Bangalore District Court
Munireddy Palya Excise vs Guruprasad T on 21 April, 2025
KABC030395302023
Presented on : 01-09-2023
Registered on : 01-09-2023
Decided on : 21-04-2025
Duration : 1 years, 7 months, 20 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 21st Day of April, 2025
C.C. No.22058/2023
Crime No.48/2022-23/3708IE/370808
State by Excise Police Station,
Munireddypalya Division,
Bengaluru City. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Guruprasad.T.,
Aged about 30 years,
S/o Sri Thirupathaiah,
R/at No.55, Bharathinagara,
Hunasemaranahalli Post,
Bengaluru.
KABC030395302023 CC22058/2023
2. Sri Mahindra,
Aged about 29 years,
S/o Sri Malakondaiah,
R/at No.23, Bharathinagara,
Hunasemaranahalli Post,
Jala Hobli, Bengaluru. ... Accused
(Rep by Sri. Jayanath.J.R. Advocate for accused No.1)
(Rep by Smt. Meenakshi.M Advocate for accused No.2)
1. Date of commission of 31-03-2023 at 9.50 p.m.
offence
2. Date of FIR 01-04-2023
3. Date of Charge sheet 11-08-2023
4.Name of Complainant Sri Ashok Savalagi,
Excise Sub-Inspector,
Division-11, BUD-2,
Munireddy Palya,
Bengaluru.
5. Offences complained of Under Section 11, 14, 32,
34, 38(A), 40 and 43 of
Karnataka Excise Act.
2
KABC030395302023 CC22058/2023
6. Date of framing of 18-03-2024
charges
7. Charge Pleaded not guilty
8. Date of commencement 27-08-2024
of evidence
9. Date of Judgment is 21-04-2025
reserved
10. Date of Judgment 21-04-2025
11. Final Order Accused No.1 and 2 are
acquitted
12. Date of sentence -
JUDGMENT
The Excise Sub-Inspector of Munireddy Palya Division, Bengaluru submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act 3 KABC030395302023 CC22058/2023
2. Prosecution Case: On 31-03-2023 at about 9.50 p.m., at R.T.Nagara, CBI Main Road, Bellary Main Road, adjacent road to Ravindranatha Tagore Circle, at Gunatha Military Quarters Gate, the accused No.1 and 2 without any license was in possession and tried to transfer the 11.250 liters of liquor of various brands which was mentioned as "for Sale to Defence Personnel only" in their Dustar Car bearing Reg.No.KA 02 MP 1275 for the purpose of sale.
3. First Information Report: On the receipt of credible information, CW1/PW1 Sri Somashekar.M.R, Excise Inspector, along with his staff conducted raid upon the accused by preparing the reasons for not obtaining the search warrant from Jurisdictional Magistrate and seized the MO1 to MO4 from the custody of accused through Ex.P1 and taken the sample seal as per Ex.P4 and registered FIR as per Ex.P2 and handed over the case papers to CW8.
4. Investigation: After receipt of case papers from CW1, he sent the seized bottles to the FSL for chemical examination through CW5 and received report as per Ex.P9, issued notice to pancha witnesses and accused, recorded the statement of witnesses. After completion of investigation 4 KABC030395302023 CC22058/2023 submitted the charge sheet for the alleged offences against the accused.
5. At the pre-summoning stage, accused No.1 was enlarged on bail by the order dated 05-04-2023. The accused No.2 on receipt of summons was enlarged on bail by the order dated 23-02-2024.
6. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused No.1 and 2.
7. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Senior APP and counsel for accused No.1 and 2, charge for the offences punishable under Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
5 KABC030395302023 CC22058/20239. Prosecution Evidence: The prosecution in order to establish its case cited 8 witnesses, examined 5 witnesses and exhibited 9 documents and MO1 to 04 and closed their side.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 and 2 were examined as per section 313 of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 31-03-2023 at about 9.50 p.m., at R.T.Nagara, CBI Main Road, Bellary Main Road, adjacent road to Ravindranatha Tagore Circle, at Gunatha Military Quarters Gate, the accused No.1 and 2 6 KABC030395302023 CC22058/2023 without any license was in possession and tried to transfer the 11.250 liters of liquor of various brands which was mentioned as "for Sale to Defence Personnel only" in their Dustar Car bearing Reg.No.KA 02 MP 1275 for the purpose of sale thereby resulted in commission of offences punishable Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act?
