Bangalore District Court
State By: Excise Sub Inspector vs A1: Kubendran G. S/O Gopalnaidu on 12 January, 2016
1 C.C.9723/2012
IN THE COURT OF III ADDL. CHIEF METROPOLITAN
MAGISTRATE
BENGALURU CITY
Dated this Tuesday the 12th day of January 2016
Present: Sri.Mohan Prabhu, B.Com., M.A, LL.B.,
III Addl., CMM.,
Bengaluru.
C.C.No.9723/2012
Complainant : State by: Excise Sub Inspector,
Kengeri Sub Division, Bengaluru.
V/s
Accused : A1: Kubendran G. S/o Gopalnaidu, 60 yrs,
R/at:No:350, Ullavar Beedi, Kumarswamy
Pet, Dharmapuri District, Tamilnadu.
(By Sri.Basasvaraj Adv., Bengaluru)
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::JUDGEMENT::
Case No. : C.C.No.9723/2012 Date of offence : 29/12/2011 Complainant : Excise, Kengeri Sub Division, Accused : Named above 2 C.C.9723/2012 Offence : U/ss.11, 14, 32, 38(A) of Karnataka Excise Act Charge : Accused pleaded not guilty Final order : Accused acquitted Date of order : 12/1/2016 The brief statement of the Reasons for the decision : As follows - -- ::REASONS::
The Excise Sub Inspector of Kengeri Range has filed the chargesheet against the accused for the offences punishable U/ss.11, 14, 32, 38(A) of Excise Act.
2. The case of the prosecution briefly stated as follows:
Cw.1 who is the Excise Sub-Inspector of Kengeri Range on 29/12/2011 received reliable information that the liquor is being illegally transporting in a vehicle. On receipt of the information Cw.1 secured his sub-ordinate Excise Official and was on Patrolling duty at about 7-20 a.m. and checking 3 C.C.9723/2012 the vehicle on Bengaluru-Mysore Road infront of arch of entry to RR Nagara. At that time the accused came in a Maruthi 800 Car bearing No.TN-09-H-9896 from Nayandahalli side and the accused was the driver and he was the sole occupant of the vehicle. Cw.1 stopped the Maruthi Car and searched the Maruthi Car in the presence of independent panchas Cw.4 and Cw.5 and found that the accused was transporting 32 bottles of liquor containing one liter each of 4 different brands i.e. 20 bottles of Johny Walker Black Label blended Scotch Whisky, 2 bottles of Red Label Scotch Whisky, 6 bottles of Glend Flitch Single Malt Whisky and 4 bottles of Gold Label Reserve Whisky. Accused did not possess any permit or licence to transport the liquor bottles. Cw.1 seized the liquor bottles by conducting the seizer panchanama in the presence of Cw.4 and Cw.5 panchas and for the purpose of sending the bottles to the chemical examiner/FSL he got separated one bottles from each brand in all 4 bottles and sealed the bottle by covering the white cloth and affixed the chit containing the signatures 4 C.C.9723/2012 of the witnesses. Cw.1 also seized the Car. Thereafter he brought the seized materials and accused to the Excise Office and registered the case against the accused and sent him to the Court with proper escort. In this case Cw.7 took up further investigation and sent sample bottles to the chemical examiner. Cw.7 after receiving the Report of chemical Examiner, on completion of investigation has filed the chargesheet against the accused. Accused produced before this Court on 29/12/2011 and remanded to Judicial Custody. The accused engaged counsel and released on bail on 30/12/2011. After filing the chargesheet the cognizance of the offences taken and case came to be registered as CC.No:9723/2012. The Chargesheet copies furnished to the accused and thereby the provision u/s.207 of Cr.P.C., is duly complied with. After hearing on both sides charge came to be framed for the offence punishable U/ss.11, 14, 32, 38(A) of Karnataka Excise Act for which accused pleaded not guilty and claimed for trial.5 C.C.9723/2012
3. On the side of the prosecution five witnesses have examined as Pw.1 to Pw.5 and documents Ex.p1 to Ex.p6 are marked. MO.1 to MO.4 are marked. After the closure of the evidence on the side of the prosecution statement of the accused u/s.313 Cr.P.C., is recorded. The accused denied the incriminating evidence. No defence evidence is led.
