Bangalore District Court
The State Through vs Arunkumar on 19 September, 2022
KABC030544622016
Presented on : 03-09-2016
Registered on : 03-09-2016
Decided on : 19-09-2022
Duration : 6 years, 0 months, 16 days
IN THE COURT OF THE XXXII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 19th day of September 2022
Present: Smt. Latha J. B.Com., LLB.,
XXXII Addl.C.M.M.
Bengaluru City.
C.C.No.17278/2020
COMPLAINANT: The State through,
Excise Sub Inspector,
Kengeri Range,
Bengaluru.
(By Asst. Public Prosecutor)
V/s
ACCUSED : Arunkumar
S/o Ramanna,
Aged about 38 years,
2
C.C.No.17278/2020
R/at:No.103,
B.Thunga Block,
BDA Flat, Valagerehalli,
Kengeri Hobli,
Bengaluru.
(By Sri.SGM Adv.,)
1. Date of commencement of 26/4/2020
offence
2. Date of report of offence 26/4/2020
3. Name of the Informant C.Krishnappa
4. Date of commencement of 12/7/2022
recording evidence
5. Date of closing of 10/8/2022
evidence.
7. Offences complained of Sec.11, 14, 15, 32, 38A,
43, 43A of Karnataka
Excise Act
8. Opinion of the Judge. Accused found not guilty.
9. Date of Judgment 19/9/2022
XXXII ACMM.,
Bengaluru.
3
C.C.No.17278/2020
JUDGMENT
The P.S.I, Excise Kengeri Police Station has filed the Charge Sheet Under section-173 of Cr.P.C., against the accused for the offence punishable Under Secs. 11, 14, 15, 32, 38A, 43, 43A of Karnataka Excise Act.
2. The case of the Prosecution in brief is as follows:
In the background of lock down due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was ban of sale of liquor, that on 26.04.2020 at 12.30 P.M in the afternoon, while Excise Sub- Inspector-E.Chandrashekar was on patrolling duty and on receipt of credible information, he conducted raid on the accused going on Mysore road-Dubasi palya on Pulsar Bike bearing No.KA-41-EG-3478 and found the accused in illegal possession of 02 X 750 M.L. D.C.P. Black Delux Whisky bottles and accused were transporting said liquor in plastic bag and thereby the accused committed the offences punishable U/Sec.11, 14,15, 32, 38(A), 43, 43(A) of Karnataka Excise Act. 4
C.C.No.17278/2020 . 3. The CW.1 by name C.Krishnappa who registered the case and enquired the matter. The CW-1 has seized the illegal liquor in the presence of CW.1 and 3 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 U/Sec.11, 14,15, 32, 38(A), 43, 43(A) of Karnataka Excise Act in crime No.65/2019-20 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 U/Sec.11, 14, 15, 32, 38(A), 43, 43(A) 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 offence punishable U/Sec.11, 14,15, 32, 38(A), 43, 43(A) of Karnataka Excise Act and 5 C.C.No.17278/2020 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 five witnesses as PW.1 to 5, out of total charge sheet witnesses as CW.1 to 6 and got marked 6 documents as Ex.P1 to 6 with sub-markings. Cw-1 reported to be dead.
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:6
C.C.No.17278/2020 POINTS
1. Whether the prosecution proves beyond all reasonable doubt that In the background of lockdown due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was ban of sale of liquor, that on 26.04.2020 at 12.30 P.M in the afternoon, while Excise Sub- Inspector-
E.Chandrashekar was on patrolling duty and on receipt of credible information, he conducted raid on accused going on Mysore road-Dubasi palya on Pulsar Bike bearing No.KA-41-EG- 3478 and found the accused in illegal possession of 02 X 750 M.L. D.C.P.Black Delux Whisky bottles and you were transporting said liquor in plastic bag and thereby the accused committed the offences punishable U/Sec.11, 14, 15, 32, 38(A), 43, 43(A) 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: -
7
C.C.No.17278/2020
R EAS O N S
10. Point No.1:- It is the case of prosecution that, In the background of lockdown due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was ban of sale of liquor, that on 26.04.2020 at 12.30 P.M in the afternoon, while Excise Sub- Inspector-E.Chandrashekar was on patrolling duty and on receipt of credible information, he conducted raid on the accused going on Mysore road-Dubasi palya on Pulsar Bike bearing No.KA-41-EG-3478 and found the accused in illegal possession of 02 X 750 M.L. D.C.P. Black Delux Whisky bottles and accused were transporting said liquor in plastic bag and thereby the accused committed the offences punishable U/Sec.11, 14,15, 32, 38(A), 43, 43(A) of Karnataka Excise Act.
