Karnataka High Court
Gangaram And Anr vs The State Of Karnataka on 6 March, 2026
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NC: 2026:KHC-K:2159
CRL.RP No. 200029 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.200029 OF 2024
(397(Cr.PC)/438(BNSS))
BETWEEN:
1. GANGARAM S/O RAM RADHAV,
AGE: 54 YEARS,
OCC: AGRICULTURE,
2. SANJUKUMAR
S/O HARISHCHANDRA RATHOD,
AGE: 34 YEARS,
OCC: AGRICULTURE,
BOTH ARE R/O HONNEKHERI THANDA,
TQ: AND DIST: BIDAR-585401.
...PETITIONERS
Digitally signed by
SHIVALEELA (BY SRI GANESH NAIK, ADVOCATE)
DATTATRAYA UDAGI
Location: HIGH
COURT OF AND:
KARNATAKA
THE STATE OF KARNATAKA
THROUGH POLICE, EXCISE POLICE STATION,
BIDAR, REPRESENTED BY
ADDITIONAL SPP,
HON'BLE HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI-585103.
...RESPONDENT
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
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NC: 2026:KHC-K:2159
CRL.RP No. 200029 of 2024
HC-KAR
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C (OLD)
UNDER SECTION 438 OF BNSS (NEW) PRAYING TO CALL FOR
AND EXAMINE THE RECORDS IN C.C.NO.2829/2018 AND SET
ASIDE THE JUDGMENT PASSED BY THE LEARNED II
ADDITIONAL CIVIL JUDGE AND JMFC-II COURT AT BIDAR BY
ITS JUDGMENT DATED 10TH AUGUST 2022 AND FURTHER THE
SAME BEING PARTLY ALLOWED AND CONFIRMED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AT BIDAR IN
CRIMINAL APPEAL NO.31/2022 DATED 30TH OCTOBER 2023.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL ORDER
Heard learned counsel for the petitioners and learned High Court Government Pleader appearing for the respondent/State.
2. The accused have preferred this revision petition against the judgment of conviction and order of sentence dated 10.08.2022 passed in C.C.No.2829/2018 by the II Additional Civil Judge and JMFC-II, Bidar which is confirmed by the Principal District and Sessions Judge, Bidar in Criminal Appeal No.31/2022 vide judgment dated 30.10.2023. However, the Appellate Court has acquitted -3- NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR accused No.2 for the offence punishable under Section 38A of the Karnataka Excise Act (for short, 'the Act').
3. The parties are referred to by the same rank what they had before the trial Court.
4. The brief facts leading to this revision petition are that:
On 12.04.2018 at 02.00 p.m. near Atiwal railway gate, accused Nos.1 and 2 were found in illegal possession of two boxes in a gunny bag containing 96 Tetra packets of 90 ml quantity liquor in each box, with a total of 192 tetra packets, without having licence or permit, which they were caught transporting on their Hero Honda Splendor Plus two wheeler bearing No.KA-38/L-2966 for sale. Thus, the accused have committed the offences punishable under Sections 11, 12, 14, 32(1), 38A and 43 of the Act. After filing the chargesheet, the case was registered in C.C. No.2829/2018.-4-
NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR
5. On hearing both sides, the Trial Court framed the charges for the offences punishable under Section 273 of the Indian Penal Code (for short 'the IPC') and Sections 11, 14, 15, 32(1), 38A and 43 of the Act. The same was read over and explained to the accused. The accused, having understood the same, pleaded not guilty and claimed to be tried.
6. In order to prove the guilt of the accused, prosecution examined five witnesses as, P.W.1 to P.W.5, eight documents were marked as Exhibit P.1 to Exhibit P.8 and twenty-six material objects were marked as M.O.1 to M.O.26. On closure of evidence on the prosecution side, the accused statements under Section 313 of the Criminal Procedure Code (for short, 'the Cr.P.C.') were recorded. Accused Nos.1 and 2 have totally denied the evidence of the prosecution witnesses. However, they did not choose to lead any defence evidence on their behalf. -5-
NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR
7. Having heard the arguments on both sides, the Trial Court has convicted accused Nos.1 and 2 for the offences punishable under Sections 32(1) and 38A of the Act. The Trial Court has acquitted the accused for the offence under Section 273 of IPC.
8. Being aggrieved by the judgment of conviction and order of sentence, the accused have preferred appeal before the Principal District and Sessions Judge at Bidar in Criminal Appeal No.31/2022.
9. The Appellate Court has acquitted accused No.2 for the offence punishable under Section 38A of the Act and confirmed the sentence passed against accused No.2 for the offence punishable under Section 32(1) of the Act and also confirmed the sentence passed against accused No.1 for the offences punishable under Sections 32(1) and 38A of the Act.
