The administrative offense of selling alcoholic beverages was terminated due to the lack of evidence of an offense.
The Zhitikarinsky district Court, consisting of: under the chairmanship of Judge A.K. Zhurunova, with the secretary of the court session I.B. Kulbatyrova, with the participation of prosecutor A.N. Baigabulov, defender S.D. Nigmetov, considered in open court in Russian the case of an administrative offense against: B.N.N. date of birth May 29, 1950 Place of residence g.Gitikara, ul. ... sq.1 Place of work Individual entrepreneur, small business entity Identification document: identity card no.... issued by the Ministry of Internal Affairs of the Republic of Kazakhstan on September 30, 2015, IIN ..., in the commission of an administrative offense provided for in Article 200 of Part 3 of the Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Code of Administrative Offenses). According to the protocol on administrative offense 10 No. 0599965 dated March 11, 2020, on March 10, 2020 at 21-16 o'clock in the city of Zhitikara, V.T.I., working as a salesman for IP B. N.N. in the Gulzat store located at the address: Gitikara, .. house No. 22, sold alcoholic beverages vodka with ethyl alcohol of 40 degrees I.A.N. after 21-00 hours. During the court session, IP B.N.N. pleaded not guilty, and explained to the court that V.T.N. was indeed her employee. Alcoholic beverages were not sold in the store after 21:00.On March 10, 2020, S.J.B. came to her store, caused a scandal, and police officers were called. She believes that S.J.B.'s cell phone time has been corrected because she has a personal grudge with him due to the work of S.J.B.'s ex-wife in her store. In this regard, he periodically comes to her store and makes scandals demanding to return to him. When interviewed by a police officer, she admitted her guilt due to legal illiteracy and confusion. At the same time, she was not familiar with the case materials and the video recording. Requests that the proceedings be discontinued. Defender Nigmetov S.D., having supported the arguments of IP B.N.N., asked the proceedings to be discontinued on the grounds that the fact of the sale of alcoholic beverages after 21-00 hours has not been proven.
Due to personal hostility between IP B.N.N. and S.Zh.B., he believes that the latter corrected the time on the cell phone clock. I.A.N. could not make a purchase of alcohol in the store, since from 20:39 hours to 21:03 hours he was under interrogation at the Police Department of the Zhitikarinsky district as a witness and he could not physically be in the Gulzat store at the specified time. Witness V.T.I. explained to the court that she works as a salesman for IP B.N.N. in the Gulzat store. On March 10, 2020, at about 20-30 o'clock, S.J.B. came to the store, took pictures on his cell phone, and had a row. They contacted the police about this fact. At the same time, she did not sell alcohol to anyone after 21:00 that day. Earlier, S.J.B. had repeatedly come to the store, had scandals with his wife, and B.N.N., when interviewed by a police officer, confessed as a witness because she was afraid. Witness I.A.N. explained to the court that on March 10, 2020, in the evening, a man of Asian nationality, whom he had not known before, approached him near the Umka store and offered him a drink. Then we went with him to the store at 4mkr. 22 house, the man gave him 3,000 tenge. He bought a 0.5 liter bottle of vodka and food. He doesn't know what time it was, because he doesn't have a watch, but it was getting dark. After that, he was in the police department of the Zhitikarinsky district, where he was summoned for questioning as a witness. On March 11, 2020, he signed the protocol of the survey on the sale of alcohol without reading it, as he was intoxicated. Witness S.Zh.B. explained to the court that he had a personal hostile relationship with IP B.N.N., for whom his ex-wife S.Zh.. Indeed, there were conflicts in the store with his wife and sole proprietor B.N.N.. On March 10, 2020, I learned from a police officer that IP B.N.N. had filed a complaint against him at the Zhitikarinsky district police department regarding an insult on February 14, 2020. He was hurt by this, and he decided to take revenge on her. At about 7 p.m., near the Umka store, he met a man who, through his acquaintances, knew him by the name of "Sanya." I offered him a drink, and the latter agreed. At 20:55, "Sanya" came to the Gulzat store, he gave him about 3,000 tenge and asked him to buy alcohol at the Gulzat store. At about 21:10, "Sanya" went into the store, bought vodka "Bread Steppe" and food. At the same time, he himself was standing and filming on a Samsung A cell phone camera near the 1st entrance. He also had a Nokia phone, with which, according to the video, he indicated the time of purchase of alcoholic beverages. Then he went into the store himself and took pictures on his cell phone, then called the remote control "102" and called the police. He didn't change the time on his cell phone. Having examined the materials of the administrative case, having listened to IP B.N.N., the defender, witnesses, having heard the opinion of the prosecutor, who believed that it was necessary to terminate the proceedings due to the lack of evidence of an administrative offense, the court comes to the following conclusions. According to a statement dated March 11, 2020, registered according to coupon No. 203944035300150 at 02:41 a.m., the Police Department of the Zhitikarinsky district reported the sale of alcoholic vodka products "Bread Steppe", 0.5 liters in volume in the Gulzat store at about 21 hours and 20 minutes.