2. What order?
13. The court's findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
REASONS
14. Point No.1: In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the 7 KABC030395302023 CC22058/2023 prosecution has examined the witnesses which are as follows i. CW1 Sri Somashekar.M.R., being informant and the then Excise Inspector of Munireddypalya Division, examined as PW1 deposed that on 31-03-2023, during the State Assembly elections, while he and his staff were patrolling at the C.B.I. Main Road of R.T. Nagar in Munireddy Palya limits, on receipt of credible information they inspected a silver color car near Gunatha Military Quarters Gate near Bellary Main Road of RT Nagar, and found two white plastic bags in the car. Prior inspection, search warrant was prepared at the spot and the signatures of the panches were taken. It was found that there were 7 bottles of 100 pepper whiskey of 750 ml capacity each in one plastic cover and 8 bottles of black and white whiskey of 750 ml capacity each in another cover totalling to 15 bottles. When the accused was enquired about the bottles and about the possession of liquor, the accused said that he was taking them to sell and that he did not have licence. Then he took two bottles of liquor for sample and send them for chemical examination and wrapped them in a white cloth, tied the mouths and sealed them with aragu, obtained the signatures on them and affixed the chit on the same. Further he identified seizure mahazar as Ex.P1, FIR as Ex.P2, search warrant as per Ex.P3, sample seal as per 8 KABC030395302023 CC22058/2023 Ex.P4, notices issued to panchas as per Ex.P5 and Ex.P6, List of Articles found or seized as being liable to confiscation as per Ex.P7 and his signature thereon as per Ex.P1(a) to 7(a) and samples bottles as per MO1 to MO4 and signatures thereon as per MO1(a) to MO4(a).
ii. CW2/PW2, Sri Naveen Kumar and CW3/PW3 Sri Madhu, pancha witnesses identified their signatures as per Ex.P3(b) to 5(b) and 7(b), MO1 (b) to MO4(b) and Ex.P3(c) to 5(c) and 7(c), MO1 (c) to MO4(c) and pleaded ignorance about the contents of the said documents and deposed that no seizure mahazar was conduced in their presence and have not given any statement before the police. In this regard, the learned Sr.APP has cross examined these witnesses by treating them as hostile witnesses but no favorable answers have been elicited from them to support the prosecution case. Their denial statements given before the police are marked as Ex.P8 and Ex.P9.
iii. CW6 by name Sri Chandrappa Darooru, the Excise Constable examined as PW4 deposed the same version of PW1 as he accompanied the PW1 for raid. He identified his signature on Ex.P1 as per Ex.P1(d).
9 KABC030395302023 CC22058/2023iv. CW5 by name Sri Ashok Chavadi, Excise Sub Inspector, examined as PW5 deposed after receipt of case papers from CW1, received FSL report as per Ex.P9, notice was given to the accused and pancha witnesses, reply received from them, the statement of the accused No.2, the owner of the vehicle was recorded. After completion of investigation, he submitted charge sheet against accused.
15. It is relevant to mention the Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act, 1965 which reads as under
11. Transport of intoxicant.- No intoxicant exceeding such quantity as may be prescribed either generally or for any local area shall be transported, except under a permit issued under section 12.
14. Possession of excisable articles in excess of the quantity prescribed.- (1) The State Government may, by notification, 10 KABC030395302023 CC22058/2023 prescribe a limit of quantity for the possession of any intoxicant:
Provided that different limits may be prescribed for different qualities of the same article.
(2) No person shall have in his possession any quantity of any intoxicant in excess of the limit prescribed under sub-section (1), except under the authority and in accordance with the terms and conditions of,-
(a) a licence for the manufacture, cultivation, collection, sale or supply of such article; or
(b) a permit granted by the Deputy Commissioner in that behalf.
