Bangalore District Court
Tirupati K V , Psi vs Manjunatha Prasad on 30 May, 2025
KABC030333542021 Digitally
DEEPA signed by
VEERASWAMY DEEPA
VEERASWAMY
Presented on : 02-06-2021
Registered on : 02-06-2021
Decided on : 30-05-2025
Duration : 3 years, 11 months, 28 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 30th Day of May, 2025
C.C. No.11953/2021
Crime No.132/2021
State by Yeshwanthpura Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Manjunatha Prasad,
Aged about 28 years,
S/o Sri Ramesh,
R/at Jai Vilas Building,
S.C.Road, Yeshwanthpura
Santhe Beedi, Yeshwanthpura,
Bengaluru City. ... Accused
(Represented By Sri N.Gangadhar Swamy/
Kumar.K.R., Advocates)
KABC030333542021 CC 11953/2021
1. Date of commission of 07-05-2021
offence
2. Date of FIR 07-05-2021
3. Date of Charge sheet 07-05-2021
4.Name of Complainant Sri Tirupati.K.V.,
PSI Yeshwanthpura PS
5. Offences complained of Under Section 268, 269 of
IPC, Sec. 34 of Karnataka
Excise Act and Sec.51(B)
of NDMA Act.
6. Date of framing of 21-03-2021
charges
7. Charge Pleaded not guilty
8. Date of commencement 04-12-2023
of evidence
9. Date of Judgment is 26-05-2025
reserved
10. Date of Judgment 30-05-2025
11. Final Order Accused is acquitted
12. Date of sentence -
2
KABC030333542021 CC 11953/2021
JUDGMENT
The Police Sub-Inspector of Yeshwanthpura Police Station submitted charge sheet against accused for the offences punishable under Section 268, 269 of Indian Penal Code, Sec.34 of Karnataka Excise Act and Sec.51(B) of NDMA Act.
2. Prosecution Case: On 07-05-2021 at about 9.00 a.m. infront of Jai Vilas Building, Sante Beedi within the jurisdiction of Yeshwanthpura Police Station, the accused possessed the liquor without any permission and without following any rules and regulations of Covid-19 and not maintaining the social distance was selling liquor to public and violated government SOP thereby committed the alleged offences.
3. First Information Report: On the receipt of credible information, CW1/PW1 - Sri Tirupati.K.V. PSI of Yeshwanthpura PS along with PC 14221, apprehended the accused who was selling liquor without any permission and following any rules and regulations of Covid-19 and not maintaining the social distance, seized the MO1 to MO7 from the custody of accused through Ex.P1 spot mahazar and subjected the same to PF No.83/2021 and submitted report as per Ex.P2 before SHO.
3 KABC030333542021 CC 11953/20214. Investigation: After receipt of Ex.P2 complaint/report, CW6/PW2 Sri Chenna Thimmegowda, ASI of Yeshwanthpura Police Station and handed over the case papers to CW7. Thereafter, CW7/PW4 Sri Narayana, PSI continued investigation and submitted charge sheet and additional charge sheet against accused on the receipt of FSL report.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
6. At the pre-summoning stage, the accused was enlarged on bail by the order dated 11-05-2021.
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, charge for the offences punishable under Section 268, 269 of Indian Penal Code, Sec.34 of Karnataka Excise Act and Sec.51(B) of NDMA Act has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
4 KABC030333542021 CC 11953/20219. Prosecution Evidence: The prosecution in order to establish its case cited 8 witnesses, examined 4 witnesses and exhibited 4 documents and MO1 to 7 and closed their side. The examination of CW2 to CW4 were given up from examination by the order dated 13-05-2025 as unable to secure their presence despite due execution of proclamation. The accused had given consent for marking FSL report and the same is marked as Ex.P4 and hence the examination of CW8 is given up by the order dated 13-05-2025.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the statement of accused examined as per section 313 of Cr.P.C, wherein he 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 5 KABC030333542021 CC 11953/2021 doubt that on 07-05-2021 at about 9.00 p.m., infront of Jai Vilas Building, Sante Beedi within the jurisdiction of Yeshwanthpura Police Station the accused without following the Covid-19 rules and regulations and without following social distance was selling liquor to public by causing public nuisance and thereby resulted in commission of the offences punishable under Sec.268, 269 of IPC?
