Bangalore District Court
State By Excise Sub-Inspector vs Mahesh Chithakoti S/O Basavaraj on 27 January, 2021
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 27th day of January 2021
PRESENT:
Sri Madhvesh Daber, B.Com, L L.B. (Spl.)
Chief Metropolitan Magistrate,
Bengaluru.
Criminal Case No.10193/2017
Complainant : State by Excise Sub-Inspector,
Rajmahal Vilas Range,
Bengaluru.
(By Learned Sr.A.P.P.)
Versus
Accused : 1. Mahesh Chithakoti s/o Basavaraj,
26 yrs, R/at No.423, CQAL Layout,
Sahakaranagar, Bengaluru.
2. Ravikumar s/o Rajegowda, 22
yrs, R/at No.423, CQAL Layout,
Sahakaranagar, Bengaluru.
3. B.S.Anilkumar, License Holder,
M/s Nesara Grand B/R, No.2574,
8th Cross, 13th Main, E-Block,
Sahakaranagar, Bengaluru.
2 CC No.10193/2017
4. Arunkumar Jadav s/o
Ravishankar Jadav, R/at No.4 & 4A,
Hesarughatta Main Road,
Chikkasandra, Bengaluru City.
5. Naveen s/o Shivappa, 22 yrs,
No.4 & 4A, Hesarughatta Main
Road, Chikkasandra, Bengaluru
City.
(By Advocate Sri M.Partha and Associates)
Date of offence : 23-12-2016
Offence : U/S 32(1) of Karnataka Excise
Act
Plea of the accused : Accused Persons pleaded
not guilty
Final order : Accused No-1 to 5 Acquitted
Date of Judgment : 27/01/2021
J U D G M E N T U/S 355 of Cr.P.C.
The Excise Sub-Inspector of Rajmahal Vilas Range,
Bengaluru has filed charge sheet against accused No-1 to 5
for an offence punishable under Section 32(1) of
Karnataka Excise Act.
3 CC No.10193/2017
2. The brief facts of the case of prosecution are that-
On 23/12/2016 at about 1.35 p.m., the Excise
Inspector, Excise Sub-Inspector of Rajmahal Vilas Range,
Bengaluru along with staff had given surprise visit to
Nesara Grand Bar and Restaurant No.2574, 8th Cross, 13th
Main, E-Block, Sahakaranagar, Bengaluru in the
department vehicle. The accused No-1 and 2 who were
present over the counter were directed to produce the
Account Registers, Permit, Blue Print, License Copy etc.,
whereas they had produced only Workers List and License
Copies, which disclosed that the CL-9 License in the name
of B.S.Anilkumar was transferred from No.4/4A,
Hesaraghatta Main Road, Chikkasandra, Bengaluru to
No.2574, 8th Cross, 13th Main Road, E Block,
Sahakaranagar, Bengaluru on 18/10/2016 itself. When
enquired with the workers present who were illegally
working there, they told that it was shifted from
T.Dasarahalli Range, but still they are working there.
Further it came to know that the license holder without
obtaining license, permit had obtained the liquor, beer,
wine products illegally without having any account,
possessed the liquor and doing business, as a result of
which the illegal liquor of 53.480 liters and 147.06 liters of
4 CC No.10193/2017
beer stored in M/s.Nesara Grand Bar and Restaurant along
with documents were seized and the accused No-1 and 2
were arrested. Thereafter on the basis of their statements,
the Excise Personnel visited No.4/4A, Hesaraghatta Main
Road, Chikkasandra, Bengaluru, where it was found that
business was run by way of purchasing liquor from
Bagalugunte KSBCL Depot, even though above said
shifting order in respect of T.Dasarahalli Range was there
and accused No-4 and 5 were present. As such raid was
conducted and seized 155.980 liters of liquor, 327.30 liters
of beer and 5.520 litres of wine and other documents and
arrested the said accused. Thereafter when received the
report of chemical analysis, it was found that the ethyl
alcohol was below prescribed limits. Thereby the accused
committed the alleged offence.
3. Accused No-1 to 5 are on bail. After furnishing
charge-sheet copies, Charge against accused was framed,
read over and explained to accused in the language known
to them. The accused pleaded not guilty and claimed to be
tried.
