Bangalore District Court
Pushpa Mugali, Wpsi vs Muniraju on 23 December, 2024
KABC030122932021
Presented on : 18-02-2021
Registered on : 18-02-2021
Decided on : 23-12-2024
Duration : 3 years, 10 months, 5 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 23rd Day of December, 2024
C.C. No.3687/2021
State by Hebbala Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath Senior APP)
Versus
Sri Muniraju,
Aged about 45 years,
S/o Late Sri Chikkamunilingappa,
R/at No.81, 1st Cross,
A.K.Colony, Guddadahalli,
Hebbala, Bengaluru City. ... Accused
(Represented By Sri M.K.Venkatesh, Advocate)
KABC030122932021 CC 3687/2021
1. Date of commission of 20-07-2020
offence
2. Name of Complainant Smt. Pushpa Mugali
WPSI, Hebbal PS
3. Offences complained of Under Section 188 of
Indian Penal Code and
Section 34 of Karnataka
Excise Act
4. Charge Pleaded not guilty
5. Final Order Accused is acquitted
6. Date of order 23-12-2024
JUDGMENT
The Police Sub-Inspector of Hebbala Police
Station submitted charge sheet against accused for
the offences punishable under Section 188 of Indian
Penal Code and Section 34 of Karnataka Excise Act.
2. Prosecution Case: From 17-07-2020 to 22-
07-2020, the accused being in charge of drinking
water cell near More Mall of Mytri Bazaar within the
limits of Hebbala Police Station was indulged in sale
of liquor packets namely 17 tetra packets of each 90
ml of Haywards Whisky, 180 ML of 12 Haywards tetra
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KABC030122932021 CC 3687/2021
packets in the said cell to General Public without any
license from the Excise Authority and in violation of
lock down rules imposed by the Government of India
during Covid-19 situation. Hence, CW1 Smt. Pushpa
Mugali, WPSI, Hebbal PS along with staff seized the
liquor packets, cash and lodged complaint.
3. First Information Report: On the receipt of
credible information, CW1/PW1 – Smt. Pushpa
Mugali, WPSI, Hebbala Police Station along with her
staff raided the spot i.e. Public Water Plant, Near
More Shop, V Nagenahalli Main Road, R.T.Nagara
Post, Bengaluru City, seized the said properties in the
presence of panchas by drawing the spot cum seizure
mahazar as per Ex.P2. On the basis of spot cum
seizure panchanama and complaint of CW1 as per
Ex.P1, CW9/PW2 Sri Nataraj K.V. registered the
complaint against the accused in Crime No.103/2020
for the offence punishable U/Sec.34 of Karnataka
Excise Act and Sec.188 of IPC. Accordingly, the FIR
as per Ex.P4 prepared, sent the same to the Court
and to his superior officers.
4. Investigation: Thereafter, on receipt of
complaint/report-Ex.P3 and seized properties from
CW1, CW9/PW3 registered the FIR, recorded the
statement of witnesses. after completion of
investigation submitted the charge sheet for the
alleged offences against the accused.
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KABC030122932021 CC 3687/2021
5. The accused was enlarged on bail by the
order dated 16-12-2022.
6. On receipt of charge sheet, this Court took
cognizance of offences alleged against the accused.
7. Copies of prosecution paper as required
U/Sec.207 of Cr.P.C have been furnished to the
accused.
8. Charge: After hearing learned Senior APP and
counsel for accused, charge for the offence
punishable U/Sec.188 of Indian Penal Code and
Section 34 of Karnataka Excise Act has been framed,
read over and explained to the accused in the
language known to him, who, in turn, pleaded not
guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in
order to establish its case cited 9 witnesses,
examined 3 witnesses and exhibited 4 documents
and MO1 and 2 and closed their side. However the
examination of CW4 to CW7 and CW8 were given up
at the request of APP by the order dated 08/08/2023
and 04/11/2024 respectively. The examination of
CW2, CW3 were dropped out by the order dated
10/11/2024 was unable to secure their presence
despite due execution of proclamation.
