court convicted the accused and sentenced each of them to suffer one I have heard learned counsel for the petitioners/accused Nos.1 and 2 as well as learned Public Prosecutor. Section 53 of the Andhra Pradesh Excise Act, 1968 (for short "the Act") gives power to arrest without warrant, to seize articles liable for confiscation end to make searches and it reads-

(3.) A mere perusal of this provision would show that the power of the Officers under this Section can be exercised only after the Officer concerned has suspicion about an offence taking place in a premises. He can also arrest a person without warrant provided he has some material with him that the said person has committed an offence. In the present case, we have seen from the testimony of P.W.4 himself that there was no materidl with him. He just entered into the house of the accused and arrested a lady i.e. accused No.l and seized articles. There was no first information report registered by him nor any information was received by him prior to his search. Section 53 of the Act does not give power to the Officers to enter anybody's house anytime without any basis. Section 53 nas to be understood in the context that if there is any reasonable suspicion with an Officer that an offence punishable under Sections 27 or 34 or 35 or 36 or 37 or 37-A or 40-A or 50 or 50-A of the ACT is being committed, he can exercise the power under Section 53 of the Act. The testimony of P.W.4 discloses that after making a search and after arresting accused No.1, he registered a case. He conducted the search on 26-06-1994 at 6.30 p.m. The first information report was registered by him at 9.30 p.m i.e. after three hours of having mado search and arrest and this first information report reached the Magistrate on 27-06-1994 at 2.00 p.m. Therefore, in my view, the prosecution, on this ground, alone could not sustain, It is further oointed out by the learned counsel for the petitioners that there was no evidence except the evidence of this Inspector, but the learned Sessions Judge has relied on a confession and the so called confession was made before the same Inspector, which was not admissible in evidence. The learned Sessions Judge was clearly wrong in relying on the confession allegedly made by accused No.1 before the Inspector.