Bangalore District Court
Excise Ps vs C Tirujnanam on 4 August, 2025
KABC030152082017 Digitally
DEEPA signed by
VEERASWAMY DEEPA
VEERASWAMY
Presented on : 02-03-2017
Registered on : 02-03-2017
Decided on : 04-08-2025
Duration : 8 years, 5 months, 2 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 04th Day of August, 2025
C.C. No.6783/2017
Crime No.ಅನಿ/ಜಇಐಬಿ/09/2015-16
State by Excise Police Station,
Kalasipalya Range,
Bengaluru West. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri C.Thirunyanam
Aged about 41 years,
S/o Sri Chinnudorai @ Sathish,
R/at No.876, 1st Floor,
16th Main Road, 42nd Cross,
Opp. ESI Hospital,
Rajajinagara, Bengaluru-560010.
KABC030152082017 CC 6783/2017
Permanent address:
Avarangakuppam
Village and Post,
Ambuluru route,
Vaniyambadi Taluk,
Velluru District,
Tamilnadu State.
2. Sri Manjunatha,
Aged about 32 years,
S/o Sri Narayanappa,
R/at Old No.20 & New No.39,
Shree Veerabhadraswamy Nilaya,
3rd Cross, Indira Road,
Subbayya Palya, Banasawadi
Main Road, Bengaluru-560033.
Permanent Address:
No.105, Attivatta Grama,
Dasarahalli Post,
Jedigenahalli Hobli,
Hosakote Taluk,
Bengaluru Rural District. ... Accused
(Represented By Sri H.Jayaramashetty, Advocate for
Accused No. 1)
(Represented By Sri C.Krishnappa, Advocate for
Accused No. 2)
2
KABC030152082017 CC 6783/2017
1. Date of commission of 29-08-2015 at 2 pm
offence
2. Date of FIR 29-08-2015
3. Date of Charge sheet 06-02-2017
4.Name of Complainant Smt Divyashree, Excise
Inspector, Jayanagara
EIB-2, Bengaluru.
5. Offences complained of Under Section 11, 12, 14,
15, 32, 38(A) and 43
Karnataka Excise Act.
6. Date of framing of 30-04-2018
charges
7. Charge Pleaded not guilty
8. Date of commencement 14-11-2019
of evidence
9. Date of Judgment is 04-08-2025
reserved
10. Date of Judgment 04-08-2025
11. Final Order Accused No.1 and 2 are
acquitted
3
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12. Date of sentence -
JUDGMENT
The Excise Sub-Inspector-2, Jayanagara EIB, Bengaluru City submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 11, 12, 14, 15, 32, 38(A) and 43 of Karnataka Excise Act.
2. Prosecution Case: On 29-08-2015 at about 2.00 p.m., at Nawab Hyder Ali Khan road, in front of Pradeep Theater within the limits of Kalasipalya Excise Range, the accused No.1 was illegally transporting the liquor bottles which was unfit for human consumption for having supplied by accused No.2 in his TVS Victor vehicle bearing No.KA 02 ER 2088 without having any license.
3. First Information Report: On the receipt of credible information, CW1/PW1-Smt. Divyashree, Excise Inspector, along with CW6 to CW9 checked the vehicle No.KA 02 ER 2088 of accused No.1 at Pradeep theater in Kalasipalya and found the liquors, since there was no time to obtain search warrant from the jurisdictional Magistrate, search warrant was 4 KABC030152082017 CC 6783/2017 prepared at the spot as per Ex.P1 and seized liquors through Ex.P2-seizure mahazar, had taken samples from each brand as per MO1 to MO3 and affixed sample seal as per Ex.P3 and prepared an inventory of seized items as per Ex.P.4. Thereafter, to search accused's house, there was no time to obtain search warrant from the jurisdictional magistrate, the reasons for not obtaining search warrant was prepared at the spot as per Ex.P5 and seized the one liter of Seven bottles of Johnnie Walker Black Lable, one liter one bottle of Sivas Regal, a cloth bag, and handbags as per the Ex.P6-seizure mahazar, samples were taken from each brand as per Mo4 and 5, seal was affixed and inventory of seized items was prepared as per Ex.P7.
