Bangalore District Court
State By Excise Inspector vs C.Suvarna on 25 October, 2021
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 25th day of October 2021
PRESENT:
Sri S.Sreedhara, B.E., L L.B.,
Chief Metropolitan Magistrate,
Bengaluru.
Criminal Case No22873/2018
Complainant : State by Excise Inspector,
Raj Mahal Vilas Division,
Bengaluru.
(By Learned Sr.A.P.P.)
Versus
Accused : C.Suvarna,
R/at No.52/4, 1st Main
Road, Bhadrappa Layout,
R.M.V. Ring Road,
Bengaluru.
(By Advocates Sri MB/RMR/RMK/TN)
Date of offence : 12-04-2018
2 CC No.22873/2018
Offences : Section 13(1)(a), 14, 32,
38(A) of Karnataka
Excise Act
Plea of the accused : Accused pleaded
not guilty
Final order : Accused Acquitted
Date of Judgment : 25-10-2021
*******
JUDGMENT UNDER SEC.355 of Cr.P.C.
The Excise Inspector of Rajmahal Vilas Range,
Bengaluru has charge sheeted the accused for the
offences punishable under Section 13(1)(a), 14, 32,
38(A) of Karnataka Excise Act.
2. It is alleged by the prosecution that the
complainant Hidayath Khaleel, Excise Inspector has
received an credible information at 10.00 p.m. on 12-
04-2018 about the stocking of liquor illegally in S.B.R.
Complex, Sy.No.52/4, 1st Main Road, Bhadrappa
Layout, Bengaluru. He has visited the said complex
along with his staff and found that 112 boxes of liquor
3 CC No.22873/2018
and 402 boxes of Beer were stocked illegally in the
middle shop of the said premises. He has seized the
said liquor drawing mahazar at the place of incident
and registered F.I.R. against accused. The I.O. after
conducting investigation has submitted charge sheet
against accused person for the alleged offences on the
ground that there are sufficient material against the accused.
3. The accused has appeared through her
counsel and enlarged on bail. The charge-sheet copies
were furnished to the accused as per Section 207 of
Cr.P.C. After hearing arguments, this court has
framed Charge for the alleged offences against
accused, read over and explained to accused, who did
not pleads guilty, but claims to be tried.
4. The prosecution in order to prove the guilt of
accused has examined PW1 to 5 witnesses and got
marked Ex.P1 to 11 documents. The prosecution has
also got M.O.1 (total 73 bottles) on its behalf.
5. After completion of prosecution evidence, the
accused statement as required under Section 313 of
Cr.P.C. was recorded, where she has totally denied the
4 CC No.22873/2018
entire evidence of prosecution witnesses, but did not
choose to adduce any defence evidence.
6. The learned Sr.APP has submitted that his
arguments may be taken as heard. Heard the
arguments of Sri M.B., Advocate for accused.
7. On the basis of available materials on record,
the following points arise for my consideration-
1) Whether the prosecution proves
beyond all reasonable doubt that the
accused has stocked 112 boxes of
liquor, 402 boxes of Beer illegally at
Sy.No.52/4, 1st Main road,
Bhadrappa Layout, Bengaluru City
on 12-04-2018 at 10.00 p.m. in
violation of Sec.13(1)(a), 14 and
thereby committed the offence
punishable under Section 32 of
Karnataka Excise Act?
2) Whether the prosecution further
proves beyond all reasonable doubt
that on the same date, place and
time, the accused has used the said
5 CC No.22873/2018
premises for the purpose of
committing the offence punishable
under sec.32 of the Act and thereby
committed an offence punishable
under Section 38(A) of Karnataka
Excise Act?
3) What Order?
8. On perusal of the oral and documentary
evidence placed on record, my answers to the above
points are as under for the following reasons.
Point No-1 and 2 : In the Negative
Point No-3 : As per final order
REASONS
Point No-1 & 2:
9. As these two points are inter-connected, they
are taken up together for consideration to avoid
repetition of discussion. The prosecution in order to
prove the guilt of accused beyond all reasonable doubt
has examined PW1 to 5 witnesses on its behalf and got
marked Ex.P1 to 11 documents and M.O.1 (73 bottles).
6 CC No.22873/2018
10. CW1 / PW 1 Manjuanth, CW2 / PW2
Krishnappa are the independent panch witnesses, who
have only identified their signatures found on Ex.P1
and 2 documents. But these two witnesses have not
stated anything about the seizure of liquor from the
place of incident. Even though the prosecution has
cross examined PW1 and 2 in detail, nothing much
has been elicited from their mouth to prove the seizure
of alleged liquor. Hence, the evidence of PW1 and 2 is
not helpful to the prosecution to prove the guilty of
accused.