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KABC030122932021 CC 3687/2021
10. Accused statement as per section 313 of
CrPC: After completion of evidence of prosecution, the
accused was examined as per section 313 of Cr.P.C,
wherein he denied all incriminating evidence
appearing in the statement of prosecution witnesses
and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on
the record.
12. The following point are arises for
consideration is as follows;
1. Whether the prosecution
proved beyond all reasonable
doubt that on 20/07/2001 the
accused being in charge of
drinking water cell near More
Mall of Mytri Bazaar within the
limits of Hebbala Police Station
was indulged in sale of liquor
packets thereby resulted in
commission of an offence
punishable Section 34 of
Karnataka Excise Act?
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KABC030122932021 CC 3687/2021
2. Whether the prosecution has
proved beyond all reasonable
doubt that on above said date,
time and place accused
violated the order passed by the
Government of Karnataka
during pandemic of covid-19
thereby resulted in commission
of an offence punishable
U/sec.188 of IPC?
3. What order?
13. The court’s findings on the above points are
as under:
Point No.1 & 2: In the Negative
Point No. 3 : As per final orderREASONS
14. Point No.1 & 2: These points are taken up
together for the purpose of common discussion in
order to avoid repetition of facts as they form the
same part of transaction. In support of prosecution
case as narrated in paragraph 2 and the point for
consideration in paragraph 12 of this judgment, the
prosecution has examined the witnesses which are as
follows
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KABC030122932021 CC 3687/2021
i. CW1 Smt. Purshpa Mugali, being informant
and the then WPSI of Hebbala Police station,
examined as PW1 deposed that on 20-07-2020, CW4
to 6 and herself patrolling in Hoysala, at about 12.50
p.m. on the receipt of credible information, they went
to Mythri Bazar near Water Tank and accused ran
away after seeing their vehicle. They seized the liquor
and Rs.600/- cash from the spot under panchanama
as per Ex.P2 in the presence of CW2 and CW3.
Thereafter, she filed report as per Ex.P3 and
submitted the requisition along with properties before
Hebbal PS. She identified notice as per Ex.P1 which
was issued to CW3 and her signatures as per
Ex.P1(a), 2(a) and 3(a).
ii. CW9/PW2, Sri K.V.Nataraju, the then ASI of
Hebbala PS, deposed that he registered the case on
the basis of report submitted by PW1 as per Ex.P3,
prepared FIR as per Ex.P4, recorded the statements
of CW2 to CW8 and subjected the seized properties in
PF No.62/2020. The samples are identified as MO1
and MO2 however the same was not sent to FSL due
to Covid-19 for chemical examination. After
completion of investigation, PW2 submitted charge
sheet.
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KABC030122932021 CC 3687/2021
iii. CW7/PW3, Sri Khalid Ahamad, the then of
HC of Hebbala PS, deposed that he along with CW8
apprehended the accused from his house and
produced him before CW9 with report as per Ex.P4.
He identified his signature thereon as per Ex.P4(a).
15. It is relevant to mention Section 34 of the
Karnataka Excise Act, 1965
Penalty for illegal possession
Whoever, without lawful authority
has in his possession any quantity
of any intoxicant knowing the
same to have been unlawfully
imported, transported,
manufactured, cultivated or
collected, or knowing the
prescribed duty not to have been
paid thereon, shall, on conviction,
be punished with imprisonment
for a term which may extend to [1]
[four years and with fine which
may extend to fifty thousand
rupees.
