Bangalore District Court
State By Jayanagar Range( Viveknagar) vs Chethan Kumar on 28 March, 2025
1 CC.No.56329/2015
KABC0C0136532024
Presented on : 22-12-2015
Registered on : 22-12-2015
Decided on : 28-03-2025
Duration : 9 years, 3 months, 6 days
IN THE COURT OF THE XXIX ADDL.C.J.M
MAYOHALL UNIT, BENGALURU
-: Present :-
Sri. Girish Chatni,
B.A., LL.B(Spl)
XXIX Addl. Chief Judicial Magistrate, Bengaluru.
Dated: This the 28th Day of March, 2025
CRIMINAL CASE No.56329/2015
The State by
Excise Sub-Inspector,
Jayanagara Range,
Bengaluru.
...
Complainant.
(By Learned Assistant Public Prosecutor)
// Versus //
1. Chethan Kumar,
S/o Late.Puttaswamy,
2 CC.No.56329/2015
R/at: # 149/3, No.46/44,
2nd Cross, Near Reddy Colony,
Yamalooru, Marathahalli,
Bengaluru.
2. S.Gopinath S/o Subbarayam.M,
R/at: # 25, 1st Floor, 3rd Cross A type,
Near BDA Complex, Kallahalli,
Bengaluru North,
Bengaluru.
3. Jai Ganesh S/o Sahadevan,
Aged about 39 years,
Hari Janaru,
R/at: # 99/09, Narayanappa Road,
Ramaswamipalya, Maruthisevanagar,
Bengaluru.
4. Chandrashekhar,
S/o Sahadevan,
Aged about 29 years,
R/at: #99/09, Narayanappa Road,
Ramaswamipalya,
Maruthisevanagar,
Bengaluru.
5. R.M.Srinivas,
S/o R.G.Muniswamappa,
R/at: #2228, 8th Main,
16th Cross, D Block,
Sahakaranagara, Bengaluru.
... Accused
(A-2 By Shri.V.H, Advocate)
(A-5 By Shri.S.G.M, Advocate)
3 CC.No.56329/2015
1. Date of offence 16.11.2014
2. Date of final report 15.12.2015
3. Arrest of accused 16.11.2014
4. Whether in custody No
5. Complainant Shri.K.V.Bharathkumar
6. Offences alleged U/Sec. 32(1), 34, 38(A) & 43 of
Karnataka Excise Act.
7. Evidence commenced on 17.12.2021
8. Evidence closed on 25.01.2025.
9. Date of judgment 28.03.2025
10. Opinion of presiding officer Accused Nos.1 to 5 found not
Guilty
11. Complainant represented by Learned A.P.P.
(GIRISH CHATNI)
XXIX ACJM, BENGALURU
JUDGMENT
The Excise Sub-Inspector, Jayanagar Range, Bangalore has filed charge sheet against the accused Nos.1 to 5 alleging the commission of offence punishable under sections 32, 38(a) and 43 of the Karnataka Excise Act, 1965.
