Bangalore District Court
State By Excise Sub-Inspector vs S.L.Sudhakar on 21 December, 2021
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 21st day of December 2021
PRESENT:
Sri S.Sreedhara, B.E., L L.B.
Chief Metropolitan Magistrate,
Bengaluru
C.C. No.22194/2018
Complainant : State by Excise Sub-Inspector,
Rajmahal Vilas Range,
Bengaluru
(By Learned Sr. APP)
-V/s-
Accused : S.L.Sudhakar, No.45, 3rd Main
Road, Mathikere, Bengaluru.
(By Sri Mohan Bhat, Advocate)
Date of offence : 19/04/2018
Offences complained of : Section 13(1) (a), 14,
32 and 38-A of Karna-
taka Excise Act, 1965
Plea of the accused : Pleaded not guilty
Final order : Accused Acquitted
Date of Judgment : 21/12/2021
2 CC No.22194/2018
J U D G M E N T UNDER SECTION 355 of Cr.P.C.
The Excise Sub-Inspector of Rajmahal Vilas Range,
Bengaluru has submitted charge sheet against accused for
the offences punishable under Section 32 and 38-A of
Karnataka Excise Act, 1965, for contravention of Section
13(1) (a) and 14 of the said Act.
2. The brief allegations of prosecution is that the
accused on 19/04/2018 at 7 p.m. in Building No-45, III
Main Road, Mathikere, Bengaluru City has illegally
stocked 2,316 liters of liquor and 1,073 liters of beer
without any valid permit. The Excise Officer after
conducting raid has seized the same through a mahazar.
After investigation, the I.O. has submitted charge sheet
against accused for the alleged offences and requested the
court to punish him in accordance with law.
3. After submission of charge sheet, this court has
taken cognizance against accused for the alleged offences
and issued summons to accused. In pursuance of
summons, the accused has appeared before the court and
he was enlarged on bail.
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4. The charge sheet copies are furnished to accused.
After hearing arguments, this Court has framed Charge
against accused for the alleged offences, read over and
explained in the language known to him, who did not
pleads guilty, but claims to be tried.
5. The prosecution in order to prove the guilt of
accused person has examined in all four witnesses as PW1
to 4 and got marked Ex.P1 to 8 documents. The
prosecution has also got marked MO1 consisting of 37
sample bottles on its behalf.
6. After completion of prosecution evidence, the
accused statement as required under Section 313 of
Cr.P.C. was recorded, where he has totally denied the
entire evidence of prosecution witnesses, but did not
choose to adduce any defence evidence on his behalf.
7. The learned Sr.APP has submitted that his
arguments may be taken as heard.
8. Heard the arguments of Sri MB, Advocate for
accused, who has relied upon the decision reported in ILR
4 CC No.22194/2018
1999 Karnataka 2872 (L.Srinivas V/s The Authorised
Officer & Superintendent of Excise).
9. 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 on 19/04/2018 at 7 p.m. has
illegally stocked 2,316 liters of liquor
and 1,073 liters of beer in Building
No.45, III Main Road, Mathikere,
Bengaluru City without having any
valid permit, thereby contravened
Section 13 (1) (a), 14 of Karnataka
Excise Act and hence committed the
offences punishable under Section 32
and 38-A of the said Act?
2) What Order?
10. 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 : In the Negative
5 CC No.22194/2018
Point No-2 : As per final order
REASONS
Point No-1:
11. The Excise Sub-Inspector has charge sheeted
accused for the offences punishable under Section 32 and
38-A of Karnataka Excise Act. The provision of Section
32 of Karnataka Excise Act provides that if any person
imports, exports, transports, manufactures, collects or
possesses any intoxicant, in contravention of the license
or permit granted under the Act, then he is punishable for
the said offence. Similarly if 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 Sections 32, 33, 34, 36 and 37 is punishable under
the provisions of Section 38-A of the Act. Therefore, the
burden lies upon the prosecution to prove that the accused
has possessed the intoxicant without any valid permit and
also shall prove that the accused has allowed some other
person to commit the offence in the alleged place of
incident.