2. Whether the prosecution further proved beyond all reasonable doubt that on above said date, time and place accused was found unlawful possession and selling of liquor to public without obtaining any license thereby resulted in commission of an offence punishable under Sec 34 of Karnataka Excise Act?
6 KABC030333542021 CC 11953/20213. Whether the prosecution further proved beyond all reasonable doubt that on above said date, time and place accused did not follow the social distance and without following the Covid-19 rules and regulation was selling of liquor to public by violating the Government SOP thereby resulted in commission of an offence punishable under Sec 51(B) of Disaster Management Act?
4. What order?
13. The court's findings on the above points are as under:
Point No.1-3 : In the Negative Point No.4 : As per final order REASONS
14. Point No.1: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution 7 KABC030333542021 CC 11953/2021 case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the witnesses which are as follows i. CW1 Sri Tirupati.K.V. being informant and the then PSI of Yeshwanthpura PS examined as PW1 deposed that on 07-05-2021 at 9 am, on receipt of credible information, that the accused was illegally selling liquor to the public without obtaining license from competent authority in front of Jayavilas building on Santhe Beedi in Yeshwanthpura, he, along with CW4 and panchas went to the spot and found that the accused was selling liquor in violation of Covid-19 rules without maintaining any social distance and hence he was caught. Accused had a cardboard box with him and it contained liquor from various companies, and he said that he did not have a license for them. Thereafter, he took each liquor for chemical testing and drawn spot mahazar as per Ex.P1 on 07-05-2021 from 9.30 a.m. to 11.00 am in the presence of CW2 and CW3 and produced the accused along with the seized property before SHO and submitted a report as per Ex.P2. He identified the liquor as MO1 to MO7 and signatures thereon as Ex.P1(a), 2(a) and MO1(a) to MO7(a).
8 KABC030333542021 CC 11953/2021ii. CW6 Sri Chenna Thimmegowda, the then ASI of Yeshwanthpura PS examined as PW2 and deposed that on 07-05-201 CW1 produced accused along with seized properties and submitted report as per Ex.P2. On the basis he registered FIR as per Ex.P3, subjected the liquor under PF No.83/2022 and handed over the case papers to CW7. He identified his signature as Ex.P2(b), 3(a).
iii. CW3 by name Sri Dattathreya Badigere, the then PC of Yeshwanthpura Police Constable examined as PW3 deposed that he handed over the seized property to FSL, Madiwala and submitted its acknowledgment to IO.
iv. CW7 by name Sri Narayana, the then PSI of Yeshwanthpura Police Constable examined as PW4 deposed that after receipt of case papers from CW6, he continued investigation, recorded the statement of CW4 who participated in the raid, seized the liquors and the same were sent to the FSL through CW5, after investigation he filed charge sheet against accused, and after receiving the FSL report, an additional charge sheet was filed.
9 KABC030333542021 CC 11953/202115. It is relevant to mention the charges levelled against accused are as follows:
i. Sec.268 IPC reads as under Public nuisance.-- A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.
ii. Sec. 269 of IPC reads as under:
Negligent act likely to spread infection of disease dangerous to life.-Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description 10 KABC030333542021 CC 11953/2021 for a term which may extend to six months, or with fine, or with both.
iii. Section 34 of Karnataka Excise Act, 1965 which reads as under
34. Penalty for illegal possession -
Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon, shall, on conviction, be punished with imprisonment for a term which may extend to four years and with fine which may extend to fifty thousand rupees.
iv. Sec. 51 of Disaster Management Act-
(i) without reasonable cause if a person obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District 11 KABC030333542021 CC 11953/2021 Authority in the discharge of his functions under this Act;
(ii) if a person refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act Thus, the burden is upon the prosecution to prove beyond reasonable doubt that the accused was selling liquors without maintaining social distance and did not adhere to the directions issued by the Central Government during the pandemic period of Covid 19.