4 CC.No.56329/20152. THE CASE OF PROSECUTION IN NUT SHELL :-
It is the case of the complainant that, on 16.11.2014 at 5.30 PM, when CW.1 was on patrolling duty conducted ride along with his staff on Chethan Stores belonging to the accused No.1 and he was found in possession of 750 ML Mansion House Brandy 10 bottles (for sale in Goa only), 750 ML Vat 69 Whiskey 3 bottles (for defence personal only), 750 ML Macdowels No.1 Celebration Rum 01 bottle (for defence personal and canteen services), 750 Golcond Brandy 01 bottle (for defence personal only, canteen services) without having valid permit and license to sell the same. CW.1 conducted ride panchanama and on the basis of the statement of accused No.1, at 4.00 PM, the accused No.1 identified accused No.2 was coming on TVS Pep No.KA-03-HF- 1135 and on the foot rest of the bike, the accused No.2 was transporting 750 ML Macdowels No.1 Celebration Rum 20 bottles, 750 ML Golcond Whiskey 10 bottles and when enquired, accused No.2 submitted that he was not having valid permit and license to transport the same. It is further alleged that, on enquiry with accused No.2, he submitted that the said liquor were given by the accused No.3. Thereafter, the panchanama was prepared and after obtaining search warrant from the court, on 18.11.2014, CW.1 along with his staff went to the godown of the accused No.3 situated at Babusapalya and on inspection, CW.1 found that the accused No.3 and 4 have illegally stored 750 ML Blender Sprite Whiskey having 11 bottles each in 30 boxes, 750 ML Golcond 5 CC.No.56329/2015 Brandy Whiskey 28 bottles each in 06 boxes, 750 ML Mackdowal No.1 Celebration Rum 28 bottles each in 07 boxes, 12 bottles each in one box, 750 ML Royals Tag Whiskey having 20 bottles each in two boxes, CW.1 conducted raid panchanama and seized 05 adesive labels, two roll labels having name of imperial Blue Whiskey, Felicon seiling Machine in gowdown of accused No.3 and was not having any invoice with regard to the same. On the basis of say of accused No.3 and 4 on 03.12.2014, accused No.5 was apprehended as he was involved in preparing duplicate liquor. Thereafter, the investigation officer after completion of the investigation has submitted final report against the accused No.1 to 5 for the offence punishable U/s 32(1), 34, 38(A) and 43 of Karnataka Exise Act.
3. During the crime stage, accused No.1 to 5 have been arrested and produced before the court, later on they were released on bail. After filing of the final report, cognizance for the above said alleged offences was taken against the accused Nos.1 to 5 and the above said criminal case came to be registered.
4. After registration of the case, the presence of the accused Nos.1 to 5 were secured. The copies of final report and its' enclosures were furnished to the accused Nos.1 to 5 as contemplated under section 207 of Cr.P.C. Heard both sides.
6 CC.No.56329/2015Charge framed and read over to the accused No.1 to 5. They pleaded not guilty and claimed to be tried.
5. In order to prove the guilt of the accused persons, the prosecution has examined three witnesses out of 19 witnesses cited in the charge sheet as per P.W.1 to P.W.3 and 10 documents were got marked as per Ex.P.1 to Ex.P.10, 09 bottles, Felicon Machine, Label, Plastic Thread, Roll, Chips Packets were identified and marked as M.O.1 to M.O.14. Thereafter, the accused Nos.1 to 5 have been examined as provided Under Section 313 of Cr.P.C by explaining incriminating evidence appearing against them. The accused Nos.1 to 5 have denied the same and have not produced any oral or documentary evidence.
6. On the basis of the charge sheet allegation, oral & documentary evidence adduced by the prosecution, the following points arose for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 16.11.2014 the accused No.1 found in possession of illegal liquors of 750 ML Mansion House Brandy 10 bottles (for sale in Goa only), 750 ML Vat 69 Whiskey 3 bottles (for defence personal only), 750 ML Macdowels No.1 Celebration Rum 01 bottle (for defence personal and canteen 7 CC.No.56329/2015 services), 750 Golcond Brandy 01 bottle (for defence personal only, canteen services), on the same day at 4.00 PM, the accused No.1 identified accused No.2 was coming on TVS Pep No.KA-03-HF-1135 and on the foot rest of the bike, the accused No.2 was transporting 750 ML Macdowels No.1 Celebration Rum 20 bottles, 750 ML Golcond Whiskey 10 bottles without having valid license and permit to sell the same and the accused No.1 found in possession and accused No.2 was transporting the illegal liquor and thereby, committed an offence punishable under section 32 & 34 of the Karnataka Excise Act?
2. Whether the prosecution proves beyond all reasonable doubt that, the accused No.3 being the owner of Zips Gowdown along with accused No.3 and 4 have illegally stored 750 ML Blender Sprite Whiskey having 11 bottles each in 30 boxes, 750 ML Golcond Brandy Whiskey 28 bottles each in 06 boxes, 750 ML Mackdowal No.1 Celebration Rum 28 bottles each in 07 boxes, 12 bottles each in one box, 750 ML Royals Tag Whiskey having 20 bottles each in two boxes without any license and 8 CC.No.56329/2015 permit, and accused No.5 was involved in preparing duplicate liquor and thereby, committed an offence punishable under section 38A, 43 of the Karnataka Excise Act?
