Bangalore District Court
The State Through vs Chalapathi on 21 February, 2023
KABC030427042016
Presented on : 13-07-2016
Registered on : 13-07-2016
Decided on : 21-02-2023
Duration : 6 years, 7 months, 8 days
IN THE COURT OF THE XXXII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 21st day of February 2023
Present: Smt. Latha J. B.Com., LLB.,
XXXII Addl.C.M.M.
Bengaluru City.
C.C.No.15874/2016
COMPLAINANT: The State through,
Excise Sub Inspector,
Kengeri Range,
Bengaluru.
(By Asst. Public Prosecutor)
V/s
ACCUSED : Chalapathi
S/o Gangullappa,
R/at no.326, 10th cross road,
Chamundinagara,
Bhanashankari, 3rd phase,
Bengalur
(By Sri.RHN Adv.,)
2
C.C.No.15874/2016
1. Date of commencement of 22/08/2015
offence
2. Date of report of offence. 22/08/2015
3. Name of the Informant Chandrashekar.L
4. Date of commencement of 28/07/2022
recording evidence
5. Date of closing of 12/10/2022
evidence.
7. Offences complained of Sec.11, 14, 15, 32 of
Karnataka Excise Act.
8. Opinion of the Judge. Accused is found not
guilty.
9. Date of Judgment 21.02.2023
XXXIX ACMM,
Bengaluru
JUDGMENT
The P.S.I, Kengeri Excise Police Station has filed the Charge Sheet against the accused for the offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act.
2. The case of the Prosecution in brief is as follows :
In the background of B.B.M.P Elections that on 22.08.2015 at 7.45 PM, while C.W.1 -Excise Inspector was on patrolling duty and on receipt of credible information, he conducted raid on the accused at opposite to PES college, 100 feet ring road, Hoskerehalli, Veerabhadranagara and 3 C.C.No.15874/2016 found the accused in illegal possession of approximately 12.690 liters of liquor in Activa Honda vehicle bearing Reg.No.KA-05-HD-6600 and he was selling said liquor without license and thereby the accused committed the offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act.
3. The CW.1 by name L.Chandrashekar who registered the case and enquired the matter. The CW-1 has seized the illegal liquor and drawn the Mahazar. The sample of liquor, which was seized under Mahazar was sent for scientific investigation. After drawing the mahazar in the presence of panchas, after recording the statement of witnesses, the case was registered against the accused for the offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act in crime No.01/2015-16 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 offence punishable Sec.11, 14, 15, 32 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 4 C.C.No.15874/2016 accused, charges were framed for the offences punishable Sec.11, 14, 15, 32 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 CW.1 to 6 and got marked 5 documents as Ex.P1 to 5 with sub-markings. The material object is marked as M.O.1. CW-6 reported to be dead. Learned A.P.P prayed for issuance of summons, NBW, Proclamation to CW2 and 3. Inspite of giving sufficient opportunities to I.O to execute summons, NBW, proclamation the witnesses have not been secured. Hence, the evidence of CW2 and 3 are dropped by rejecting the prayer of the learned Assistant Public Prosecutor.
6. After completion of prosecution evidence, accused was examined U/Sec.313 of Cr.P.C. The incriminating evidence appearing against accused 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.
5C.C.No.15874/2016
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 on receipt of credible information, the CW1 along with police staff and panchas conducted raid on 22.08.2015 at 7.45 PM, opposite to PES college, on the service road next to 100 feet ring road, Hosakerehalli, Veerabhadranagar wherein there was ban of selling liquor during BBMP election, accused was in illegal possession of 12.690 liters liquor in Activa Honda vehicle bearing Reg.No.KA-05-HD-6600 without a valid license and selling it to the customers and thereby accused committed offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act?
2. What Order ?6
C.C.No.15874/2016
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: -
REASONS
10. Point No.1:- It is the case of prosecution that, in the background of B.B.M.P Elections that on 22.08.2015 at 7.45 P.M, while C.W.1-Excise Inspector was on patrolling duty and on receipt of credible information, he conducted raid on the accused opposite to PES college, 100 feet ring road, Hoskere halli, Veerabhadranagara and found the accused in illegal possession of approximately 12.690 liters of liquor in Activa Honda vehicle bearing Reg.No. KA-05-HD-6600 and he was selling said liquor without valid license and thereby the accused committed the offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act.
