Bangalore District Court
The State Through vs B.P.Devaiah on 4 February, 2023
KABC030272922020
Presented on : 17-06-2020
Registered on : 17-06-2020
Decided on : 04-02-2023
Duration : 2 years, 7 months, 17 days
IN THE COURT OF THE XXXII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 4th February 2023
Present: Smt. Latha J. B.Com., LLB.,
XXXII Addl.C.M.M.
Bengaluru City.
C.C.No.6085/2020
COMPLAINANT : The State through,
Excise Sub Inspector,
Malleshwaram Range,
Bengaluru.
(By Asst. Public Prosecutor)
V/s
ACCUSED : B.P.Devaiah,
S/o Ponnappa,
Aged about 48 years,
R/at:TMM Road,
2 C.C.No.6085/2020
New Thippasandra,
Bengaluru.
(By Sri. MSR Adv.,)
1. Date of commencement of 18/11/2019
offence
2. Date of report of offence. 18/11/2019
3. Name of the Informant GK Rajendra
4. Date of commencement of 13/10/2022
recording evidence
5. Date of closing of 30/11/2022
evidence.
7. Offences complained of U/S.13, 14, 15, 32, 43 of
Karnataka Excise Act
8. Opinion of the Judge. Accused found not guilty.
9. Date of Judgment 04/2/2023
XXXII ACMM.,
Bengaluru.
JUDGMENT
The Sub-Inspector of Excise Malleshwaram Police Station has filed the Charge Sheet Under section-173 of Cr.P.C., against the accused for the offence punishable 3 C.C.No.6085/2020 U/S.13, 14,15, 32, 43 of Karnataka Excise Act.
2. The case of the Prosecution in brief is as follows:
That on18-11-2019 at about 6.30P.M while Excise sub- inspector was on patrolling duty along with the staff and on receipt of credible information, he conducted raid on the accused at the annual Fair (Kadlekayi Parishe) at stall No.1, on the road next to 12 th Cross, near Kadu Malleshwara Temple, and found that the accused without any permission or licence was in possession of 22.500 liters of wine and the accused was selling the same to the public and thereby the accused has committed the offences punishable U/S.13, 14, 15, 32, 34 and 43 of Karnataka Excise Act.
3. The CW1 by name G.K.Rajendra who registered the case and enquired the matter. The CW1 has seized the illegal wine in the presence of panchas and drawn the Mahazar. The sample of wine, which was seized under Mahazar was sent for scientific investigation. After drawing the mahazar in the presence of panchas, after recording the statement of 4 C.C.No.6085/2020 witnesses, the case was registered against the accused U/S. 13, 14, 15, 32, 34 and 43 of Karnataka Excise Act in crime No.04/2019 and FIR was submitted before the court.
4. On appearance of the accused, he was enlarged on bail. After filing of the charge sheet, cognizance was taken for the offences punishable U/S. 13, 14, 15, 32, 34 and 43 of Karnataka Excise Act. In view of filing of the charge sheet summons was issued to the accused for his appearance. On his appearance the charge sheet copies are furnished to the accused as contemplated U/Sec.207 of Cr.P.C. After hearing the accused, charges were framed for the offences punishable U/S. 13, 14, 15, 32, 34 and 43 of Karnataka Excise Act and read over and explained to the accused for which he pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused, the prosecution has got examined 3 witnesses as PW.1 to 3, out of total charge sheet witnesses as CW1 to 7 and got marked 4 documents as Ex.P1 to 4 with sub-markings and got marked 5 C.C.No.6085/2020 MO-1. Learned A.P.P Prays this court to given up the evidence of CW3 to 6. In view of submission made by the learned A.P.P the evidence of CW3 to 6 is given up.
6. After completion of prosecution evidence, accused was examined U/Sec.313 of Cr.P.C. The incriminating evidence appearing against accused is read over and explained. Accused denied the incriminating circumstances appeared in the evidence of prosecution witnesses. Accused has not chosen to lead any defence evidence.
7. I have heard the arguments addressed by the learned APP and learned advocate for the accused.
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on18-11-2019 at about 6.30 P.M while Excise sub-
inspector was on patrolling duty along 6 C.C.No.6085/2020 with the staff and on receipt of credible information, he conducted raid on the accused at the annual Fair(Kadlekayi Parishe) at stall No.1, on the road next to 12th cross, near Kadu Malleshwara Temple, and found that the accused without any permission or licence was in possession of 22.500 liters of wine and the accused was selling the same to the public and thereby the accused has committed the offences punishable U/S.13, 14, 15, 32, 34 and 43 of Karnataka Excise Act ?