3. What Order or Sentence?
7. Heard the advocate appearing for accused Nos.1 to 5 and learned A.P.P. Perused oral and documentary evidence adduced by the prosecution and my findings on the above points are as under;
Point No.1 & 2 : In the Negative,
Point No.3 : As per final order
for the following:
REASONS
8. POINT No.1 and 2 :-
As these two points are interlinked, I have taken up these points together for common discussion to avoid repetition of facts & evidence.
It is the allegation set forth against the accused Nos.1 to 5 that, on credible information the police authorities have conducted raid and found that the accused No.1 without having valid permit and license was in possession of the liquor seized, on the basis of the statement of accused No.1, accused No.2 was apprehended and he was illegally transporting the seized liquors, on inspection and raid on the gowdown of the accused No.3, 9 CC.No.56329/2015 illegal liquors were found and also the materials were preparing the liquors were found and seized and CW.1 conducted raid panchanama.
9. In order to prove the guilt of the accused No.1 to 5, the prosecution has examined the complainant - C.W.1 as P.W.1, the person, who accompanied CW.1 and assisted with the raid panchanama i.e., CW.7 as PW.2, the investigation officer CW.19 as PW.3.
10. In support of oral evidence, the prosecution got marked Ex.P.1 - Raid Panchanama, Ex.P.1(a) to (c) - Signatures, Ex.P.2 - Search Warrant, Ex.P.2(a) - Signature, Ex.P.3 - Spot Panchanama, Ex.P.3(a) to (c) - Signatures, Ex.P.4
- Search Warrant, Ex.P.4(a) - Signature, Ex.P.5 - Search Warrant, Ex.P.6 - Spot Panchanama, Ex.P.6(a) to (c) - Signatures, Ex.P.7 to 9 - FSL reports, Ex.P.10 - Report and 09 bottles of liquor taken out for sample as M.O.1 to M.O.9, Felicon Machine as per MO.10, Labels as per MO.11, Plastic Thread as per MO.12, Paper Rolls as per MO.13, Chips Packets as per MO.14.
11. To bring home the charge against the accused Nos.1 to 5, the prosecution has to prove that the liquid seized under bottles are all liquor. To prove the said fact, the prosecution has relied on Certificates issued by the Chemical Examiner. I have 10 CC.No.56329/2015 perused the evidence of C.W.1, wherein, he deposed that, he has seized in the presence of panchas the liquors as stated in earlier paragraphs.
12. On perusal of the materials on record and on going through the prosecution papers, the samples have been sent for chemical examination to F.S.L, Bengaluru. Further, chemical examiner by name Nagaraj has examined the same and issued a reports, wherein, on perusal of Ex.P.8, Serial No.1, 2 & 5 i.e., Mansion House Brandy, Vat 69 Whisky are fit for consumption. In the same way, on perusal of Ex.P.9, Serial No.4 i.e., Royals Stag Whisky is also fit for consumption. On perusal of Ex.P.7 to 9 rest of the liquor seized are not fit for consumption. On going through the said reports, there is no dispute with respect to certificates issued by the Chemical Examiner. On perusal of the Certificates, it is clear that liquid sent for chemical examination in this case do contain alcohol. As per section 59(A) of the Karnataka Excise Act, the said certificates can be looked into even though Chemical Examiner has not been examined, On plain reading of Chemical Examination Reports, it is clear that, M.O.1 to MO.9 marked in this case do contain alcohol.
13. The next important aspect which the prosecution has to prove is that, seized liquors are more than prescribed limit as prescribed under the Karnataka Excise Act & Rules. As per Rule 21 of the Karnataka Excise (Possession, Transport etc.,) Rules, 11 CC.No.56329/2015 1967, a person can possess & transport liquor upto 4.6 liters. Here, in this case, the police authorities have seized in all 39000 Liters of liquor, which is more than prescribed limit. Hence, the prosecution is able to prove that quantity of liquid alleged to be liquor in possession of the accused No.1 to 5 were more than the prescribed limit under the provisions of Karnataka Excise Act & Rules.
