Bangalore District Court
D .M Venkatesh vs Bharath on 7 July, 2025
KABC030105332019
Digitally signed
DEEPA
VEERASWAMY by DEEPA
VEERASWAMY
Presented on : 11-02-2019
Registered on : 11-02-2019
Decided on : 07-07-2025
Duration : 6 years, 4 months, 24 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 07th Day of July, 2025
C.C. No.3624/2019
Crime No.49/2017-18/04SIE1/040212
State by Excise Police Station,
R.P.C. Layout Range,
Gandhinagara Sub Division,
Bengaluru West. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Bharath,
Aged about 21 years,
S/o Sri Dhanraj,
R/at No.06 and 07,
1st Main, 1st Cross,
BCC Layout, Bengaluru.
KABC030105332019 CC 3624/2019
2. Sri Govindaraju,
Aged about 58 years,
S/o Sri Venkatappa,
R/at No.81/1, 3rd Cross,
Attiguppe, Bengaluru.
3. Smt. Priyanka.G.
Major,
W/o Govindaraju,
R/at No.14/2, 2nd Main Road,
Attiguppe, Bengaluru ... Accused
(Represented By Sri S.G.Maheswara, Adv. for A1)
(Represented By Sri T.Govindaraj, Adv. for A2 & 3)
1. Date of commission of 22-04-2018 at 6.00 p.m.
offence
2. Date of FIR 23-04-2018
3. Date of Charge sheet 02-01-2019
4.Name of Complainant Sri D. M. Venkatesh,
Excise Sub Inspector,
Vijayanagara EIB-2,
Bengaluru.
5. Offences complained of Under Section 11, 13, 14,
15, 32, 38(A), 43(A) of
Karnataka Excise Act.
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KABC030105332019 CC 3624/2019
6. Date of framing of 28-12-2022
charges
7. Charge Pleaded not guilty
8. Date of commencement 28-03-2023
of evidence
9. Date of Judgment is 07-07-2025
reserved
10. Date of Judgment 07-07-2025
11. Final Order Accused No.1 to 3 are
acquitted
12. Date of sentence -
JUDGMENT
The Excise Sub-Inspector of R.P.C. Layout Division, Bengaluru submitted charge sheet against accused for the offences punishable under Section 11, 13, 14, 15, 32, 38(A), 43(A) of Karnataka Excise Act.
2. Prosecution Case: On 22-04-2018 at about 6.00 p.m., on the way from Attiguppe to Chandra Layout, the accused No.1 illegally transporting refilled one 750 ml 100 Pipper Whisky and one 750 ml Blenders Pride Whisky bottle in his Aprilia SR 150 vehicle registration No.KA 02 J 6980 and accused No.2 was transporting refilled two 750 ml 100 Pipper 3 KABC030105332019 CC 3624/2019 Whisky bottles in his vehicle registration No.KA 02 JL 8067 near Nammura Thindi, Nagarbhavi, Bangalore thereby accused No.1 and 2 and accused No.3 being the owner of vehicle registration No.KA 02 JL 8067 were by violated the provisions of Excise Act, illegally possessed the refilled liquor, transported, supplied and sold the same to customer thereby the accused committed the alleged offences.
3. First Information Report: On the receipt of credible information, CW1/PW1 -Sri D.M.Venkatesh, Excise Sub Inspector along with his staff conducted raid at Attiguppe circle, Nammura thindi and in the house of accused No.2 and seized the MO1 to MO4 through Ex.P1 and registered FIR as per Ex.P2.
4. Investigation: After registration of FIR, CW10/PW5 Sri Naveen Kumar Patil, continued the investigation,, collected the B-Extract of the vehicle from RTO, Rajajinagara as per Ex.P5, sent the seized bottles for examination and received Ex.P4-report. After completion of investigation, he submitted the charge sheet for the alleged offences against the accused.
5. On receipt of charge sheet, this Court had taken cognizance of offences alleged against the accused.
4 KABC030105332019 CC 3624/20196. At the pre-summoning stage, the accused No.1 and 2 were enlarged on bail by the order dated 25-04-2018 and accused no.3 was enlarged on bail by the order dated 06-08-2019 at the summoning stage.
7. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1 to 3.
