Bangalore District Court
The State Through vs Sri.Puneeth K on 1 December, 2022
KABC030150902021
Presented on : 01-03-2021
Registered on : 01-03-2021
Decided on : 01-12-2022
Duration : 1 years, 9 months, 2 days
IN THE COURT OF THE XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 1st December 2022
Present: Smt. Latha J. B.Com., LLB.,
XXXII Addl.C.M.M.
Bengaluru City.
C.C.No.4689/2021
COMPLAINANT: The State through,
Excise Sub Inspector,
Kengeri Range,
Bengaluru.
(By Asst. Public Prosecutor)
V/s
ACCUSED : Sri.Puneeth K.
2 C.C.No.4689/2021
S/o Krishna,
Aged about 25 years,
R/at:Kerekodi Harsha
Layout, Kengeri,
Bengaluru South Taluk.
Bengaluru.
(By Sri.SGM Adv.,)
1. Date of commencement of 20/7/2020
offence
2. Date of report of offence. 20/7/2020
3. Name of the Informant
4. Date of commencement of 2/8/2022
recording evidence
5. Date of closing of 17/11/2022
evidence.
7. Offences complained of Sec.11, 14, 15, 32, 34,
38A, 43 of Karnataka
Excise Act
8. Opinion of the Judge. Accused found not guilty.
9. Date of Judgment 1/12/2022
XXXII ACMM.,
Bengaluru.
3 C.C.No.4689/2021
JUDGMENT
The P.S.I, Excise Kengeri Police Station has filed the Charge Sheet Under section-173 of Cr.P.C., against the accused for the offence punishable Sec.11, 14, 15, 32, 34, 38A, 43 of Karnataka Excise Act.
2. The case of the Prosecution in brief is as follows :
In the background of declaration of closure of wine shops during the COVID-19 pandemic period, on 20.07.2020 at about 7.20 P.M, while Excise Inspector was on patrolling duty along with the staff and on receipt of credible information, he conducted raid on the accused near Railway Parallel Road, in front of Honda Showroom, Kengeri Satellite town and found the accused was in illegal possession of 10.350 liters of liquor and transporting said liquor on Activa Honda two wheeler bearing No. KA-41- EE-
0580 and selling the same and thereby the accused committed the offences punishable U/Sec.11, 14,15, 32, 34, 38(A), 43 of Karnataka Excise Act 1965.
4 C.C.No.4689/2021
3. The CW1 by name C.Krishnappa who registered the case and enquired the matter. The CW1 C.Krishnappa has seized the illegal liquor in the presence of CW.2, 3, 6 and 7 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 CW4 and 5, after recording the statement of witnesses, the case was registered against the accused Sec.11, 14, 15, 32, 34, 38A, 43 of Karnataka Excise Act in crime No.01/2020 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 Sec.11, 14, 15, 32, 34, 38A, 43 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 Sec.11, 14, 15, 32, 34, 38A, 43 of Karnataka Excise Act and 5 C.C.No.4689/2021 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 4 witnesses as PW.1 to 4, out of total charge sheet witnesses as CW.1 to 8 and got marked 3 documents as Ex.P1 to 3 with sub-markings. CW1 reported to be dead. Learned A.P.P Prays this court given up the evidence of CW3, 6, 7. In view of submission made by the learned A.P.P the evidence of CW3, 6, 7 is 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 evidence of prosecution witnesses. Accused 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.
6 C.C.No.4689/2021
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 declaration of closure of wine shops during the COVID-19 pandemic period, on 20.07.2020 at about 7.20P.M, while Excise Inspector was on patrolling duty along with the staff and on receipt of credible information, he conducted raid on the accused near Railway Parallel road, in front of Honda Showroom, Kengeri Satellite town and found the accused was in illegal possession of 10.350 liters of liquor and he transporting said liquor on Activa Honda two wheeler bearing No. KA-41- EE-0580 and selling the same and thereby the accused has committed the offences punishable U/Sec.11, 14, 15, 32, 34, 38(A), 43 of Karnataka Excise Act 1965?7 C.C.No.4689/2021
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, in
the background of declaration of closure of wine shops during the COVID-19 pandemic period, on 20.07.2020 at about 7.20P.M, while Excise Inspector was on patrolling duty along with the staff and on receipt of credible information, he conducted raid on the accused near Railway Parallel road, in front of Honda Showroom, Kengeri Satellite town and found the accused was in illegal possession of 10.350 liters of liquor and transporting said liquor on Activa Honda two wheeler bearing No. KA-41- EE-0580 and selling the same and thereby the accused committed the offences punishable U/Sec.11, 14,15, 32, 34, 38(A), 43 of Karnataka Excise Act 1965.