32. Penalty for illegal import, etc.-
(1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, 11 KABC030395302023 CC22058/2023 manufactures, collects or possesses any intoxicant, shall, on conviction, 1 [be punished for each offence with rigorous imprisonment for a term which may extend to 2 [five years and with fine which may extend to fifty thousand rupees.] 1 [Provided that the punishment,-
(i) for the first offence shall be not less than [one year rigorous imprisonment and fine of not less than ten thousand rupees]; and
(ii) for the second and subsequent offences shall be not less than [two years rigorous imprisonment and fine of not less than twenty thousand rupees] 2 for each such offence.] (2) Whoever in contravention of this Act, or of any rule, notification or order made, issued or given thereunder, or of any licence or permit granted under this Act,-12 KABC030395302023 CC22058/2023
(a) save in the cases provided for in section 37, sells any intoxicant; or
(b) cultivates or fails to take the measures prescribed for checking the spontaneous growth or for the extirpation of the hemp plants; or
(c) taps or draws toddy from any toddy-producing tree or;
(d) constructs or works any distillery or brewery; or
(e) uses, keeps or has in his possession any materials, still, utensil, apparatus or implement whatsoever for the purpose of manufacturing any intoxicant other than toddy ; or
(f) removes any intoxicant from any distillery, brewery or warehouse licenced, established or continued under this Act ; or
(g) bottles any liquor; shall, on conviction, [be punished for each offence with rigorous imprisonment for a term which may extend to 2 13 KABC030395302023 CC22058/2023 [five years and with a fine which may extend to twenty thousand rupees] [Provided that the punishment,-
(i) for the first offence shall be not less than 4 [one year rigorous imprisonment and fine of not less than five thousand rupees]; and
(ii) for the second and subsequent offences shall be not less than [one year rigorous imprisonment and fine of not less than ten thousand rupees] 2 for each such offence.] (3) Whoever, being the owner or incharge of management or control of any public place allows consumption of liquor or whoever consumes liquor in any public place in which consumption of liquor is not permitted under a licence granted by the Excise Commissioner or the Deputy Commissioner, in contravention of the provisions of section 15A, shall on conviction be punished 14 KABC030395302023 CC22058/2023 with fine which shall not be less than rupees two hundred but which may extend to [five thousand rupees.] "(4) Whoever violates the provisions of section 13A or the rules made thereunder shall on conviction be punished with a fine of rupees five thousand for each time, upto first five offences. In case of subsequent offence, he shall be punished with an imprisonment for a term of six months or with fine which may extend to ten thousand rupees or with both."]