8. Charge: After hearing learned Senior APP and counsel for accused No.1 to 3, charge for the offences punishable under Section 11, 13, 14, 15, 32, 38(A), 43(A) of Karnataka Excise Act has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 10 witnesses, examined 4 witnesses and exhibited 4 documents and MO1 to MO4 and closed their side. On account of examination of CW4, the examination of CW6 was given up by the order dated 25-10-2024. On account of marking of Ex.P4 through CW9, the examination of CW7 is given up. On account of marking of B extract form with the consent of the counsel for accused, the examination of CW8 is given up by the order dated 03/07/2025. On account of examination of CW5, the 5 KABC030105332019 CC 3624/2019 examination of CW4 were given up by the order dated 03/07/2025. The process returned against the CW2 as unavailable for last three years and hence the examination of CW2 was dropped out by the order dated 03/07/2025.
10. Statement of Accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 to 3 were examined as per section 313 of Cr.P.C, wherein they 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 22-04-2018 at about 6.00 p.m., on the way from Attiguppe to Chandra Layout, the accused No.1 illegally transporting refilled one 750 ml 100 Pipper Whiskey and one 750 ml Blenders Pride 6 KABC030105332019 CC 3624/2019 Whiskey bottle in his Aprilia SR 150 vehicle registration No.KA 02 J 6980 and accused No.2 transporting refilled two 750 ml 100 Piper Whiskey bottles in his vehicle registration No.KA 02 JL 8067 near Nammura Thindi Nagarbavi thereby accused No.1 and 2 and accused No.3 being the owner of vehicle registration No.KA 02 JL 8067 were by violated the provisions of Excise Act, illegally possessed the refilled liquor, transported, supplied and sold it to customer and thereby resulted in commission of offences punishable Section 11, 13, 14, 15, 32, 38(A), 43(A) of Karnataka Excise Act?
2. What order?
13. The court's findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
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KABC030105332019 CC 3624/2019
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 D.M. Venkatesh, being informant and the then Excise Sub Inspector examined as PW1 deposed that on 22-04-2018, he along with CW5 and CW4 were on patrolling in Attiguppe, on the receipt of credible information, they stopped the Honda Activa vehicle which was coming from Attiguppe towards Chandra Layout and found 750 ml bottle of 100 piper and one bottle of blender spirit liquor in its dicky. When the driver i.e. accused No.1 was questioned about the same, he informed that he had got them from the accused No.2. Later, the said vehicle, bottle of liquor and accused were taken into custody and they went to Nagarbhavi Circle and called the accused No.2 from the mobile of accused No. 1 and after his arrival, they searched his vehicle and found two 750 ml bottles of 100 piper liquors. When they were questioned about the same, he told that he was making the bottles of liquor at his house. Later, they went to the house of accused No.2 and found bottle filled with various brands of liquor. The bottles were wrapped and sealed with cloth and conducted seizure mahazar as per Ex.P1 and 15 liquor filled bottles, 18 8 KABC030105332019 CC 3624/2019 lids and 99 empty bottles were seized and filed FIR as per Ex.P2. The 20 liquor bottles were collectively identified as MO1, the two mobile phones as MO2 and MO3, 18 lids as MO4 and seized properties and case papers were handed over to the Zonal Office for further investigation. He identified his signature as Ex.P1(a) and 2(a).
ii. CW3 Sri namely Sri Kishore, pancha witness examined as PW2 deposed that, he became pancha witness as per request of Excise officer and on 22-04- 2018 at 6 pm from Attiguppe to Chandra Layout, the officials stopped the two-wheeler near the Lakshmi Narasimhaswamy Temple Cross and questioned him, they prepared the reasons for search warrant and obtained his signature and found 750 ml of 100 pipper whiskey and a blender pride whiskey under the seat of vehicle and accused No.1 informed that accused No.2 supplied the same. Through accused No.1's phone, they called accused No.2 to Nammura Tindi, Nagarbavi and seized the liquor as per the rules. At Nammura Thindi, Nagarbavi Circle, the officers arrested the accused No.2 and prepared the reasons for search warrant on the spot to search his two-wheeler registration number KA-02JX-8067 and found to contain two fake bottles of 100 Pipper whiskey, inquired about the same, he said that he would mix the low value wishkey to high-value whiskey bottle at his house situated at Attiguppe and 9 KABC030105332019 CC 3624/2019 sell the same. Then, the bottles and the vehicle were seized as per the rules and his signature was obtained. They went to Attiguppe 3rd Cross and prepared the reasons for search warrant at the spot to search the house and 18 caps in a cardboard box, 99 empty 8 PM bottles of 750 ml and 750 ml empty Teacher whiskey bottles, 7 empty bottles of 100 Pipper Whiskey of 750 ML, one bottle filled with 750 Teacher Whiskey, one filled bottle of 750 ML Black and White, 3 filled bottles of 100 Pipper Whiskey of 750 ML and 6 filled bottles of 750 ML Blender Pride whisky were found. The same were seized as per the rules by conducting seizure mahazar and obtained his signature. A Yellow color Nokia mobile was seized from the accused No.1 and a Black color Nokia mobile and SIMs from the accused No.2 as per Ex.P3 seizure mahazar. At that time, Manjunath, Ramesh Kumar, Basavan Bayalugonda, Venkatesh, Nagaraj were present.