11. CW2/PW-2/ Ramesh in his examination deposed that he worked as a excise guard at kengeri Range. the background of lockdown due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was ban of sale of liquor, that on 26.04.2020 at 12.30 P.M in the afternoon, while Excise Sub- Inspector-E.Chandrashekar was on patrolling duty and 8 C.C.No.17278/2020 on receipt of credible information, himself CW1 CW3 and the mahazar witness have rushed to the spot for raid wherein the accused going on Mysore Road-Dubasi palya on Pulsar Bike bearing No.KA-41-EG-3478 and found the accused in illegal possession of 02 X 750 M.L. D.C.P. Black Delux Whisky bottles and accused were transporting said liquor in plastic bag. Cw1 seized the same under seizure mahazar.
12. CW4/PW2 Nagaraju.B.V. in his examination he deposed Cw1 seized the same under seizure mahazar. He has carried the sample for chemical analysis to FSL and received chemical analysis report and submitted to the IO.
13. CW3/PW-3/ Ishwaraiah.S.P in his examination he deposed that on the background of lockdown due to COVID-19 and in order to prevent spreading of Corona, liqour shops were shutdown and there was ban of sale of liquor, that on 26.04.2020 at 12.30 P.M in the afternoon, while Excise Sub- Inspector- E.Chandrashekar was on patrolling duty and on receipt of credible information, himself CW1 CW2 and the mahazar witness have rushed to the spot for raid wherein the accused going on Mysore 9 C.C.No.17278/2020 Road-Dubasi palya on Pulsar Bike bearing No.KA-41-EG-3478 and found the accused in illegal possession of 02 X 750 M.L. D.C.P. Black Delux Whisky bottles and accused was transporting said liquor in plastic bag. Cw1 seized the same under seizure mahazar.
14. PW-4/CW6/ L.Chandrashekar in his examination he deposed that he received the entire file from the cw1 and investigated further. After the completion of the investigation he submitted the charge sheet before the court.
15. CW5/PW5/ Tulasi in her examination she deposed that the vehicle is in her name. she has not given any statement before the police. She turned hostile to the case of prosecution.
16. 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.
10
C.C.No.17278/2020
17. On perusal of the evidence adduced by the prosecution in support of their case, as already stated above the seizure witnesses the independent witness has not been examined. In this case, the attestors to the seized mahazar as PW-1, 3 whom the prosecution has examined are 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.
18. However no piece of paper is produced before the court to show that the accused is either owner or having control over the vehicle in which the alleged excisable goods were there.
19. 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, 11 C.C.No.17278/2020 beyond all reasonable doubt, it creates doubt in the mind of this court. Moreover the Cw1 who being the complainant and raiding party is reported to be dead. Now on the evidence given by the prosecution witnesses, the PW.1 and 3 who being the raiding party and 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.
20. Point No.2: - In view of the findings of point No.1, this court proceed to pass the following:
ORD ER Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable U/Sec.11, 14,15, 32, 38(A), 43, 43(A) of Karnataka Excise Act.12
C.C.No.17278/2020 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 liquor 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 19th September 2022).
(Latha J.), XXXII Addl.C.M.M. Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution :
PW-1 Ramesh 12/7/2022 PW-2 Nagaraju B.A. 12/7/2022 PW-3 Eshwaraiah S.P. 12/7/2022 PW-4 L.Chandrashekar 10/8/2022 PW-5 Thulasi 10/8/2022
List of the Documents exhibited for the Prosecution:
Ex.P1 : Spot mahazar
Ex.P1(a) : Signature of PW-1
13
C.C.No.17278/2020
Ex.P2 : Letter
Ex.P2(a) : Signature of PW-2
Ex.P3 : Report
Ex.P4 : Letter
Ex.P4(a) : Signature of PW-4
Ex.P5 : B Extract
Ex.P6 : Statement of PW5
List of the MOs marked on behalf of the Prosecution :
MO.1 : Two bottle 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 City.14
C.C.No.17278/2020 Order prounced in the open court (vide separate judgment) Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable U/Sec.11, 14, 15, 32, 38(A), 43, 43(A) 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 15 C.C.No.17278/2020 continued.
M.O.1 is sample liquor being worthless shall be destroyed after the appeal period is over.
(Latha J.), XXXII Addl.C.M.M, Bengaluru.