11. CW 3/PW 3 Umesh, Excise Constable, CW
4/ PW 4 Hidayath Khaleel, Excise Inspector in their
evidence have stated that they were doing patrolling
duty on 12-04-2018 at 10.00 p.m. at Bhadrappa
Layout, Ring Road. At that time PW4 has received
credible information about the incident, who has
secured two panch witnesses in the bus stand, then
they have visited the basement of S.B.R. Complex,
Bhadrappa Layout, where they found three shops with
rolling shutters. Out of said shops, the middle shop
was locked and on enquiry no information was
received about the ownership of said shop. Hence,
they have prepared search warrant and break open the
7 CC No.22873/2018
lock with the help of jack lever. When they have
entered into the middle shop, they found 112 liquor
boxes and 402 beer bottles were stocked in the said
premises. Since the said liquor was stocked without
any permit. PW 4 has seized the above said liquor by
drawing Ex.P1 Mahazar and registered Ex.P3 F.I.R.,
and also prepared Ex.P4 Search Warrant. Both these
witnesses have identified 73 samples bottles which are
marked as M.O.1.
12. The learned counsel for accused has cross
examined PW 3 and 4 in detail. PW 3 and 4 in their
cross examination have stated that they have not tried
to take the photographs before break open the lock.
They have also admitted that the batch numbers are
not mentioned in Ex.P1 Mahazar. Both these
witnesses have stated that the said liquor was supplied
from K.S.B.C.L. They have denied the suggestion that
they have prepared Ex.P1 mahazar in the office and
also denied that they have registered false case against
the accused.
13. CW 6/PW 5 Jayaprada is the I.O., who has
submitted charge sheet after completion of
investigation. PW 5 in her evidence has stated that
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she has received the record for further investigation
from CW 4 on 15-04-2018. She has sent the sample
bottles for chemical analysis through a letter dated
16-05-2018 and received the report on 28-05-2018 as
per Ex.P5. She has written a letter to K.S.B.C.L. on
21-05-2018 and they have reported that the said liquor
was supplied to one Smt.C.Suvarna, owner of Sampige
Bar. She has written a letter to the Revenue Officer for
knowing about the ownership of said premises. The
owner of the building has produced the lease
agreement by stating that Smt.Suvarna is in
occupancy of the premises as a tenant. She has
identified Ex.P5 to 11 documents and also identified
accused.
14. The learned counsel for the accused has
cross examined PW 5 in detail. PW 5 in her cross
examination has admitted that she has opened the
seal put to the premises, but she has not drawn any
mahazar. She has admitted the suggestion that all the
liquor bottles were supplied from K.S.B.C.L. She has
not produced the blue print plan of the premises in
order to establish that the said premises is not
included in the license area. She has admitted the
suggestion that she cannot say whether the premises
9 CC No.22873/2018
is situated within the license area or not. She has
verified the blue print plan at the time of investigation.
She has admitted the suggestion that the place of
incident is situated within the limits of lease deed
premises. She has voluntarily stated that the place of
incident is not involved in the blue print approved by
department. The learned counsel for accused has
suggested that accused has not stocked the seized
liquor illegally in the place of incident, but she has
denied the suggestion and also denied that she is
deposing falsely even though the accused has not
committed any offence.
15. In this case, it is relevant to note that PW 1
and 2 being the independent panch witnesses have not
supported the case of prosecution to prove Ex.P1
seizure mahazar. However, the accused herself has
admitted the seizure of liquor bottles by suggesting PW
5 that she has not illegally stocked the seized liquor in
the said premises. Thereby, the accused herself has
admitted that PW 4 and his staff have seized the liquor
bottles from the place of incident through Ex.P1
mahazar. Accordingly, the prosecution has proved the
seizure of liquor from the place of incident through
Ex.P1 panchanama.
10 CC No.22873/2018
16. The Excise Inspector has made allegation
against the accused that she has illegally stocked the
liquor at the place of incident. On the other hand, the
accused has raised defence that the premises in which
the liquor was stocked is included in the lease deed
premises. Ex.P2 is the sample seal, Ex.P3 is F.I.R.,
Ex.P4 is the search warrant prepared by PW 4
Hidayath Khaleel at the time of raid. Ex.P5, chemical
analysis report submitted by Chief Chemist. Ex.P6 is
the letter written by PW 5 Smt.Jayaprada to
K.S.B.C.L., Peenya Depot to know about the supply of
liquor bottles. The Depot Manager of K.S.B.C.L., has
reported that they have supplied the said liquor to the
accused who is the owner of Sampige Bar and
Restaurant. PW 5 Smt. Jayaprada has issued Ex.P8
letter to the Revenue Officials and they have issued
Ex.P9 report by stating that the place of incident
belongs to one Rajanna. She has issued a notice to
said Rajanna as per Ex.P10 and in turn he has issued
Ex.P11 reply letter along with Xerox copy of Rental
agreement by stating that the place of incident is
included in the lease deed.