iii. CW4/PW3 by name Sri H.Ramesh Kumar, the then Excise Inspector, Sanjaynagara PS who accompanied PW1, deposed the same version of PW1.
iv. CW9/PW4 Sri Basavaraju Govinagidada, Assistant Chemical Examiner deposed that on 27-06- 2018, as per request of Excise Sub-Inspector - 2, RPC Layout, Bangalore in Crime No.49/2017, a total of 20 sealed articles of various brands of liquor bottles and 10 KABC030105332019 CC 3624/2019 their original liquor bottles were seized and tested for chemical examination. The bottles were tested along with the original liquor bottles and the report was submitted. In the said report, the ethyl alcohol content in samples No. 3, 5, 7, 8, 10 to 12, 14 to 18 was found to be less than the prescribed limits. Since the results of Gas Protomogram and Gross Chromatogram and UV Visible Photometer were found to be inconsistent, it was found that they were not related to the original brand of liquor. After testing, the liquor bottles were sent to the Department, sealed with a seal and sent with the report as per Ex.P4.
v. CW10 by name Sri Naveen Kumar Patil, the then Excise Sub-Inspector of RPC Layout examined as PW5 deposed the same version of PW1 and PW3. Further deposed that the refill liquor bottles found from the house of accused No.2 were sealed, sample chit were prepared and pasted on them, spot mahazar was conducted, on 18-05-2018, letter was written to the Rajajinagar Transport Officer as per Ex.P5 to provide the B extract in respect of the vehicles, the seized liquor bottles were sent for chemical examination through CW7 and report was obtained as per Ex.P4, a letter was written to the Assistant Revenue Officer to provide the particulars of the owner of the place where the crime had taken place, and a final report submitted against the accused.
11 KABC030105332019 CC 3624/201915. It is relevant to mention the Section 14, 15, 38(A) and 32 of Karnataka Excise Act, 1965 which reads as under
14. Possession of excisable articles in excess of the quantity prescribed.- (1) The State Government may, by notification, prescribe a limit of quantity for the possession of any intoxicant:
Provided that different limits may be prescribed for different qualities of the same article.
(2) No person shall have in his possession any quantity of any intoxicant in excess of the limit prescribed under sub-section (1), except under the authority and in accordance with the terms and conditions of,-
(a) a licence for the manufacture, cultivation, collection, sale or supply of such article; or
(b) a permit granted by the Deputy Commissioner in that behalf.12 KABC030105332019 CC 3624/2019
15. Sale of excisable articles without licence prohibited.- (1) No intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf:
Provided that, subject to such restrictions and conditions as the Excise Commissioner may by general or special order specify,-
(a) a person having the right to the toddy drawn from any tree may sell such toddy without a licence to a person licensed to manufacture or sell toddy under this Act;
(b) a cultivator or owner of any plant from which an intoxicating drug is produced may sell without a licence those portions of the plant from which the intoxicating drug is manufactured or produced, to any person licensed under this Act to sell, manufacture or export the intoxicating drugs or to any officer, whom the Excise 13 KABC030105332019 CC 3624/2019 Commissioner may generally or specially authorise.
(2) A licence for sale under sub-
section (1), shall be granted,-
(a) by the Deputy Commissioner, if the sale is within a district, or
(b) by the Excise Commissioner, if the sale is in more than one district:
Provided that subject to such conditions as may be determined by the Excise Commissioner, a licence for sale granted under the Excise law in force in any other State may be deemed to be a licence granted under this Act.