[2] [Provided that the
punishment,-
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KABC030122932021 CC 3687/2021
(i) for the first offence shall be not
less than [one year imprisonment
and fine of rupees ten thousand];
and
(ii) for the second and subsequent
offences shall be not less than
imprisonment for [two years and
fine of not less than rupees twenty
thousand], for each such offence:
Provided further that the fine
inflicted, shall not be less than
four times the amount of duty
leviable on such intoxicant.]Thus, it appears Ex.P2 is a spot cum seizure
mahazar under which liquor tetra packets have been
seized by the CW1/PW1 Police Inspector stating that
the accused was selling liquors 17 tetra packets of
each 90 ml of Haywards Whisky, 180 ML of 12
Haywards tetra packets from Maithri Basaar Near
Water Tank without any license on 20/07/2020 at
1.10 pm however FIR as per Ex.P4 was registered on
20/07/2020 at 17.10 (5.10 PM) and there is no single
recitation about the registration of FIR in the Ex.P2.
The search and seizure conducted by PW1 without
registration of FIR in respect of cognizable offence is
unsustainable in law.
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KABC030122932021 CC 3687/2021
16. In this context, it is relevant to rely upon
Sections 154 and 157 of Cr.P.C which reads as under
“154. Information in cognizable cases.
–(1) Every information relating to the
commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to
writing by him or under his direction,
and be read over to the informant;
and every such information, whether
given in writing or reduced to writing
as aforesaid, shall be signed by the
person giving it, and the substance
thereof shall be entered in a book to
be kept by such officer in such form
as the State Government may
prescribe in this behalf: [Provided that
if the information is given by the
woman against whom an offence
under section 326A, section 326B,
section 354, section 354A, section
354B, section 354C, section 354D,
section 376, [section 376A,section
376AB, section 376B, section 376C,
section 376D, section 376DA, section
376DB], section 376E or section 509
of the Indian Penal Code (45 of 1860)
is alleged to have been committed or
attempted, then such information10
KABC030122932021 CC 3687/2021shall be recorded, by a woman police
officer or any woman officer:
Provided further that– (a) in the event
that the person against whom an
offence under section 354, section
354A, section 354B,section 354C,
section 354D, section 376, 1[section
376A, section 376AB, section 376B,
section 376C, section 376D, section
376DA, section 376DB], section 376E
or section 509 of the Indian Penal
Code (45 of 1860) is alleged to have
been committed or attempted, is
temporarily or permanently mentally
or physically disabled, then such
information shall be recorded by a
police officer, at the residence of the
person seeking to report such offence
or at a convenient place of such
person’s choice, in the presence of an
interpreter or a special educator, as
the case may be;
(b) the recording of such information
shall be video graphed;
(c) the police officer shall get the
statement of the person recorded by a
Judicial Magistrate under clause (a) of
sub-section (5A) of section 164 as11
KABC030122932021 CC 3687/2021soon as possible.]
(2) A copy of the information as
recorded under sub-section (1) shall
be given forthwith, free of cost, to the
informant.
(3) Any person aggrieved by a refusal
on the part of an officer in charge of a
police station to record the
information referred to in sub-section
(1) may send the substance of such
information, in writing and by post, to
the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission
of a cognizable offence, shall either
investigate the case himself or direct
an investigation to be made by any
police officer subordinate to him, in
the manner provided by this Code,
and such officer shall have all the
powers of an officer in charge of the
police station in relation to that
offence.
157. Procedure for investigation.–(1)
If, from information received or
otherwise, an officer in charge of a
police station has reason to suspect
the commission of an offence which
he is empowered under section 156 to
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KABC030122932021 CC 3687/2021
investigate, he shall forthwith send a
report of the same to a Magistrate
empowered to take cognizance of such
offence upon a police report and shall
proceed in person, or shall depute one
of his subordinate officers not being
below such rank as the State
Government may, by general or
special order, prescribe in this behalf,
to proceed, to the spot, to investigate
the facts and circumstances of the
case, and, if necessary, to take
measures for the discovery and arrest
of the offender:
Provided that– (a) when information
as to the commission of any such
offence is given against any person by
name and the case is not of a serious
nature, the officer in charge of a police
station need not proceed in person or
depute a subordinate officer to make
an investigation on the spot;
(b) if it appears to the officer in
charge of a police station that there is
no sufficient ground for entering on
an investigation, he shall not
investigate the case. [Provided further
that in relation to an offence of rape,
the recording of statement of the13
KABC030122932021 CC 3687/2021victim shall be conducted at the
residence of the victim or in the place
of her choice and as far as practicable
by a woman police officer in the
presence of her parents or guardian or
near relatives or social worker of the
locality.]
