Bangalore District Court
State By Excise Sub-Inspector vs Suresh.D.N. S/O Ningegowda on 2 November, 2016
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Present:- Sri Rudolph Pereira B.Com., L L.M.
Chief Metropolitan Magistrate, Bengaluru
Dated this the 02nd day of November 2016
C.C. NO.10905/2013
Complainant : State by Excise Sub-Inspector,
Gokula Range, Bengaluru
-V/s-
Accused : 1. Suresh.D.N. s/o Ningegowda, 32 yrs,
R/at Dummi Koppalu, Arakalagodu
Taluk, Hassan District.
Present Address: R/at No.52, Ananthapura
Main Road, Yelahanka, Bengaluru.
2. Ramesha s/o Muniyappa, 35 yrs,
R/at No.55, Yelu Mandamma Temple
Street, Kempapura, Hebbal, Bengaluru.
Date of offence : 13-04-2013
Offence : U/S 14 R/W 32, 38(A)
of Karnataka Excise Act,
1965
Plea of the accused : Accused No-1 & 2 Pleaded
not guilty
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Final order : Accused No-1 & 2 Acquitted
Date of Judgment : 02-11-2016
J U D G M E N T U/S 355 of Cr.P.C.
The Excise Sub-Inspector of Gokula Range, Bengaluru
has filed this charge sheet against accused No-1 and 2 for the
offences punishable under Section 14 R/W 32, 38(A) of the
Karnataka Excise Act, 1965.
2. The case of prosecution in brief is that-
On 13-04-2013 at 6-15 p.m. on the road proceeding
from Puttenahalli towards Dairy Circle, near the Government
School Bus Stop and New Royal Darbar, situated at 4th
Cross, 1st Main Road, Yelahanka New Town, Bengaluru, the
accused No-1 and 2 being passenger and driver respectively
of Auto Rickshaw bearing registration No.KA - 05 - C -
611, were found in illegal transportation of in all 22.500 liters
of liquor and 15.600 liters of Beer, without holding any
permit or license, in contravention of Section 14 of the
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Karnataka Excise Act, 1965, which is punishable under
Section 32 and 38(A) of the said Act.
3. The accused No-1 and 2 are on bail and a counsel
represents them. After furnishing the copies of charge sheet,
charge against accused No-1 and 2 was framed by my then
learned predecessor for the offences punishable under
Section 32 and 38(A) of the Karnataka Excise Act, 1965.
Accused No-1 and 2 pleaded not guilty and claimed to be
tried.
4. On behalf of prosecution, P.W.1 to P.W.3 are
examined. Exhibits P.1 to P.6 and MO1 to 6 are marked. The
learned Sr. APP has given up CW2 and 5. The prosecution
has failed to secure the presence of CW6 inspite of coercive
steps taken by this court. Thereafter, accused No-1 and 2 are
examined under Section 313 of Cr.P.C. They denied the
evidence, which appeared against them.
4 CC No.10905/2013
5. Heard the arguments advanced by the learned Sr.APP
and the learned counsel for accused No-1 and 2.
6. PW1 Shivanna.G.L. is the Excise Sub-Inspector of
Gokula Range, Bengaluru. He has deposed that on 11-04-
2013 at 06.15 p.m., when he was on patrolling duty, he
received a credible information regarding transportation of
illicit liquor from Puttenahalli towards Dairy Circle of
Yelahanka New Town. Hence he stopped the Auto Rickshaw
bearing No.KA - 05 - C - 611 near the bus stop situated near
Government School, which was coming from Puttenahalli
side. On inspection, he has noticed that the accused No-1 was
transporting 24 Kingfisher Beer bottles in two boxes and in
another box 12 Royal Stag Whisky bottles of 750 M.L., 6
Signature Whisky bottles of 750 M.L., 6 Blender Spride
Whisky bottles of 750 M.L., 3 Black Dog Whisky bottles of
750 M.L. and 3 Vat-69 Whisky bottles of 750 M.L. He has
further stated that accused No-2 was the driver of the Auto
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Rickshaw and on enquiry, the accused No-1 has told that he
was taking the said liquor for the purpose of sale at Dairy
Circle. He has identified both the accused persons before this
court and sample bottles as per MO1 to 6. The PW1 has
further identified the mahazar as per Ex.P1, FIR as per
Ex.P2, chemical analysis report as per Ex.P3 and stated that
he came to know through the R.T.O. of Yelahanka that the
owner of Auto Rickshaw was one N.Shivappa and also learnt
that as the said Shivappa was handicapped, said Shivappa
had handed over the Auto Rickshaw to one Murthy, hence he
has recorded the statement of the said Murthy.
7. But during cross-examination, the PW1 has stated
that on particular date, he was on election duty and the place
of his patrolling duty is a busy area. However, he has not
specifically stated that in connection with which election, he
was on duty on the above said date, time and place. Infact the
Ex.P1 discloses that there was Assembly Elections of
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Karnataka at relevant point of time. But PW1 has not clearly
stated anything about the same in his oral evidence.
8. Further, PW1 has not chosen to cite any witnesses
from the spot to prove the transportation of liquor by the
accused persons and seizure of the same from the accused
persons. It is to be noticed that as per Ex.P3 chemical
analysis report, the seized liquor is fit for human
consumption. Therefore, it is the burden on the prosecution
through PW1 that the MO1 to 6 are the illicit liquor bottles
and they were being transported by the accused persons in an
Auto Rickshaw bearing registration No.KA - 05 - C - 611
and PW1 has seized the same from the accused persons on
the above said date, time and place. However, the
prosecution has not produced sufficient evidence to prove the
said allegations.