4. Heard the arguments.
5. The following points arise for my consideration:
1.Whether the prosecution proves beyond all reasonable doubt that on 29/12/2011 at about 7-30 a.m. the accused illicitly transporting 32 liters of liquor of 4 different brands in a Maruthi Car and thereby committed the offences punishable U/ss.11, 14, 32, 38(A) of Karnataka Excise Act?
2. What Order?
6. My findings on the above point:
Point No.1: In the Negative Point No.2: As per final order ::REASONS::
7. Point No.1: Pw.1 is the Excise Sub Inspector who conducted the raid and arrested the accused and seized the 6 C.C.9723/2012 bottles containing liquor and Maruthi Car. Pw.2 is the Chemical examiner. Pw.3 is the Mahazar witness. Pw.4 is the Excise Guard who accompanied Pw.1 to conduct the raid. Pw.5 is the Excise Sub Inspector who conducted the part of investigation and filed the chargesheet.
8. Pw.1 deposed that on 29/12/2011 his higher Officers received some reliable information about the illegal transportation of Excise goods. Hence at about 4-30 a.m. he was on patrolling duty and checking the vehicle. He states that at about 7-20 a.m. when he was checking the vehicle near the arch of RR Nagara on Bengaluru- Mysore Road at that time one Maruthi 800 Vehicle bearing Regarding.No:TN- 09-H-9896 came to the said spot. He states that on enquiry the driver of the said Car i.e. accused informed them he was transporting alcohol. He states that he has recorded the statement of the accused and searched the Vehicle and found in all 32 bottles of 1 liter each, out of which they found 20 bottles containing Scotch Whisky black label, 2 7 C.C.9723/2012 bottles of Red Label Scotch Whisky, 6 bottles of Glend Flitch Single Malt Whisky and 4 bottles of Gold Label Reserve Whisky. He states that accused failed to produce any authorisation or permit in order to transport the said Whisky bottles. Therefore he conducted the seizer panchanama in the presence of mahazar witnesses and seized all the said 32 bottles. He states that for the purpose of sample he got separated one bottle from each brand and sealed the same with the help of white cloth and affixed chit containing signatures of witnesses. He states that after seizer mahazar Ex.p2 he came to his Office along with the accused Car and seized bottles and registered the case against the accused and produced the accused before the Court. He states that he was recorded the statement of Cw.3 to Cw.5. He states that he handed over the file for further investigation to Cw.7. He identified sample bottle which are marked at Mo.1 to Mo.4.
8 C.C.9723/2012
9. During the course of cross examination by learned counsel for the accused Pw.1 stated that he called the mahazar witnesses who were present at the spot. He deposed that on that day the accused did not try to escape from the said spot by seeing him and his sub- ordinates. He states that on that day he reached the spot in his official TATA Sumo Vehicle of which the driver was working on contract basis. He states that he had no any incumbent in obtaining the signature of the said driver on the seizer mahazar as well as sample bottles.
10. Pw.4 deposed that he accompanied with Pw.1 on 29/12/2011 and started watching the vehicle at RR Nagara Main Gate then at about 6-30 a.m. they stopped Maruthi Vehicle which came from Nayandahalli side and checked the same and found Carton boxes containing 32 different brand of alcohol bottles. He states that the driver of the said Car failed to produce any licence or permit in that regard. Hence in the presence of Mahazar witnesses they have seized 9 C.C.9723/2012 alcohol bottles and arrested the accused. He states that Pw.1 got separated in all 4 bottles from each brand as a sample and affixed the chit containing the signatures of the mahazar witnesses. He states that on 10/1/2012 as per direction Cw.7 he carried the sample bottles for the purpose of chemical examination and on 22/1/2012 he collected the said sample bottles along with report from the chemical examiner and handed over the same to the Investigating Officer.