6 CC No.22194/2018
12. In order to prove the guilt of accused, the
prosecution has examined PW1 to 4 on its behalf and got
marked Ex.P1 to 8 documents. The prosecution has also
got marked 37 sample bottles as MO1. CW4/PW1
Sweekruthi, the Excise Inspector in her evidence has stated
that herself, CW5 and 7 were doing patrolling duty on
19/04/2018. At about 7 p.m., CW5 has received a credible
information about the stock of liquor near Mathikere.
They have visited Building No.45, III Main Road,
Mathikere along with panch witnesses. In the said building
there exists Venkateshwara Wine Stores and in the room
measuring 10 x 10 feet of said shop, the beer bottles and
liquor bottles were stocked. The said liquor bottles were
seized through Ex.P1 mahazar. She has identified 37
sample bottles as MO1 and also identified the accused by
stating that he is the owner of Venkateshwara Wine Stores.
13. PW1 in her cross-examination has stated that
accused has obtained a license relating to building No.45
and the door of said building was open at that time. They
have not taken any photograph or video for breaking open
the lock and they have also not drawn mahazar. She has
7 CC No.22194/2018
admitted the suggestion that the place measuring 10 x 10
feet where mahazar was conducted is a portion of building
No.45. She has clearly admitted the suggestion that the
Excise Officials will approve the blue print plan relating to
the building at the time of issuing permit. She has verified
the permit in order to ascertain that the seized liquor
belongs to Bar or not. She has denied the suggestion that
they have lodged a case against accused for statistical
purpose. She has admitted the suggestion that they have
registered FIR after drawing the mahazar. The cross-
examination of PW1 would reveal that the alleged place of
incident is a portion of building No.45 in respect of which
the accused has obtained license. It is also revealed that
the Excise Officials used to approve the blue print plan of
the building before issuing the permit.
14. CW2/PW2 Ravi is an independent panch witness,
but he has not supported the prosecution, in order to prove
Ex.P1 mahazar. He has stated that his signature was
obtained near the bus stand and therefore his evidence is
not helpful for the prosecution to prove Ex.P1 mahazar.
8 CC No.22194/2018
15. CW5/PW3 Jayaprada is working as Excise
Inspector, who has stated that she has received a credible
information at 7 p.m. on 19/04/2018 about the stock of
liquor. She has secured two panch witnesses at Mathikere
bus stop and then visited house No.45 of Mathikere. The
said house was locked and on enquiry, she could not get
any information about the house. Then she has prepared a
search warrant in the presence of panchas and broke open
the lock with the help of wheel jack lever. When they
have entered the house, they found the liquor and beer
boxes inside the house consisting of 2316 liters of liquor
and 1073 liters of beer. She has not found any license or
document for stocking the said liquor. They have
conducted a panchanama in the presence of panchas and
taken 30 liquor bottles and 7 beer bottles as sample bottles.
The panchanama was conducted from 7 p.m. to 9.30 p.m.
and after returning back to the office, they have registered
a case against the owner of building. She has identified
Ex.P1 seizure mahazar, Ex.P2 sample seal, Ex.P4 FIR,
Ex.P5 search warrant and also identified MO1 to 37
(which is already marked as MO1 through the evidence of
PW1). PW3 has further stated that she has handed over the
9 CC No.22194/2018
case papers to Excise Sub Inspector for further
investigation.
16. PW3 Jayaprada in her cross-examination has
stated that a lock was put to the wooden door of the house
and the said house is situated adjacent to Venkateshwara
Wines. She has not issued any written notice to the panch
witnesses, but she has orally informed them. They have
not taken the photographs of lock put to the said house.
