Bangalore District Court
Excise Ps vs C Tirujnanam on 4 August, 2025
KABC030152082017 Digitally
DEEPA signed by
VEERASWAMY DEEPA
VEERASWAMY
Presented on : 02-03-2017
Registered on : 02-03-2017
Decided on : 04-08-2025
Duration : 8 years, 5 months, 2 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 04th Day of August, 2025
C.C. No.6783/2017
Crime No.ಅನಿ/ಜಇಐಬಿ/09/2015-16
State by Excise Police Station,
Kalasipalya Range,
Bengaluru West. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri C.Thirunyanam
Aged about 41 years,
S/o Sri Chinnudorai @ Sathish,
R/at No.876, 1st Floor,
16th Main Road, 42nd Cross,
Opp. ESI Hospital,
Rajajinagara, Bengaluru-560010.
KABC030152082017 CC 6783/2017
Permanent address:
Avarangakuppam
Village and Post,
Ambuluru route,
Vaniyambadi Taluk,
Velluru District,
Tamilnadu State.
2. Sri Manjunatha,
Aged about 32 years,
S/o Sri Narayanappa,
R/at Old No.20 & New No.39,
Shree Veerabhadraswamy Nilaya,
3rd Cross, Indira Road,
Subbayya Palya, Banasawadi
Main Road, Bengaluru-560033.
Permanent Address:
No.105, Attivatta Grama,
Dasarahalli Post,
Jedigenahalli Hobli,
Hosakote Taluk,
Bengaluru Rural District. ... Accused
(Represented By Sri H.Jayaramashetty, Advocate for
Accused No. 1)
(Represented By Sri C.Krishnappa, Advocate for
Accused No. 2)
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1. Date of commission of 29-08-2015 at 2 pm
offence
2. Date of FIR 29-08-2015
3. Date of Charge sheet 06-02-2017
4.Name of Complainant Smt Divyashree, Excise
Inspector, Jayanagara
EIB-2, Bengaluru.
5. Offences complained of Under Section 11, 12, 14,
15, 32, 38(A) and 43
Karnataka Excise Act.
6. Date of framing of 30-04-2018
charges
7. Charge Pleaded not guilty
8. Date of commencement 14-11-2019
of evidence
9. Date of Judgment is 04-08-2025
reserved
10. Date of Judgment 04-08-2025
11. Final Order Accused No.1 and 2 are
acquitted
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12. Date of sentence -
JUDGMENT
The Excise Sub-Inspector-2, Jayanagara EIB,
Bengaluru City submitted charge sheet against
accused No.1 and 2 for the offences punishable under
Section 11, 12, 14, 15, 32, 38(A) and 43 of
Karnataka Excise Act.
2. Prosecution Case: On 29-08-2015 at about
2.00 p.m., at Nawab Hyder Ali Khan road, in front of
Pradeep Theater within the limits of Kalasipalya
Excise Range, the accused No.1 was illegally
transporting the liquor bottles which was unfit for
human consumption for having supplied by accused
No.2 in his TVS Victor vehicle bearing No.KA 02 ER
2088 without having any license.
3. First Information Report: On the receipt of
credible information, CW1/PW1-Smt. Divyashree,
Excise Inspector, along with CW6 to CW9 checked the
vehicle No.KA 02 ER 2088 of accused No.1 at Pradeep
theater in Kalasipalya and found the liquors, since
there was no time to obtain search warrant from the
jurisdictional Magistrate, search warrant was
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prepared at the spot as per Ex.P1 and seized liquors
through Ex.P2-seizure mahazar, had taken samples
from each brand as per MO1 to MO3 and affixed
sample seal as per Ex.P3 and prepared an inventory
of seized items as per Ex.P.4. Thereafter, to search
accused’s house, there was no time to obtain search
warrant from the jurisdictional magistrate, the
reasons for not obtaining search warrant was
prepared at the spot as per Ex.P5 and seized the one
liter of Seven bottles of Johnnie Walker Black Lable,
one liter one bottle of Sivas Regal, a cloth bag, and
handbags as per the Ex.P6-seizure mahazar,
samples were taken from each brand as per Mo4 and
5, seal was affixed and inventory of seized items was
prepared as per Ex.P7.