4. The prosecution in order to prove its case has
examined in all five witnesses as PW1 to 5, produced
documents as per Ex.P1 to 28 and material objects as per
5 CC No.10193/2017
MO1 and 2. Thereafter, the statement of accused as
required under Section 313 of Cr.P.C. was recorded,
wherein they denied the prosecution case in toto and opted
not to adduce any defence evidence.
5. Heard arguments and perused the material on
record.
6. In this case, in all ten witnesses are cited in the
charge sheet. However, the prosecution could be able to
examine only five witnesses as PW1 to 5. It is to be
noticed that PW1 and 2 are the mahazar witnesses. CW2
Shivanna who is the mahazar witness to Ex.P1 has been
examined as PW1. His evidence discloses that on
23/12/2016 at about 3 p.m., the Excise Officers were
seizing the articles in Nesara Bar and Restaurant. On
enquiry they told that the bar was being run without
obtaining any permission. His evidence goes to show that
about 30-40 different liquor bottles were seized and his
signature was obtained. He identified his signature over
the Ex.P1 mahazar as per Ex.P1(a). The evidence of PW1
clearly reveals that on that day, he had not at all seen the
accused persons. However he has identified 77 sealed
liquor bottles and deposed that he had signed over Ex.P1.
Further his evidence goes to show that except the sample
6 CC No.10193/2017
bottles, no other articles were seized. He did not know as
to who was running the bar. He has reiterated that he did
not remember of seeing accused No-1 and 2 on that day.
Hence he was treated as hostile and cross-examined by the
Learned Sr.APP. However in his cross-examination
nothing has been elicited to be supportive to the
prosecution case. So the prosecution case that the liquor
bottles were seized in the presence of panch namely
Shivanna and the bottles were recovered from accused No-
1 and 2 is doubtful and the same is not proved by
prosecution beyond all reasonable doubt.
7. CW3 namely Thammaiah who is also panch
witness to the seizure mahazar Ex.P1 has been examined
as PW2. His evidence also reveals that on 23/12/2016 at
about 3 p.m., the Excise Officers told him that the accused
persons were running the Bar and Restaurant without
getting any permission from the competent authorities and
seized more than 40 different types of liquor bottles. He
identified his signature over the mahazar Ex.P1 as
Ex.P1(b). His evidence also reveals that he has not seen
the accused persons on that day. Though as per
prosecution case, the accused No-3 was not present at the
time of conducting seizure mahazar, but PW2 has deposed
7 CC No.10193/2017
that at the time of conducting seizure mahazar accused No-
3 was also present, which creates doubt in his version.
Moreover he could not say as to what other articles were
seized along with the sample bottles. So he was treated as
hostile and cross-examined by the Learned Sr.APP.
Though it was elicited that on that day, accused No-3 was
running the Bar and accused No-1 and 2 were selling the
liquor bottles, but he has denied that the Excise Officers
have also seized the records of the Bar and Restaurant.
Moreover while being cross-examined by the learned
counsel for accused, he could not say the details of Ex.P1,
he could not say the details of brand of liquor bottles, he
could not reveal the names and addresses of the persons
who signed over Ex.P1. PW2 also admitted that there was
no problem for him to sign over each page of Ex.P1.
Though he has stated in the chief examination that accused
No-3 was the owner of Restaurant, but in the cross-
examination he pleaded ignorance as to who was running
the said Bar and Restaurant. It is pertinent to note that as
per seizure mahazar, the search and seizure was conducted
for more than three hours. But the evidence of PW2
discloses that he was there for only 20 minutes. This also
creates doubt in his version.
8 CC No.10193/2017
8. On perusal of Ex.P1, it appears that along with
liquor bottles, several documents were recovered. But in
the evidence of both PW1 and 2, they have not stated
anything about the recovery of documents also by the
Excise Officers from the said Bar and Restaurant. So the
conjoint reading of the evidence of PW1 and 2 makes it
clear that their evidence is untrustworthy and does not
inspire confidence in the prosecution case. Hence, I am of
the opinion that their evidence is unbelievable and not
supportive to the prosecution case.