She has not verified the invoice relating to Venkateshwara
Wines in respect of the liquor boxes found in the said
house. She came to know that the place of incident is an
unlicensed premises only after verifying the approved blue
print plan relating to Venkateshwara Wines. She has not
verified the blue print plan of the said Wine Store at the
place of incident. She has admitted the suggestion that she
has not verified the permit and the blue print plan relating
to accused, since the place of incident is an unlicensed
premises.
17. The evidence of PW3 clearly discloses that the
place of incident consisting of a wooden door is situated
adjacent to Venkateshwara Wines. It is also revealed that
10 CC No.22194/2018
on the date of raid, she has not verified the permit and the
blue print plan relating to Venkateshwara Wine Stores
belonging to accused. It is to be noted here that, PW3 has
stated that she has not verified the permit and blue print
plan, since the place of incident is an unlicensed premises.
Thereby it is clear from the evidence of PW3 that she has
come to the conclusion that the place of incident is an
unlicensed premises without verifying the permit and the
blue print plan belonging to Venkateshwara Wine Stores.
Unless and until PW3 verifies the permit and blue print
plan belonging to the accused, she cannot come to the
conclusion that the place of incident is an unlicensed
premises.
18. PW4 Balakrishna is the retired Excise Sub-
Inspector, who has submitted charge sheet against accused
after completion of investigation. In his evidence, he has
stated that he has sent the sample bottles for chemical
analysis on 16/05/2018 and he has written a letter to the
KSBCL Manager on 19/05/2018. He has obtained report
from the Chemical Analyst on 21/05/2018. He has
identified the Chemical Analysis Report and the report
issued by KSBCL Manager as per Ex.P3 and 6
11 CC No.22194/2018
respectively. He has also identified Ex.P7 and 8 letter
correspondence and further identified the accused before
the court.
19. PW4 Balakrishna in his cross-examination has
admitted that the seized liquor is suitable for human
consumption. He has verified the blue print plan relating
to Venkateshwara Wines when he has visited the place of
incident, but he has not produced the same. He has clearly
admitted the suggestion that he cannot say as to whether
the place of incident is situated within the premises shown
in the blue print plan or not. He has also admitted the
suggestion that all the liquor bottles were supplied through
KSBCL permit. He has also admitted the suggestion that
the seized liquor were stored within the limits of
Venkateshwara Wines building. He has denied the
suggestion that he has submitted a false charge sheet
against accused. He has admitted the suggestion that the
accused has obtained CL-2 permit and he is authorized to
possess the liquor as he requires.
20. According to the evidence of PW4, it is clear
that without verifying the blue print plan, no person can
12 CC No.22194/2018
conclude that the place of incident is included in the blue
print plan or not. PW4 has clearly admitted that all the
seized liquor were supplied only under KSBCL permit.
PW4 even after knowing that without verifying the blue
print relating to Venkateshwara Wines, one cannot say as
to whether the place of incident is situated within the
permit limits or not, has not produced the said blue print
plan along with charge sheet. The non-production of blue
print plan relating to Venkateshwara Wine Stores is fatal
to the case of prosecution.
21. In this case, it is an admitted fact that the accused
has possessed the seized liquor in the place of incident
bearing house No.45. It is also an admitted fact that the
accused is owning Venkateshwara Wine Stores adjacent to
the place of incident after obtaining necessary license and
permit. Further it is an admitted fact that the Excise
Officials have approved the blue print plan relating to
Venkateshwara Wine Stores at the time of issuing permit.
The accused has taken defence that the place of incident is
situated within the approved blue print plan relating to
Venkateshwara Wine Stores. If the said blue print has been
produced before the court, then it would be convenient to
13 CC No.22194/2018
decide as to whether the place of incident is situated within
the permit limits or not. In the absence of same, the
allegations made by the Excise Officials against the
accused cannot be accepted.