(3) Nothing in this section shall apply to the sale of any liquor lawfully procured by any person for his private use and sold by him or on his behalf or on behalf of his representatives in interest upon his quitting a station or after his decease.
(4) Notwithstanding anything contained in sub-sections (1) and 14 KABC030105332019 CC 3624/2019 (2), no club shall supply liquor to its members on payment of a price or of any fee or subscription except under the authority of and subject to the terms and conditions of a licence granted in that behalf by the Excise Commissioner and on payment of such fees according to a scale of fees to be fixed by the State Government in this behalf.
32. Penalty for illegal import, etc.-
(1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1 [be punished for each offence with rigorous imprisonment for a term which may extend to 2 [five years and with fine which may extend to fifty thousand rupees.] 1 [Provided that the punishment,-15 KABC030105332019 CC 3624/2019
(i) for the first offence shall be not less than [one year rigorous imprisonment and fine of not less than ten thousand rupees]; and
(ii) for the second and subsequent offences shall be not less than [two years rigorous imprisonment and fine of not less than twenty thousand rupees] 2 for each such offence.] (2) xxxx 38(A) Outlines the penalty for allowing premises to be used for the commission of offences under the Act. Specifically, it states that anyone who knowingly allows their property or premises to be used for committing offenses punishable under sections 32, 33, 34, 36, and 37 will be punished as if they had committed those offenses
43. Liability of certain things to confiscation.-Whenever an offence has been committed, which is 16 KABC030105332019 CC 3624/2019 punishable under this Act, the following things shall be liable to confiscation, namely :-
(1) any intoxicant, material, still, utensil, implement or apparatus in respect of, or by means of which, such offence has been committed;
(2) any intoxicant lawfully
imported, transported,
manufactured, had in possession or sold along with, or in addition to, any intoxicant liable to confiscation under clause (1); and (3) any receptacle, package, or covering in which anything liable to confiscation under clause (1) or clause (2), is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, [except the vehicles owned by the State Road Transport Undertaking or Corporation] 1 vessel, raft or other conveyance used for carrying the same ;17 KABC030105332019 CC 3624/2019
It appears from the record that the reasons for search warrant was prepared on 22/04/20218 at 6 pm at Athiguppe Chandra Layout way to Lakshmi Narasimhaswamy Temple, Attiguppe, Bangalore, 7pm at Nammuru Thindi, Nagarbhavi, Bangalore and 8.15 pm at House No.81/1, III Cross, Atthiguppe, Vijayanagara, Bangalore but the reasons assigned for not obtaining searching warrant depicts the quantity of liquors alleged to have seized from the possession of the accused persons which goes to show that raiding authority seized the liquors first and then assigned the reasons, which is contrary to Section 53 and 54 of Karnataka Excise Act. In order to appreciate the above said contention, it is just and necessary to articulate those two provisions which reads as under
53. Power of magistrate to issue a warrant. - If a Magistrate, upon information and after such enquiry (if any) as he thinks necessary, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, he may issue a warrant, -
(a) for the search of any place in which he has reason to believe that any intoxicant, still, utensil, 18 KABC030105332019 CC 3624/2019 implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed; and
(b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be, engaged in the commission of any such offence.
54. Power to search without warrant. - Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an officer -in -charge of a Police Station or any Excise Officer not below such rank as may be prescribed, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape 19 KABC030105332019 CC 3624/2019 or of concealing evidence of the offence, he may, after recording the grounds of his belief. -
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
As per Section 54 of the K.E. Act, the Judicial Magistrate is a competent person to issue warrant, if the Magistrate is satisfied about the information and he has reason to believe that offences punishable under Sections 32, 33, 34, 36 or 37 has been, is being or likely to be, committed, then only may issue search warrant for the search of any place in which any intoxicant, still, utensil, implement are concealed and also for arresting of any person who was involved in commission of such offence. Section 54 of the K.E. Act deals with, under what circumstances the police officer or any competent officer can make a search without a warrant. This provision abundantly clears the doubt that whenever the competent officer has 20 KABC030105332019 CC 3624/2019 reason to believe that an offence under the above said provisions are likely to be committed or committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief he can search the said place.