4. Investigation: On 29-08-2015 CW10 / PW3
Sri Gopalappa received the TVS victor vehicle bearing
Reg. No.KA 02 ER 2088 and 26 liter liquors from CW1
and after completion of investigation, he submitted
charge sheet against accused.
5. On receipt of charge sheet, this Court had
taken cognizance of offences alleged against the
accused.
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6. At the pre-summoning stage, the accused
No.1 and 2 were enlarged on bail by the order dated
01-09-2015 and 21-09-2015 respectively.
7. Copies of prosecution paper as required
U/Sec.207 of Cr.P.C have been furnished to the
accused No.1 to 2.
8. Charge: After hearing learned Senior APP and
counsel for accused No.1 and 2, charge for the
offences punishable under Section 11, 12, 14, 15, 32,
38(A) and 43 of Karnataka Excise Act has been
framed, read over and explained to the accused in the
language known to them, who, in turn, pleaded not
guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in
order to establish its case cited 10 witnesses,
examined 4 witnesses and exhibited 6 documents
and MO1 to MO5 and closed their side. On account of
examination of CW4, the examination of CW5, CW7
and CW9 were given up by the order dated 15-07-
2025. The process returned as unavailable from 02-
10-023 and hence the examination of CW2 and CW3
is given up by the order dated 21-07-2025.
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10. Statement of Accused as per section 313 of
CrPC: After completion of evidence of prosecution, the
accused No.1 and 2 were examined as per section
313 of Cr.P.C, wherein they 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 29-08-2015 at
about 2.00 p.m., at Nawab
Hyder Ali Khan road, in front of
Pradeep Theater within the
limits of Kalasipalya Excise
Range, the accused No.1 was
illegally transporting the liquor
bottles which was unfit for
human consumption for having
supplied by accused No.2 in his
TVS Victor vehicle bearing
No.KA 02 ER 2088 without
having any license thereby
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resulted in commission of an
offences punishable under
Section 11, 12, 14, 15, 32,
38(A) and 43 of Karnataka
Excise Act?
2. What order?
13. The court’s findings on the above points are
as under:
Point No.1 : In the Negative
Point No.2 : As per final order
REASONS
14. Point No.1: In support of prosecution case
as narrated in paragraph 2 and the point for
consideration in paragraph 12 of this judgment, the
prosecution examined the witnesses which are as
follows;
i. CW1 Smt. Divyashree, being informant and
the then Excise Inspector examined as PW1 deposed
that on 29-08-2015, on the receipt of credible
information that the liquor was being transported
illegally on TVS Victor bike in front of Pradeep Chitra
Mandir in Kalasipalya, she along with CW6 to CW9,
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went to the said spot from the office in government
vehicle No. KA 01 G 5553 and stopped vehicle No.KA
02 ER 2088 and found the plastic bag and the bag on
the back of the accused No.1, as he did not answer.
Since there was no time to obtain search warrant
from jurisdictional magistrate, the reasons for not
obtaining search warrant was prepared at the spot as
per Ex.P1. When the bags were checked, 14 bottles
of 1 liter of Johnny Walker Double Black, 3 bottles of
1 liter of Johnny Walker Black Lable, and 1 bottle of
1 liter of Grey Goose Vodka were found and the
accused did not have license to transport them.
Further deposed that the said liquor was brought
from the house of accused and was going to Kengeri
and hence she seized liquor and vehicle through
Ex.P2-seizure mahazar, had taken samples from each
brand and wrapped the lids with white cloth and
sealed with departmental seal and affixed her
signature, prepared sample seal as per Ex.P3 and
prepared an inventory of seized items as per Ex.P4.