4. Investigation: On 29-08-2015 CW10 / PW3 Sri Gopalappa received the TVS victor vehicle bearing Reg. No.KA 02 ER 2088 and 26 liter liquors from CW1 and after completion of investigation, he submitted charge sheet against accused.
5. On receipt of charge sheet, this Court had taken cognizance of offences alleged against the accused.
5 KABC030152082017 CC 6783/20176. At the pre-summoning stage, the accused No.1 and 2 were enlarged on bail by the order dated 01-09-2015 and 21-09-2015 respectively.
7. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1 to 2.
8. Charge: After hearing learned Senior APP and counsel for accused No.1 and 2, charge for the offences punishable under Section 11, 12, 14, 15, 32, 38(A) and 43 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 6 documents and MO1 to MO5 and closed their side. On account of examination of CW4, the examination of CW5, CW7 and CW9 were given up by the order dated 15-07- 2025. The process returned as unavailable from 02- 10-023 and hence the examination of CW2 and CW3 is given up by the order dated 21-07-2025.
6 KABC030152082017 CC 6783/201710. Statement of Accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 and 2 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 29-08-2015 at about 2.00 p.m., at Nawab Hyder Ali Khan road, in front of Pradeep Theater within the limits of Kalasipalya Excise Range, the accused No.1 was illegally transporting the liquor bottles which was unfit for human consumption for having supplied by accused No.2 in his TVS Victor vehicle bearing No.KA 02 ER 2088 without having any license thereby 7 KABC030152082017 CC 6783/2017 resulted in commission of an offences punishable under Section 11, 12, 14, 15, 32, 38(A) and 43 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
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 examined the witnesses which are as follows;
i. CW1 Smt. Divyashree, being informant and the then Excise Inspector examined as PW1 deposed that on 29-08-2015, on the receipt of credible information that the liquor was being transported illegally on TVS Victor bike in front of Pradeep Chitra Mandir in Kalasipalya, she along with CW6 to CW9, 8 KABC030152082017 CC 6783/2017 went to the said spot from the office in government vehicle No. KA 01 G 5553 and stopped vehicle No.KA 02 ER 2088 and found the plastic bag and the bag on the back of the accused No.1, as he did not answer. Since there was no time to obtain search warrant from jurisdictional magistrate, the reasons for not obtaining search warrant was prepared at the spot as per Ex.P1. When the bags were checked, 14 bottles of 1 liter of Johnny Walker Double Black, 3 bottles of 1 liter of Johnny Walker Black Lable, and 1 bottle of 1 liter of Grey Goose Vodka were found and the accused did not have license to transport them. Further deposed that the said liquor was brought from the house of accused and was going to Kengeri and hence she seized liquor and vehicle through Ex.P2-seizure mahazar, had taken samples from each brand and wrapped the lids with white cloth and sealed with departmental seal and affixed her signature, prepared sample seal as per Ex.P3 and prepared an inventory of seized items as per Ex.P4. Since there was no time to obtain search warrant from the jurisdictional magistrate, to visit accused's house, the reasons for not obtaining search warrant was prepared at the spot as per Ex.P5 and seized the one liter of Seven bottles of Johnnie Walker Black Label, one liter one bottle of Sivas Regal, a cloth bag, and handbags were found and seized as per Ex.P6. Samples were taken from each brand to send the same to chemical examination from each brand and 9 KABC030152082017 CC 6783/2017 wrapped the lids with white cloth and sealed with departmental seal and affixed her signature, prepared sample seal. An inventory of the seized items was prepared as per Ex.P7. She identified her signature as Ex.P1(a), 2(a), 3(a), 4(a), 5(a), 5(a) and 7(a) and the sample bottles as M.Ma1 to 5 and her signatures thereon as MO1(a) to MO5(a). PW1 did not subject herself for further chief in examination and cross examination and hence dropped out as not secured by the Police by the order dated dated 25/011/2023.