9. PW3 to 5 are the official witnesses. They are
Excise Inspector of Rajmahal Vilas Range namely
Jayaprada who is examined as PW3, Excise Inspector of
T.Dasarahalli Range namely Geetha who has been
examined as PW4 and Excise Sub-Inspector of Rajmahal
Vilas Range namely Balakrishna who has been examined
as PW5. As discussed earlier, the evidence of seizure
panchas PW1 and 2 is not supportive to the prosecution
case. In the light of above circumstances, now I have to
see whether the evidence of PW3 to 5 is reliable and
inspiring confidence in the prosecution case or not.
9 CC No.10193/2017
10. PW3 namely Jayaprada has deposed that on
23/12/2016 at about 1.30 p.m., herself and staff were on
patrolling duty at about 1.30 p.m. and visited Nesara Bar
and Restaurant at Sahakaranagar and asked accused No-1
who was present there to produce the documents
pertaining to the said Bar and Restaurant. But he has
produced only Workers List and Xerox Copies of license.
According to her on perusal of license it revealed that it
was in the name of Anilkumar (A3) and it was mentioned
therein that the said license was transferred from
Hesaraghatta, Chikkasandra to Sahakaranagar. On the
other hand the workers list was in the name of
M/s.Manjula Enterprises, CL-9, License No.2574 in the
name of Nesara Bar and Restaurant, Sahakaranagar and
the date was mentioned in the workers list was from
01/07/2015 to 01/12/2015. Since there was mismatching
between the workers list and copy of license, on enquiry
the workers told that the license was transferred from
Hesaraghatta to Sahakaranagar. On insisting upon
production of documents relating to the Bar and
Restaurant, the Workers told that they had not kept any
such documents. Similarly they told that they had not
procured the liquor and beer through permit, as such the
10 CC No.10193/2017
documents such as invoice and permit were not there. So
the PW3 came to know that prima-facie there was
violation of license conditions and procured the panchas
and seized all the stock in the Bar and Restaurant by
conducting panchanama as per Ex.P1.
11. PW3 has further deposed about taking out 77
bottles as sample for chemical examination and identified
the sample bottles at MO1. She stated about registering the
case against accused No-1 and 2, arresting them,
registering F.I.R. as per Ex.P3 and on enquiring accused
No-1 and 2, she came to know that the license of Bar and
Restaurant in Hesaraghatta was still in force and the said
liquor stock of Bar and Restaurant in Hesaraghatta was
brought to Sahakaranagar Bar and Restaurant. She has
further deposed that the accused No-1 and 2 were arrested
and produced before the court.
12. PW3 further stated that on the same day, she
along with Ajithkumar, Excise Deputy Superintendent and
other staff went to Hesaraghatta, Chikkasandra Nesara
Bar and Restaurant and narrated the incident taken place in
Sahakaranagar Bar and Restaurant to accused No-4, who
was present there. Accordingly the search was conducted
in the said Nesara Bar and Restaurant and asked accused
11 CC No.10193/2017
No-5 Naveen to produce the accounts books, inspection
book and receipts, workers list and copy of license.
Accordingly, the accused No-3 produced all the
documents. According to her evidence, the accounts were
maintained up to the year 19/12/2016. The license was
renewed in the name of accused No-3 up to 2016-2017.
The workers list was issued by T.Dasarahalli Inspector
from 01/07/2016 to 31/12/2016. Similarly six permits
were found in the counter according to which the permits
were transferred from Bagalagunte KSBCL Depot in the
name of accused No-3 Anilkumar.
13. PW3 further deposed about inspection of
documents more particularly the bills pertaining to the sale
of liquor. According to her evidence, it was found that on
the basis of one license the accused No-3 had conducted
business in two places. Since it was an offence, she
conducted panchanama in the presence of panchas as per
Ex.P4 and seized all the stock of the Bar and Restaurant
along with Account Books, Invoice, Permit, Receipts,
License and Workers List. About 62 bottles as per MO2
were taken out for chemical examination as samples. She
has stated about bringing the seized articles, documents
and accused to the office and registering the case against
12 CC No.10193/2017
accused No-1 to 5 and producing before the court. The
Search Report has been marked as Ex.P5. The list of
bottles seized from the Hesaraghatta Liquor Shop has been
marked as Ex.P6. Her signature has been marked as
Ex.P6(a). The sample seal is marked as Ex.P7.