Since there was no time to obtain search warrant
from the jurisdictional magistrate, to visit accused’s
house, the reasons for not obtaining search warrant
was prepared at the spot as per Ex.P5 and seized the
one liter of Seven bottles of Johnnie Walker Black
Label, one liter one bottle of Sivas Regal, a cloth bag,
and handbags were found and seized as per Ex.P6.
Samples were taken from each brand to send the
same to chemical examination from each brand and
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wrapped the lids with white cloth and sealed with
departmental seal and affixed her signature, prepared
sample seal. An inventory of the seized items was
prepared as per Ex.P7. She identified her signature as
Ex.P1(a), 2(a), 3(a), 4(a), 5(a), 5(a) and 7(a) and the
sample bottles as M.Ma1 to 5 and her signatures
thereon as MO1(a) to MO5(a). PW1 did not subject
herself for further chief in examination and cross
examination and hence dropped out as not secured
by the Police by the order dated dated 25/011/2023.
ii. CW8 Sri namely Sri Naglegowda, the then
Excise Guard, examined as PW2 who accompanied
PW1, deposed the same version of PW1 and identified
his signature as per Ex.P6(b).
iii. CW10 by name Sri Gopalappa, the then
Excise Sub-Inspector of Jayanagara EIB, examined
as PW3 deposed that on 29-08-2015, CW1 handed
over one blue TVS Victor vehicle bearing No. KA-02-
ER-2088 and 26 liters of liquor bottles to him. After
completion of the investigation, he submitted charge
sheet against the accused.
iv. CW4/PW4 Sri Ramachandra Gowda, the
then Excise Sub Inspector, Kalasipalya Range,
deposed that on 29-08-2015, while patrolling on
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Kalasipalya range, the accused No.1 was coming on a
two-wheeler at Nawab Hyderali Khan road at a high
speed, when he was stopped and taken near Pradeep
Cinema theater and was searched total 18 bottles of
Chivas Regal, Johnnie Walker Double Black, 12 years
brand were found in a handbag. On enquiry, he did
not possess any license to possess them, seizure
mahazar was conducted at the said place as per
Ex.P2. Later, they went to the house of accused
situated opposite to Rajajinagar ESI Hospital and
found total of 8 bottles of Johnnie Walker 12 years
and 8 bottles of Chivas Regal and the same was
seized through seizure mahazar as per Ex.P6 from
4.30 pm to 5.30 pm and five bottles were sent for
chemical examination.
15. It is relevant to mention the Section 11, 12,
14, 15, 32, 38(A) and 43 of Karnataka Excise Act,
1965 which reads as under
11. Transport of intoxicant.- No
intoxicant exceeding such
quantity as may be prescribed
either generally or for any local
area shall be transported, except
under a permit issued under
section 12.
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12. Permits for transport.
1) The Deputy Commissioner or
any other person duly empowered
by the State Government in that
behalf may issue a permit for the
transport of intoxicants.
2) A permit under sub-section (1)
may be either a general permit for
definite periods and kinds of
particular intoxicants or a special
permit for specified occasions and
particular consignments
only:Provided that a general
permit shall be granted only to
persons licensed under this Act
and may cover any quantity of
liquor transported at any one time
not exceeding the quantity
specified in the permit.
3) Every permit under this section
shall specify,-(a) the name of the
person authorized to transport
intoxicants;(b) the period for
which the permit is to be in force;
(c) the quantity and description of
intoxicants for which it is granted;
and (d) any other particulars
which may be prescribed.
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4) A permit granted under this
section shall extend to and
include servants and other
persons employed by the grantee
and acting on his behalf.
14. Possession of excisable
articles in excess of the quantity
prescribed.- (1) The State
Government may, by notification,
prescribe a limit of quantity for
the possession of any intoxicant:
Provided that different limits may
be prescribed for different
qualities of the same article.
(2) No person shall have in his
possession any quantity of any
intoxicant in excess of the limit
prescribed under sub-section (1),
except under the authority and in
accordance with the terms and
conditions of,-
(a) a license for the manufacture,
cultivation, collection, sale or
supply of such article; or
(b) a permit granted by the
Deputy Commissioner in that
behalf.