34. deals with penalties for illegal possession of intoxicants. It specifies that whoever possesses any intoxicant without lawful authority, knowing it was unlawfully obtained or that duty wasn't paid, faces imprisonment and/or a fine.15 KABC030395302023 CC22058/2023
38(A) Outlines the penalty for allowing premises to be used for the commission of offences under the Act. Specifically, it states that anyone who knowingly allows their property or premises to be used for committing offenses punishable under sections 32, 33, 34, 36, and 37 will be punished as if they had committed those offenses
40. Creates a presumption of guilt in certain cases, specifically when a person is accused of offenses under Sections 32 and 34. It presumes that the accused has committed the offense, unless the accused can prove otherwise. This presumption applies to situations where the accused is found in possession of materials used in the manufacture of intoxicants or from which an intoxicant has been manufactured, and is unable to explain their possession satisfactorily 16 KABC030395302023 CC22058/2023
43. Liability of certain things to confiscation.-Whenever an offence has been committed, which is punishable under this Act, the following things shall be liable to confiscation, namely :-
(1) any intoxicant, material, still, utensil, implement or apparatus in respect of, or by means of which, such offence has been committed;
(2) any intoxicant lawfully
imported, transported,
manufactured, had in possession or sold along with, or in addition to, any intoxicant liable to confiscation under clause (1); and (3) any receptacle, package, or covering in which anything liable to confiscation under clause (1) or clause (2), is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, [except the vehicles owned by the State Road Transport Undertaking or Corporation] 1 vessel, raft or other 17 KABC030395302023 CC22058/2023 conveyance used for carrying the same ;
It appears Ex.P1 is a spot cum seizure mahazar under which liquor bottles were seized from the possession of accused No. 1 by the CW1/PW1 that ಆರ್.ಟಿ. ನಗರದ ಸಿಬಿಐ ಕಛೇರಿಯ ಹತ್ತಿರದ ಬಸ್ ನಿಲ್ದಾಣದಲ್ಲಿ ನಿಂತಿದ್ದ ನಮ್ಮಗಳ ಹತ್ತಿರ ಅಬಕಾರಿ ಅಧಿಕಾರಿಗಳು ಬಂದು ತಮ್ಮಗಳ ಪರಿಚಯ ಮಾಡಿಕೊಂಡು ಈ ದಿನ 2023ರ ರಾಜ್ಯ ವಿಧಾನ ಸಭಾ ಚುನಾವಣೆ ಸಂಬಂಧವಾಗಿ ಮಾನ್ಯ ಅಬಕಾರಿ ಜಂಟಿ ಆಯುಕ್ತರು, ಜಾರಿ ಮತ್ತು ತನಿಖೆ, ಬೆಂಗಳೂರು ವಿಭಾಗ (ಉತ್ತರ) , ಬೆಂಗಳೂರು ರವರ ಸೂಚನೆಯಂತೆ ಹಾಗೂ ಮಾನ್ಯ ಅಬಕಾರಿ ಉಪ ಆಯುಕ್ತರು, ಬೆಂಗಳೂರು ನಗರ ಜಿಲ್ಲೆ-02 ಮತ್ತು ಮಾನ್ಯ ಅಬಕಾರಿ ಉಪ ಅಧೀಕ್ಷರು , ಉಪ ವಿಭಾಗ - 04, ಬೆಂಗಳೂರು ನಗರ ಜಿಲ್ಲೆ 02 ರವರ ಮಾರ್ಗದರ್ಶನದಲ್ಲಿ ಅಬಕಾರಿ ನಿರೀಕ್ಷಕರು, ವಲಯ - 11, ಮುನಿರೆಡ್ಡಿಪಾಳ್ಯ ಇವರು ಸಿಬ್ಬಂದಿಯೊಂದಿಗೆ ಆರ್. ಟಿ. ನಗರದ ಸಿ ಬಿ ಐ ಮುಖ್ಯ ರಸ್ತೆಯಲ್ಲಿ ವಲಯ ಗಸ್ತು ಕಾರ್ಯ ಮಾಡುತ್ತಿದ್ದ ಸಮಯದಲ್ಲಿ ತಮಗೆ ಒಂದು ಭಾತ್ಮಿ ಬಂದಿದ್ದು ಭಾತ್ಮಿಯಲ್ಲಿ ಬಳ್ಳಾರಿ ಮುಖ್ಯರಸ್ತೆಯಿಂದ ರವಿಚಂದ್ರನಾಧ್ ಟ್ಯಾಗೂರ್ ವೃತ್ತಕ್ಕೆ ಸಂಪರ್ಕಿಸುವ ರಸ್ತೆಯಲ್ಲಿ ಸಮಯ ಸುಮಾರು 9.30 ರಿಂದ 11.00 18 KABC030395302023 CC22058/2023 ಗಂಟೆಯ ಸಮಯದಲ್ಲಿ ಸಿಲ್ವರ್ ಕಲರಿನ ಕಾರಿನಲ್ಲಿ ಮದ್ಯ ಸಾಗಾಣಿಕೆಯಾಗುವ ಬಗ್ಗೆ ಭಾತ್ಮಿ ಬಂದಿದು, ಭಾತ್ಮಿಯಲ್ಲಿ ಸದರಿ ರಸ್ತೆಯಲ್ಲಿ ರಸ್ತೆಗಾವಲು ಕಾರ್ಯ ಮಾಡಿದ್ದಲ್ಲಿ ಆರೋಪಿಯು ಮುದ್ದೆಮಾಲಿನ ಸಮೇತವಾಗಿ ಸಿಕ್ಕಿಬೀಳುವ ಸಾಧ್ಯತೆ ಇರುತ್ತದೆ ಎಂದು ತಿಳಿದು ಬಂದಿರುತ್ತದೆ. Xxxxxxx 9.50 ಗಂಟೆ ಸಮಯದಲ್ಲಿ ಬಂದ ವಾಹನವನ್ನು ತಡೆದು ನಿಲ್ಲಿಸಿದ್ದರು, ವಾಹನವನ್ನು ಪರಿಶೀಲಿಸಲಾಗಿ ಸದರಿ ವಾಹನವು ರೆನಾಲ್ಡ್ ಕಂಪನಿಯ ಕಾರ್ ಆಗಿದ್ದು, ನೊಂದಣಿ ಸಂಖ್ಯೆ ಕೆ-ಎ - 04- ಎಂಪಿ
-1275 ಆಗಿರುವುದು ಕಂಡು ಬಂದಿರುತ್ತದೆ.
