Bangalore District Court
Sri N.S. Somshekar vs Madaiah on 9 September, 2024
KABC030699562018
Presented on : 22-09-2018
Registered on : 22-09-2018
Decided on : 09-09-2024
Duration : 5 years, 11 months, 17 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 09th Day of September, 2024
C.C. No.25897/2018
State by Sanjay Nagar Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath Senior APP)
Versus
Sri Madaiah
Aged about 62 years,
S/o Late Sri Madegowda,
R/at No.132, 5th Cross,
Basaveshwara Layout,
Nagashettihalli,
Sanjaynagara, Bengaluru. ... Accused
(Represented By Sri. Ramesh G P Advocate)
KABC030699562018 CC 25897/2018
1. Date of commission of 16-04-2018
offence
2. Name of Complainant Sri N.S.Somashekar
3. Offences complained of Under Section 34 of
Karnataka Excise Act
4. Charge Pleaded not guilty
5. Final Order Accused is not found
guilty
6. Date of order 09-09-2024
JUDGMENT
The Police Sub-Inspector of Sanjay Nagar Layout Police Station submitted charge sheet against accused for an offence punishable under Section 34 of Karnataka Excise Act.
2. Prosecution Case: That on 16-04-2018 at about 12 noon, CW1 Sri N.S.Somashekar being the Officer of ACC Team, Hebbala Vidhana Sabha constituency along with CW2 to CW5 were checking the vehicles at Bhoopasandra within the limits of Sanjay Nagara Police Station, at that time, the accused was in illegal possession of 8 bottle blenders pride and 100 pipers alcohol and Cash of Rs.1,07,900/- and 9 banks cheque books in his Maruti Wagon R car bearing No. KA 02 MC 2969 2 KABC030699562018 CC 25897/2018 without license and thereby violated the Karnataka Excise Act. Hence, CW1 along with staff conducted seizure formalities and returned to station along with accused and seized properties.
3. First Information Report: The CW1/PW1 - Sri. N.S.Somashekar, Officer of ACC Team-1, Hebbala Vidhana Sabha Constituency along with his staff were checking the vehicles at Bhoopasandra and found that the accused was in illegal possession of liquors, cash and other cheque books in his car, hence CW1 seized the said properties in the presence of panchas by drawing the spot cum seizure mahazar as per Ex.P2. On the basis of spot cum seizure panchanama and complaint of CW1 as per Ex.P1, CW9/PW3 registered the complaint against the accused in Crime No.82/2018 for the offence punishable U/Sec.34 of Karnataka Excise Act. Accordingly, the FIR as per Ex.P3 prepared, sent the same to the Court and to his superior officers.
4. Investigation: On receipt of complaint- Ex.P1 and seized properties from CW1, CW9/PW3 registered the FIR, sent the sample liquors for chemical examination to FSL, Bangalore and secured the FSL Report as per Ex.P5 on 07-08-2018. After completion of investigation, PW3 submitted the charge sheet for the alleged offence against the accused.
3 KABC030699562018 CC 25897/20185. The accused was enlarged on bail at the per-summoning stage by the order dated 17-04- 2018.
6. On receipt of charge sheet, this Court took cognizance of offence alleged against the accused.
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 offence punishable U/Sec.34 of Karnataka Excise 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.
9. Prosecution Evidence: The prosecution in order to establish its case cited 9 witnesses, examined 5 witnesses and exhibited 5 documents and MO1 and closed their side. However the examination of CW7 was given up at the request of APP by the order dated 11/07/2023. The examination of CW3 to CW5 were dropped out by the order dated 10/08/2023 as failed to secure their presence despite proclamation.
4 KABC030699562018 CC 25897/201810. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement 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 doubt that on 16-04-2018 at 12 p.m. at Bhoopasandra, Sanjay Nagara, Bengaluru, the accused was in illegal possession of 8 bottle blenders pride, 100pipers alcohol in his Maruti WagonR car bearing No.KA 02 MC 2969 without any license thereby resulted in commission of an offence punishable Section 34 of Karnataka Excise Act?
2. What order?
5 KABC030699562018 CC 25897/201813. My 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 prosecution has examined the witnesses which are as follows i. CW1 Sri N.S.Somashekar, being informant examined as PW1 deposed that, he was appointed as a chief officer of ACC Team-1, Hebbala Vidhanasabha Constituency for the purpose of Vidhanasabha Election-2018. On, 16-04-2018 when he along with his staff and Sanjayanagar police were checking the vehicles at Bhoopasandra, they found illegal liquor i.e. 8 blender Spride Brandy, 750 ml 100 papers whisky and Rs.11,07,900/-in his Wagon R car and same were seized in presence of panchas CW2 and CW3 and produced the same before SHO with complaint. He identified complaint as Ex.P1, seizure mahazar as Ex.P2 and 9 liquor bottle as MO1.