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15. Sale of excisable articles
without license prohibited.- (1) No
intoxicant shall be sold except
under the authority and subject
to the terms and conditions of a
license granted in that behalf:
Provided that, subject to such
restrictions and conditions as the
Excise Commissioner may by
general or special order specify,-
(a) a person having the right to
the toddy drawn from any tree
may sell such toddy without a
license to a person licensed to
manufacture or sell toddy under
this Act;
(b) a cultivator or owner of any
plant from which an intoxicating
drug is produced may sell without
a license those portions of the
plant from which the intoxicating
drug is manufactured or
produced, to any person licensed
under this Act to sell,
manufacture or export the
intoxicating drugs or to any
officer, whom the Excise14
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specially authorize.
(2) A license for sale under sub-
section (1), shall be granted,-
(a) by the Deputy Commissioner,
if the sale is within a district, or
(b) by the Excise Commissioner, if
the sale is in more than one
district:
Provided that subject to such
conditions as may be determined
by the Excise Commissioner, a
license for sale granted under the
Excise law in force in any other
State may be deemed to be a
license granted under this Act.
(3) Nothing in this section shall
apply to the sale of any liquor
lawfully procured by any person
for his private use and sold by
him or on his behalf or on behalf
of his representatives in interest
upon his quitting a station or
after his decease.
(4) Notwithstanding anything
contained in sub-sections (1) and15
KABC030152082017 CC 6783/2017(2), no club shall supply liquor to
its members on payment of a
price or of any fee or subscription
except under the authority of and
subject to the terms and
conditions of a license granted in
that behalf by the Excise
Commissioner and on payment of
such fees according to a scale of
fees to be fixed by the State
Government in this behalf.
32. Penalty for illegal import, etc.-
(1) Whoever, in contravention of
this Act, or any rule, notification
or order, made, issued or given
thereunder, or of any license or
permit granted under this Act,
imports, exports, transports,
manufactures, collects or
possesses any intoxicant, shall,
on conviction, 1 [be punished for
each offense with rigorous
imprisonment for a term which
may extend to 2 [five years and
with fine which may extend to fifty
thousand rupees.]
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1 [Provided that the punishment,-
(i) for the first offense shall be not
less than [one year rigorous
imprisonment and fine of not less
than ten thousand rupees]; and
(ii) for the second and subsequent
offences shall be not less than
[two years rigorous imprisonment
and fine of not less than twenty
thousand rupees] 2 for each such
offence.]
(2) xxxx
38(A) Outlines the penalty for
allowing premises to be used for
the commission of offences under
the Act. Specifically, it states that
anyone who knowingly allows
their property or premises to be
used for committing offenses
punishable under sections 32, 33,
34, 36, and 37 will be punished
as if they had committed those
offenses
43. Liability of certain things to
confiscation.-Whenever an offence
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has been committed, which is
punishable under this Act, the
following things shall be liable to
confiscation, namely :-
(1) any intoxicant, material, still,
utensil, implement or apparatus
in respect of, or by means of
which, such offence has been
committed;
(2) any intoxicant lawfully
imported, transported,
manufactured, had in possession
or sold along with, or in addition
to, any intoxicant liable to
confiscation under clause (1); and(3) any receptacle, package, or
covering in which anything liable
to confiscation under clause (1) or
clause (2), is found, and the other
contents, if any, of such
receptacle, package or covering
and any animal, vehicle, [except
the vehicles owned by the State
Road Transport Undertaking or
Corporation] 1 vessel, raft or other
conveyance used for carrying the
same ;
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It appears from the record that the reasons for
search warrant was prepared on 29-08-2015 at 2.00
pm at Pradeep Theater, Kalasipalya, Bengaluru
however the raiding authority did not subject herself
for cross examination and hence this court cannot
give any value to the Ex.P1 and Ex.P5 (contents of the
reasons assigned for search warrant). Added to
which, the timings were written in different ink than
the pen signed by PW1. More so over the Ex.P1 and
Ex.P5 does not depict what was the timings of receipt
of information and the Ex.P1 and Ex.P5 does not bear
the signature of mahazar witnesses. PW2 and PW4
who had taken part in the raid has not whispered
about the receipt of information about the illegal
transportation of liquors. When the defence was not
given an opportunity to cross examine the PW1 on
Ex.P1 and Ex.P5, the court cannot give any reliance
as the author of Ex.P1 and Ex.P5 did not subject
herself for cross examination.
