Bangalore District Court
The Excise Of Viveknagara Range vs Kayala Jeevarathnam on 15 May, 2025
1 CC.No.41656/2023
KABC0C0196312024
Presented on : 20-12-2023
Registered on : 20-12-2023
Decided on : 15-05-2025
Duration : 1 year, 4 months, 26 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 15th Day of May, 2025
CRIMINAL CASE No.41656/2023
The State by
Excise Inspector,
Viveknagara Range,
Bengaluru.
... Complainant.
(By Learned Assistant Public Prosecutor)
// Versus //
Kayala Jeevarathnam,
S/o Francis,
Aged about 63 years,
2 CC.No.41656/2023
R/at: No.80-2, 3rd Main,
Vimanapura, Marathahalli,
Bengaluru.
... Accused
(By Shri.S.G.M, Advocate)
1. Date of offence 21.04.2023
2. Date of final report 15.09.2023
3. Arrest of accused 21.04.2023
4. Whether in custody No
5. Complainant Diganth.R
6. Offences alleged U/Sec. 32, 38(A), 43 of
Karnataka Excise Act.
7. Evidence commenced on 24.10.2024
8. Evidence closed on 05.04.2025
9. Date of judgment 15.05.2025
10. Opinion of presiding officer Accused found not Guilty
11. Complainant represented by Learned A.P.P.
(GIRISH CHATNI)
XXIX ACJM, BENGALURU
3 CC.No.41656/2023
JUDGMENT
The Excise Inspector, Viveknagara Range, Bangalore has
filed charge sheet against the accused Nos.1 to 6 alleging the
commission of offence punishable under sections 32, 38(a) and
43 of the Karnataka Excise Act, 1965.
2. THE CASE OF PROSECUTION IN NUT SHELL :-
It is the case of the complainant that, on 21.04.2023, when
CW.1 along with CW.2 and 4 were on patrolling duty at 5.40 PM,
CW.1 received credible information as to illegal liquor is being
transported towards Yamaluru Road, CW.1 secured the presence
of CW.5 and 6 and at 6.45 PM on the same day, accused was
coming on bike bearing No.HR-26-E-9503, CW.2 stopped the
said bike and on inspection, the accused was found in
possession of Teacher’s High Land Cream Whiskey 6 bottles of
750 ML each (for sales to defence only), 750 ML 07 bottles, total
9.75 litters in the bag kept in foot rest of the bike. On the say of
accused, he was taken to his house No.80/2, 3rd Main,
Marathahalli, where on inspection, the accused also stored 750
ML 100 piper Whiskey 04 bottles (for defence only), Black Dog
Whiskey 750 ML 03 bottles for defence sales only, total 5.25 liters
in his house. Case came to be registered against the accused in
crime No.1/2022-23 for the offence punishable U/s 32, 38A, 43 in
violation of section 11, 12, 14 & 15 of Karnataka Excise Act.
Thereafter, the investigation officer after completion of the
4 CC.No.41656/2023
investigation has submitted final report against the accused for
the offence punishable U/s 32, 38(A) and 43 of Karnataka Exise
Act.
3. During the crime stage, accused was arrested and
produced before the court, later on he was released on bail. After
filing of the final report, cognizance for the above said alleged
offences was taken against the accused and the above said
criminal case came to be registered.
4. After registration of the case, the presence of the
accused was secured. The copy of final report and its’ enclosures
were furnished to the accused as contemplated under section
207 of Cr.P.C. Heard both sides. Charge framed and read over
to the accused. He pleaded not guilty and claimed to be tried.
5. In order to prove the guilt of the accused, the
prosecution has examined three witnesses out of 08 witnesses
cited in the charge sheet as per P.W.1 to P.W.3 and 15
documents were got marked as per Ex.P.1 to Ex.P.15, 20 sample
bottles were identified and marked as M.O.1 to M.O.20.
Thereafter, the accused has been examined as provided Under
Section 313 of Cr.P.C by explaining incriminating evidence
appearing against him. The accused has denied the same and
has not produced any oral or documentary evidence.
5 CC.No.41656/2023
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 21.04.2023 the
accused found in possession of Teacher’s
High Land Cream Whiskey 6 bottles of 750 ML
each, for sales to defence only, 750 ML 07
bottles, total 9.75 litters in the bag kept in foot
rest of the bike without having valid license
and permit to sell the same and accused was
transporting the illegal liquor and thereby,
committed an offence punishable under
section 32 of the Karnataka Excise Act?
2. Whether the prosecution proves beyond all
reasonable doubt that, the accused has
illegally stored 750 ML 100 piper Whiskey 04
bottles (For defence only), Black Dog Whiskey
750 ML 03 bottles for defence sales only, total
5.25 liters in his house No.80/2, 3 rd Main,
Marathahalli, Bengaluru and thereby,
committed an offence punishable under
section 38A and 43 of the Karnataka Excise
Act?
6 CC.No.41656/2023
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 that, he
was found in possession of illegal liquor seized and was
transporting in the vehicle and also stored in his house without
any valid permit and license in order to sell and CW.1 conducted
ride panchanama and seized the liquor bottles.