6 KABC030699562018 CC 25897/2018ii. CW2/PW2, Sri K.Krishnamurthy and CW6/PW4 Sriramaiah, who were present at the time incident and accompanied the CW1/PW1 and deposed the same version of PW1.
iii. CW9/PW3, Smt. K.S.Roopa, the then of PSI of Sanjayanagara PS, deposed about registration of case and submitted FIR to court and sent one of seized properties to FSL for chemical examination and recorded the statement of CW2 to CW7 and produced the accused before the court through remand application. She has released the cheque, cash and maruti car in favour of accused. On receipt of FSL report and after completion of investigation, she has submitted the charge sheet against accused.
iv. CW8/PW5 Smt.Dr.Vani.N., Assistant Director of FSL, deposed that she had tested the MO1 and had given chemical analysis report. She identified MO1. She identified her signature on FSL report and the same is marked as Ex.P4 and her signature is marked as Ex. P4(a). She has also identified sample seal as Ex.P5 and her signature as Ex.P5(a).
15. It is relevant to mention Section 34 of the Karnataka Excise Act, 1965 Penalty for illegal possession Whoever, without lawful authority has in his possession any quantity 7 KABC030699562018 CC 25897/2018 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 [1] [four years and with fine which may extend to fifty thousand rupees.
[2] [Provided that the
punishment,-
(i) for the first offence shall be not less than [3] [one year imprisonment and fine of rupees ten thousand]; and
(ii) for the second and subsequent offences shall be not less than imprisonment for [4] [two years and fine of not less than rupees twenty thousand], for each such offence: Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant.] 8 KABC030699562018 CC 25897/2018 Thus, it appears Ex.P1 is a spot cum seizure mahazar under which 8 bottle blenders pride and one 100 pipers alcohol along with cash and cheque book and the car have been seized by the CW1/PW1 being a election officer seized liquors through Ex.P2. There is no doubt that PW1 being an election officer has a power to search and seize any material only after date of election are announced but in the instant case on hand there is no material as to date of election was announced or not for the PW1 to exercise the search and seizure power and the said Principle is appreciated in the case of Isthiyak Ahmad v. Election Commission of India reported in 2023 SCC OnLine Kar 12.
16. No independent witness has been secured as witnesses to Ex.P2 (Seizure Mahazar) as the PW1, PW2 and Sri Basavagowda were signatories therein and hence the PW1, PW2 and CW3 were being in the MCC team I and such being the case, no efforts were made for securing the independent witnesses thereby it raises the doubt in the mind of this court about the authenticity.
17. No doubt, the accused by the order of this court dated 29/04/2018 and 03/07/2018 has taken possession of 9 cheques, car and cash from the PW5 however whether the accused was in possession of 8 bottle blenders pride and one 100 pipers alcohol. It appears from the Ex.P5 that they have sent one bottle 9 KABC030699562018 CC 25897/2018 blenders pride Wishky glass bottle and one 100 pipers alcohol Wishky glass bottle that they have proved that the accused was in possession of 1.75 liter however a person can possesses up to 2.3 ml without license.
18. It is relevant to quote Chapter VIII provides for detention, investigation and trial of offences under the Karnataka Excise Act, 1965 (hereinafter referred to as 'the Excise Act', for brevity) and Section 59-A provides as follows:
"59A. Certificate of Inspectors of Excise to be evidence- Any document purporting to be a certificate under the hand of an Inspector of Excise who has undergone the prescribed training in the examination and analysis of intoxicants and materials and who is authorised by the State Government in this behalf, in respect of any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated in such certificate, in any proceedings under this Act: but the court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Inspector of Excise 10 KABC030699562018 CC 25897/2018 as to the subject matter of his certificate."
There is nothing on record to corroborate that all the remaining 7 blenders pride Wishky glass bottle were with Wishky with the same measurement. PW3 being the investigating officer did not certify about the quantity was with measurement of 750 ML each with spirit of Whisky as of MO1. Therefore, it was incumbent on the prosecution to should have subjected the entire quantity of Whisky so seized for chemical examination and certification of quantity and to have obtained a certificate in accordance with the above section. That would have met the requirement of law. Since no such procedure was carried out and mere production of MO1 out of 8 blenders pride Wishky glass bottle that were seized would not certainly advance the case of the prosecution in the absence of such a certificate. This procedure obviously was not done in the present case on hand.