2. What Order ?
9. My findings to the above Points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
for the following: -
REA S ON S
10. Point No.1:- It is the case of prosecution that, That on18-11-2019 at about 6.30P.M while Excise sub- inspector was on patrolling duty along with the staff and on 7 C.C.No.6085/2020 receipt of credible information, he conducted raid on the accused at the annual Fair(Kadlekayi Parishe) at stall No.1, on the road next to 12 th Cross, near Kadu Malleshwara Temple, and found that the accused without any permission or licence was in possession of 22.500 liters of wine and the accused was selling the same to the public and thereby the accused has committed the offences punishable U/S.13, 14, 15, 32, 34 and 43 of Karnataka Excise Act. and thereby the accused committed the offences punishable U/S. 13, 14, 15, 32, 34 and 43 of Karnataka Excise Act.
11. In order to prove the guilty against the accused, the prosecution has examined PW1to 3.
12. CW1/GK Rajendra is a raid officer. He deposed in his evidence that he was on patrolling duty along with the staff and on receipt of credible information, he conducted raid on the accused at the annual Fair (Kadlekayi Parishe) at stall No.1, on the road next to 12 th Cross, near Kadu Malleshwara Temple, and found that the accused without any permission or licence was in possession of 22.500 liters of wine and the 8 C.C.No.6085/2020 accused was selling the same to the public. Thereafter he conducted a mahazar and seized 22.500 Ltr wine and seized 5 wine bottle for sample and collected the remaining wine bottles. Thereafter he arrested the accused and returned to the office and registered FIR against the accused. He sent the sample for FSL. He has identified the panchanama, seized sample pockets and other correspondence made by him.
13. CW2/C.J.Nagaraj is a police official deposed in his evidence that that he and CW1 was on patrolling duty along with the other staff and on receipt of credible information, CW1 conducted raid on the accused at the annual Fair (Kadlekayi Parishe) at stall No.1, on the road next to 12 th cross, near Kadu Malleshwara Temple, and found that the accused without any permission or licence was in possession of 22.500 liters of wine and the accused was selling the same to the public. Thereafter CW1 conducted a mahazar and seized 22.500 Ltr wine and seized 5 wine bottle for sample and collected the remaining wine bottles. Thereafter cw1 arrested the accused and returned to the office and 9 C.C.No.6085/2020 registered FIR against the accused. CW1 sent the sample for FSL. He has identified the panchanama, seized sample pockets.
14. CW7/ Mallappa Bhanuvalli is the IO. In his examination he deposed that he received the entire file from the kantakumari and investigated further. He received the report from FSL and taken the statement of CW3 to 5. After the completion of the investigation he submitted the charge sheet before the court.
15. It is burden of the prosecution to show that they have seized the alleged excisable goods from the possession of the accused in the presence of pancha witnesses under seizure mahazar. To prove the facts the evidence of the panchas witnesses are very essential. In the present case on hand the independent mahazar witnesses has not been examined. Hence the seizure of the property has not been proved.
16. PW-1 being the informant has proceeded to take further investigation of the case. Therefore his evidence shall be considered with great care and caution. The evidence of 10 C.C.No.6085/2020 PW-1 is required corroboration from other witnesses. In the instant case, except the evidence of PW-2 and 3 no other evidence is available to corroborate the case of prosecution.
17. As per the case of the prosecution, the accused possessing each 750 ml of 5 bottles of home made birds I chilli wine, each 750 ml of 5 bottles of Homemade rose wine, each 750 ml of 6 bottles of Homemade coffee wine, each 750 ml of 9 bottles of Homemade Hibiscus wine, each 375 ml of 10 bottles of Home made coffee liquor. In total 22.50 of wine has been seized. Out of the said wine, so seized they have sent only 750 ml of 1 bottle of home made birds I chilli wine, 750 ml of 1 bottle of Homemade rose wine, 750 ml of 1 bottle of Homemade coffee wine, 750 ml of 1 bottle of Homemade Hibiscus wine, 375 ml of 1 bottle of Home made coffee liquor only for chemical examination to get the report. There is no material available before this court to say that the remaining wine alleged to be seized from the possession of the accused in reality whether they are the wine bottle as conducted by the prosecution or whether the investigation 11 C.C.No.6085/2020 officer, merely on seeing the labels on the bottles has arrived at the conclusion that the entire bottles alleged to be seized are the illegal wine.