14. PW3 was further examined by the prosecution
and produced the bill showing the liquor sold at Nesara
Grand Bar and Restaurant as per Ex.P8, Workers List at
Ex.P9, License Copy at Ex.P10, Menu Card at Ex.P11,
License of T.Dasarahalli Limits, Hesaraghatta,
Chikkasandra is marked as Ex.P12, the Workers List of
said Bar and Restaurant is marked as Ex.P13, Six Bills for
having sold the liquor at the said spot are marked as
Ex.P14 to 19 and permits are marked as Ex.P20. The order
of Excise Deputy Commissioner is marked as Ex.P21, the
letter written to Bagalagunte KSBCL Depot is marked as
Ex.P22, the letter written to Peenya KSBCL Depot is
marked as Ex.P23, the reports received from Peenya and
Bagalagunte Depots are marked as Ex.P24 and 25
respectively. She further deposed that she has handed over
the case papers to CW10 for further investigation.
13 CC No.10193/2017
15. It is pertinent to note that PW3 has stated that the
seizure panchanama Ex.P1 has been prepared by herself. It
is to be noticed that on all the pages of Ex.P1, the
signatures of panchas is not obtained. Further it is also not
mentioned that the signatures were belonged to panchas
only. Further there is contradiction in the cross-
examination of PW3 regarding the time of conducting
search and conducting seizure panchanama. It is to be
noted here that as discussed earlier, the panchas to the
seizure panchanama Ex.P1 have not supported the
prosecution case. Under such circumstances, the
contradictions elicited from the cross-examination of PW3
rather support the accused than supporting the prosecution.
Further on perusal of her cross-examination, it discloses
that in the mahazar it is not mentioned that list of bottles is
annexed with a separate list. Similarly she has denied that
since her staff were not there at the time of conducting
seizure panchanama, their signatures were not obtained.
Here it is to be noticed that if at all PW3 had conducted the
raid along with her staff, nothing prevented her from
obtaining the signature of her staff over either Ex.P1 or
Ex.P2. Similarly nothing prevented the prosecution from
examining them.
14 CC No.10193/2017
16. Added to the above, PW3 could not say the
details of types of bottles and brands of bottles recovered
under panchanama. She could have tallied the numbers
appearing on bottles and could have obtained the details as
to whose license they were supplied. But it appears from
her cross-examination that she has not made efforts to
know about all these facts. Further the alleged incident had
taken place during the afternoon. If at all the Bar and
Restaurant was being run at that time, there should have
been some customers in the said Bar and Restaurant. But
the PW3 has pleaded ignorance about presence of
customers in the Bar and Restaurant and also not recorded
their statements. Similarly the details of cooks who were
preparing food in the kitchen were not mentioned and
their statements are not recorded. It is admitted by her that
in Ex.P11 menu card, there is only mention of Nesara, but
there is no mention of Bar and Restaurant and its address.
Moreover it is admitted fact that the workers list was in the
name of Manjula Enterprises. The prosecution has not
recorded the statement of Manjula, in whose name the
license was running and similarly she has not been
examined before the court. Also PW3 has not enquired the
said Manjula as to whether accused No-1 and 2 were really
15 CC No.10193/2017
working under her. It seems from the records that as the
license was in the name of M/s Manjula Enterprises, in the
light of non-support from the panhas and other
independent witnesses, there is no evidence to show that
the accused No-3 Anilkumar was running the Bar and
Restaurant in Sahakaranagar under the guise of obtaining
license at Hesaraghatta in the name of Nesara Bar and
Restaurant.
17. On perusal of the cross-examination of PW3, it
appears that except on the date of alleged raid, she has not
at all obtained any document regarding the transaction
taken place on the previous dates. She has also not
obtained computer hard disk to show that there was some
business run by accused No-3 on the previous dates.
Further the receipts produced by prosecution as per Ex.P14
to 19 are blurred and the name of accused No-3 as owner
thereof is not appearing over them. Under such
circumstances, the version of PW3 that they have raided
the Nesara Bar and Restaurant at Sahakaranagar and
recovered MO1 by conducting seizure mahazar in the
presence of PW1 and 2 is doubtful and cannot be believed.
