JUDGMENT

The judgment and order dated 12.03.2014 passed by the Court of the Principal District and Sessions Judge, Tumkur in Sessions Case No.113/2013, convicting the accused/appellant for the offences punishable under Section 32, 34 of the Karnataka Excise Act and Section

328 of IPC is assailed in this appeal.

2. Heard the arguments of the learned counsel for appellant, learned High Court Government Pleader for the State. Perused the evidence and material on record.

3. The case of the prosecution is that on

14.12.2010 at about 6.10 a.m., based on a credible information, CW.1 – R. Bhanuprasad working as a police sub-inspector went to G. Ranganahalli Tanda, Kasaba Hobli, Sira Taluk, wherein the accused was found in illegal possession of about 8 ltrs of country liquor kept in a 10 ltrs plastic can and 560 ltrs of wash kept in drums etc., for preparation of liquor. The same was seized under a mahazar – Ex.P1 in the presence of panchas. Sample was taken and sent for FSL examination, and as per report – Ex.P5, the sample sent contained ethyl alcohol unfit for human consumption.

4. The prosecution in all examined 5 witnesses and got marked 5 documents and MO.1 –plastic bottle containing sample liquor. The trial Court relying on the evidence of PWs.4 and 5, proceeded to convict the accused/appellant holding that the evidence of PW.5 is corroborated by the report of chemical analyzer at Ex.P5 and as per the said report the illicit liquor contained ethyl alcohol, which was unfit for human consumption. It is observed that the evidence of PWs.4 and 5 shows that raid was conducted on 14.12.2010 and the accused was manufacturing liquor unauthorizedly, without any valid license or permit by the Government.

5. It is the specific case of prosecution that a credible information was received by PW.4 and based on the said information he along with his staff and panchas namely PWs.2 and 3 went to the land of the accused, wherein he was found in possession of 8 ltrs of country liquor and 560 ltrs of wash kept for preparing the country liquor. The prosecution has not placed any material to show that such a credible information was received. Prior to proceeding to the spot to conduct a raid, no case was registered though the credible information was in respect of cognizable offence. Atleast, the prosecution should have produced the Station House Diary to show that the police received the information and proceeded to the spot to conduct a raid.

6. Ex.P1 is the mahazar said to have been prepared at the time of seizure of the country liquor etc ., from the possession of the accused. The panch witnesses namely PWs.2 and 3 have turned hostile and not supported the case of prosecution. Hence, the entire case is based on evidence of PWs.4 and 5 namely the official witnesses.

7. According to PW.4, the accused was found in possession of 10 ltrs can which contained 8 ltrs of country liquor. The said can along with liquor was seized and half litre of liquor was taken as sample in a plastic bottle and sealed for sending for FSL examination. The prosecution has not produced and marked the can said to have contained 8 ltrs of country liquor. According to PWs.4 and 5, half litre of liqour was taken as sample in a bottle for sending it to the FSL. However, as per Ex.P5 - chemical analysis report, three bottles containing 500 ml each were examined, which contained ethyl alcohol. Neither PW.4 nor PW.5 have deposed about taking samples of 500 ml of liquor in three bottles. Even in Ex.P1, the same does not find any mention.

8. As regards the seizure of 560 ltrs of wash said to be the raw material used for the preparation of illicit liquor, said to have kept in pots and drums, there is absolutely no material except the oral evidence of PWs.4 and 5. Neither the pots and drums are seized nor produced before the Court. According to PW.1, the said pots and drum were confiscated to the State. However, in Ex.P1 there is no mention about the seizure of the pots and drums. The panch w