ORDER
A.S. Naidu, J.
1. The order of conviction of the petitioner under Section 34-A of the Police Act and sentence to undergo simple imprisonment for one month and to pay a fine of Rs. 200/-, in default, to undergo further simple imprisonment for 15 days passed by the Judicial Magistrate, First Class, Berhampur in U.C. No. 445 of 1995, which has been confirmed by the learned Second Addl. Sessions Judge, Berhampur in Criminal Appeal No. 235 of 1997 (Cr. A. 50/97-GDC), is impugned before this Court.
2. The prosecution case, bereft of unnecessary details, is that on 12-1-1995, at about 1.45 p.m., the S.I. of Police of Badabazar P.S., Berhampur along with Havildar B. Gouda raided the Shakti Cinema Hall campus before commencement of Matinee show and found that the petitioner was selling the balcony cinema tickets for the picture “Karan Arjun” at a price of Rs. 15/- each against the actual price of Rs. 7.90 paise. The S.I. of Police, as alleged, seized 18 number of tickets from possession of the accused in presence of available witnesses, arrested and forwarded him to Court and submitted prosecution report.
The plea of the accused-petitioner is complete denial.
3. To substantiate the case, the prosecution examined only 4 witnesses, of whom, P.Ws. 1 and 3 were independent witnesses, P.W. 2 was the Havildar and P.W. 4 was the S.I. of Police and exhibited the seizure list and 18 number of cinema tickets.
4. The trial Court on assessment of the evidence, both oral and documentary, arrived at a conclusion that the prosecution had successfully brought home the guilt of the accused under Section 34-A of the Police Act and convicted him thereunder, awarding sentence of simple imprisonment for one month and to pay a fine of Rs. 200/-, in default, to undergo further S.I. of 15 days. Being aggrieved by the said order, the petitioner preferred an appeal which was heard by the learned Second Addl. Sessions Judge, Berhampur. The lower appellate Court finding no reason to interfere with the order of conviction and sentence, dismissed the appeal confirming the conviction and sentence of the petitioner. The said appellate order, as stated earlier, is impugned before this Court.
5. Mr. Nayak, learned counsel for the petitioner forcefully submitted that the prosecution has totally failed to substantiate its case against the petitioner. It is further submitted that though the occurrence was said to have taken place before commencement of Matinee show, not a single person who purchased tickets from the petitioner has been examined as a witness. The two persons who were cited as independent witnesses (P.Ws. 1 and 3) have not supported the prosecution case. It is further submitted that neither any employee of Shakti Cinema nor any customer was examined to establish that the petitioner was, in fact, selling cinema tickets at a higher rate. Apart from the said fact, it is also forcefully submitted that the alleged seizure of the cinema tickets suffers from the vice of not following the procedure therefor, inasmuch as P.W. 4 who seized the cinema tickets has not signed on any of them. According to Mr. Nayak, the tickets were not seized from the petitioner and the case had been falsely foisted against him. Referring to the evidence of P.W. 2, the Havildar who accompanied P.W. 4, S.I. of Police and was present at the time of alleged seizure, Mr. Nayak submitted that the said witness has given a go-bye to the prosecution case. It is submitted that both the Courts below have not properly appreciated the evidence and the order of conviction and sentence is liable to be set aside.
6. On the other hand, the learned counsel for the State, relying upon Section 34-A of the Police (Amendment) Act, 1976 submitted that this being an offence having social impact, the Courts below without going into technicalities rightly convicted the petitioner on the basis of the available material. According to the State Counsel, there is absolutely no infirmity in the impugned order and this revision is liable to be dismissed in limine.
7. After hearing learned counsel for the parties and carefully perusing the records, I find that the two independent witnesses, being P.Ws. 1 and 3, have absolutely not supported the prosecution case. According to P.W. 3, who was a seizure witness, nothing was seized in his presence from anybody. Surprisingly, neither of the witnesses was declared hostile nor cross-examined. Apart from the said fact, P.W. 2, who was a Havildar and according to the prosecution case, was very much present when the ac-cused-petitioner was apprehended and the tickets were allegedly seized from him, in his cross-examination has stated that he cannot say how many tickets were seized from the petitioner. It is also stated that he could not say what movie was going on in the cinema hall and who was purchasing tickets from the petitioner. He was also ignorant of the fact if any other thing was seized from the possession of the petitioner. The statement of the police Havildar who was admittedly present at the time of seizure, as would be evident from the evidence of P.W. 4, the S.I. of Police, throws cloud of suspicion about the veracity of the prosecution case. As a matter of fact, except the evidence of P.W. 4, there is no other oral evidence supporting the prosecution case.
8. In view of the clear statement made by P.W. 2 (One of the police officer) that he had absolutely no knowledge as to what movie was screened in the Cinema Hall, from where the alleged tickets were seized and his ignorance about the number of tickets seized, I feel that no reliance can be placed on the evidence of P.W. 4. At the cost of repetition, it is once again reiterated that P.W. 4 is the only witness who tried to support the prosecution case. Admittedly, the tickets were seized from the Cinema Hall. The prosecution has failed to examine a single person who purchased tickets from the petitioner as witness. Out of the official witnesses, one has not supported the prosecution case.
9. In view of such circumstances and taking into consideration the entire evidence, I feel, convicting the petitioner on the basis of the evidence of a single official witness would not be justified. Accordingly, I have no hesitation to set aside the order of conviction and sentence passed by the courts below in U.C. No. 445 of 1995 and Criminal Appeal No. 235 of 1997 respectively and acquit the petitioner and I order accordingly.
The criminal revision is allowed. The bail bond of the petitioner be discharged.