ii. CW8 Sri namely Sri Naglegowda, the then Excise Guard, examined as PW2 who accompanied PW1, deposed the same version of PW1 and identified his signature as per Ex.P6(b).
iii. CW10 by name Sri Gopalappa, the then Excise Sub-Inspector of Jayanagara EIB, examined as PW3 deposed that on 29-08-2015, CW1 handed over one blue TVS Victor vehicle bearing No. KA-02- ER-2088 and 26 liters of liquor bottles to him. After completion of the investigation, he submitted charge sheet against the accused.
iv. CW4/PW4 Sri Ramachandra Gowda, the then Excise Sub Inspector, Kalasipalya Range, deposed that on 29-08-2015, while patrolling on 10 KABC030152082017 CC 6783/2017 Kalasipalya range, the accused No.1 was coming on a two-wheeler at Nawab Hyderali Khan road at a high speed, when he was stopped and taken near Pradeep Cinema theater and was searched total 18 bottles of Chivas Regal, Johnnie Walker Double Black, 12 years brand were found in a handbag. On enquiry, he did not possess any license to possess them, seizure mahazar was conducted at the said place as per Ex.P2. Later, they went to the house of accused situated opposite to Rajajinagar ESI Hospital and found total of 8 bottles of Johnnie Walker 12 years and 8 bottles of Chivas Regal and the same was seized through seizure mahazar as per Ex.P6 from 4.30 pm to 5.30 pm and five bottles were sent for chemical examination.
15. It is relevant to mention the Section 11, 12, 14, 15, 32, 38(A) and 43 of Karnataka Excise Act, 1965 which reads as under
11. Transport of intoxicant.- No intoxicant exceeding such quantity as may be prescribed either generally or for any local area shall be transported, except under a permit issued under section 12.11 KABC030152082017 CC 6783/2017
12. Permits for transport.
1) The Deputy Commissioner or any other person duly empowered by the State Government in that behalf may issue a permit for the transport of intoxicants.
2) A permit under sub-section (1) may be either a general permit for definite periods and kinds of particular intoxicants or a special permit for specified occasions and particular consignments only:Provided that a general permit shall be granted only to persons licensed under this Act and may cover any quantity of liquor transported at any one time not exceeding the quantity specified in the permit.
3) Every permit under this section shall specify,-(a) the name of the person authorized to transport intoxicants;(b) the period for which the permit is to be in force;
(c) the quantity and description of intoxicants for which it is granted;
and (d) any other particulars which may be prescribed.
12 KABC030152082017 CC 6783/20174) A permit granted under this section shall extend to and include servants and other persons employed by the grantee and acting on his behalf.
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 license for the manufacture, cultivation, collection, sale or supply of such article; or
(b) a permit granted by the Deputy Commissioner in that behalf.13 KABC030152082017 CC 6783/2017
15. Sale of excisable articles without license prohibited.- (1) No intoxicant shall be sold except under the authority and subject to the terms and conditions of a license 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 license 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 license 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 14 KABC030152082017 CC 6783/2017 Commissioner may generally or specially authorize.
(2) A license 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 license for sale granted under the Excise law in force in any other State may be deemed to be a license 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 15 KABC030152082017 CC 6783/2017 (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 license 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 license or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1 [be punished for each offense with rigorous imprisonment for a term which may extend to 2 [five years and with fine which may extend to fifty thousand rupees.] 16 KABC030152082017 CC 6783/2017 1 [Provided that the punishment,-
(i) for the first offense 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 17 KABC030152082017 CC 6783/2017 has been committed, which is 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 ;18 KABC030152082017 CC 6783/2017
It appears from the record that the reasons for search warrant was prepared on 29-08-2015 at 2.00 pm at Pradeep Theater, Kalasipalya, Bengaluru however the raiding authority did not subject herself for cross examination and hence this court cannot give any value to the Ex.P1 and Ex.P5 (contents of the reasons assigned for search warrant). Added to which, the timings were written in different ink than the pen signed by PW1. More so over the Ex.P1 and Ex.P5 does not depict what was the timings of receipt of information and the Ex.P1 and Ex.P5 does not bear the signature of mahazar witnesses. PW2 and PW4 who had taken part in the raid has not whispered about the receipt of information about the illegal transportation of liquors. When the defence was not given an opportunity to cross examine the PW1 on Ex.P1 and Ex.P5, the court cannot give any reliance as the author of Ex.P1 and Ex.P5 did not subject herself for cross examination.