16 CC No.10193/2017
18. In fact on perusal of the records, it appears that
the complainant and CW8 Geetha raided the Nesara Bar
and Restaurant at Hesaraghatta at about 9 p.m. But PW3
has stated that they have raided the said place at about 9.45
p.m. and the Ex.P4 reveals that the search was conducted
from 9.45 p.m. till 10.50 p.m. and the mahazar was
conducted from 10.55 p.m. to 11.55 p.m. In this regard the
prosecution has produced the seizure panchanama Ex.P4.
But on perusal of the cross-examination of PW3, it appears
that she has clearly admitted that her higher officers have
not ordered in writing to conduct mahazar as per Ex.P4. It
is admitted fact that accused No-3 Anilkumar was actually
running his business at T.Dasarahalli, Nesara Grand Bar
and Restaurant. She has also admitted that the original
license and workers list were returned to the Excise
Department for transfer purpose. However it is to be
noticed that in this regard there is no mention in Ex.P4
mahazar.
19. Similarly as per prosecution case, the seizure of
articles and liquor bottles at T.Dasarahalli Bar and
Restaurant had taken place in the presence of panchas
namely Shivanna and Siddalingaiah. But it is to be noticed
that they are not at all examined by prosecution even
17 CC No.10193/2017
though sufficient opportunity was given. Hence the
recovery of articles as per Ex.P4 from the T.Dasarahalli
Nesara Bar and Restaurant is not proved in accordance
with law. Under such circumstances I am of the opinion
that the conjoint reading of evidence of PW1 to 3 reveals
that the contention of prosecution that they have conducted
raid at Sahakaranagar and also at T.Dasarahalli and
recovered the liquor bottles from the Bar and Restaurant of
accused No-3 and that accused No-3 was running the Bar
and Restaurant illegally in the name of license obtained
with regard to Nesara Bar and Restaurant of T.Dasarahalli
is not proved beyond all reasonable doubt.
20. It is to be noticed that the contention of accused
is that since the license and permit was not held by
Anilkumar, he was not selling the liquor at Sahakaranagar,
but PW3 has denied the same. But it is to be noted here
that she has not seen the original of Ex.P10 i.e., License.
Similarly the Excise Deputy Commissioner has not given
the copy of license to her. She admits that in order to sell
the liquor, one has to hold workers list, invoice book and
account book statement etc.,. But as discussed earlier, the
workers list was in the name of Manjula. So it cannot be
said positively that Anilkumar i.e., accused No-3 was
18 CC No.10193/2017
running the liquor shop i.e., Bar and Restaurant at
Sahakaranagar. Further there is nothing on record to show
that accused No-3 was running the business at two places
with only one license. The alleged incident had taken
place on 23/12/2016, whereas the transfer order was made
on 18/10/2016. It is clearly admitted by PW3 that in the
transfer order, the exact date of shifting the Bar and
Restaurant is not mentioned. Further at the time of shifting
the Bar and Restaurant, the T.Dasarahalli Range had to
issue N.O.C., but PW3 pleads ignorance about the same.
Further though PW3 admits that a separate file would be
maintained with regard to shifting, the said separate file
with regard to shifting the Bar and Restaurant from
Hesaraghatta to Sahakaranagar is not produced. Under
such circumstances, looking into the facts and
circumstances of case, it is abundantly clear that as on the
date of incident accused No-3 was running the liquor shop
at Hesaraghatta only. PW3 admits that she has not
obtained any information with regard to the transaction
done by accused No-3 at Hesaraghatta, but the said
information was obtained by T.Dasarahalli Range. But in
this regard, PW3 admits that there is no mention of the
same in F.I.R.
19 CC No.10193/2017
21. Another aspect is that the Bar and Restaurant
situated at Sahakaranagar is situated at a busiest place.
PW3 has not verified about accused No-3 running the Bar
and Restaurant from the neighbouring shop holders. It was
elicited in the cross-examination of PW3 that only the food
was prepared in Bar and Restaurant, whereas there was no
customer in the Bar. Since the workers list was in the
name of Manjula and there was no document to show that
accused No-3 had shifted the Hesaraghatta Bar and
Restaurant to Sahakaranagar, I am of the opinion that the
accused No-3 cannot be held guilty of the offence.