(2) In each of the cases mentioned in
clauses (a) and (b) of the proviso to
sub-section (1), the officer in charge of
the police station shall state in his
report his reasons for not fully
complying with the requirements of
that subsection, and, in the case
mentioned in clause (b) of the said
proviso, the officer shall also forthwith
notify to the informant, if any, in such
manner as may be prescribed by the
State Government, the fact that he
will not investigate the case or cause
it to be investigated.”
Thus, it is clear from above provisions that there
are two kinds of FIRs namely, the FIR can be
registered by the informant which was duly signed by
him. Secondly, the FIR can be registered by the police
officer himself on any information received by him. In
both the cases, the information should be reduced
into writing and thereafter, the investigation must be
carried out.
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KABC030122932021 CC 3687/2021
17. The Ex.P2 being a panchanama cannot be
termed as a complaint though Ex.P3 was given
subsequent to the seizure of liquor tetra packets and
FIR cannot be registered on the basis of panchanama.
It appears from the record, after seizure mahazar,
PW1 submitted the Ex.P3 as per requisition before
SHO to register the complaint which is unsustainable
in law and the said principle is appreciated in the
case of SRI DAYANANDA @ R. BABU VS STATE OF
KARNATAKA REPORTED IN LAWS(KAR) 2024 – 4- 16.
18. CW2 and CW3 namely Sri Shameer S/o.
Late Sardar resident of II Cross, Babu Reddy Layout,
Manorayanapalya, R.T.Nagar Post, Bangalore 560
032 and Sri Farook Pasha Aged about 36 years, S/o.
Late Afras Baig resident of No.248, II cross,
Venkataswamappa Layout, Manorayanapalya, R.T.
Nagar Post, Bangalore 560 032 are claimed to be
independent witnesses to the Ex.P2 (Seizure
Mahazar) however they could not be secured in
support of Ex.P2 (seizure cum spot mahazar) thereby
the seizure mahazar as per Ex.P2 at the spot raises
the doubt in the mind of this court about the
authenticity.
19. It is relevant to quote Chapter VIII provides
for detention, investigation and trial of offences under
the Karnataka Excise Act, 1965 (hereinafter referred
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KABC030122932021 CC 3687/2021
to as ‘the Excise Act‘, for brevity) and Section 59-A
provides as follows:
“59A. Certificate of Inspectors of
Excise to be evidence- Any document
purporting to be a certificate under
the hand of an Inspector of Excise
who has undergone the prescribed
training in the examination and
analysis of intoxicants and materials
and who is authorised by the State
Government in this behalf, in respect
of any matter or thing submitted to
him for examination or analysis and
report may be used as evidence of the
facts stated in such certificate, in any
proceedings under this Act: but the
court may, if it thinks fit, and shall on
the application of the prosecution or
the accused person summon and
examine any such Inspector of Excise
as to the subject matter of his
certificate.”
20. Further, as per Rule 21 of the Karnataka
Excise (Possession, Transport, Import and Export of
Intoxicants) Rules, 1967, this Court has consistently
held the same view in the matter of STATE OF
MYSORE VS. MOHAMED JAFFAR AND OTHERS
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KABC030122932021 CC 3687/2021
REPORTED IN 1966 (2) KLJ 91 AND MAHAPURSHA
DURGA JOGLEKAR VS. STATE OF KARNATAKA
REPORTED IN 1977 (2) KLJ 463 AS WELL AS IN M.R.