14. It is first & foremost burden upon the prosecution in order to connect the accused No.1 to 5 with the alleged possession and selling of the aforementioned liquor. In that regard, the prosecution, inspite of providing sufficient opportunities have failed to secure the presence of seizure panchas and have examined them. The police witnesses namely, C.W.1, CW.7 & C.W.19 have supported the case of prosecution. Their evidence appears to be formal in nature. The evidence of police officials are contrary with the documentary evidence and it creates a doubt regarding seizure of liquor from the custody of the accused persons. It is further pertinent to note here that, there is presumption in favour of prosecution that, in any of prosecution under Section 32 and 34, it may be presumed until contrary is proved that, the accused has committed an offences punishable under that section in respect of,
(a) Any intoxicant; or
(b) xxxxxxxx
(c) xxxxxxxx 12 CC.No.56329/2015 For the possession of which, the prosecution is unable to account satisfactorily. I have closely perused Section 40, on plain perusal, it is manifest that, presumption available under Section 40 of Karnataka Excise Act can be drawn only when prosecution proves that accused persons were in possession of seized articles. Thus, it is incumbent upon the prosecution to prove the seizure of liquor bottles from the custody of accused No.1 to 5 and in order to prove the seizure of liquor bottles, the prosecution has failed to lead the evidence of seizure panchas, as such the prosecution has failed to prove the panchanamas and just because C.W.1 has stated that, he has seized liquor contained bottles from the custody of the accused No.1 to 5, one cannot presume in the absence of corroboration, the things spoken by C.W.1 as true and as author of Ex.P.1 i.e, Seizure Mahazar panchas have not been secured, this Court cannot come to a conclusion that, the liquor bottles, MO.1 to 14 were seized from the custody of accused persons and they were having possession of duplicate liquors and were stored in the gowdowns and were selling the same.
15. Further it is germane to state that, even if the case of prosecution admitted on face of it, it is specific case of prosecution that, in all total 39000 liters of liquor have been seized and out of them only 6000 liters of liquor were sent for chemical examination. Further, it has also come in the prosecution papers that, only the samples out of total seized 13 CC.No.56329/2015 articles were sent to the chemical analyst. But there is no evidence to show that, each of the bottles seized in this case contained alcohol as alleged.
16. Further, the prosecution has not explained the reasons as to why remaining bottles were not sent for chemical analysis. It is evident from the record that, the quantity of liquor that was allegedly carrying was beyond the permissible limit. Whereas, it is pertinent note that, prosecution has sent only 09 bottles to chemical examination. I am unable to understand as to how the prosecution can prove the seizure of large quantity by sending only nine articles to the chemical examination, out of the total quantity of the liquor that was seized, in my view it was necessary for the prosecution to establish that, the entire quantity of liquor that was seized was in fact liquor and not any other substance. Therefore, merely on the production of M.O.1 to 9, it cannot be said that, the prosecution has proved its case beyond reasonable doubt. My view is supported by decision of Hon'ble High Court of Karnataka reported in ILR 2014 KARNATAKA 5949, (Shrinivas vs. State of Karnataka, through Gundlupet Police, Chamarajanagar), "KARNATAKA EXCISE ACT, 1965-SECTION 32-Offences under-Conviction and Sentence- Appealed against-Dismissal of Appeal-
Revision against-Failure on the part of the prosecution to establish that the seized 14 CC.No.56329/2015 substance was in fact liquor and the quantity of liquor that was carrying was beyond permissible limit-Non-production of certificate specified under Section 59-A of the Excise Act.
HELD:-
It is evident that the large quantity of whisky that the petitioner was carrying, was beyond the permissible limit. This is the primary allegation that would be required to be established by the prosecution. It is therefore not clear as to how the quantity for liquor that was carried by the petitioner has been said to have been established by the production of five bottles of whisky out of the total quantity of liquor that was seized. No doubt, there is a Forensic Science Laboratory report to indicate that the material objects that were produced, namely 5 bottles of whisky, did contain liquor. However, it was necessary for the prosecution to have established that the entire quantity of liquor that was seized was in fact liquor and not any other substance.