11. During the course of cross examination by the learned counsel for the accused he states that the Car reached the said spot around 6-20 or 6-30 a.m. He states that he do not remember about the number of bottles of each brand seized from the said Car. He states that it is not possible for him to state exactly in how many Carton boxes the 32 bottles were packed.
12. Pw.1 and Pw.4 are Official witnesses. Pw.1 is not deposed anything about the presence of Pw.4. Pw.1 is not 10 C.C.9723/2012 deposed regarding whether bottles were found open or in Carton Boxes in a Car but Pw.4 deposed that they found Carton boxes containing 32 bottles. Pw.4 unable to say how many Cartoon boxes 32 bottles were packed. Pw.4 also not able to depose regarding how many brands of the liquor were there and each brands containing how many bottles. Pw.1 deposed that the Maruthi Car came to the said spot about 7-30 a.m. But Pw.4 deposed that the said Car reached the spot at about 6-20 or 6-30 a.m. There is no corroboration in the oral evidence of Pw.1 and Pw.4 in these aspects.
13. Pw.3 deposed that about one and half years back at about 7-30 a.m. near the arch of RR Nagara situated on Mysore Road the Excise Official were searching Maruthi 800 Vehicle in respect of the alcohol bottles and during their search they recovered in all 32 bottles containing alcohol and conducted the panchanama as per Ex.p2. In his cross examination Pw.3 deposed that his house situated at the 11 C.C.9723/2012 Halagewaderahalli is at the distance of three and half kilo meter from the incident spot. He states that on that day on the said spot in all 8 to 10 persons were present. He states that on that day he was on the way to Market. He states that he do not remember exactly how many bottles of which brand were seized. Admittedly Pw.3 is not resident near the arch of RR Nagara. According to him his house is situated at the distance of three and half kilo meter from the spot. Pw.3 is not deposed regarding the brand of alcohol bottles and taking the sample bottles. Though Pw.3 denied the suggestion that he was working as a cashier in Saptagiri Bar. But since he unable to say regarding the brand of alcohol bottles, his oral evidence is very doubtful.
14. Pw.5 deposed regarding conducting further investigation and sending the sample bottles to the Chemical Examiner and receiving the Chemical Examiner Report as per Ex.p6.
12 C.C.9723/2012
15. Pw.2 is the Chemical Examiner stated that on 11/1/2012 he received 4 sealed liquor bottles from Excise sub-Inspector of Kengeri Range. He states that on 12/1/2012 he examined the contents of all said 4 bottles and during his examination he detected Thytial Alcohol in all the said 4 sample bottles and they confirms to the Bureau of Indian Standards and fit for human consumption. He states that he submitted Report as per Ex.p6.
16. In the present case according to Pw.1 he has seized totally 32 bottles Whisky containing 1 liter each and he has separated only 4 bottles i.e. Mo.1 to Mo.4 in order to send them to Chemical Examiner for Chemical Examination. Pw.5 Investigating Officer sent only 4 bottles Mo.1 to Mo.4 to the Chemical Examiner. Pw.2 Chemical Examiner examined the contents of 4 bottles which containing 1 liter each in all 4 liters.
13 C.C.9723/2012
17. As per the provision of Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export) of intoxicants Rules 1967 no person shall possess whisky in quantities exceeding 4.6 liters and possession of whisky(Indian made liquor) in excess of 4.6 liters is an offence punishable under the K.E. Act. It is now settled principle of law is that the prosecution in order to secure the conviction of the accused must demonstrate that the accused possess quantities over and above the limits specified in Rule 21 of the 1967 Rules and for that purpose the prosecution must test a quantity in excess of the permissible limit. At this stage it is relevant to note some of the decisions of our own Hon'ble High Court.
18. In the decision reported in ILR 1975 KAR 1973 Malayali Saroja V/s State of Karntaka it has held that since item No.5 of Rule 21 of the Rules permits possession without permit or licence of liquor manufactured in the Karnataka State and liquor manufactured in other places in India and 14 C.C.9723/2012 imported into the Karnataka State up to 2.30 liters and as the accused was in possession of 2.25 liters of liquor only, without the prosecution establishing that the liquid found was not liquor manufactured in the State or liquor manufactured in India and imported into State had not rational basis or foundation. Therefore the conviction and sentence u/s.13 r/w 32 of the Act was set aside.