22. The prosecution has alleged that the accused has
committed the offences punishable under Section 32 and
38-A of Karnataka Excise Act. Whereas, PW4 himself has
admitted that the seized liquor were supplied from KSBCL
Depot. Therefore, it is clear that the accused has not
violated the permit conditions for possessing the liquor in
the schedule premises. Accordingly, the offence
punishable under Section 32 of Karnataka Excise Act is
not applicable to the present case on hand, since the
accused has not illegally possessed the liquor without
permit or in contravention of the permit.
23. It is an admitted fact that the alleged place of
incident bearing No.45 does not belongs to the accused,
but he is in possession of the said property as a tenant. He
has stocked the seized liquor in the place of incident,
which is situated adjacent to Venkateshwara Wine Stores.
When the accused is not the owner of property bearing
14 CC No.22194/2018
No.45, then the provisions of Section 38-A of the
Karnataka Excise Act will not attract for the simple reason
that the accused as a owner or occupier of the property has
not allowed any other person to commit an offence
punishable under Sections 32, 33, 34, 36 and 37 of the Act.
Therefore the ingredients of Section 38-A of Karnataka
Excise Act is also not applicable to the case on hand.
24. Ex.P1 is the seizure mahazar through which PW3
Jayaprada has seized the liquor. Ex.P2 is the sample seal
prepared by PW3 and Ex.P5 is the search warrant. PW3
after conducting mahazar has registered Ex.P4 FIR against
the accused. Ex.P3 is the Chemical Analysis Report where
it is certified that the sample bottles consists of alcohol,
which is suitable for human consumption.
The I.O. has written Ex.P6 letter to KSBCL Manager and
the Depot Manager has issued letter on 10/07/2018 to the
I.O. by stating that the said liquor was supplied to the
accused from KSBCL Depot. Accordingly it is clear that
the accused has shifted the said liquor from the Depot only
after obtaining valid permit. Ex.P7 is the letter written to
the Revenue Officer and Ex.P8 is the letter received from
BBMP Authorities where they have stated that building
15 CC No.22194/2018
No.45 belongs to N.Venkatesh. Though the prosecution
has not got marked the letter written by KSBCL Depot
Manager dated 10/07/2018, the same is available in the
records and the court can take judicial notice of the same.
The said letter written by KSBCL clearly discloses that the
accused has stocked the seized liquor only under valid
permit.
25. By considering the available materials before the
court, I have no hesitation to hold that the prosecution has
failed to prove that the accused has stocked the liquor in
contravention to the permit or license. When the accused
either as a owner or occupier of place of incident has not
allowed any person to commit the offence under the Act,
then the question of committing the offence punishable
under Section 38-A of Karnataka Excise Act does not arise
at all. The non-production of approved blue print plan
belonging to Venkateshwara Wine Stores is fatal to the
case of prosecution. Hence, I conclude that the prosecution
has failed to prove the guilt of accused person beyond all
reasonable doubt. In the result, I answer Point No-1 in the
Negative.
16 CC No.22194/2018
Point No-2:
26. In view of my finding to Point No-1 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 32 and 38-A of Karnataka Excise Act.
b) The bail and surety bonds of 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, MO1 consisting of 37 sample bottles be returned to the Excise Sub-Inspector of Rajmahal Vilas Range, Bengaluru, for disposal in accordance with law.
(Dictated to the Stenographer. The transcript thereof is revised, corrected and then pronounced by me on this day i.e., 21/12/2021) (S.Sreedhara), Chief Metropolitan Magistrate, Bengaluru.
17 CC No.22194/2018ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Sweekruthi
PW2 : Ravi
PW3 : Jayaprada
PW4 : Balakrishna
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Mahazar
Ex.P2 : Sample Seal
Ex.P3 : Report of Chemical
Analysis
Ex.P4 : F.I.R.
Ex.P5 : Search Warrant
Ex.P6 to 8 : Letters
List of Material objects produced:-
MO1 : 37 Sample Bottles List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.