10. Being aggrieved by the judgments of both the Courts, the accused have preferred this revision petition. -6-
NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR
11. The learned counsel for the petitioners would submit that the judgment of conviction and order of sentence recorded by the learned Trial Judge is contrary to law, facts and evidence on record. The Trial Court has lost sight in appreciating evidence of the prosecution witnesses namely, PW.1 to 5. PW.1 and 2 are the seizure mahazar witnesses. They have not supported the case of the prosecution. Section 54 of the Act is not complied with. PW.3 himself is the complainant and conducted substantial part of investigation. PW.3 acting in dual capacity against the fairness of the prosecution case. The Trial Court has failed to appreciate the evidence in its proper perspective. The impugned judgment of conviction and order of sentence recorded against the accused for the offences punishable under Sections 32(1) and 38A of the Act, while acquitting accused No.2 for the offence punishable under Section 38A of the Act, gives rise to serious doubt regarding the prosecution story. The benefit of doubt has to be given to the revision petitioners. There is no -7- NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR consistency in the evidence of the prosecution witnesses. There are many contradictions in the depositions of the witnesses which gives rise to doubt about the prosecution's story. That as per the prosecution, the raid was conducted on 12.04.2018, the commodities seized at M.O.1 to M.O.26 were sent for chemical examination only on 26.07.2018. There is an inordinate delay in sending the sealed articles to the chemical examination, which is fatal to the case of the prosecution. P.W.3 and P.W.5 are official witnesses and their evidence has not been substantiated by any independent witnesses.
12. To substantiate his argument, the petitioners counsel relied on the decision in Crl.RP.No.1524/2019 disposed of on 31.08.2023 in the case of Koushik C. Vs. State by Excise Police.
13. The learned High Court Government Pleader would submit that both Courts have properly appreciated the materials on record in accordance with law and facts, -8- NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR and that there are no grounds to interfere with the impugned judgments passed by both Courts. He sought dismissal of this revision petition.
14. Having heard the arguments and on perusal of the records, the following point arises for my consideration:
"Whether the judgment of conviction and order on sentence passed by the learned Magistrate, which was confirmed by the learned Sessions Judge, is perverse, arbitrary and erroneous so as to call for any interference by this Court."
15. I have examined the materials placed before this Court. It is the case of the prosecution that on 12.04.2018 at 02.00 p.m., near Atiwal Railway Gate, accused Nos.1 and 2 were found in illegal possession of two boxes kept inside a gunny bag. The boxes contained 96 tetra packets liquor of 90 ml each, with a total of 192 tetra packets, and they were in possession of the same without a licence or permit. They were caught while transporting the same on their Hero Honda Splendor plus -9- NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR two-wheeler bearing registration No.KA-38/L-2966 for the purpose of sale. Thus, the accused have committed offences under Sections 11, 12, 14, 32(1), 38(A) and 43 of the Act.
16. The trial Court has convicted the accused for the offences under Sections 32(1) and 38A of the Act. The appellate Court acquitted accused No.2 for the offence under Section 38A of the Act. However, it convicted accused No.2 for the offence under Section 32(1) of the Act. The appellate Court confirmed the sentence passed against accused No.1 for the offences under Sections 32(1) and 38A of the Act.
17. It is the case of the prosecution that, the Investigating Officer has seized the properties under Ex.P1-Mahazar. Laxman and Babu are examined as PWs.1 and 2. Both witnesses have not supported the case of the prosecution. These two witnesses were treated as hostile and with permission of the Court they were cross-
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NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR examined. Even in the cross-examination, they have categorically denied the contents of Ex.P1 and seizure of whisky tetra packets. At the time of seizure mahazar, FIR was not registered.
18. In view of the judgment of the Hon'ble Supreme Court in the case of K.L.Subbayya v. State of Karnataka [1979(2) SCC 115], at paragraph No.2, has held as under:
"Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus:
"Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief-
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NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."
19. In the case on hand, the Investigating Officer has conducted seizure mahazar on 12.04.2018 between 2:30 and 3:30 p.m. and he has not whispered anything as to compliance of Section 54 of the Act. Accordingly, Investigating Officer has failed to comply the mandatory provisions under Section 54 of the Act.
20. Soon after the seizure of the property, the Investigating Officer has not complied the mandatory provisions of Section 43A of the Act and Section 102 Cr.P.C. The Investigating Officer has not explained anything about 43-A of the Act and Section 102 of Cr.P.C. Both the Courts have not considered the same.
21. Considering the facts and circumstances of the case, it is crystal clear that, both the Courts have failed to
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NC: 2026:KHC-K:2159 CRL.RP No. 200029 of 2024 HC-KAR appreciate this legal issue. The approach of both the Courts below is perverse and it has resulted in miscarriage of justice. As such, the judgment of conviction, order on sentence passed by both the Courts below are not sustainable under law and call for interference. Accordingly, the revision petition needs to be allowed. Hence, the point arose for consideration is answered in the affirmative.
22. As such, I proceed to pass the following:
ORDER
(i) The revision petition is allowed;
(ii) The impugned judgment of conviction and order on sentence dated 10.08.2022 passed in C.C.No.2829/2018 by the II-Additional Civil Judge and JMFC-II, Bidar, which is partly confirmed by the Principal District and Sessions Judge, Bidar in Criminal Appeal No.31/2022 vide judgment dated 30.10.2023, is hereby set aside;
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(iii) Accused Nos.1 and 2 are acquitted of the offence punishable under Section 32(1) of the Karnataka Excise Act;
(iv) Accused No.1 is acquitted of the offence punishable under Section 38A of the Karnataka Excise Act;
(v) The Trial Court is directed to return the fine amount, if any, deposited by the accused in accordance with law;
(vi) The bail bond executed stand cancelled;
(vii) The Registry is directed to send a copy of this order along with TCR to the concerned Court.
Sd/-
(G BASAVARAJA) JUDGE RSP/TIN/SDU, LIST NO.: 1 SL NO.: 25, CT-BH