11. PW-1/ L.Chandrashekar PSI in his examination has deposed that, on 22.08.2018 due to BBMP election the selling of liquor was prohibited. When he was on patrolling duty at PES college, near to service road, 10 feet ring road, Hoskerehalli, Veerabhadranagara and on receipt of credible 7 C.C.No.15874/2016 information, gave Rs.100 to CW-4 to purchase tetra pack from the accused and he was observing the above said act. Further when CW-4 went near to the accused, accused left his vehicle and ran away from the said place. Thereafter PW1 prepared search warrant and when in search of vehicle he found the accused in illegal possession of 2 cardboard boxes (ರಟಟನ ಪಟಟಗಗಳಳ) containing 90 Ml of 141 Whiskey Tetra pack and seized the above said liqour and sent 40 tetra packs of 90 ml for forensic report. He drawn the mahazar in the above said place at 9.00 Pm. Mahazar identified by the witness is marked as Ex.P.1. Witness signature is marked as Ex.P.1(a). Search Warrant is marked as Ex.P2. The signature of the witness is marked as Ex.P(2). Further PW1 deposed that he returned to the police station with the material object, registered FIR and submitted before the court. FIR is marked as Ex.P3. Signature of witness in the FIR is marked as Ex.P3(a). Sample taken to FSL i.e. 90X40 Tetra pack is marked as M.O.1.
12. PW-2/Huchappa in his examination deposed that on 03.09.2015, he obtained letter which was written to FSL about the sample collected from the seized liquor. Thereafter on 16.09.2015 received FSL report and gave report to CW-1.
13. PW-3/Ramesh in his examination deposed that on 8 C.C.No.15874/2016 07.09.2014 due to BBMP election the selling of liquor was prohibited. When he was on patrolling duty and on receipt of credible information, he along with other officials conducted raid on the accused at PES college situated at 100 feet ring road, Hoskerehalli, Veerabhadranagara and found the accused illegally selling 12.690 liters of liquor in Activa Honda Scooter bearing Reg.No.KA-05-HD-6600. Further PW-1 gave Rs.100 to purchase Tetra pack with the accused, when he was near to the said place, accused ran from the said place by leaving vehicle but he could not caught hold of him. Further PW1 prepared search warrant and found 2 cardboard boxes which contains 90 ml of 141 High World Whiskey Tetra packs and seized the liquor and Total 40 packs of Tetra pack weighing 90 ml sample sent to FSL. Further drawn the mahazar on the said place.
14. It is the 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.
15. On perusal of the evidence adduced by the prosecution in support of their case, the seizure witnesses the independent witness have not been examined. In this 9 C.C.No.15874/2016 case, the attestors to the seized mahazar as PW-3 whom the prosecution has examined is the police official. So, it clearly reveals that the Seizure Mahazar is not proved beyond all reasonable doubt. Further there is no corroboration in the evidence of the official witnesses also.
16. As per the case of the prosecution, the accused possessing 90 ml X 141 tetra packet total 12.690 liters liquors without any license and selling. Hence, the prosecution has made reference about the seizure of above said liquor, out of the said liquor, so seized they have sent only 90 ml X 40 tetra packet, total 3.600 liters whisky for chemical examination to get the report. There is no material available before this court to say that the remaining liquor alleged to be seized from the possession of the accused in reality whether they are the whisky as conducted by the prosecution or whether the investigation officer, merely on seeing the labels on the pouches has arrived at the conclusion that the entire pouches alleged to be seized are the illegal whisky.
17. 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 10 C.C.No.15874/2016 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 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.
18. In one more ruling reported in AIR 2012 KAR 2627 Between M.R Manjunath/ The Authorized Officer 11 C.C.No.15874/2016 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 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".
19. 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 90 ml X 40 tetra packet were sent and obtained report.
20. Now as per the admission of the prosecution when the investigating officer has sent only 90 ml X 40 tetra packet of seized whisky, which is 3.600 liters and by failing to send the rest of the alleged illegal whisky, then the court has to 12 C.C.No.15874/2016 presume that the raiding parties have seized only 3.600 liters whisky from the possession of the accused which as per rule 21 of the rule is permissible under law to possess and transport. Under such circumstances, it can be said that the accused has not contravened the provision of sec.32 of Karnataka Excise Act.
21. 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. When the prosecution has not proved the seizure mahazar with independent evidence, the evidence of other official is formal in nature. When the Prosecution has not proved the case, beyond all reasonable doubt, it creates doubt in the mind of this court. Now on the evidence given by the prosecution witnesses, the PW.1 who being the raiding party and PW.3 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.
13C.C.No.15874/2016
22. 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 offences punishable Sec.11, 14, 15, 32 of Karnataka Excise Act. Bail bonds of the accused and Surety bonds shall stand canceled.
However the bail bonds executed by the accused U/Sec.437(a) shall be continued.
M.O.1 is sample whiskey 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 21/02/2023).
(Latha J.), XXXII Addl.C.M.M. Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution :
PW-1 L.Chandrashekar 28/07/2021
14
C.C.No.15874/2016
PW-2 Huchappa 08/08/2022
PW-3 Ramesh 12/10/2022
List of the Documents exhibited for the Prosecution :
Ex.P1 : Spot Mahazar Ex.P1(a) : Signature of PW-1 Ex.P2 : Report Ex.P2(a) : Signature of PW-1 Ex.P3 : FIR Ex.P3(a) : Signature of PW-1 Ex.P4 : Letter to FSL Ex.P4(a) : Signature of PW-1
List of the MOs marked on behalf of the Prosecution :
MO.1 : 40 Tetra pack 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 Addl.C.M.M. Bengaluru