By virtue of article 765 of the Criminal Code on Administrative Offences, evidence in an administrative offence case is legally obtained factual data, on the basis of which, in accordance with the procedure established by this Code, the judge or the body (official) in charge of the administrative offence case establishes the presence or absence of an act containing all the signs of an administrative offence, commission or non-commission of this act by the person in respect of whom proceedings are being conducted in the case of an administrative offense, the guilt or innocence of this person, as well as other circumstances relevant to the proper resolution of the case, in accordance with Article 765 of Part 5 of the Criminal Procedure Code on Criminal Procedure, it is established that evidence obtained in violation of the law is considered to be null and void and cannot be used as the basis for a decision on the case, as well as used in proving any circumstance in the case, except for the fact the relevant violations and the guilt of the persons who committed them. From the testimony of police captain S.N.D., who was interviewed at the court session by the UIP OMPSOP of the city of Zhitikar and the Zhitikarinsky district, it follows that the video recording from S.Zh.B's cell phone. I sent it to him via the WhatsApp messenger. At the same time, he cannot name the brand and phone number of the mobile phone operator with which the video was filmed. Zh.B., he cannot name. The video recording from the cell phone was not seized, the phone was not examined. This information is also missing from the materials of the administrative case. Moreover, it is not possible to determine the name of the store, the exact time and the identity of the persons present in the video from the presented video.
The very fact that the seller sells alcoholic beverages is not recorded, as well as there is no record of I.A.N. leaving the store to the person making the video. From the testimony of a witness interviewed in court, A.K.M., a senior investigator from the SOE of the Zhitikarinsky district, it follows that on March 10, 2020, I.A.N. was at the Zhitikarinsky district police department from 20:39 to 21:03, where he was questioned as a witness on the theft. It follows from this that I.A.N. could not have been near the Gulzat store at the time specified by S.J.B. "20 hours 55 minutes". In accordance with Article 765 of Part 3 of the Criminal Procedure Code on Administrative Offences, factual data must be declared inadmissible as evidence if they were obtained in violation of the requirements of this Code, which, by depriving or restricting the legally guaranteed rights of participants in the proceedings or violating other rules of the process, affected or could affect the reliability of the factual data obtained, including: with the conduct of a procedural action by a person who does not have the right to conduct proceedings in this case, in violation of the procedure for the procedural action. According to part 2 of Article 781 of the Criminal Code on Administrative Offences, the obligation to prove the existence of grounds for administrative responsibility and the guilt of an offence lies with the body (official) authorized to conduct proceedings on administrative offences. No other acceptable evidence of the guilt of IP B.N.N. in the offense charged against her was presented to the court by the body that initiated proceedings on the administrative offense case. In accordance with article 10 of the Criminal Procedure Code on Criminal Procedure, by virtue of the principle of "presumption of innocence", all doubts are interpreted in favor of the person against whom an administrative offense case has been initiated. In connection with the above, the court considers it necessary to terminate the administrative proceedings against IP B.N.N. for lack of evidence of an administrative offense. Guided by Articles 741, part 1, paragraph 2, 829-14, Part 1, paragraph 2, 829-16 of the Criminal Code of the Kyrgyz Republic, the Court ruled: Proceedings in the case of an administrative offense against an Individual entrepreneur B.N.N. according to part 3 of Article 200 of the Criminal Code on the Administrative Division, it should be terminated due to the absence of elements of an administrative offense in its actions.
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