16. Added to which, pancha witnesses namely
CW2 namely Sri Kiran Kumar Aged about 22 years
S/o. Sri. Sannamarigowda, resident of
Thyappagowdanadoddi, Salanoordoddi, Satnoor
Hobli, Kanakapura, Ramanagar District and CW3
namely Sri Swami Aged about 21 years, S/o.
Sannaiah R/o. Devipura Halli, Holanarasipura Taluk,
Mysore are not local inhabitants to be pancha
witnesses as per Section 100 of CR.P.C. Though there
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is a recitation that they called woman to become
pancha witnesses however they failed to assist the
raid. It appears from the Ex.P2 that spot Hyderali
Khan Road bounded on the East by road and
commercial shop, west by Pradeep Chitra Mandir,
north and south by Navab Hydera Ali khan road and
as per Ex.P6 that the spot is bounded on the East by
property belongs to Deenadayalan, West by Public
road, North by house belongs to Rathnamma and
south by house belongs to M. Nagaraju. In this
regard, it is relevant to quote section 58 of Karnataka
Excise Act and Section 100(4) of Criminal procedure
Code which is reiterated as follows;
Section 58 of the Karnataka
Excise Act contemplates the
procedure for arrest, search etc.
Unless otherwise, provided the
provisions of Code of Criminal
Procedure, 1973 (hereinafter
referred to as ‘code’) relating to
arrest, detention in custody,
searches, summons, warrants of
arrests, search warrants, the
production of persons arrested and
disposal of things shall apply to all
the actions taken under the Act.
Section 100 (4) of the Code of
criminal procedure mandates
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(4) Before making a search under
this Chapter, the officer or other
person about to make it shall call
upon two or more independent and
respectable inhabitants of the
locality in which the place to be
searched is situate or of any other
locality if no such inhabitant of the
said locality is available or is
willing to be a witness to the
search, to attend and witness the
search and may issue an order in
writing to them or any of them so
to do.
As per Section 100 of Cr.P.C., the police authority
has to make an attempt to call for independent and
respectable inhabitants of the locality in which the
place to be searched is situated though the PW1, 2
and 4 deposed that they called the neighbours
however they refused to assist them in investigation.
Only if the witness around spot is not willing to be a
witness, then the police officer could have secured
witnesses from nearest place to the incident.
17. If as per Ex.P2 and Ex.P6 and the evidence of
PW1, 2 and 4, the witnesses around alleged spot
refused to join despite the police asked few women to
join the investigation, however, all of them refused to
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join the investigation. There is no single documentary
evidence that PW1, 2 and 4 made attempt to serve
notices upon the passersby / residents, who had
refused to join the investigation placed on record.
Thus, it is not the case of prosecution that public
witnesses were not available at the spot. However,
from a perusal of the record, no serious efforts for
joining public witnesses appears to have been made
by the investigating officer-PW1. In case any of local
inhabitants had declined to join the raiding authority,
the police could have later taken legal action against
them because they could not have escaped the
rigours of law while declining to perform their legal
duty to assist the police in investigation as a citizen,
which is an offence under the IPC.