19. In another ruling reported in 1977(2) KLJ 463 in the case of Mahapurusha Durga V/s State of Karntaka wherein the Court has held that 10 bottles were seized from petitioner the bottles having labels of brandy etc. The contents of one bottle was sent to the Chemical Examiner and it contained 650 M.L. In the absence of evidence to show that the other 9 bottles also contained brandy or other intoxicant petitioner could not be convicted u/s.34 of Excise Act.
15 C.C.9723/2012
20. In the present case according to Pw.1 he has seized 32 bottles one liter each of 4 different brands of Whisky. According to him he has got separated one bottle from each brand. It is not his case is that he has collected the liquors of each bottle and collected the same in 4 separate bottles. It is his evidence is that he has got separated one bottle from each brand and sealed it separately in order to send the same for Chemical Examination. There is absolutely no evidence on the side of the prosecution to show where is the remaining liquor bottles. It is not the case of the prosecution is that the contents of all 32 bottles sent to the Chemical Examiner. In the present case even if it is presumed that Pw.1 seized 32 liquor bottles each containing one liters in all 32 liters. But he has separated only 4 bottles i.e. 4 liters. There is no other material to demonstrate that the remaining quantity of 28 liters are intoxicants. This Court cannot presume that the remaining quantity of 28 liters are also intoxicants and it was fit for human consumption. Since Rule 21 of 1967 specifies that a person is exempted from 16 C.C.9723/2012 obtaining any permit for possessing quantities below 4.6 liters then it is mandatory duty of the prosecution to demonstrate that the accused was possessing quantities of Indian made liquor as described under Rule 21 of the 1967 Rules in access of the permissible limits. In the present case the prosecution has duty bound to demonstrate that the accused possessed more than 4.6 liters of Whisky. Admittedly Ex.p6 Chemical Examiner Report is only with regard to 4 liters. The failure of the prosecution to test quantity in excess of 4.6 liters has resulted in their failure to demonstrate that the accused possessed Whisky over and above the permissible limit 4.6 liters. More than that the oral evidence of Pw.1 and Pw.4 is not corroborating. Pw.3 is not the local witness. The presence of Pw.3 in the alleged place of incident is very doubtful. The oral evidence of Pw.5 is formal in nature. Hence for all these reasons I am of view that the prosecution is failed to prove the case against the accused No.1 for the offences punishable U/ss.11, 14, 32, 17 C.C.9723/2012 38(A) of Karnataka Excise Act. Hence, I answered Point No.1 in the Negative.
21. Point No.2: In the result, I proceed to pass the following:
::ORDER::
U/s.248(1) of the Cr.P.C., accused is hereby acquitted of the offences punishable U/ss.11, 14, 32, 38(A) of Excise Act.
His Bail bond stand cancelled.
This order regarding cancellation of bail will come into force after completion of appeal period.
MO.1 to MO.4 being worthless is ordered to be destroyed after completion of appeal period.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in open Court, this the 12/1/2016).
(Mohan Prabhu), III Addl., Chief Metropolitan Magistrate, Bengaluru City.18 C.C.9723/2012
::ANNEXURE::
1. List of witnesses examined for the prosecution:
Pw.1: D.L.Basavaraju Pw.2: Nagaraj Pw.3: J.Raju Pw.4: Ananthakrishna Pw.5: Rajgopal
2. Documents on the side of the prosecution:
Ex.p1: Complaint P1(a): Signature Ex.p2: Seizer Mahazar P2:a:b: Signatures Ex.p3: Report u/s.54 Ex.p4: Voluntary Statement P4(a): Signature Ex.p5: Specimen Seal P5(a): Signature Ex.p6: Report Ex.p6(a): Signature
3. Material objects marked:
MO.4 to MO.4: Four brand Sample bottles
4. Defence: Nil
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III ACMM., Bengaluru.
19 C.C.9723/2012