MANJUNATH RAMAPPA GOWDA VS. THE
AUTHORIZED OFFICER & DEPUTY COMMISSIONER
OF EXCISE, CHICKMAGALUR DISTRICT &
ANOTHER REPORTED IN 2012 (4) AIR KAR
REPORTER 18, with particular reference to the
presumption as to commission of offence in certain
cases in prosecutions under Section 34 of Karnatka
Excise Act, it has been held that it shall be so
presumed until the contrary is proved, that the
accused person has committed an offence punishable
under the Section in respect of whisky, however, a
rebuttable presumption. If the accused is found in
possession of intoxicating substances for which he
did not have a permit, it would certainly give rise to a
presumption that an offence has been committed.
However, when a person is sought to be prosecuted,
the prosecution is required to prove beyond all
reasonable doubt that there is a clear violation of the
provisions of the Excise Act. It appears from the
record particularly from the evidence of CW9/PW2/IO
that MO1 (consisting of 16 tetra packets of each
measuring 90 ml of Haywards Whisky and 180 ML of
11 Haywards tetra packets) and MO2 (consisting of 1
tetra packets measuring 90 ml of Haywards Whisky,
and 180 ML of 1 Hayward tetra packet) was not sent
to the FSL for chemical examination. Neither the
certificate as envisaged under section 59A of K E Act
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KABC030122932021 CC 3687/2021
nor the FSL report secured to corroborate that the
seized tetra packets were of with the liquors with the
same quantity and quality. Without any material
evidence on record, how this court could come to a
conclusion that the seized tetra packets were of
liquors.
21. The counsel for the accused has filed an
application for recall of PW3 for cross examination
however the service of witness summons to PW3
could not served. On going through the evidence of
PW3, the PW3 brought the accused from his house
and produced before the court which does not have
much vital role to connect that the accused has
committed the alleged offences on 20/07/2020 and
hence posted for judgment.
22. Point No.2: It appears as on 14-07-2020,
issue of Covid-19, there was restriction for movement
of Public in the State of Karnataka however in this
regard, PW1/seizure officer was cross examined by
the accused who in turn deposed that
“it is false to suggest that, at the
time of raid there was lock down
thereafter the question of
gathering the public does not
arise”.
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KABC030122932021 CC 3687/2021
Thus, it is clear that the answers given by PW1
PW1 is contrary to the contents of Ex.P2 that the
public were gathered at the spot and that the accused
was selling the liquors.
23. Though the PW1 supported Ex.P2, however,
the said seizure itself is against the provision of
Section 154 and 157 of Code of Criminal Procedure
and no materials has been produced to substantiate
the said tetra packets were of liquors. No documents
were produced that the accused was incharge of
running Public Water Plant, Near More Shop, V
Nagenahalli Main Road, R.T.Nagara Post, Bengaluru
City. So it is safe to hold that, the prosecution has
not proved the guilt of accused beyond all reasonable
doubt thereby this court answers the above point
No.2 in the negative.
24. Point No.3:- For the foregoing discussion
and the findings to the above point No.1 and 2, this
court proceeds to pass the following:
ORDER
Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty
and acquitted from the offences
punishable under Sec.188 of19
KABC030122932021 CC 3687/2021Indian Penal Code and Section 34
of Karnataka Excise Act.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of
Cr.P.C his bail bond shall be in
force for 6 (six) months.
(iv) MO1 and 2 are ordered to be
destroyed after expiry of appeal
period.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by
me, then the judgment pronounced by me in the open court, on this the
23rd day of December, 2024)
(Deepa.V.),
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
ANNEXURE
Witnesses examined for the prosecution :
PW1 : Smt. Pushpa Mugali PW2 : Sri K.V.Nataraju PW3 : Sri Khalid Ahamed 20 KABC030122932021 CC 3687/2021
Documents marked on behalf of the prosecution:
Ex.P1 : Notice
Ex.P2 : Panchaname
Ex.P3 : Report/complaint
Ex.P4 : FIR / report of PW3Material Objects marked on behalf of the prosecution:
MO1 and 2: Sample bottles
Witnesses examined for the defence: Nil
Documents marked on behalf of the defence: Nil
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
21