9. Infact the prosecution has examined the alleged
seizure mahazar witnesses namely Vijay Kumar and Vasanth
7 CC No.10905/2013
Kumar as PW2 and 3 respectively. But on careful scrutiny of
the evidence of PW2 and 3 indicate that the allegations of
prosecution against the accused persons are not trustworthy.
10. The PW2 Vijay Kumar has stated that the police
took his signatures at Puttenahalli Dairy Cross as per
Ex.P1(b) and on sample seal as per Ex.P4(a) respectively.
However he has deposed that he does not know the actual
number of liquor bottles seized by the police on the above
said date and the reasons for the seizure of the same. Further
he has stated that he does not know as to where the accused
persons were transporting the liquor bottles and the police
have not recorded his statement as per Ex.P5. It is relevant to
note that the present case has been registered by the Excise
Officials of Gokula Range, but not by the police. The PW2
has expressed his inability to depose about the date of putting
signature to the above said documents. Further he has stated
that he does not know the fact as to who has written the chits
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pasted on the sample bottles (MO1 to 6). Further, he has
expressed his inability to depose about the boundaries of the
spot and contents of Ex.P1. It is relevant to note that PW2 is
the resident of Doddattharahalli of K.R.Pete. He is not the
resident/inhabitant of Puttenahalli Locality. Therefore, I am
of the view that the evidence of PW2 is not trustworthy and
helpful to the prosecution.
11. Likewise, PW3 Vasanth Kumar has stated that the
police took his signature to Ex.P1 and 4 by stating that they
have seized drinks. However, the PW3 has not deposed about
the exact number of bottles seized from the accused persons.
Further, he has stated that he does not know as to from where
and for what purpose, the accused persons were transporting
the liquor bottles and why the police (Excise officials) have
seized the liquor bottles. He has clearly stated that in
connection with the alleged seizure of 54 liquor bottles, he
has not given any statement to the police as per Ex.P6. The
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PW3 has further stated that he is a Garment Worker and he
use to go back to his room everyday at 5.30 p.m. But the
contents of Ex.P1 disclose that in the presence of this
witness, it was prepared from 7.10 p.m. to 8.05 p.m.
12. Thus on scanning the entire evidence placed by the
prosecution, I am of the view that there is no sufficient legal
evidence to believe the case of prosecution. It is true that
under Section 40 of the Karnataka Excise Act, it shall be
presumed until the contrary is proved that the accused No-1
and 2 have committed the offence punishable under Section
32 of Karnataka Excise Act inrespect of any intoxicant or any
material which have undergone any process in the
manufacture of any intoxicant for the possession of which,
they are unable to give satisfactory account. But it is needless
to mention that this presumption arises only when the
possession of intoxicant is proved.
10 CC No.10905/2013
13. On appreciation of the evidence of PW1 to 3, there
appear major discrepancies in their evidence. The IO has not
chosen to seize the driving license of the accused No-2 to
prove that he was the driver of the offending vehicle as on
the date of alleged incident. Hence, in the absence of
concrete evidence, the accused No-1 and 2 cannot be held
guilty of the charges leveled against them. The possession of
liquor by the accused No-1 and 2 as alleged by the
prosecution is not free from the cloud of suspicion. In view
of all these latches and infirmities, it cannot be said that the
prosecution has been able to establish its case, as projected in
the charge sheet, beyond reasonable doubt. Therefore,
extending the benefit of doubt to accused No-1 and 2, I
proceed to pass the following:
ORDER
The accused No-1 and 2 are found not guilty. Hence acting under Section 248(1) of Cr.P.C., they are acquitted of 11 CC No.10905/2013 the offences punishable under Section 32 and 38(A) of Karnataka Excise Act, 1965.
Their bail bonds shall stand canceled and they are set at liberty.
After the completion of appeal period, MO1 to 6 are ordered to be returned to the Excise Sub-Inspector of Gokula Range, Bengaluru, for disposal in accordance with law.
(Dictated to the Stenographer directly on computer, print revised, corrected and then pronounced by me in open court on this the 02-11-2016) (Rudolph Pereira), CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Shivanna.G.L
P.W.2 : Vijay Kumar
P.W.3 : Vasanth Kumar
12 CC No.10905/2013
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Mahazar
Ex.P.2 : F.I.R.
Ex.P.3 : Report of Chemical
Analysis
Ex.P.4 : Sample Seal
Ex.P.5 : Statement of PW2
Ex.P.6 : Statement of PW3
List of Material objects produced:-
MO1 to 6 : Sample Liquor
Bottles
List of Witnesses examined & documents marked on behalf of the defence:
NIL Chief Metropolitan Magistrate, Bengaluru.13 CC No.10905/2013
02-11-2016 Judgment pronounced vide separate sheets.
ORDER The accused No-1 and 2 are found not guilty. Hence acting under Section 248(1) of Cr.P.C., they are acquitted of the offences punishable under Section 32 and 38(A) of Karnataka Excise Act, 1965.
Their bail bonds shall stand canceled and they are set at liberty. After the completion of appeal period, MO1 to 6 are ordered to be returned to the Excise Sub-Inspector of Gokula Range, Bengaluru, for disposal in accordance with law.
Chief Metropolitan Magistrate, Bengaluru.