8 C.C.No.4689/2021
11. CW1/C. Krishnappa reported to be dead. PW-1/ CW2 Ramesh in his examination he deposed that on the background of lockdown due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was a ban of sale of liquor, that on 20.07.2020 at 07.20 P.M in the afternoon, while Excise Sub- Inspector-C. Krishnappa was on patrolling duty and on receipt of credible information, himself CW1, CW3 ,6 and the mahazar witness have rushed to the spot for raid the accused near Railway Parallel Road, in front of Honda Showroom, Kengeri Satellite town and found the accused was in illegal possession of 10.350 liters of liquor and transporting said liquor on Activa Honda two wheeler bearing No. KA-41- EE-0580 and selling the same. Cw1 seized the same under seizure mahazar.
12. CW5/PW2/ Tulasi, CW4/PW3/Sunilkumar in their examination they deposed that they have not given any statement before the police. They turned hostile to the case of prosecution.
9 C.C.No.4689/2021
13. PW-4/CW8/ L.Chandrashekar in his examination he deposed that he received the entire file from the Cw1 and investigated further. He received the report from FSL and taken the statement of CW6. After the completion of the investigation he submitted the charge sheet before the court
14. 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 evidence of the panchas witnesses are very essential. In the present case on hand the independent mahazar witnesses PW2 and 3 turned hostile. Hence the seizure of the property has not been proved.
15. As per the case of the prosecution, the accused possessing 90ML x 94 original choice Tetra pack, 90 ml x 21 hywards Tetra Pack without any license and selling in the vehicle. Hence, the prosecution has made reference about the seizure of above said liquor, out of the said liquor, so seized they have sent only 90ML x 30 original choice Tetra pack, 90 ml x 10 Heyward's Tetra Pack. In total 90ml X 40 Tetra pack 10 C.C.No.4689/2021 only 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 pouches as conducted by the prosecution or whether the investigation officer, merely on seeing the labels on the pouches has arrived at the conclusion that the entire pouches alleged to be seized are the illegal liquors.
16. 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 Court has observed that "Granting that all those ten bottles 11 C.C.No.4689/2021 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.
17. 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 that" Granting that all the 33 sachets were recovered from 12 C.C.No.4689/2021 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".
18. 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 90ml X 40 Tetra pack only were sent and obtained report.
19. Now as per the admission of the prosecution when the investigating officer has sent only 90ML x 30 original choice Tetra pack, 90 ml x 10 Heyward's Tetra Pack. In total 13 C.C.No.4689/2021 90ml X 40 Tetra packet and by failing to send the rest of the alleged illegal liquors, then the court has to presume that the raiding parties have seized only 90ml X 40 Tetra packet from the possession of the accused. The total liquor that was seized would be 90x40=3600 ml 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.
20. However no piece of paper is produced before the court to show that the accused is either owner or having control over the vehicle in which the alleged excisable goods were stored.
21. 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.
22. In this case, the attestors to the seized mahazar as PW-1 whom the prosecution has examined is the police official, witnesses has been examined as independent 14 C.C.No.4689/2021 investigation officer and seizure mahazar witnesses. The material witnesses have not appeared before the court to support the case of the prosecution and there is no sufficient documents to case of the prosecution to prove the guilty. Though, the prosecution has taken the contention that the accused was found selling liquor on Active Honda. Now on the evidence given by the prosecution witnesses, the PW.1 who being the raiding party and attestor to the seizure mahazar have given some what 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 observation, I hold the point No.1 in the Negative.
23. Point No.2: - In view of the findings of point No.1, this court proceed to pass the following:
15 C.C.No.4689/2021
O RDE R Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable Sec.11, 14, 15, 32, 34, 38A, 43 of Karnataka Excise Act Bail bonds of the accused and Surety bonds shall stand canceled.
However the bail bonds executed by the accused U/Sec.437(a) shall be continued.
M.O.1 is 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 1st December 2022).
(Latha J.), XXXII Addl.C.M.M. Bengaluru.16 C.C.No.4689/2021
ANNEXURE List of the Witnesses examined by the Prosecution :
PW1 Ramesh 2/8/2022 PW2 Shivappa 7/11/2022 PW3 Sunil Kumar 7/11/2022 PW4 L.Chandrashekar 7/11/2022
List of the Documents exhibited for the Prosecution :
Ex.P1 : Spot Mahazar Ex.P1(a) Signature of PW-1 Ex.P2 Signature of PW-1 Ex.P3 : Report
List of the MOs marked on behalf of the Prosecution :
MO.1 : Total 40 Tetra Pack List of the Witnesses examined for defence:
--Nil--17 C.C.No.4689/2021
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
XXXII A.C.M.M., Bengaluru.