Bangalore District Court
State By J.P. Nagar Police Station vs Nagaraj on 27 December, 2016
IN THE COURT OF THE 44TH ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 27th day of December, 2016
:PRESENT:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.24254/2014
Complainant : State by J.P. Nagar Police station
(By Asst.Public Prosecutor)
-V/s-
Accused : Nagaraj,
S/o Ramegowda,
Aged about 40 years,
R/at Eshwari Nilaya,
Bagegowda Layout,
Kankapura Road,
Bengaluru.
(By MRV Associates)
JUDGMENT
The PSI of J.P. Nagar Police Station has filed charge sheet against the accused for the offences punishable U/s. 14, 15 , 32, 38(A) of Excise Act, 1965.
2 C.C.No.24254/2014
2. The brief facts of the prosecution case are as follows:
It is alleged that, on the backdrop of Lokasabha Election 2014, Excise Officer, Gandhinagar Sub-division, Bengaluru received a credible information on 16/04/2014 that, accused being the owner of Bhavani Non-vegetarian hotel was illegally selling 5.310 liters of liquors without any valid license and thereby committed the aforesaid offences. Therefore, Excise Officer lodged complaint against accused before jurisdictional police. As such, this case came to be registered against the accused. During the course of investigation I.O. visited the place of incident, drawn spot mahazar in the presence of the witnesses, seized M.O. 1 to 9, recorded the statement of witnesses and after completion of investigation filed charge sheet against the accused for the aforesaid offences.
3. The accused is on bail and he is represented through his counsel.
4. The copies of the prosecution papers have been furnished to the accused as required under Sec.207 of Cr.P.C. The cognizance of the offences punishable U/sec. 14, 15 , 32, 38(A) of Excise Act, 1965 has been taken as per Sec.190 of Cr.P.C.
3 C.C.No.24254/2014
5. The charge is framed, contents of charge have been read over and explained to the accused in the language known to them, they pleaded not guilty and claimed to be tried. Hence, the prosecution is called upon to prove its case.
6. The prosecution, in order to prove its case, has examined five witnesses as P.W. 1 to 5 and got marked three documents at Ex.P1 to P.3.
7. Thereafter, the statement of accused as required under Section 313 of Cr.P.C. has been recorded, wherein he has denied the incriminating evidence adduced against him and has not chosen to lead his defense evidence. Hence, posted for arguments.
8. Heard both the side and perused the material evidence on record.
9. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, on the backdrop of Lokasabha Election 2014, Excise Officer, Gandhinagar Sub-division, Bengaluru received a credible information on 16/04/2014 that, , accused being the owner of Bhavani Non-vegetarian hotel was illegally selling 5.310 liters of liquors without any valid license and committed an offence punishable U/s. 14, 15 , 32, 38(A) of Excise Act, 1965?4 C.C.No.24254/2014
2. What Order?
10. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : As per final order for the following
REASONS
11. Point No.1: This case has been registered against
accused on the background of illegally selling the liquors during the time of Lokasabha Elections 2014, without having any valid license.
12. In this connection, the prosecution has cited as many as 7 witnesses and successful in examining five witnesses as P.W. 1 to 5.
13. P.W. 1 is the excise inspector, she has spoken about the raid conducted by her along with police officials. She has spoken in detail about the manner in which she has conducted the mahazar in the presence of witnesses. It is the case of the prosecution that, on the declared dry day during election period accused was selling the liquor in violation of Excise Rules and also the Conduct Rules of Election. On the other hand, no piece of paper is forth coming to know that the alleged date of incident was a dry day as per the say of Excise Inspector. On keen observation, it can be noticed that, 5 C.C.No.24254/2014 there was no memo or notice to call upon the mahazar witnesses. However, two independent mahazar witnesses have been cited in this case. At the same time they have not appeared before this court inspite of due issuance and publication of proclamation.
14. That apart, the other mahazar witnesses are all police officials. As such, naturally they have supported the case of prosecution. It is the defense of the accused that, abutting to the accused's Wine Shop, there was a bar and restaurant in the said place. As such the customers who had visited the bar and restaurant has brought the wine and were drinking the same in their wine shop. From the chief-examination of P.W. 1 to 5, it can be noticed that, there is a bar and restaurant abutting to accused's shop.
15. As it is already said, non-examination of independent mahazar witness is a fatal blow to the case of prosecution. There is no independent evidence in support of prosecution case to establish the allegations made against the accused. Admittedly, the said raid was conducted during the election period. As such, it is the bounden duty of the prosecution to clear the suspicion clouded on the conduct of the excise officials to the effect that, they will conduct raid for the 6 C.C.No.24254/2014 purpose of statistical information at the instance of their higher officers. Under the circumstances, the prosecution has failed to establish the mahazar and seizure. As such, it would not be proper to hold the accused as guilty minded. Therefore, the prosecution has failed to prove its case against the accused with cogent, convincing and corroborative evidence. Therefore, above point No.1 is answered in the Negative.
16.Point No.2: In view of the negative findings on the above point No.1, I proceed to pass the following:-
ORDER Acting U/s.248(1) of Cr.P.C., the accused is found not guilty and acquitted of the offences punishable U/s. 14, 15 , 32, 38(A) of Excise Act, 1965.
The bail & bail bond of the accused and surety shall stands cancelled. Office is directed to handover M.O.1 to 9 to the Excise Department in order to dispose off it in accordance with law.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 27th day of December 2016).
(Mala N.D) XLIV Addl.C.M.M., B'lore.
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION PW-1: M. Mahadevaiah PW-2: H.K. Channaiah PW-3: Smt. S. Jyothi PW-4: Thippeswamy PW-5: Lingaraju Babu 7 C.C.No.24254/2014
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Chemical Analysis Report Ex.P. 2 : FIR Ex.P.2(a) : Signature of PW-3 Ex.P.3 : Mahazar Ex.P.3(a) : Signature of P.W. 3 Ex.P.3(b) : Signature of P.W. 4 Ex.P.3(c) : Signature of P.W. 5
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION M.O.1 to 9 : Liquor Bottles (Mala N.D) XLIV Addl.C.M.M., B'lore.8 C.C.No.24254/2014
Judgment pronounced in Open Court vide separate:-
ORDER Acting U/s.248(1) of Cr.P.C., the accused No.1 and 2 are found not guilty and acquitted of the offences punishable U/s.14, 15 , 32, 38(A) of Excise Act, 1965.
The bail & bail bond of the accused and surety shall stands cancelled.
Office is directed to handover M.O.1 to 9 to the Excise Department in order to dispose off it in accordance with law.
(Mala N.D) XLIV Addl.C.M.M., B'lore.