11 CC No.22873/2018
17. The provision of Section 32 is applicable only
when the accused possess intoxicant in contravention
of the Act. But in this case PW 5 herself has admitted
that the seized liquor was supplied to the accused from
K.S.B.C.L. depot, Peenya as per Ex.P7. Therefore the
provision of Sec.32 of the Act is not applicable, since
the accused has possessed the said liquor only under
permit. The I.O. has alleged that the accused has
committed the offence punishable under Sec.38(A) of
the Act which discloses that the owner or occupier or
having the use or care or management or control, of any
place, room, enclosure, space vessel, vehicle, or place
knowingly permits it to be used for the purpose of
commission by any other person of an offence
punishable under Section. 32, 33, 34, 36 and 37. But
in the present case on hand, the accused being the
tenant of the said premises has stocked the seized
liquor which was supplied from K.S.B.C.L. Depot.
When the accused herself has stocked the seized liquor
in the said premises then the offence punishable under
Section 38(A) of the Act is not applicable.
18. PW 5 Smt. Jayaprada, the I.O. in her cross
examination has stated that the premises from which
the seizure was conducted is not included in the
12 CC No.22873/2018
approved blue print plan. She has also stated that she
has verified the blue print plan at the time of
investigation and it was found that the place of
incident was not included in the blue print plan.
However, PW 5 has admitted that she has not
produced approved blue print plan in order to prove
that the place of incident is not included in the permit
area.
19. When PW 5 Jayaprada herself has stated
that the place of incident is not included in the
approved blue print plan relating to permit area, then
she ought to have produced the said approved blue
print plan in order to prove the guilt of accused. The
prosecution has not chosen to produce the approved
blue print plan in order to prove that the accused has
stocked the liquor in the premises which is not
included in the permit area. Thereby, the prosecution
has failed to prove that the accused has illegally
stocked the liquor in the premises which is not
included in the permit area. When the accused has
stocked the seized liquor under a valid permit, then
such possession cannot be considered as illegal
possession. At the same time when the place of
incident is included in the lease hold area, then
13 CC No.22873/2018
burden lies upon the prosecution to disprove the same
by producing approved blue print plan. The
prosecution has not discharged its burden, since PW 5
has not produced the approved blue print plan which
is a material document. Therefore, the prosecution
has miserably failed to establish the guilt of accused
beyond all reasonable doubt, in respect of the alleged
offences. In such circumstances, the accused is
entitled for benefit of doubt. In the result, I answer
Point No-1 and 2 in the Negative.
Point No-3:
20. In view of my finding to Point No-1 and 2 as
above, I proceed to pass the following:
ORDER
a) Acting under Section 248(1) of Cr.P.C., accused is acquitted of the offences punishable under Section 13(1)(a), 14, 32, 38(A) of Karnataka Excise Act.
b) The bail bond executed by accused shall continue for a 14 CC No.22873/2018 period of six months, as per Section 437(A) of Cr.P.C.
c) After the completion of appeal period M.O.1 (73 sample bottles) be returned to Excise Inspector, Raj Mahal Vilas Division, Bengaluru for disposal in accordance with law.
(Dictated to the Stenographer. The transcript thereof is revised, corrected and then pronounced by me in the open court on this day i.e., 25/10/2021) (S.Sreedhara), Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Manjunath
P.W.2 : Krishnappa
P.W.3 : Umesh
P.W.4 : Hidayath Khaleel
P.W.5 : Jayaprada
15 CC No.22873/2018
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Seizure Mahazar Ex.P.2 : Sample seal Ex.P.3 : F.I.R.
Ex.P.4 : Search Warrant Ex.P.5 : Report of Chemical Analysis Ex.P.6 : Letter dated: 21-5-2018 addressed K.S.B.C.L. Peenya Depot Ex.P.7 : Letter dated 15-6-2018 addressed to Excise Inspector, RMV Range Ex.P.8 : Letter dated 22-5-2018 addressed to Revenue Officer, Kodigehalli, Bengaluru Ex.P.9 : Letter dated 15-6-2018 addressed to Excise Inspector, RMV Range Ex.P.10 : Notice dated 25-7-2018 Ex.P.11 : Reply letter dated 27-07-2018 16 CC No.22873/2018 List of Material objects produced:-
M.O.-1 : 73 sample bottles List of Witnesses examined & documents marked on behalf of the defence:
NIL Chief Metropolitan Magistrate, BENGALURU.17 CC No.22873/2018
25-10-2021 Judgment pronounced vide separate sheets.
ORDER
a) Acting under Section 248(1) of Cr.P.C., accused is acquitted of the offences punishable under Section 13(1)(a), 14, 32, 38(A) of Karnataka Excise Act.
b) The bail bond executed by accused shall continue for a period of six months, as per Section 437(A) of Cr.P.C.
c) After the completion of appeal period M.O.1 (73 sample bottles) be returned to Excise Inspector, Raj Mahal Vilas Division, Bengaluru for disposal in accordance with law.
Chief Metropolitan Magistrate, Bengaluru.
18 CC No.22873/2018