18. The illicit liquors (MO1-5) was recovered from
the possession of the accused one is from his vehicle
as per Ex.P2 and from his house as per Ex.P6. It is
well settled principle of the law that the Investigating
agency (PW1) should join independent nearest
witnesses at the time of recovery of liquors, if they are
available and their failure to do so in such a situation
casts a shadow of doubt on the prosecution case. In
the present case also admittedly the independent
witnesses were available at the time of recovery of
liquors as there was commercial shops and house
around the alleged spots. A police officer conducting
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investigation of a crime is entitled to ask anybody to
join the investigation and on refusal by a person from
the public, the Investigating Officer can take action
against such a person under the law. Had it been a
fact that the witnesses from the public had refused to
join the investigation, the IO (PW1) must have
proceeded against them under the relevant provision
of law. The failure to do so by the police officer (PW1)
is suggestive of the fact that the explanation for non-
joining the witnesses around the spot is an
afterthought and is not worthy of credence. All these
facts taken together make the prosecution case highly
doubtful.” In fact, in this regard, Section 100 of the
Cr.P.C also accords assistance to the aforesaid
finding, by providing that whenever any search is
made, two or more independent and respectable
inhabitants of the locality are required to be
made witnesses to such search, and the search is to
be made in their presence. Under Section 100(8) of
Cr.P.C, refusal to be a witness can render such non-
willing public witness liable for criminal prosecution.
Despite the availability of such a provision, no sincere
attempts were made by the police to join witnesses in
the present case. Therefore, non-compliance of the
mandatory provisions of law, even though public
witnesses were easily available in the vicinity-two
spots as per Ex.P2 and Ex.P6, makes the prosecution
version highly doubtful.
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19. It is the case of prosecution that on the
receipt of credible information, PW1 along with his
personnel namely PW2 and PW4 were patrolling and
at that time received the information about the
accused was transporting the liquors in his house
and hence on the way, the CW2 and CW3 took them
as Pancha witnesses however it is contrary to section
58 of Karnataka Excise Act and Section 100(4) of
Criminal procedure Code. PW1 have not made an
attempt to make neighbours around spots. Such
being the case, this court cannot give any credential
value to the Ex.P2 and Ex.P6 when the CW2 and
CW3 were not local inhabitants around the alleged
spots. Only if the witness around spot is not willing
to be a witness, then the police officer could have
taken from other locality by drawing the mahazar as
per the police manual. If the accused was in
possession of liquors in his vehicle and house, PW1
could have made the spontaneous witnesses available
from the spots. There is no explanation provided by
the Prosecution as to non-availability of witnesses
around the spot and under what circumstances, CW2
and CW3 were called as witnesses in the Ex.P2 and
Ex.P6 to believe the version of the prosecution case.
The prosecution could not secure the presence of
CW2 and CW3 from 25/11/2023 to rely for
corroboration though not local inhabitants for
drawing of the mahazar and the presence of accused
No.1 at the spots.
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20. PW3 is the investigating officer after the
receipt of case papers, neither visited the spot nor
enquired with accused and based upon available
records, has mechanically submitted the charge sheet
without ascertaining the veracity of Ex.P2 and Ex.P6
(spot cum seizure mahazar).
21. PW1 and PW3 has not made any attempts to
enquire with the local inhabitants of Rajajinagar
wherein the accused No. 1 about the selling of liquors
by the accused No. 1 as mentioned in Ex.P2 and
Ex.P6.
22. PW3 had secured Expert opinion report on
02/09/2015 however the reports appears that
“ಅಭಿಪ್ರಾಯ : – ಕ್ರಮ ಸಂಖ್ಯೆ 1 ರಿಂದ
5 ರವರೆಗೆ ಈದೈಯಲ್ ಆಲ್ಕೋಹಾಲ್ ಕಂಡು
ಬಂದಿದ್ದು ಅವುಗಳ ಮದ್ಯದಲ್ಲಿ ಸ್ಕಾಚ್
ಪರಿಮಳ ಇರುವುದಿಲ್ಲ ಮತ್ತು ಮದ್ಯಸಾರದ
ಅಂಶದಲ್ಲಿ ವ್ಯತ್ಯಾಸ ಕಂಡು ಬಂದಿದ್ದ್ದು ಅವು
ನಕಲಿ ಮದ್ಯವಾಗಿರುತ್ತವೆ”.