Thus, it is clear from Ex.P1 that they received the information at 9.50 pm but the Ex.P1 is very clear that the Dustar Car bearing No.KA-04 MP 1275 would come to the alleged spot only at 9.30 to 11 pm but the Ex.P3 ( search warrant) was prepared at 9. 50 pm with the particulars of spot that the PW1 received the information at 9.10 pm for the first time but the Ex.P1 (spot mahazar) does not depict when the PW1 received information. The notice to the pancha witnesses was served at 9.25 pm as per Ex.P5 and 6 however the timings were written with the different ink. Ex.P1 spot cum seizure mahazar was commenced from 9.50 pm till 11 pm, but Ex.P1 does not disclose the registration of crime and the Ex.P2 makes it very clear that crime No. 48/2022 came to 19 KABC030395302023 CC22058/2023 be registered on 01/04/2023 i.e., after the investigation commenced.
16. In this context, it is relevant to rely upon Sections 154 and 157 of Cr.P.C which reads as under
"154. Information in cognizable cases.
--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: [Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, 20 KABC030395302023 CC22058/2023 section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that-- (a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;21 KABC030395302023 CC22058/2023
(b) the recording of such information shall be video graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, 22 KABC030395302023 CC22058/2023 and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-- (a) when information as to the commission of any such offence is given against any person by 23 KABC030395302023 CC22058/2023 name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. [Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b) of the said 24 KABC030395302023 CC22058/2023 proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
Thus, it is clear from above provisions that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be carried out. Thus, the search and seizure conducted by CW1/PW1 without registration of FIR in respect of cognizable offence is unsustainable in law.
17. PW2 namely Sri Naveen Kumar and PW3 namely Sri Madhu are claimed to be independent witnesses to the Ex.P1 (Seizure Mahazar) however they did not support that the Ex.P2 (seizure cum spot mahazar) was drawn at the spot rather deposed that they signed at the police station thereby the seizure mahazar as per Ex.P1 about the seizure from custody of accused No.1 raises the doubt in the mind of this court about the authenticity.
25 KABC030395302023 CC22058/202318. It appears from the record that the spot was drawn at Near Gunata Military Quaters Gate, Ballary Main Road to Ravindranatha Tagor Circle connecting road, Bangalore City and bounded on the East by Ballary Main Road to Ravindranatha Tagor Circle connecting road, West by Ballary Road, North by Gunata Military Quaters and South by Pay Office (Other Ranks) Para Regiment. In this regard, the learned counsel for the accused NO. 1 and 2 has cross examined the PW1 wherein he deposed that ಘಟನೆ ಸ್ಥಳ ಸಾರ್ವಜನಿಕರ ಸ್ಥಳ ಎಂದರೆ ಸರಿ. ಘಟನೆಯ ಸ್ಥಳದಲ್ಲಿ ಬಸ್ ನಿಲ್ದಾಣ ಇರುವ ಸ್ಥಳ ಅಲ್ಲಿ ಬಸ್ಸಿಗೆ ಹೋಗುವ ಸಾರ್ವಜನಿಕರು ನಿಂತಿರುತ್ತಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಅಲ್ಲಿ ಬಸ್ ನಿಲ್ದಾಣವಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾರೆ.
Thus, it is clear that there were public on the spot and added to which, there was a Gunata Military Quarters on the northern side of Spot and such being the case, why the PW1 did not call the local inhabitants to call as a witness for alleged seizure. In this regard, it is relevant to quote section 58 of Karnataka Excise Act and Section 100(4) of Criminal procedure Code which is reiterated as follows;
Section 58 of the Karnataka Excise Act contemplates the procedure for arrest, search etc. Unless otherwise, provided the 26 KABC030395302023 CC22058/2023 provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as 'code') relating to arrest, detention in custody, searches, summons, warrants of arrests, search warrants, the production of persons arrested and disposal of things shall apply to all the actions taken under the Act.
Section 100 (4) of the Code of criminal procedure mandates (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.