16. Added to which, pancha witnesses namely CW2 namely Sri Kiran Kumar Aged about 22 years S/o. Sri. Sannamarigowda, resident of Thyappagowdanadoddi, Salanoordoddi, Satnoor Hobli, Kanakapura, Ramanagar District and CW3 namely Sri Swami Aged about 21 years, S/o. Sannaiah R/o. Devipura Halli, Holanarasipura Taluk, Mysore are not local inhabitants to be pancha witnesses as per Section 100 of CR.P.C. Though there 19 KABC030152082017 CC 6783/2017 is a recitation that they called woman to become pancha witnesses however they failed to assist the raid. It appears from the Ex.P2 that spot Hyderali Khan Road bounded on the East by road and commercial shop, west by Pradeep Chitra Mandir, north and south by Navab Hydera Ali khan road and as per Ex.P6 that the spot is bounded on the East by property belongs to Deenadayalan, West by Public road, North by house belongs to Rathnamma and south by house belongs to M. Nagaraju. In this regard, it is relevant to quote section 58 of Karnataka Excise Act and Section 100(4) of Criminal procedure Code which is reiterated as follows;
Section 58 of the Karnataka Excise Act contemplates the procedure for arrest, search etc. Unless otherwise, provided the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as 'code') relating to arrest, detention in custody, searches, summons, warrants of arrests, search warrants, the production of persons arrested and disposal of things shall apply to all the actions taken under the Act.
Section 100 (4) of the Code of criminal procedure mandates 20 KABC030152082017 CC 6783/2017 (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
As per Section 100 of Cr.P.C., the police authority has to make an attempt to call for independent and respectable inhabitants of the locality in which the place to be searched is situated though the PW1, 2 and 4 deposed that they called the neighbours however they refused to assist them in investigation. Only if the witness around spot is not willing to be a witness, then the police officer could have secured witnesses from nearest place to the incident.
17. If as per Ex.P2 and Ex.P6 and the evidence of PW1, 2 and 4, the witnesses around alleged spot refused to join despite the police asked few women to join the investigation, however, all of them refused to 21 KABC030152082017 CC 6783/2017 join the investigation. There is no single documentary evidence that PW1, 2 and 4 made attempt to serve notices upon the passersby / residents, who had refused to join the investigation placed on record. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious efforts for joining public witnesses appears to have been made by the investigating officer-PW1. In case any of local inhabitants had declined to join the raiding authority, the police could have later taken legal action against them because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC.
18. The illicit liquors (MO1-5) was recovered from the possession of the accused one is from his vehicle as per Ex.P2 and from his house as per Ex.P6. It is well settled principle of the law that the Investigating agency (PW1) should join independent nearest witnesses at the time of recovery of liquors, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery of liquors as there was commercial shops and house around the alleged spots. A police officer conducting 22 KABC030152082017 CC 6783/2017 investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public, the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO (PW1) must have proceeded against them under the relevant provision of law. The failure to do so by the police officer (PW1) is suggestive of the fact that the explanation for non- joining the witnesses around the spot is an afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful." In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) of Cr.P.C, refusal to be a witness can render such non- willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity-two spots as per Ex.P2 and Ex.P6, makes the prosecution version highly doubtful.