19. Further, as per Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, this Court has consistently held the same view in the matter of STATE OF MYSORE VS. MOHAMED JAFFAR AND OTHERS REPORTED IN 1966 (2) KLJ 91 AND MAHAPURSHA DURGA JOGLEKAR VS. STATE OF KARNATAKA REPORTED IN 1977 (2) KLJ 463 AS WELL AS IN M.R. 11 KABC030699562018 CC 25897/2018 MANJUNATH RAMAPPA GOWDA VS. THE AUTHORIZED OFFICER & DEPUTY COMMISSIONER OF EXCISE, CHICKMAGALUR DISTRICT & ANOTHER REPORTED IN 2012 (4) AIR KAR REPORTER 18, with particular reference to the presumption as to commission of offence in certain cases in prosecutions under Section 34 of Karnatka Excise Act, it has been held that it shall be so presumed until the contrary is proved, that the accused person has committed an offence punishable under the Section in respect of whisky, however, a rebuttable presumption. If the accused is found in possession of intoxicating substances for which he did not have a permit, it would certainly give rise to a presumption that an offence has been committed. However, when a person is sought to be prosecuted, the prosecution is required to prove beyond all reasonable doubt that there is a clear violation of the provisions of the Excise Act.
20. Therefore, in the present case on hand as well, when the accused was in possession of 8 bottle blenders pride and one 100 pipers alcohol which exceeded the permissible limit, it was necessary for the prosecution to establish that factum and this could have been done in more ways than one. The law itself provides as above of obtaining a certificate which would give a free hand to the prosecution to then establish its case. In the present case, it appears from record that though the PW1 was said to have 12 KABC030699562018 CC 25897/2018 seized 8 bottle blenders pride and one 100 pipers alcohol and sent only two bottles of whisky for chemical analysis.
21. In the present case, the evidence of prosecution is not corroborated by any independent witnesses or with material evidence. No doubt, the PW1 to 4 are all official witnesses deposed with regard to conducting of mahazar and seizure of MO.1 however the same are with major contradictions. Now the question is whether the evidence of official witnesses alone is sufficient to hold the accused guilt for the alleged offence. In the present case, it appears from record that though the PW1 was said to have seized 8 bottle blenders pride and one 100 pipers alcohol but the prosecution proved that the accused was carrying the whisky measuring 1.75 ml. The evidence of official witnesses cannot be considered as a substantial piece of evidence to convict the accused. At the best, official evidence can be used as corroboration in addition to substantiate piece of evidence. In the absence of substantial piece of evidence, the evidence of official witnesses is not sufficient to hold the accused guilt.
22. It is settled law that in order to bring home guilt of the accused, the prosecution has to prove its case but the prosecution has failed to prove the commission of an offence beyond all reasonable doubt for alleged offence against the accused. This court 13 KABC030699562018 CC 25897/2018 has no other alternative to give the benefit of acquittal to the accused. Accordingly, this court answers Point No.1 in the Negative.
23. Point No.2: In view of the above answer and reasons given at point No.1, 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 offence punishable under Sec.34 of Karnataka Excise 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 is ordered to be destroyed after expiry of appeal period.
14 KABC030699562018 CC 25897/2018(v) After expiry of appeal period, the interim custody of properties granted in favour of petitioner is made absolute.
(vi) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 09th day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri N.S.Somashekar PW2 : Sri K.Krishnamurthy PW3 : Smt.K.S.Roopa PW4 : Sri Sriramaiah PW5 : Smt. Dr.Vani.N.
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Mahazar Report Ex.P3 : FIR 15 KABC030699562018 CC 25897/2018 Ex.P4 : Certificate of Examination Ex.P5 : Sample Seal
Material Objects marked on behalf of the prosecution:
MO1: 9 sample bottles Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.
16 KABC030699562018 CC 25897/201809-09-2024 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 offence punishable under Sec.34 of Karnataka Excise 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 is ordered to be destroyed after expiry of appeal period.
17 KABC030699562018 CC 25897/2018(v) After expiry of appeal period, the interim custody of properties granted in favour of petitioner is made absolute.
(vi) Ordered accordingly.
VIII ACJM, Bengaluru.
18