16. One of the major offence was alleged under Section 34 of Karnataka Excise Act i.e., cognizable offence was that the accused was in possession of liquors namely 56 original choice tetra packets each measuring 90 ML, 14 Bagpiper tetra packets each measuring 180 ML, 24 Highwards each measuring 90 ML, 52 Old Taveren whisky tetra packets each measuring 180 ML, 26 Old Taveren whisky tetra packets each measuring 90 ML and 10 Toborg beer bottle in cardboard in front of Jaivilas Building, S. C. Road, Yeshwanthpur, Bangalore on 07/05/2021from 12 KABC030333542021 CC 11953/2021 9.30 am to 11 am in the presence of CW2 namely Sri Mani and CW3 namely Sri Karthik who are resident of B.K. Nagar, Yashwanthpur, Bangalore. As per FIR vide Ex.P3 bearing Crime No. 132/2021 that the information was received by the station on 07/05/2021 at 11.15 am i.e., after the seizure procedure though the station was situated at a distance of 300 meters from alleged spot to register the case before proceeding with the investigation. The counsel for the accused has cross examined the PW1 wherein he deposed in the cross examination that ಮು ಮಾ 1 ರ ಮೇಲೆ ಅಂಟಿಸುವ ಕಾಲಕ್ಕೆ ಪ್ರಕರಣ ಇನ್ನೂ ದಾಖಲೆ ಆಗಿರುವುದಿಲ್ಲ.
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 13 KABC030333542021 CC 11953/2021 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, 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 14 KABC030333542021 CC 11953/2021 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;
(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 15 KABC030333542021 CC 11953/2021 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, 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 16 KABC030333542021 CC 11953/2021 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 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 17 KABC030333542021 CC 11953/2021 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 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. Added to which, the incident was alleged to have taken place between 9.30 am to 11.00 am as per Ex.P1 however FIR as per Ex.P3 depicts that incident was taken place between 9 am to 10.45 am and PW2 namely SHO deposed that 18 KABC030333542021 CC 11953/2021 ನಿಪಿ.2 ರಲ್ಲಿ ಆರೋಪಿ ಮತ್ತು ಮಾಲನ್ನು ಬೆಳೆಗ್ಗೆ 10.45 ಗಂಟೆಗೆ ಹಾಜರು ಪಡಿಸುವಂತೆ ಇದೆ ಎಂದರೆ ಸರಿ. ಠಾಣೆ ಮಾಲು ಪಟ್ಟಿಯಲ್ಲಿ ಹಾಜರು ಪಡಿಸಿದ ಮುದ್ದೇಮಾಲುಗಳ ಪೈಕಿ 8ನೇ ಐಟಂ ಅನ್ನು ಸೀಲ್ ಮಾಡಿ ಪ್ಯಾಕ್ ಮಾಡಲಾಗಿರುತ್ತದೆ ಎಂದು ನಮೂದು ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿ.
Thus, as per Ex.P1 when the seizure cum spot mahazar was completed at 11 am so this aspect raises the doubt in the mind of the court about the drawing of mahazar at the spot
18. CW2 namely Sri Mani and CW3 namely Sri Karthik who are resident of B.K. Nagar who are claimed to be independent witnesses to the Ex.P1 (Seizure cum spot Mahazar) however concerned SHO failed to secure their presence to prove the Ex.P1 to prove the authenticity of Ex.P1.