16. The raiding authority has not followed the mandatory provisions under Sections 53 and 54 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the K.E. Act' for brevity). The raiding authority have no jurisdiction to search the vehicles and house of the accused No.2 without warrant from the Magistrate. The raiding authority assigned the reasons after seizure which is impermissible as contemplated under Section 53 of K. E. Act. The prosecution paper does not disclose that the police officer made all his efforts to secure the necessary warrant. When the raiding authority was unable to secure the warrant, and therefore, by exercising the powers under Section 54 of K.E. Act by giving the reasons in black and white, he could have proceeded with search of two wheelers and house of accused No.2 and hence the search and seizure becomes illegal and invalid and the said principle is appreciated in the case of NAGARAJ PATAGAR VERSUS STATE reported in LAWS(KAR) 2014 2 514.
21 KABC030105332019 CC 3624/201917. The raiding authority seized 3 x 750 ML piper whiskey, 1 x 750 ml teachers whiskey, 6 x 750 Ml Blenders whiskey totaling to 11.250 liters as per search mahazar which has been extracted as under
... ನಂತರ ಮನೆಯನ್ನು ಶೋಧಿಸಲಾಗಿ ಹಾಲ್ನಲ್ಲಿ ದಿವಾನವಿದ್ದು ಮನೆಯನ್ನು ಶೋಧಿಸಲಾಗಿ ಒಂದು ಮೂಲೆಯಲ್ಲಿ ಒಂದು ರಟ್ಟಿನ ಪೆಟ್ಟಿಗೆ ಇದ್ದು ಅದರಲ್ಲಿ ಕೃತ್ಯಕ್ಕೆ ಬಳಸಿದ ಖಾಲಿ ಬಾಟಲಿನ 18 ಬಿರುಡೆಗಳು ದೊರೆತಿರುತ್ತವೆ. ನಂತರ ದಿವಾನದ ಪಕ್ಕದಲ್ಲಿ ರೀಫಿಲ್ಲಿಂಗ್ಗೆ ಬಳಸಿದ್ದ 750 ಮಿಲಿಯ 8 ಪಿ.ಎಂ.ವಿಸ್ಕಿಯ 99 ಖಾಲಿ ಬಾಟಲುಗಳು, 750 ಮಿಲಿಯ ಟೀಚರ್ಸ್ ವಿಸ್ಕಿಯ 01 ಖಾಲಿ ಬಾಟಲು ಮತ್ತು 750 ಮಿಲಿಯ 100 ಪೈಪರ್ ವಿಸ್ಕಿ 07 ಖಾಲಿ ಬಾಟಲುಗಳು ದೊರೆತವು. ದಿವಾನದ ಕೆಳ ಭಾಗದಲ್ಲಿ ಶೋಧಿಸಲಾಗಿ 750 ಮಿಲಿಯ 01 ಟೀಚರ್ಸ್ ವಿಸ್ಕಿ ಬಾಟಲು, 750 ಮಿಲಿಯ 01 ಬ್ಲಾಕ್ ಅಂಡ್ ವೈಟ್ ವಿಸ್ಕಿ ಬಾಟಲು, 750 ಮಿಲಿಯ 03 100 ಪೈಪರ್ ವಿಸ್ಕಿ ಬಾಟಲಿಗಳು ಮತ್ತು 750 ಮಿಲಿಯ 06 ಬ್ಲೆಂಡರ್ಸ್ ಪ್ರೆೃಡ್ ವಿಸ್ಕಿ ಬಾಟಲು ದೊರೆತಿದ್ದು, ಸದರಿ ಬಾಟಲುಗಳನ್ನು ಪರಿಶೀಲಿಸಲಾಗಿ ಅವುಗಳ ರೀಫಿಲ್ಲಿಂಗ್ ಆಗಿರುವುದು ಕಂಡು ಬಂದಿರುತ್ತದೆ.
Thus, it is clear that there is no 8 pm whiskey seized the liquors however the FSL report depicts the seizure of 8 pm whiskey. When the seizure of liquors are not tallying with the bottles sent for chemical examination to FSL, this court declines to give any evidentiary value to the FSL Report as per Ex.P4. Added to which, the methods adopted for comparison of genuine and suspected liquors were not detailed out in the FSL report except mentioning which are genuines.22 KABC030105332019 CC 3624/2019
18. In this context, it is relevant to rely upon Sections 154 and 157 of Cr.P.C which reads as under
"154. Information in cognizable cases.
