Bangalore District Court
The State Through vs Harish on 2 January, 2023
KABC030885722019
Presented on : 03-12-2019
Registered on : 03-12-2019
Decided on : 02-01-2023
Duration : 3 years, 0 months, 30 days
IN THE COURT OF THE XXXII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 2nd January 2023
Present: Smt. Latha J. B.Com., LLB.,
XXXII Addl.C.M.M.
Bengaluru City.
C.C.No.28712/2019
COMPLAINANT: The State through,
Excise Sub Inspector,
Kengeri Range,
Bengaluru.
(By Asst. Public Prosecutor)
V/s
ACCUSED : Harish
S/o Madegowda,
Aged about 33 years,
2 C.C.No.28712/2019
R/at:No.65, Brundavan
Badavane, Doddabele
Road, Kengeri,
Bengaluru.
P/at Mudanahalli,
K.R. Pete Taluk,
Mandya District.
(By Sri SGM Adv.,)
1. Date of commencement of 16/4/2019
offence
2. Date of report of offence. 16/4/2019
3. Name of the Informant Satheesha N.
4. Date of commencement of 2/8/2022
recording evidence
5. Date of closing of 29/11/2022
evidence.
7. Offences complained of U/S.14, 15, 32, 34, 38A,
of Karnataka Excise Act
8. Opinion of the Judge. Accused found not guilty.
9. Date of Judgment 02/01/2023
XXXII ACMM.,
Bengaluru.
3 C.C.No.28712/2019
JUDGMENT
The P.S.I, Kengeri Excise Police Station has filed the Charge Sheet Under section-173 of Cr.P.C., against the accused for the offences punishable U/S.14, 15, 32, 34, 38A, of Karnataka Excise Act.
2. The case of the Prosecution in brief is as follows:
In the background of 2019 Lok Sabha Elections and declaration of dry days from 16.04.2019 to 19.04.2019 and there was ban of procurement, transportation, storing or selling of liquor, while C.W.6 -Excise Inspector was on patrolling duty and on 16.04.2019 at about 9.30 P.M, on receipt of credible information, he conducted raid on the accused at No.106/1, Ranganatha Military Hotel. B.M.Road, Doddabele Cross, Kengeri and found the accused in illegal possession of approximately 54.270 liters of liquor and 31.200 liters of beer and thereby the accused committed the offences punishable U/S.14, 15, 32, 34, 38A of Karnataka Excise Act.4 C.C.No.28712/2019
3. The CW6 by name Satheesha N. who registered the case and enquired the matter. The CW6 has seized the illegal liquor in the presence of CW.3 to 5 and drawn the Mahazar. The sample of liquor, which was seized under Mahazar was sent for scientific investigation. After drawing the mahazar in the presence of panchas CW1 and 2, the case was registered against the accused U/S.14, 15, 32, 34, 38A, of Karnataka Excise Act in Crime No.98/2018 and FIR was submitted before the court.
4. On appearance of the accused, he was enlarged on bail. After filing of the charge sheet, cognizance was taken for the offences punishable U/S.14, 15, 32, 34, 38A, of Karnataka Excise Act. In view of filing of the charge sheet summons was issued to the accused for his appearance. On his appearance the charge sheet copies are furnished to the accused as contemplated U/Sec.207 of Cr.P.C. After hearing the accused, charges were framed for the offences punishable U/S.14, 15, 32, 34, 38A, of Karnataka Excise Act and read over and explained to the accused for which he pleaded not 5 C.C.No.28712/2019 guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused, the prosecution has got examined 4 witnesses as PW.1 to 4, out of total charge sheet witnesses as CW1 to 8 and got marked 5 documents as Ex.P1 to 5 with sub-markings. Learned A.P.P Prays this court given up the evidence of CW4, 5. In view of submission made by the learned A.P.P the evidence of CW4 and 5 is given up. Learned A.P.P prayed for issuance of summons, NBW, Proclamation to CW1 and 2. Inspite of giving sufficient opportunities to I.O to execute summons, NBW, proclamation the witnesses have not been secured. Hence, the evidence of CW1 and 2 are dropped by rejecting the prayer of the learned Assistant Public Prosecutor.
6. After completion of prosecution evidence, accused was examined U/Sec.313 of Cr.P.C. The incriminating evidence appearing against accused is read over and explained. Accused denied the incriminating circumstances appeared in the evidence of prosecution witnesses. Accused 6 C.C.No.28712/2019 has not chosen to lead any defence evidence.