19. It appears from the Ex.P1 (seizure cum spot mahazar) that the spot was drawn at in front of Jaivilas Building, S.C. Road, Yeshwanthpur, Bangalore and bounded on the East by shop No. 46 belongs to Sampanna, West by Sahara Lodge, North by residential houses and south by Yashwanthpur, S.C. Road. It is clear from Ex.P1 that there were 19 KABC030333542021 CC 11953/2021 public on the spot and added to which, there was shop and lodge and residential house around 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 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 20 KABC030333542021 CC 11953/2021 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 independent and respectable inhabitants of locality in which the place to be searched is situated though the PW1 had mentioned in Ex. P. 1 at the time of raid/search at the spot "ಒಬ್ಬ ಆಸಾಮಿಯು ಅಕ್ರಮವಾಗಿ ಯಾವುದೇ ಪರವಾನಿಗೆ ಇಲ್ಲದೆ ಸಾರ್ವಜನಿಕರಿಗೆ ಮಧ್ಯ ಮಾರಾಟ ಮಾಡುತಿದ್ದನೆಂದು ಮಾಹಿತಿ ಬಂದಿದ್ದು ಸದರಿ ಸ್ಥಳದ ಮೇಲೆ ದಾಳಿ ಪಿಮಾಡ್ಬೇಕಾಗಿದ್ದು, ಆ ಸಮಯದಲ್ಲಿ ಪಂಚರಾಗಿ ಹಾಜರಿದ್ದು ಸಹಕರಿಸಲು ಕೋರಿದ ಮೇರೆಗೆ ನಾವುಗಳು ಒಪ್ಪಿದ್ದೇವೆ ನಂತರ ನಮ್ಮಗಳಿಗೆ ನೋಟೀಸ್ ಜಾರಿ ಮಾಡಿದರು.
However the PW1 (IO/informant) has not made an attempt to call local inhabitants as witnesses. Such being the case, this court cannot give any credence to the Ex.P1 (seizure cum spot mahazar) as 21 KABC030333542021 CC 11953/2021 the pancha witnesses namely CW2 and CW3 are from B K Nagar when the local inhabitants was very much available at the time of raid. 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 namely 56 original choice tetrapackets each measuring 90 ML, 14 Bagpiper tetrapackets each measuring 180 ML, 18 Highwards each measuring 180 ML, 24 Highwards each measuring 90 ML, 52 Old Taveren whisky tetrapackets each measuring 180 ML, 26 Old Taveren whisky tetrapackets each measuring 90 ML and 10 Toborg beer bottle which is beyond the permissible limit of 2.6 liter without license so to attract the Section 34 of KE Act and as per Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 and out of which, each tetrapackets and bottle from each brand totaling to 3.6 liters and one toborg beer bottle were sent to FSL for chemical examination and the FSL Report as per Ex.P4 was received on 22/09/2021but the prosecution has failed to produce the status of remaining liquors to come to a conclusion that it contained with the same quantity with the same liquors.
20. PW1 neither had taken photograph nor video graphed the seizure procedure to corroborate the version of prosecution that liquor and beer bottles 22 KABC030333542021 CC 11953/2021 were seized on 07-05-2021. No doubt, the prosecution has produced the FSL report as per Ex.P4 which was with the quantity of 3.6 liters and beer but failed to prove that it was seized from the accused as independent witnesses never turned up for the evidence as to the corroboration of evidence of official witness of PW1 alone.
21. Added to which, the PW4 has not investigated about the source of the liquor bottles and beer bottles.
22. In view of aforesaid discussions, the prosecution has not proved the guilt of accused beyond all reasonable doubt thereby this court answers the above point No.1 to 3 in the negative.
23. Point No.4:- For the foregoing discussion and the findings to the above point No.1 to 3, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 268, 23 KABC030333542021 CC 11953/2021 269 of Indian Penal Code, Sec.34 of Karnataka Excise Act and Sec.51(B) of NDMA Act.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) MO1 to 7 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 30th day of May, 2025) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri K.V.Tirupati/Informant.
PW2 : Sri Chenna Thimmegowda/ Partly IO 24 KABC030333542021 CC 11953/2021 PW3 : Sri Dattatreya Badigere/Police constable PW4 : Sri Narayana/PSI/IO
Documents marked on behalf of the prosecution:
Ex.P1: Spot Mahazar Ex.P2: Report Ex.P3: FIR Ex.P4: FSL report dated 06/07/2021
Material Objects marked on behalf of the prosecution:
MO1 to 7: Sample bottles Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.25 KABC030333542021 CC 11953/2021
30-5-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Section 268, 269 of Indian Penal Code, Sec.34 of Karnataka Excise Act and Sec.51(B) of NDMA Act.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) MO1 to 7 are ordered to be destroyed after expiry of appeal period.
(v) Ordered accordingly.
VIII ACJM, B'luru City 26