18. On this point, at this juncture, it would be relevant to rely upon ruling reported in 1977 (2) K.L.J 463 - MahaPurusha Durga Joglekar / State of Karnataka. In the ruling cited supra though the raiding parties have seized two hand bags one containing six brandy bottles with labels and other containing three bottles of coconut fenny with labels without any permit and of another brandy bottle concealed in his waist under the panchnama EXP1 but had sent only one bottle to the chemical examiner for getting report. Observing the facts of the case, the Hon'ble High Court has observed that "Granting that all those ten bottles were recovered from the possession of the accused at the time and place alleged by the prosecution there is no legal evidence to show that each of those bottles contained brandy as alleged. It is undisputed that the contents of only one of those bottles were sent to the chemical examiner for analysis 12 C.C.No.6085/2020 and it is not known why the contents of other nine bottles were not sent to him. Merely because those bottles bore those labels, it is difficult to come to the conclusion and hold that they contained brandy or some other intoxicant. It is incumbent on the prosecution to place convincing and cogent evidence on record to show that those bottles also contained brandy or other intoxicant. Solely relying upon the labels, it is hazardous to hold that what was contained in those nine bottles was either brandy or some other intoxicants.
19. In one more ruling reported in AIR 2012 KAR 2627 Between M.R Manjunath/ The Authorized Officer and Deputy Commissioner of Excise, Chikmagalur where in, while referring to the facts of the said case and it was held that" Granting that all the 33 sachets were recovered from the possession of the petitioner at the time and place alleged by the prosecution but there is no legal evidence to show that each of the sachets contained arrack as alleged. It is not disputed that one sachet was sent to analyst and it is not known as to why the remaining 32 sachets were not sent 13 C.C.No.6085/2020 to him. Merely because the remaining 32 sachets were found along with one sachet, which was sent to the chemical examiner, it is difficult to come to a conclusion that the remaining 32 sachets also contained arrack or other intoxicating substances".
20. The observation made in the above rulings are aptly applicable to the present set of facts as in the present case also as observed earlier, the Investigating Officer has not sent the entire seized articles for chemical examination and out of them only in total 3 Ltr 375 ML only were sent and obtained report.
21.Now as per the admission of the prosecution when the investigating officer has sent only 3 Ltr 375 ML and by failing to send the rest of the alleged illegal wine, then the court has to presume that the raiding parties have seized only 3 Ltr 375 ML of wine from the possession of the accused. The total wine that was seized would be 3 Ltr 375 ML which as per rule 21 of the rule is permissible under law to possess and transport. Under such circumstances, it can 14 C.C.No.6085/2020 be said that the accused has not contravened the provision of sec.32 of Karnataka Excise Act.
22. Further in this particular case, the defence of the accused is that, the police have falsely implicated the accused in order to show statistic to the state.
23. When the prosecution has not proved the seizure mahazar with independent evidence, the evidence of other officials is formal in nature. Further there is no consistency between the witnesses regarding time etc. In the absence of corroborative evidence, only on the basis of the official witnesses, this court cannot come to the conclusion that the accused committed the offence as alleged by the Prosecution. When the Prosecution has not proved its case, beyond all reasonable doubt, it creates doubt in the mind of this court.
24. The material witnesses have not appeared before the court to support the case of the prosecution and there is no sufficient documents to case of the prosecution to prove the guilty. Though, the prosecution has taken the contention that the accused was found selling wine. Now on the 15 C.C.No.6085/2020 evidence given by the prosecution witnesses, the PW.1 who being the raiding party and attester to the seizure mahazar, Pw2 an attestor to the seizure mahazar have given some what supporting evidence. But the prosecution has failed to prove the case of the prosecution. Hence it is not safe to convict the accused. Hence, it can be said that the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt. Hence benefit of doubt shall be extended in favour of the accused. With these observation, I hold the point No.1 in the Negative.
25. Point No.2: - In view of the findings of point No.1, this court proceed to pass the following:
O RDE R Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable U/S.13, 14, 15, 32, 43 of Karnataka Excise Act.
Bail bonds of the accused bonds shall stand canceled.16 C.C.No.6085/2020
However the bail bonds executed by the accused U/Sec.437(A) shall be continued. M.O.1 is the sample wine bottles being worthless shall be destroyed after the appeal period is over.
(Dictated to the Stenographer and transcribed by her, Judgment corrected and signed by me, then pronounced by me in the Open Court on this the 4th February 2023).
(Latha J.), XXXII A.C.M.M. Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution :
PW1 G.K.Rajendra 13/10/2022 PW2 C.J.Nagaraj 8/11/2022 PW3 Mallappa Bhanuvalli 30/11/2022
List of the Documents exhibited for the Prosecution :
Ex.P1 : Mahazar
17 C.C.No.6085/2020
Ex.P1(a) : Signature of PW1
Ex.P2 : Appropriate search warrant
Ex.P2(a) : Signature of PW1
Ex.P3 : FIR
Ex.P4 : FSL Report
List of the MOs marked on behalf of the Prosecution :
MO1 : 5 bottles List of the Witnesses examined for defence:
--Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
XXXII A.C.M.M., Bengaluru.