The contents of Edhayal alcohol were not in
accordance with Bureau of Indian Standards and are
unfit for human consumption but mere production of
FSL report does not sanctify the case of prosecution
as prosecution failed to prove that the (MO1-5) was
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seized from the custody of accused from his vehicle
and house without any iota of evidence.
23. In furtherance it is the specific defence of
accused that whilst preparing the mahazar as per
Ex.P2 and Ex.P6, they could have written batch
number and serial number and manufacturing date
of (MO1-5) but no particulars were available on
record to connect the accused and no complete
description of (MO1-5) as to batch numbers, serial
numbers, manufactured date and company name is
mentioned in Ex.P2 and Ex.P6.
24. Possibility of misuse of specimen seal of the
investigating officer: As per the version of prosecution
witnesses, after sealing the case property with the
departmental seal as JEIBI – I as mentioned in the
Ex.P2 and Ex.P6. However, the seal was not handed
over to any independent witness. There is nothing on
record to suggest that PW1/PW3 IOs had made
efforts to handover the seal to any independent
witness. The seal remained with the excise police
officials of same police station and therefore the
possibility of tampering with the case property cannot
be eschewed. Moreover, it is not even the case of
prosecution that the seal was not within the reach of
IO and thus, there was no scope of tampering of case
property. In this regard, it has been held in the case
26
KABC030152082017 CC 6783/2017
of Ramji Singh Vs. State of Haryana reported in 2007
(3) RCR (CRIMINAL) 452 held in paragraph 7 that:
“….The very purpose of giving seal to
an independent person is to avoid
tampering of the case property. It is
well settled that till the case property
is not dispatched to the forensic
science laboratory, the seal should not
be available to the prosecuting agency
and in the absence of such a
safeguard the possibility of seal,
contraband and the samples being
tampered with cannot be ruled out.
Similarly, Hon’ble High Court of Delhi in Safiullah v.
State, (1993) 49 DLT 193, had observed:
“9. … The seal after use were kept by
the police officials themselves
therefore the possibility of tempering
with the contents of the sealed parcel
cannot be ruled out. It was very
essential for the prosecution to have
established from stage to stage the
fact that the sample was not tempered
with. The prosecution could have
proved from the CFSL form itself and
from the road certificate as to what
articles were taken from the27
KABC030152082017 CC 6783/2017Malkahana. Once a doubt is created
in the preservation of the sample the
benefit of the same should go to the
accused…”….
25. It is nowhere the case of the prosecution that
the seal after use was handed over to her superior
officer. Even the I.O. P.W.1 and PW3 did not utter a
word regarding the handing over of the seal after use
to her superior officer. Therefore, the conclusion
which can be arrived at is that the seal remained with
the Investigating Officer or with the other member of
raiding party therefore the possibility of interference
or tempering of the seal and the contents of the
sample cannot be ruled out. Thus, in light of the
aforesaid discussion, the possibility of misuse of seal
and tampering of case property cannot be ruled out.
Thereby this court cannot give any credential
/evidentiary value to the Ex.P2 and 6. A doubt
raises about the authenticity of sealing of (MO1-5)
when the PW1 failed to handover the specimen seal to
her superior officer immediately after the alleged
seizure.
26. In the present case, on perusal of the entire
evidence, except the evidence of police witnesses
namely PW2 to 4, there is absolutely no other
evidence to connect the accused. The evidence of
28
KABC030152082017 CC 6783/2017
police witnesses cannot be considered as a
substantial piece of evidence to convict the accused
No.1 and 2. At the best, evidence of police can be
used as corroboration in addition to substantiate
piece of evidence. In the absence of substantial piece
of evidence, the evidence of police witnesses is not
sufficient to hold the accused guilt.