As per Section 100 of Cr.P.C., the police authority has to make an attempt to call for 27 KABC030395302023 CC22058/2023 independent and respectable inhabitants of locality in which the place to be searched is situated though the PW1 deposed at the time of raid/search in the Car bearing No. K A -04-MP-1275, there were public's at the spot but the PW1(IO) has not made an attempt to call them as witnesses or any persons from Gunata Military Quarters. Such being the case, this court cannot give any credence to the Ex.P1 seizure cum spot mahazar when the PW2 and PW3 are resident of R of Ganganagara or any person around alleged spot where the raid was conducted. Only if the witness around spot is not willing to be a witness, then the police officer could have taken the witnesses from other locality. If the accused was in possession of 8.250 liters of liquors namely 100 Pepper Whisky 07 bottles totalling to 5.250 liters and Black and White Whisky measuring 3 liters totalling to 6.000 liters totalling to 11.250 liters which is beyond the permissible limit of 2.6 liter without license so to attract the Section 15A, 32 & 34 of KE Act as per Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 and out of which, 2 bottles from each brand i.e., 750 ml x 4 bottles totalling to 3 liters were sent to FSL for chemical examination and the FSL Report as per Ex.P9 was received on 28/07/2023 that it is fit for human consumption but the prosecution has failed to produce the status of 8.250 liters to come to 28 KABC030395302023 CC22058/2023 a conclusion that it contained with the same quantity with the same liquors.
19. Added to which, PW4 deposed in the cross examination that 1 ರವರು ಜಪ್ತಿ ಪಡಿಸಿರುವ ಎಂಒ.1 ರಿಂದ 4 ರಕ್ಷಣಾ ಪಡೆಗೆ ಸೀಮಿತವಾದ ಮದ್ಯಗಳು ಎಂದರೆ ಸರಿ. ಸದರಿ ಮದ್ಯಗಳು ರಕ್ಷಣಾ ಪಡೆಯ ಮೀಸಲಿರುವ ಕ್ಯಾಂಟೀನ್ ನಲ್ಲಿ ಮಾತ್ರ ಸಿಗುತ್ತವೆ ಎಂದರೆ ಸರಿ.
that the accused No.1 was possession of liquors which was mentioned as "for Sale to Defence Personnel only" and if such as PW4 (IO) did not make any attempt to investigate about the source of bottles whether these bottles were supplied to the military personnel, who was the military personnel and how that military personnel could have given the liquor bottles to the accused No.1 for sale or usage or Military Canteen has sold the liquor bottles are silent in the prosecution case.
20. PW1 did not take photograph or video graphed the seizure procedure and more so the signature of accused was not obtained on the Ex.P1 (seizure mahazar) to corroborate the version of prosecution that 8 liquor bottles were seized on 31- 29 KABC030395302023 CC22058/2023 03-2023. No doubt, the prosecution has produced the FSL report as per Ex.P9 which was with the quantity of 3 liters but failed to prove that it was seized from the accused No.1.
21. No doubt, the Dustar Car bearing Reg.No.KA 02 MP 1275 was in the name of the accused No. 2 and the PW4 has clearly deposed that the accused No. 2 was not at the spot and such being the case, without any photograph or videograph that the liquors were in the car, the court cannot make the accused No. 2 as culpable for the alleged offences. In view of aforesaid discussion, the prosecution has not proved the guilt of accused beyond all reasonable doubt thereby this court answers the above point No.1 in the negative.
22. Point No.2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable 30 KABC030395302023 CC22058/2023 under Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) MO1 to 4 are ordered to be destroyed after expiry of appeal period.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me on my laptop, then the judgment pronounced by me in the open court, on this the 21st day of April, 2025) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
31 KABC030395302023 CC22058/2023ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Shivakumar.S./Informant.
PW2 : Sri Naveen Kumar/pancha witness PW3 : Sri Madhu /pancha witness PW4 : Sri Chandrappa Daroor/Ex-Sub Inspector PW5 : Sri Ashoka Chavadi /IO
Documents marked on behalf of the prosecution:
Ex.P1: Seizure mahazar/PW1
Ex.P2: FIR/PW1
Ex.P3: Sample seal/PW1
Ex.P4: Search Warrant/PW1
Ex.P5: Notice to Naveen Kumar/PW1
Ex.P6: Notice to Madhu/PW1
Ex.P7: List of confiscated articles of liquor
bottles/PW1
Ex.P8: Letter dated 05-09-2022/
Statement of PW2 - PW2
Ex.P9: FSL report dated 23-06-2023/
Statement of PW3 - PW3
32
KABC030395302023 CC22058/2023
Material Objects marked on behalf of the prosecution:
MO1 to 4: Sample bottles/PW1 Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.33 KABC030395302023 CC22058/2023
21-04-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Section 11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) MO1 to 4 are ordered to be destroyed after expiry of appeal period.34 KABC030395302023 CC22058/2023
(v) Ordered accordingly.
VIII ACJM, B'luru City 35