7. I have heard the arguments addressed by the learned APP and learned advocate for the accused.
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that in the background of 2019 Lok Sabha Elections and declaration of dry days from 16.04.2019 to 19.04.2019 and there was ban of procurement, transportation, storing or selling of liquor, while C.W.6 -Excise Inspector was on patrolling duty and on 16.04.2019 at about
9.30 P.M, on receipt of credible information, he conducted raid on the accused at No.106/1, Ranganatha Military Hotel.
B.M.Road, Doddabele cross, Kengeri, and found the accused in illegal possession of approximately 54.270 liters of liquor and 31.200 liters of beer and thereby the accused 7 C.C.No.28712/2019 has committed the offences punishable U/Sec.14, 15, 32, 34 and 38(A) of Karnataka Excise Act 1965?
2. What Order?
9. My findings to the above Points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
for the following: -
REASONS
10. Point No.1:- It is the case of prosecution that, In the background of 2019 Lok Sabha Elections and declaration of dry days from 16.04.2019 to 19.04.2019 and there was ban of procurement, transportation, storing or selling of liquor, while C.W.6 -Excise Inspector was on patrolling duty and on 16.04.2019 at about 9.30 P.M, on receipt of credible information, he conducted raid on the accused at No.106/1, Ranganatha Military Hotel. B.M.Road, Doddabele Cross, Kengeri and found the accused in illegal possession of approximately 54.270 liters of liquor and 31.200 liters of beer 8 C.C.No.28712/2019 and thereby the accused committed the offences punishable U/S.14, 15, 32, 34, 38A of Karnataka Excise Act.
11. In order to prove its case, prosecution has got examined C.W.3/Jayaram. C is examined as P.W.1, C.W.6/Sathish N. is examined as P.W.2, C.W.7/ L.Chandrashekar is examined as P.W.3, C.W.8/Kavitha is examined as P.W.4. Out of the documents marked for the prosecution Ex.P1 is the Mahazar, Ex.P2 is the search warrant, Ex.P3 is the FIR, Ex.P4 is the letter, and Ex.P5 is the Statement of PW4.
12. In support of the case of prosecution, P.W.1 to 4 has been examined.
13. PW-2/CW6 N.Satheesha PI in his examination has deposed that, when he was on patrolling duty and on 16.04.2019 at about 9.30 P.M, on receipt of credible information, he conducted raid on the accused at No.106/1, Ranganatha Military Hotel. B.M.Road, Doddabele Cross, Kengeri and found the accused in illegal possession of approximately 54.270 liters of liquor and 31.200 liters of beer 9 C.C.No.28712/2019 He has seized the same under seizure mahazar. He has taken the sample on the spot. He has registered the crime and submitted FIR to the court.
14. CW3/PW1 Jayarama C. deposed in his evidence that when CW6 was on patrolling duty and on 16.04.2019 at about 9.30 P.M, on receipt of credible information, he along with other officials conducted raid on the accused at No.106/1, Ranganatha Military Hotel. B.M.Road, Doddabele Cross, Kengeri and found the accused in illegal possession of approximately 54.270 liters of liquor and 31.200 liters of beer CW6 has seized the same under seizure mahazar. CW6 has taken the sample on the spot.
15. CW7/PW3 Jayaram in his examination he deposed that he received the entire file form CW-6 and investigated further. He recorded the statement of the witnesses. After the completion of the investigation he submitted the charge sheet before the court. CW8/PW-4/Kavitha in her examination deposed that she has not given any statement before the police. 10 C.C.No.28712/2019
16. It is burden of the prosecution to show that they have seized the alleged excisable goods from the possession of the accused in the presence of pancha witnesses under seizure mahazar. To prove the facts the evi- dence of the panchas witnesses are very essential. Repeatedly NBW, proclamation was issued against the C.W.1 and 2 i.e., the seizure mahazar witnesses. Prosecution failed to secure C.W.1 and 2 inspite of giving sufficient opportunities. With this view, as per order dated 29-11-022, prayer of Sr.Asst.Public Prosecutor to re-issue NBW, Proclamation to other witnesses is rejected and examination of C.W.1 and 2 is dropped. The prosecution evidence is taken as closed. In the present case on hand the independent mahazar witnesses CW1 and 2 have not been examined. Hence the seizure of the property has not been proved.
17. As per the case of the prosecution, the accused possessing 54.270 liters of liquor and 31.200 liters of beer without any license and selling in the Military Hotel. Hence, the prosecution has made reference about the seizure of above said liquor, out of the said liquor, so seized they have 11 C.C.No.28712/2019 sent only 3.420 liters of liquor and 3.250 liters of beer only for chemical examination to get the report. There is no material available before this court to say that the remaining liquor and beer alleged to be seized from the possession of the accused in reality whether they are the liquor and beer as conducted by the prosecution or whether the investigation officer, merely on seeing the labels on the packets and bottles has arrived at the conclusion that the entire packets and bottles alleged to be seized are the illegal liquors and beers.