27. The alleged offences are being cognizable in
nature however the PW1 proceeded with investigation
without registration of FIR. 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 may29
KABC030152082017 CC 6783/2017prescribe 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 information
shall 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 such30
KABC030152082017 CC 6783/2017information 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 as
soon 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 Police31
KABC030152082017 CC 6783/2017concerned 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
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
32
KABC030152082017 CC 6783/2017
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 the
victim 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.]33
KABC030152082017 CC 6783/2017(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. The search carried out by the raiding
authority is contrary to the law and the same is bad
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.
34
KABC030152082017 CC 6783/2017
28. There is not other evidence produced by the
prosecution that the accused No. 1 has continued his
possession in the house bearing No.876, 1st Floor,
16th Main Road, 42nd Cross, Opp. ESI Hospital,
Rajajinagara, Bengaluru-560010 as on the date of
offence dated 29/08/2015 when the agreement was
dated 02/05/2013 for a period of 11 months. Added
to which, no photograph taken or videographed the
seizure mahazar for having seized the liquors from
the possession of the accused No.1.
29. Neither PW1 nor PW3 has not visited the
house of the accused No. 2 i.e., Old No.20 & New
No.39, Shree Veerabhadraswamy Nilaya, 3rd Cross,
Indira Road, Subbayya Palya, Banasawadi Main
Road, Bengaluru-560033 and No.105, Attivatta
Grama, Dasarahalli Post, Jedigenahalli Hobli,
Hosakote Taluk, Bengaluru Rural District to
ascertain whether he is manufacturing or about the
source of liquor bottles.
30. It is settled law that in order to bring home
guilt of the accused, the prosecution has to prove its
case but the prosecution has failed to prove the
commission of an offence beyond all reasonable doubt
for alleged offence against the accused No.1 and 2.
This court has no other alternative than to accord the
35
KABC030152082017 CC 6783/2017
benefit of doubt in favour of accused. Accordingly,
this court answers POINT NO.1 IN THE NEGATIVE.
31. Point No.2:- For the foregoing discussion
and the findings to the above point No.1, this court
proceeds to pass the following:
ORDER
Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are
found not guilty and acquitted
from the offences punishable
under Section 11, 12, 14, 15, 32,
38(A) and 43 of Karnataka Excise
Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of
Cr.P.C their bail bonds shall be
in force for 6 (six) months.
(iv) MO1 to MO5 are ordered to
be destroyed after expiry of
appeal period.
36
KABC030152082017 CC 6783/2017
(v) Ordered accordingly
(Dictated to the stenographer directly on computer, typed by steno, verified and
corrected by me on my laptop, then the judgment pronounced by me in the open
court, on this the 04th day of August, 2025)DEEPA Digitally signed
by DEEPA
VEERASWAMY VEERASWAMY(Deepa.V.),
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
ANNEXURE
Witnesses examined for the prosecution :
PW1 : Smt.Divyashree/Informant
PW2: Sri Nadlge Gowda/Excise Gaurd
PW3: Sri Gopalappa/Excise Sub Inspector/IO
PW4: Sri Ramachandra Gowda/Excise Sub InspectorDocuments marked on behalf of the prosecution:
Ex.P1: Search Warrant/PW1 Ex.P2: Seizure Mahazar/PW1 Ex.P3: Sample Seal/PW1 Ex.P4 List of Articles/PW1 Ex.P5: Search Warrant/PW1 Ex.P6: Seizure Mahazar/PW1 Ex.P7: List of Articles/PW1 37 KABC030152082017 CC 6783/2017
Material Objects marked on behalf of the prosecution:
MO1- 5 : Sample bottles
Witnesses examined for the defence: Nil
Documents marked on behalf of the defence: Nil
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
38
KABC030152082017 CC 6783/2017
04-08-2025
Judgment pronounced in the open court vide separately
ORDER
Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are
found not guilty and acquitted
from the offences punishable
under Section 11, 12, 14, 15, 32,
38(A) and 43 of Karnataka Excise
Act.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of
Cr.P.C their bail bonds shall be
in force for 6 (six) months.
(iv) MO1 to MO5 are ordered to
be destroyed after expiry of
appeal period.
(v) Ordered accordingly
VIII ACJM, B’luru City
39