Bangalore District Court
Munireddy Palya Excise Police Station vs Lalith Prasad on 1 February, 2024
KABC030724402022
Presented on : 08-09-2022
Registered on : 08-09-2022
Decided on : 01-02-2024
Duration : 1 years, 4 months, 24 days
IN THE COURT OF THE XXXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M, Bengaluru
Dated this the 01st day of February 2024
CRIMINAL CASE NO.28860/2022
COMPLAINANT: The State through
MunireddyPalya Excise Police,
(By Asst. Public Prosecutor)
//Versus//
ACCUSED: Lalith Prasad,
S/o.Ramesh Chandra,
R/at.No.72, 6th cross road,
Thimmaiah Garden, R.T.Nagar,
Bengaluru.
(By Sri. M.Prabhakar...Advocate,)
1. Date of commencement of 22.03.2022
2 C.C.28860/2022
offence.
2. Date of report of offence 22.03.2022
3. Name of the Informant Sri.Somashekar M.R
Inspector of Excise
4. Date of commencement of 21.03.2023
recording evidence.
5. Date of closing of 12.12.2023
evidence.
7. Offences complained of Secs.11, 14, 32, 34, 38(A), 40
and 43 of Karnataka Excise
Act
8. Opinion of the Judge. Accused is found not guilty.
9. Date of Judgment 01.02.2024
XXXII Addl.C.M.M.,
Bengaluru.
JUDGMENT
The Excise Inspector of MunireddyPalya Excise P.S has submitted the Charge Sheet against the accused for the offences punishable Secs.11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act
2. The case of the prosecution in brief is as follows :
That on 22.03.2022 at about 2.30P.M, the Excise Inspector was on patrolling duty and on receipt of credile information, he conducted raid on the accused while he was was transporting liquor on his scooter bearing No.KA04-JF-3113 near Sriraj Lassi Bar, on 3 C.C.28860/2022 the road leading to J.C.Nagar from R.T.Nagar Main road and found the accused is in illegal possession of 06 bottles of 750 ml each of 100 Pipers Whiskey and 06 bottles of 750ml each of Morpheus Brandy total of 9.000 ltrs of liquor with a seal "for sale to defence personnel only" and accused was transporting said liquor in plastic bag for selling it to the customers and thereby the accused has committed the offences punishable U/Sec.11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act 1965.
3. The CW.1 by name Somashekar registered the case and enquired the matter. The CW-1 has seized the illegal liquor in the presence of panchas 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, after recording the statement of witnesses, the case was registered against the accused Under Secs.11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act in Crime No.44/2021-22 and FIR was submitted before the court.
4. Initially the IO has submitted the charge sheet against the accused. On appearance of the accused, he was enlarged on bail. After filing of the charge sheet against the 4 C.C.28860/2022 accused, cognizance was taken for the offences punishable Under Secs.11, 14, 32, 34, 38(A, 40 and 43 of Karnataka Excise Act against accused. 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 charge was framed for the offences punishable Under 11, 14, 32, 34, 38(A, 40 and 43 of Karnataka Excise Act and read over and explained to the accused for which he pleaded not 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 six witnesses as PW.1 to 6, out of total charge sheet witnesses as CW-1 to 10 and got marked 09 documents as Ex.P1 to 9 with sub-markings and M.O.1 to. 4. C.W.5, 6, 8 and 9 given up.
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 5 C.C.28860/2022 evidence of prosecution witnesses. Accused have 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 on 22.03.2022 at about 2.30P.M, the Excise Inspector was on patrolling duty and on receipt of credile information, he conducted raid on the accused while he was transporting liquor on his scooter bearing No.KA04-JF-3113 near Sriraj Lassi Bar, on the road leading to J.C.Nagar from R.T.Nagar Main road and found the accused in illegal possession of 06 bottles of 750 ml each of 100 Pipers Whiskey and 06 bottles of 750ml each of Morpheus Brandy total of 9.000 ltrs of liquor with a seal "for sale to defence personnel only" and accused was transporting said liquor in plastic bag for selling it to the customers and thereby the 6 C.C.28860/2022 accused has committed the offences punishable U/Sec.11, 14, 32, 34, 38(A), 40 and 43 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: -
REA S ON S
10. Point No.1 : It is the case of prosecution that, on the above said date, time and place, accused was found in illegal possession and selling the liquor without permit. Thereby the accused has committed the above said offences.
11. C.W.1/PW.3 Somashekar.M.R- Inspector of Police (Excise) and C.W.7/P.W.5- Excise guard in their evidence deposed that 22.03.2022 at about 1.15 P.M, while they were on patrolling duty on CBI main road at R.T.Nagar C.W.1 received information that one person wearing red T shirt and blue jeans was transporting liquor on a Activa scooter and was selling the liquor to the customers and at 1.45 PM he conducted raid on accused near Sriraj Lassi bar and BNB Hospitality on the 7 C.C.28860/2022 accused and found the accused in possession of 06 bottles of 750 ml each 100 Pipers Whisky, 06 bottles of 750 ml each Morpheus Brandy which was kept in a plastic sack and seized the vehicle bearing No.KA04-JF-3113 and the accused on enquiry told them that he did not possess any license. Further P.W1 deposed that he conducted mahazar at the spot in the presence of panchas as per Ex.P.1 and sent 04 bottles of the seized liquor to FSL examination and took the accused and the seized articles to the police station.