9. In order to prove the guilt of the accused, 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.2 as PW.2, the investigation officer CW.08
as PW.3. It is pertinent to mention here that, as CW.2 has
7 CC.No.41656/2023
supported the case of the prosecution, in order to avoid repetition
of evidence, CW.3 and 4 were given up. In view of marking of
FSL report, CW.7 was given up.
10. In support of oral evidence, the prosecution got
marked Ex.P.1 and 2 – Notices, Ex.P.1(a) and 2(b) – Signatures,
Ex.P.3 – Search Warrant, Ex.P.3(a) – Signature, Ex.P.4 – Spot
Panchanama, Ex.P.4(a) & (b) – Signatures, Ex.P.4 – Search
Warrant, Ex.P.4(a) – Signature, Ex.P.5 – Search Warrant,
Ex.P.5(a) – Signature, Ex.P.6 – Seizure Panchanama, Ex.P.6(a)
& (b) – Signatures, Ex.P.7 – FIR, Ex.P.7(a) – Signature, Ex.P.8 –
Model Seal, Ex.P.8(a) – Signature, Ex.P.9 – License from DC,
Ex.P.9(a) – Signature, Ex.P.10 – Report, Ex.P.11 – Statement of
accused, Ex.P.11(a) & (b)- Signatures, Ex.P.12 to 15 – Notices
to CW.2, 4 to 6, Ex.P.12(a) to 15(a) – Signatures and bottles of
liquor taken out for sample as M.O.1 to M.O.20.
11. To bring home the charge against the accused, the
prosecution has to prove that the liquid seized under bottles are
all liquor. To prove the said fact, the prosecution has relied on
Certificate issued by the Chemical Examiner. I have 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.
8 CC.No.41656/2023
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 Manjunatha.S has examined the same and
issued a report, which is marked at Ex.P.10. On going through
the said report, there is no dispute with respect to certificate
issued by the Chemical Examiner. On perusal of the Certificate, 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 certificate can be looked into even though Chemical
Examiner has not been examined, On plain reading of Chemical
Examination Report, it is clear that, M.O.1 to MO.20 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,
1967, a person can possess & transport liquor upto 4.6 liters.
Here, in this case, the police authorities have seized in all 15
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 was more than the prescribed
limit under the provisions of Karnataka Excise Act & Rules.
9 CC.No.41656/2023
14. It is first & foremost burden upon the prosecution in
order to connect the accused 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.2 &
C.W.8 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
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 and in order
10 CC.No.41656/2023
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, 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 20 were seized from the custody of accused.
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 15 liters of liquor have been seized
and were sent for chemical examination. On perusal of Ex.P.10,
the Chemical Examiner has opined that, the MOs sent for
Chemical Examination do contain ethyl alcohol, which meets the
standards prescribed by Bureau of Indian Standards and is fit for
consumption.
16. It is the settled law that the criminal trial always
shaddled with the presumption of innocence of the accused.
However, the act under which the accused is charged does
contain some of the presumptory provisions, in view of aforesaid
observations they all do not help the prosecution to connect the
accused with the alleged guilt. In view of discussions made
above, I am of opinion that, the prosecution has failed to bring
11 CC.No.41656/2023
home the charge against accused. Accordingly, I answer Point
No.1 and 2 in the Negative.
17. POINT No.3 :- In view of discussion and
conclusion arrived at point No.1, the Accused is entitled for
acquittal. Hence, I proceed to pass the following:
ORDER
Acting under section 248(1) of
Criminal Procedure Code, the accused is
hereby acquitted for the offence
punishable under Sections 32, 38(a) & 43
of the Karnataka Excise Act.
Bail bonds of accused shall be in force
for six months and thereafter it shall be
canceled without any further orders.
M.O.1 to 20 being worthless is ordered
to be destroyed after appeal period is
over.
(Dictated to the stenographer directly on computer, typed by her, then
corrected and pronounced by me in open court on this the 15th Day of May,
2025).
(GIRISH CHATNI)
XXIX ACJM, BENGALURU
12 CC.No.41656/2023
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:-
P.W.1 : R.Diganth P.W.2 : Asansab Jainapur P.W.3 : Prakash.S
2. LIST OF DOCUMENTS MARKED FOR PROSECUTION:-
Ex.P.1 & 2 : Notices
Ex.P.1(a) & 2(a) : Signatures
Ex.P.3 : Search Warrant
Ex.P.3(a) : Signature
Ex.P.4 : Spot Panchanama
Ex.P.4(a) & (b) : Signatures
Ex.P.5 : Search Warrant
Ex.P.5(a) : Signature
Ex.P.6 : Seizure panchanama
Ex.P.6(a) & (b) : Signatures
Ex.P.7 : FIR
Ex.P.7(a) : Signature
Ex.P.8 : Model Seal
Ex.P.8(a) : Signature
Ex.P.9 : License from DC
Ex.P.9(a) : Signature
Ex.P.10 : Report
Ex.P.10(a) : Signature
Ex.P.11 : Statement of accused
13 CC.No.41656/2023
Ex.P.12 to 15 : Notices to CW.2, 4 to 6
Ex.P.12(a) to : Signatures
15(a)
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 20 : Sample Liquor Bottles
(GIRISH CHATNI)
XXIX ACJM, BENGALURU
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