22. Further the signatures of panchas has not been
obtained on each page of the mahazar, which is admitted
by PW3. The boundaries of property is not mentioned in
Ex.P1. So these circumstances do not inspire confidence in
the case of prosecution and makes the version of PW3
doubtful and unreliable. So considering these aspects, I am
of the opinion that the version of PW3 is not supportive to
the prosecution case.
23. PW4 Geetha is the then Excise Inspector of
T.Dasarahalli. Her version goes to show that on
23/12/2016, CW1 has enquired regarding the accused No-
3 running Nesara Bar and Restaurant under the license.
20 CC No.10193/2017
Accordingly on the basis of information given by PW3,
they went there at about 9 p.m. and CW1 has raided the
Bar and Restaurant and the entire liquor was recovered as
per mahazar Ex.P4. She identified her signature as per
Ex.P4(b). Her evidence discloses that even though the Bar
and Restaurant was ordered to be transferred from
T.Dasarahalli Range, the accused No-3 was running the
said Bar and Restaurant at T.Dasarahalli. As such the
CW1 had raided the said Bar and Restaurant and seized
liquor vide panchanama and recovered MO1 and 2.
24. In the cross-examination of PW4 also it was
elicited that after the transfer order, the license holder has
to submit an application for transferring the inventory. It is
admitted that the CL-9 was not closed as on 24/12/2016. It
is admitted that in the order of Excise Deputy
Commissioner, the closure of Bar and Restaurant has not
been mentioned and at that time accused No-3 was running
the business at Hesaraghatta. It is admitted by her that
while a Bar and Restaurant was transferred from one
Range to another Range, KSBCL Code has to be
commenced and the concerned invoice, Excise account
book has to be submitted. Further in order to open a new
Bar and Restaurant, the workers list, blue print, KSBCL
21 CC No.10193/2017
account book and inspection books have to be submitted.
It is admitted that then only a new Bar and Restaurant has
to be opened. It is clearly admitted by PW4 that at the time
of raid, the CL-9 license was in Dasarahalli and it has been
not transferred to RMV Range. Further since the Bar and
Restaurant was located at T.Dasarahalli Range, CW1 had
to obtain permission from her higher authorities for
investigation. Same is admitted by PW3 also that she had
not obtained permission from her higher authorities for
conducting investigation. Moreover PW4 admitted that till
23/12/2016 no complaint was lodged against CL-9. She
admits that the records pertaining to Hesaraghatta Bar and
Restaurant was clear and in accordance with law, as
mentioned in Ex.P4. Surprising fact is that PW4 has not
denied the fact that even though she (PW4) had to
investigate the offence, PW3 has investigated the matter
and filed a false complaint against accused. But PW4 has
deposed that she was unable to answer that question.
25. So on the overall reading of evidence and
material on record, it transpires that the case of prosecution
is clouded with doubt and cannot be believed at all. As
discussed earlier, there is nothing on record to show that
even after transfer order from the Excise Deputy
22 CC No.10193/2017
Commissioner, the accused No-3 had transferred his
business from Hesaraghatta to Sahakaranagar, whereas the
workers list was still standing in the name of Manjula
Enterprises.
26. PW5 Balakrishna, the Excise Sub-Inspector has
deposed about conducting further investigation, sending
the sample bottles to chemical examination, receiving the
chemical examination report and making the
correspondence with Depot Manager as per Ex.P27 etc.,
and filing of charge sheet against the accused. In his cross-
examination also, he has admitted that in the year 2016
one Manjula was the owner of Nesara Grand Bar and
Restaurant. There is nothing on record to show that said
Manjula had closed the Bar and Restaurant on such and
such a date. He could not say as to how much stock was
obtained by her in the year 2016-17. It is clearly admitted
that since Manjula herself was running the restaurant under
the license, inventory of the said Bar and Restaurant was
not conducted. Further he admits that in this case whatever
the liquor bottles sent for chemical examination were
belonging to Nesara Bar and Restaurant which was
belonged to Manjula only. So these circumstances go to
23 CC No.10193/2017
show that prosecution case is doubtful and cannot be
believed.