18. On this point, at this juncture, it would be relevant to rely upon ruling reported in 1977 (2) K.L.J 463- MahaPurusha Durga Joglekar / State of Karnataka. In the ruling cited supra though the raiding parties have seized two hand bags one containing six brandy bottles with labels and other containing three bottles of coconut fenny with labels without any permit and of another brandy bottle concealed in his waist under the panchnama EXP1 but had sent only one bottle to the chemical examiner for getting report. Observing the facts of the case, the Hon'ble High 12 C.C.No.28712/2019 Court has observed that "Granting that all those ten bottles were recovered from the possession of the accused at the time and place alleged by the prosecution there is no legal evidence to show that each of those bottles contained brandy as alleged. It is undisputed that the contents of only one of those bottles were sent to the chemical examiner for analysis and it is not known why the contents of other nine bottles were not sent to him. Merely because those bottles bore those labels, it is difficult to come to the conclusion and hold that they contained brandy or some other intoxicant. It is incumbent on the prosecution to place convincing and cogent evidence on record to show that those bottles also contained brandy or other intoxicant. Solely relying upon the labels, it is hazardous to hold that what was contained in those nine bottles was either brandy or some other intoxicants.
19. In one more ruling reported in AIR 2012 KAR 2627 Between M.R Manjunath/ The Authorized Officer and Deputy Commissioner of Excise, Chikmagalur where in, while referring to the facts of the said case and it was held 13 C.C.No.28712/2019 that" Granting that all the 33 sachets were recovered from the possession of the petitioner at the time and place alleged by the prosecution but there is no legal evidence to show that each of the sachets contained arrack as alleged. It is not disputed that one sachet was sent to analyst and it is not known as to why the remaining 32 sachets were not sent to him. Merely because the remaining 32 sachets were found along with one sachet, which was sent to the chemical examiner, it is difficult to come to a conclusion that the remaining 32 sachets also contained arrack or other intoxicating substances".
20. The observation made in the above rulings are aptly applicable to the present set of facts as in the present case also as observed earlier, the Investigating Officer has not sent the entire seized articles for chemical examination and out of them only in total 3.420 liters of liquor and 3.250 liters of beer only were sent and obtained report.
21. Now as per the admission of the prosecution when the investigating officer has sent only 3.420 liters of liquor and 3.250 14 C.C.No.28712/2019 liters of beer and by failing to send the rest of the alleged illegal liquors and beers, then the court has to presume that the raiding parties have seized only 3.420 liters of liquor and 3.250 liters of beer from the possession of the accused. The total liquor and beer that was seized which as per rule 21 of the rule is permissible under law to possess and transport. Under such circumstances, it can be said that the accused has not contravened the provision of sec.32 of Karnataka Excise Act.
22. Further in this particular case, the defence of the accused is that, the police have falsely implicated the accused in order to show statistic to the state.
23. When the prosecution has not proved the seizure mahazar with independent evidence, the evidence of other official is formal in nature. When the Prosecution has not proved the case, beyond all reasonable doubt, it creates doubt in the mind of this court. Now on the evidence given by the prosecution witnesses, the PW.2 who being the raiding party and PW.1 attestor to the seizure mahazar have given 15 C.C.No.28712/2019 somewhat supporting evidence. But the prosecution has failed to prove the case of the prosecution. Hence it is not safe to convict the accused. Hence, it can be said that the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt. Hence benefit of doubt shall be extended in favour of the accused. With these observations, I hold the point No.1 in the Negative.
24. Point No.2: - In view of the findings of point No.1, this court proceed to pass the following:
O RDE R Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable U/S.14, 15, 32, 34, 38A, of Karnataka Excise Act.
Bail bonds of the accused bonds shall stand canceled.
However the bail bonds executed by the accused U/Sec.437(A) shall be continued. 16 C.C.No.28712/2019
M.O.1 and MO2 being worthless shall be destroyed after the appeal period. (Dictated to the Stenographer and transcribed by her, Judgment corrected and signed by me, then pronounced by me in the Open Court on this the 2nd January 2023).
(Latha J.), XXXII A.C.M.M. Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution :
PW1 Jayarama C 2/8/2022 PW2 Sathish N. 8/11/2022 PW3 L.Chandrashekar 8/11/2022 PW4 Kavitha 29/11/2022
List of the Documents exhibited for the Prosecution :
Ex.P1 : Mahazar
Ex.P1(a) : Signature of PW1
Ex.P1(b) : Signature of PW2
17 C.C.No.28712/2019
Ex.P2 : Search Warrant
Ex.P2(a) : Signature of PW2
Ex.P3 : FIR
Ex.P3(a) : Signature of PW2
Ex.P4 : Letter
Ex.P4(a) : Signature of PW3
Ex.P5 : Statement of PW4
List of the MOs marked on behalf of the Prosecution :
MO1 : 19 bottles
MO2 : 16 Tetra Packs
List of the Witnesses examined for defence:
--Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
XXXII A.C.M.M., Bengaluru.18 C.C.No.28712/2019