23 KABC030152082017 CC 6783/201719. It is the case of prosecution that on the receipt of credible information, PW1 along with his personnel namely PW2 and PW4 were patrolling and at that time received the information about the accused was transporting the liquors in his house and hence on the way, the CW2 and CW3 took them as Pancha witnesses however it is contrary to section 58 of Karnataka Excise Act and Section 100(4) of Criminal procedure Code. PW1 have not made an attempt to make neighbours around spots. Such being the case, this court cannot give any credential value to the Ex.P2 and Ex.P6 when the CW2 and CW3 were not local inhabitants around the alleged spots. Only if the witness around spot is not willing to be a witness, then the police officer could have taken from other locality by drawing the mahazar as per the police manual. If the accused was in possession of liquors in his vehicle and house, PW1 could have made the spontaneous witnesses available from the spots. There is no explanation provided by the Prosecution as to non-availability of witnesses around the spot and under what circumstances, CW2 and CW3 were called as witnesses in the Ex.P2 and Ex.P6 to believe the version of the prosecution case. The prosecution could not secure the presence of CW2 and CW3 from 25/11/2023 to rely for corroboration though not local inhabitants for drawing of the mahazar and the presence of accused No.1 at the spots.
24 KABC030152082017 CC 6783/201720. PW3 is the investigating officer after the receipt of case papers, neither visited the spot nor enquired with accused and based upon available records, has mechanically submitted the charge sheet without ascertaining the veracity of Ex.P2 and Ex.P6 (spot cum seizure mahazar).
21. PW1 and PW3 has not made any attempts to enquire with the local inhabitants of Rajajinagar wherein the accused No. 1 about the selling of liquors by the accused No. 1 as mentioned in Ex.P2 and Ex.P6.
22. PW3 had secured Expert opinion report on 02/09/2015 however the reports appears that "ಅಭಿಪ್ರಾಯ : - ಕ್ರಮ ಸಂಖ್ಯೆ 1 ರಿಂದ 5 ರವರೆಗೆ ಈದೈಯಲ್ ಆಲ್ಕೋಹಾಲ್ ಕಂಡು ಬಂದಿದ್ದು ಅವುಗಳ ಮದ್ಯದಲ್ಲಿ ಸ್ಕಾಚ್ ಪರಿಮಳ ಇರುವುದಿಲ್ಲ ಮತ್ತು ಮದ್ಯಸಾರದ ಅಂಶದಲ್ಲಿ ವ್ಯತ್ಯಾಸ ಕಂಡು ಬಂದಿದ್ದ್ದು ಅವು ನಕಲಿ ಮದ್ಯವಾಗಿರುತ್ತವೆ".
The contents of Edhayal alcohol were not in accordance with Bureau of Indian Standards and are unfit for human consumption but mere production of FSL report does not sanctify the case of prosecution as prosecution failed to prove that the (MO1-5) was 25 KABC030152082017 CC 6783/2017 seized from the custody of accused from his vehicle and house without any iota of evidence.
23. In furtherance it is the specific defence of accused that whilst preparing the mahazar as per Ex.P2 and Ex.P6, they could have written batch number and serial number and manufacturing date of (MO1-5) but no particulars were available on record to connect the accused and no complete description of (MO1-5) as to batch numbers, serial numbers, manufactured date and company name is mentioned in Ex.P2 and Ex.P6.
24. Possibility of misuse of specimen seal of the investigating officer: As per the version of prosecution witnesses, after sealing the case property with the departmental seal as JEIBI - I as mentioned in the Ex.P2 and Ex.P6. However, the seal was not handed over to any independent witness. There is nothing on record to suggest that PW1/PW3 IOs had made efforts to handover the seal to any independent witness. The seal remained with the excise police officials of same police station and therefore the possibility of tampering with the case property cannot be eschewed. Moreover, it is not even the case of prosecution that the seal was not within the reach of IO and thus, there was no scope of tampering of case property. In this regard, it has been held in the case 26 KABC030152082017 CC 6783/2017 of Ramji Singh Vs. State of Haryana reported in 2007 (3) RCR (CRIMINAL) 452 held in paragraph 7 that:
"....The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out.
Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the 27 KABC030152082017 CC 6783/2017 Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
25. It is nowhere the case of the prosecution that the seal after use was handed over to her superior officer. Even the I.O. P.W.1 and PW3 did not utter a word regarding the handing over of the seal after use to her superior officer. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of raiding party therefore the possibility of interference or tempering of the seal and the contents of the sample cannot be ruled out. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out. Thereby this court cannot give any credential /evidentiary value to the Ex.P2 and 6. A doubt raises about the authenticity of sealing of (MO1-5) when the PW1 failed to handover the specimen seal to her superior officer immediately after the alleged seizure.
26. In the present case, on perusal of the entire evidence, except the evidence of police witnesses namely PW2 to 4, there is absolutely no other evidence to connect the accused. The evidence of 28 KABC030152082017 CC 6783/2017 police witnesses cannot be considered as a substantial piece of evidence to convict the accused No.1 and 2. At the best, evidence of police can be used as corroboration in addition to substantiate piece of evidence. In the absence of substantial piece of evidence, the evidence of police witnesses is not sufficient to hold the accused guilt.
27. The alleged offences are being cognizable in nature however the PW1 proceeded with investigation without registration of FIR. 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 29 KABC030152082017 CC 6783/2017 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 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 30 KABC030152082017 CC 6783/2017 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 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 31 KABC030152082017 CC 6783/2017 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 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 32 KABC030152082017 CC 6783/2017 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, 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.] 33 KABC030152082017 CC 6783/2017 (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 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.
34 KABC030152082017 CC 6783/201728. There is not other evidence produced by the prosecution that the accused No. 1 has continued his possession in the house bearing No.876, 1st Floor, 16th Main Road, 42nd Cross, Opp. ESI Hospital, Rajajinagara, Bengaluru-560010 as on the date of offence dated 29/08/2015 when the agreement was dated 02/05/2013 for a period of 11 months. Added to which, no photograph taken or videographed the seizure mahazar for having seized the liquors from the possession of the accused No.1.
29. Neither PW1 nor PW3 has not visited the house of the accused No. 2 i.e., Old No.20 & New No.39, Shree Veerabhadraswamy Nilaya, 3rd Cross, Indira Road, Subbayya Palya, Banasawadi Main Road, Bengaluru-560033 and No.105, Attivatta Grama, Dasarahalli Post, Jedigenahalli Hobli, Hosakote Taluk, Bengaluru Rural District to ascertain whether he is manufacturing or about the source of liquor bottles.
30. It is settled law that in order to bring home guilt of the accused, the prosecution has to prove its case but the prosecution has failed to prove the commission of an offence beyond all reasonable doubt for alleged offence against the accused No.1 and 2. This court has no other alternative than to accord the 35 KABC030152082017 CC 6783/2017 benefit of doubt in favour of accused. Accordingly, this court answers POINT NO.1 IN THE NEGATIVE.
31. Point No.2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Section 11, 12, 14, 15, 32, 38(A) and 43 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 to MO5 are ordered to be destroyed after expiry of appeal period.36 KABC030152082017 CC 6783/2017
(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 04th day of August, 2025) DEEPA Digitally signed by DEEPA VEERASWAMY VEERASWAMY (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Smt.Divyashree/Informant PW2: Sri Nadlge Gowda/Excise Gaurd PW3: Sri Gopalappa/Excise Sub Inspector/IO PW4: Sri Ramachandra Gowda/Excise Sub Inspector Documents marked on behalf of the prosecution:
Ex.P1: Search Warrant/PW1 Ex.P2: Seizure Mahazar/PW1 Ex.P3: Sample Seal/PW1 Ex.P4 List of Articles/PW1 Ex.P5: Search Warrant/PW1 Ex.P6: Seizure Mahazar/PW1 Ex.P7: List of Articles/PW1 37 KABC030152082017 CC 6783/2017
Material Objects marked on behalf of the prosecution:
MO1- 5 : Sample bottles Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.38 KABC030152082017 CC 6783/2017
04-08-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Section 11, 12, 14, 15, 32, 38(A) and 43 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 to MO5 are ordered to be destroyed after expiry of appeal period.
(v) Ordered accordingly VIII ACJM, B'luru City 39