27. It is very pertinent to note here that Ex.P8 is the
bill, Ex.P9 is the workers list, Ex.P10 is the form CL-9 i.e.,
license and Ex.P11 is the menu card. These documents are
allegedly recovered by PW3 from the Bar and Restaurant
of Sahakaranagar. But on perusal of the entire evidence on
record, it appears that the panchas have not supported the
prosecution case and stated regarding the recovery of these
documents from Sahakaranagar Bar and Restaurant.
Moreover it is evident that on these documents the
signatures of panchas are not there. So it cannot be
specifically stated that these documents were seized under
panchanama Ex.P1. Ex.P13 is the workers list, Ex.P14 to
19 are the receipts (blurred), Ex.P20 is the permit and
invoices. These documents were allegedly recovered from
Hesaraghatta Bar and Restaurant. Though the accused
admit that accused was running the Bar and Restaurant at
Hesaraghatta, but with regard to recovery of these
documents are concerned, the prosecution has not
examined CW4 and 5, who are panchas to the recovery of
such documents.
24 CC No.10193/2017
28. Be it as it may, the overall evidence on record
goes to show that the prosecution evidence is not reliable
and acceptable. It is true that some letter correspondence
has been taken place between the Excise Inspector and
KSBCL of Peenya and Bagalagunte as per Ex.P22 to 25
and Ex.P27. But the recovery of liquor bottles from the
Bar and Restaurant at Sahakaranagar is not proved beyond
all reasonable doubt. Similarly the effective date of
transfer of license is not mentioned in the proceedings of
Excise Deputy Commissioner dated 18/10/2016. So even
though accused No-3 was running the business at
Hesaraghatta, it cannot be said that he was running the
business illegally at Sahakaranagar. Considering all these
aspects, I am of the opinion that the case of prosecution is
doubtful and the accused are entitled for benefit of doubt.
In the result, I proceed to pass the following-
ORDER
Acting under Section 248(1) of Cr.P.C., accused No-1 to 5 are acquitted of an offence punishable under Section 32(1) of Karnataka Excise Act.
25 CC No.10193/2017The bail and surety bonds of accused shall stand canceled after six months from today in view of Section 437A of Cr.P.C.
After the completion of appeal period, MO1 and 2 are ordered to be returned to the Excise Sub-Inspector of Rajmahal Vilas Range, Bengaluru, for disposal in accordance with law. (Dictated to the Stenographer, transcribed by him. The computerized print out taken by Steno is revised, corrected and then pronounced by me on this day i.e., 27/01/2021) (Madhvesh Daber), Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Shivanna
PW2 : Thammaiah
PW3 : Jayaprada
PW4 : Geetha
PW5 : Balakrishna
26 CC No.10193/2017
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Mahazar
Ex.P2 : List of Property Seized
Ex.P3 : F.I.R.
Ex.P4 : Mahazar
Ex.P5 : Search Report
(Section 54 of Karnataka Excise Act) Ex.P6 : List of Articles Seized Ex.P7 : Sample Seal Ex.P8 : Bill Ex.P9 : List of Workers Ex.P10 : Form C.L.9 (Copy) Ex.P11 : Menu Card Ex.P12 : Form C.L.9 (Copy) Ex.P13 : List of Workers Ex.P14 to P19 : Bills Ex.P20 : Permit for transport of intoxicants Ex.P21 : Order of Excise Deputy Commissioner Ex.P22, 23 : Letters dated 29/12/2016 Ex.P24, 25 : Replies given for the letters dated 29/12/2016 Ex.P26 : Report of Chemical Analysis Ex.P27 : Letter of KSBCL Ex.P28 : Annexure-1 (Certified Copy) 27 CC No.10193/2017 List of Material objects produced:-
MO1 : 77 Sample Bottles MO2 : 62 Sample Bottles List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.28 CC No.10193/2017
27-01-2021 Judgment pronounced vide separate sheets.
ORDER Acting under Section 248(1) of Cr.P.C., accused No-1 to 5 are acquitted of an offence punishable under Section 32(1) of Karnataka Excise Act.
The bail and surety bonds of accused shall stand canceled after six months from today in view of Section 437A of Cr.P.C.
After the completion of appeal period, MO1 and 2 are ordered to be returned to the Excise Sub-Inspector of Rajmahal Vilas Range, Bengaluru, for disposal in accordance with law.
Chief Metropolitan Magistrate, Bengaluru.