17. Further the said proposition of law has also been reiterated in a decision reported 2012 (6) Kar.L.J-375, 15 CC.No.56329/2015 (M.R.Manjunath V/s The Authorized Officer and Deputy Commissioner of Excise, Chickmagalur, District, Chickmagalur and Another), wherein it is held in para No.10 as under:
"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 the analyst for analysis 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. I am of the view that, the Confiscating Officer as well as the learned Appellate Judge were clearly in error in holding that the, petitioner has committed an offence punishable under Section 34 of the Act. Apparently, from the evidence of PW, 3 and 4, it becomes clear that, the only 16 CC.No.56329/2015 substance, which was subjected to analysis was the substance is one sachet, which was sent".
18. The sacred law laid down by the Hon'ble High Court of Karnataka is aptly applicable to the case in hand. Therefore, in absence of strict proof that, each of the bottles seized in this case contained alcohol and merely on the ground that, the remaining bottles were found along with samples sent for chemical analysis, it cannot be said that all bottles were containing liquor. Moreover, the prosecution has failed to secure the presence of independent witnesses, Mahazar witnesses and nothing is on record to believe the case of the prosecution. It is the settled law that the criminal trial always shaddled with the presumption of innocence of the accused persons. However, the act under which the accused No.1 to 5 are charged does contain some of the presumptory provisions, in view of aforesaid observations they all do not help the prosecution to connect the accused persons with the alleged guilt. In view of discussions made above, I am of opinion that, the prosecution has failed to bring home the charge against accused persons. Accordingly, I answer Point No.1 in the Negative.
19. POINT No.2 :- In view of discussion and conclusion arrived at point No.1, the Accused No.1 to 5 are entitled for acquittal. Hence, I proceed to pass the following:
17 CC.No.56329/2015ORDER Acting under section 248(1) of Criminal Procedure Code, the accused No.1 to 5 are hereby acquitted for the offence punishable under Sections 32, 34, 38(a) & 43 of the Karnataka Excise Act.
Bail bonds of accused persons shall be in force for six months and thereafter it shall be canceled without any further orders.
M.O.1 to 14 being worthless is ordered to be destroyed after appeal period is over, in accordance with law.
(Dictated to the stenographer directly on computer, typed by her, then corrected and pronounced by me in open court on this the 28 th Day of March, 2025).
(GIRISH CHATNI) XXIX ACJM, BENGALURU ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:-
P.W.1 : Bharathesh Kumar
P.W.2 : Narayanaswami
P.W.3 : Divyashree.B.H
18 CC.No.56329/2015
2. LIST OF DOCUMENTS MARKED FOR PROSECUTION:-
Ex.P.1 : Raid Panchanama Ex.P.1(a) to (c) : Signatures Ex.P.2 : Search Warrant Ex.P.2(a) : Signature Ex.P.3 : Spot Panchanama Ex.P.3(a) to (c) : Signatures Ex.P.4 : Search Warrant Ex.P.4(a) : Signature Ex.P.5 : Search Warrant Ex.P.5(a) : Signature Ex.P.6 : Spot Panchanama Ex.P.6(a) to (c) : Signatures Ex.P.7 to 9 : FSL Reports Ex.P.10 : Report
3. LIST OF WITNESSES EXAMINED FOR ACCUSED:
- NIL -
4. LIST OF DOCUMENTS MARKED FOR ACCUSED:
- NIL -
5. LIST OF MATERIAL OBJECTS MARKED:
M.O.1 to 9 : Sample Liquor Bottles (9)
M.O.10 : Felicon Machine
M.O.11 : Labels
19 CC.No.56329/2015
M.O.12 : Thread
M.O.13 : Paper Rolls
M.O.14 : Chips Packets
(GIRISH CHATNI)
XXIX ACJM, BENGALURU