--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: [Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or 23 KABC030105332019 CC 3624/2019 attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that-- (a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be video graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of 24 KABC030105332019 CC 3624/2019 sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which 25 KABC030105332019 CC 3624/2019 he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. [Provided further that in relation to an offence of rape, 26 KABC030105332019 CC 3624/2019 the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
Thus, it is clear from above provisions that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be 27 KABC030105332019 CC 3624/2019 carried out. The search carried out by the raiding authority is contrary to the law and the same is bad in law and the said principle is appreciated in the case of SRI DAYANANDA @ R. BABU VS STATE OF KARNATAKA REPORTED IN LAWS(KAR) 2024 - 4- 16.
19. It appears from the record that this court did not understand that the accused No. 1 was carrying in his two wheeler within permissible quantity of 2.6 liters and what led them to doubt the accused No.1 and thereafter secured the accused No.2 near Nammur Thindi, Nagharbhavi, Bangalore and thereafter they had taken to the house of the accused No. 2 was not explained by the Prosecution.
20. It appears from the spot cum seizure mahazar as per Ex.P1 that there are residential houses, however the raiding authority failed to tender any explanation why they have drawn/written the running mahazar when the seizure of places were at different 3 places though the pancha witnesses were very much available.
21. It was the version of prosecution that the accused No.1 and 2 were in possession of the liquors on 22/04/20218 at 6 pm at Athiguppe, Chandra Layout way to Lakshmi Narasimhaswamy Temple, Attiguppe, Bangalore, 7 pm at Nammuru Thindi, 28 KABC030105332019 CC 3624/2019 Nagarbhavi, Bangalore and 8.15 pm at House No.81/1, III Cross, Atthiguppe, Vijayanagara, Bangalore were surrounded with the residential and commercial properties. If such so, why the raiding authority did not make any attempts to join the local inhabitants for seizure, which raises the doubt about the fairness in seizing the alleged liquors from the alleged spots. It has been held in the case of Pradeep Narayana Vs State of Maharastra reported in AIR 1995 SC 1930 wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of investigation, the benefit ensured has to go to the accused.
22. The raiding authority did not take photographs or video graphed about the seizure procedure and the presence of accused No.1 and 2 at the alleged spot was not fortified with their signatures on Ex.P1. Therefore, it is safe to hold that, the prosecution failed to prove the guilt of accused beyond all reasonable doubt thereby this court answers the above point No.1 in the negative.
23. Point No.2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
29 KABC030105332019 CC 3624/2019ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 to 3 are found not guilty and acquitted from the offences punishable under Section 11, 13, 14, 15, 32, 38(A), 43(A) of Karnataka Excise Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) MO1 & MO4 are ordered to be destroyed and MO2 & MO3 confiscated to State, after expiry of appeal period.
(v) Ordered accordingly (Dictated to the stenographer directly on computer, typed by steno, verified and corrected by me on my laptop, then the judgment pronounced by me in the open court, on this the 07 th day of July, 2025) DEEPA Digitally signed by DEEPA VEERASWAMY VEERASWAMY (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.30 KABC030105332019 CC 3624/2019
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri D.M.Venkatesh/Informant PW2: Sri Kishore/Pancha witness PW3: Sri H.Ramesh Kumar/Excise Inspector PW4: Sri Basavaraju Govinagidada/As. Chemical Examiner PW5: Sri Naveen Kumar Patil/IO Documents marked on behalf of the prosecution:
Ex.P1: Seizure mahazar/PW1 Ex.P2: FIR/PW1 Ex.P3: Not marked Ex.P4: Report of Chemical Analysis/PW5 Ex.P5: Letter to RTP, Rajajinagar/PW5
Register Extract of vehicle bearing Reg.No.KA 02 JL 8067 pertaining to A3 Material Objects marked on behalf of the prosecution:
MO1 : 20 liquor bottles MO2-3 : 2 mobiles MO4 : 18 caps 31 KABC030105332019 CC 3624/2019
Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.32 KABC030105332019 CC 3624/2019
Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 to 3 are found not guilty and acquitted from the offences punishable under Section 11, 13, 14, 15, 32, 38(A), 43(A) of Karnataka Excise Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) MO1 & MO4 are ordered to be destroyed and MO2 & MO3 confiscated to State, after expiry of appeal period.
(v) Ordered accordingly.
VIII ACJM, B'luru City 33