12. C.W.10/P.W.6- Retd Excise Sub Inspector in his evidence deposed that on 23.03.2022 he took up the case file from C.W.1 and proceeded with the investigation and after completion of investigation he filed charge sheet against the accused.
13. C.W.3/P.W.1 and C.W.2/P.W.2 being the mahazar witnesses in their evidence deposed that police did not draw mahazar in their presence and police did not seize any articles in their presence.
14. C.W.4/P.W.4 being the owner of the vehicle deposed that he has not given any statement before the police. 8 C.C.28860/2022
15. These witnesses were treated as hostile and Learned Sr.APP cross examined these witnesses at length and even in the cross examination nothing worth could be elicited from their mouth to support the case of the prosecution.
16. As per the case of the prosecution, the accused was found in possession of 06 bottles of 750 ml each 100 Pipers Whisky, 06 bottles of 750 ml each Morpheus Brandy which was kept in a plastic sack. Hence, the prosecution has made reference about the seizure of above said liquor, out of the said liquor so seized, they have sent only 04 bottles of 750 ml of each liquor brand to forensic science laboratory for chemical examination to get the report. There is no material available before this court to say that the remaining liquor alleged to be seized from the possession of the accused in reality whether they are the liquor bottles as conducted by the prosecution or whether the investigation officer, merely on seeing the labels on the bottles has arrived at the conclusion that the entire bottles alleged to be seized are the illegal liquors.
17. On this point, at this juncture, it would be relevant to rely upon ruling reported in 1977 (2) K.L.J 463 - 9 C.C.28860/2022 MahaPurusha Durga Joglekar / State of Karnataka. In the ruling cited supra though the raiding parties have seized one bag in containing 40 tetra packets 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 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 10 C.C.28860/2022 to hold that what was contained in those nine bottles was either brandy or some other intoxicants.
18. In one more ruling reported in AIR 2012 KAR 2627 Between M.R Manjunath/ The Authorized Officer and Deputy Commissioner of Excise, Chikmagalur wherein, while referring to the facts of the said case and it was held 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".
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 11 C.C.28860/2022 only they sent 4 bottles of 750 ml of each liquor brand to forensic science laboratory for analysis and obtained report.
19. Now as per the admission of the prosecution when the investigating officer has sent only 4 bottles of 750 ml of each liquor brand to forensic science laboratory for analysis and by failing to send the rest of the alleged illegal liquor, then the court has to presume that the raiding parties have seized only 4 bottles of 750 ml of each liquor from the possession of the accused. Further as submitted by the prosecution, when the capacity of one bottle is 750 ml the total capacity of liquor that was seized would be only 3.00 ltrs 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 and 34 of Karnataka Excise Act.
20. In this case, the attestors to the seized mahazar as PW- 3, 5 and 6 whom the prosecution has examined are the police officials these witnesses have been examined as independent investigation officer. The material witnesses have not supported the case of the prosecution and there is no 12 C.C.28860/2022 sufficient documents to case of the prosecution to prove the guilty of the accused. Though, the prosecution has taken the contention that the accused was found selling liquor, now on the evidence given by the prosecution witnesses, PW-3, 5 and 6 who being the raiding party have given some what supporting evidence, but the P.W.1, 2 and 4 mahazar witnesses have completely turned hostile to the case of the prosecution and the prosecution has failed to prove its case. 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 observation, I hold the point No.1 in the 'NEGATIVE'.
21. 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 offences punishable Under Secs.11, 14, 32, 34, 38(A), 40 and 43 of Karnataka Excise Act.13 C.C.28860/2022
Bail bonds of the accused and Surety bonds shall stand canceled.
However the bail bonds executed by the accused U/Sec.437(a) has been complied.
M.O.1 to 4 sample liquor being worthless shall be destroyed after the appeal period is over.
(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 01st day of February 2024).
(Latha.J) XXXII Addl.C.M.M. Bengaluru.
ANNEXURES List of the Witnesses examined by the Prosecution :
PW-1 V.Chinnareddy 21.03.2023 PW-2 Suresh 24.05.2023 PW-3 Somashekar.M.R 22.06.2023 PW-4 Ramesh Chandra 22.06.2023 PW-5 Basavaraju Madivalappa Viveki 31.08.2023 PW-6 R.Dwarki Prakash 10.11.2023
List of the Documents exhibited for the Prosecution:
Ex.P1 : Mahazar
Ex.P1(a) : Signature of P.W.1
Ex.P1(b) : Signature of P.W.2
Ex.P.1(c) : Signature of P.W.3
14 C.C.28860/2022
Ex.P.1(d) : Signature of P.W.5
Ex.P.2 : Statement of P.W.1.
Ex.P.2(a) : Signature.
Ex.P.2(b) : Signature.
Ex.P.3 : Statement of P.W.2
Ex.P.4 : FIR
Ex.P.4(a) : Signature of P.W.3
Ex.P.5 : Statement of P.W.4
Ex.P.6 : Report
Ex.P 7 : B extract
Ex.P.7(a) : Signature of P.W6.
Ex.P.8 : Letter
Ex.P.8(a) : Signature of P.W.6.
Ex.P 9 : FSL report.
List of the MOs marked on behalf of the Prosecution :
M.O-1 to 4 : Four bottles of 750 ml liquor each 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-- Digitally
signed by
LATHA LATHA
Date:
J
J 2024.02.02
12:08:03
+0530
(Latha.J)
XXXII Addl.C.M.M. Bengaluru.