Shankaramma W/O. Hanamant Pujari vs The State Of Karnataka
2021 Latest Caselaw 3221 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 25TH DAY OF AUGUST, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL REVISION PETITION NO.2299/2013

BETWEEN:

SHANKARAMMA
W/O HANAMANT PUJARI
AGE: 30 YEARS
OCC: HOUSEHOLD
R/O. RAKKASAGI
HUNGND TALUK,
BAGALKOT DISTRICT

                                             ...PETITIONER
(BY SRI. K.L. PATIL ADVOCATE FOR
      SRI. S.A. SANDUR, ADVOCATE )

AND:

THE STATE OF KARNATAKA
BY HUNAGUND POLICE STATION
REPREENTED BY SPP
DHARWAD.
                                           ...RESPONDENT
(BY SRI. RAMESH B. CHIGARI, HCGP )

     THIS CRIMIANL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W.401 OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 17.09.2013 PASSED BY THE
DISTRICT AND SESSIONS JUDGE, BAGLKOT IN CRL.A.
NO.53/2012 CONFIRMING THE UDGMENT AND ORDER PASSED
BY THE ADDITIONAL CIVIL JUDGE AND JMFC COURT AT
HUNGUND DATED 12.04.2012 IN C.C. NO.617/2009 CONVICTING
THE PETITIONER FOR THE OFFENCES P/U/S 32(a) OF THE
KARNATAKA EXCISE ACT.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                   2


                               ORDER

This revision is filed under Section 397(1) read with

Section 401 of Cr.P.C. for setting aside the judgment of

conviction and order of sentence passed by the Additional

Civil Judge and JMFC, Hungund, dated 12.04.2012 in CC

No.617/2009 and confirmed by the District and Sessions

Judge, Bagalkot in Crl.A. No.53/2012 dated 17.09.2013, and

sought for allowing the appeal by acquitting the revision

petitioner/accused for the offence punishable under Section

32(a) of the Karnataka Excise Act, 1965( for short, 'K.E.

Act').

2. For the sake of convenience, the parties herein

are referred with their ranks occupied by them before the

trial Court.

3. The brief factual aspects leading to the case are

that, on 08.08.2009 at about 7.00 'O' Clock in the morning,

the complainant has received a credible information that the

accused was in possession of illicit liquor and as he had no

time to seek search warrant and since there was

apprehension of destruction of evidence, he along with

panchas, raided the spot in Rakkasagi village at 8.00 am.,

wherein it is found that accused was found to be selling 250

sachets of illicit liquor and apprehended the accused. He

also seized the sachets of illicit liquor by drawing a mahazar

as per Ex.P1 and sample was also taken. Then he returned

to office and lodged a complaint, and the investigation

continued, which has culminated in submission of the charge

sheet, which was registered in CC No.617/2009.

4. The accused has denied the accusation and the

prosecution has examined four witnesses and placed reliance

on six documents and a material object-MO.1 (sample

packet/sachet). Then the learned Magistrate after

appreciating the oral and documentary evidence, has

convicted the accused for the offence punishable under

Section 32(a) of the K.E. Act and imposed Rigorous

Imprisonment for a period of one year and fine of

Rs.20,000/- with default clause of three months Simple

Imprisonment.

5. Being aggrieved by the said judgment, the

accused has filed the appeal in Criminal Appeal No.53/2012

and the learned Sessions Judge by judgment dated

17.09.2013 dismissed the appeal by confirming the

judgment of conviction and order of sentence.

6. Being aggrieved the concurrent findings recorded

by the Courts below, the revision petitioner has filed this

revision petition before this Court.

7. Heard the arguments advanced by the learned

counsel for the revision petitioner as well as the learned High

Court Government Pleader (for short, 'HCGP') appearing for

the respondent-State. Perused the records of the trial Court

in detail.

8. Learned counsel for the revision petitioner would

contend that, both the Courts below have failed to

appreciate the oral and documentary evidence in a proper

perspective. He would also contend that, there is no

compliance of Section 54 of the K.E. Act in strict sense,

which has vitiated the entire proceedings. He would also

contend that, there is no evidence that all the seized sachets

were containing illicit liquor and only sample packet was

submitted for chemical analysis and hence he would contend

that the conviction is bad in law, as such, he would seek for

allowing the revision and setting aside the conviction order.

9. Per contra, the learned HCGP would contend that

the evidence of the prosecution witnesses including the

independent panchas disclose that 250 sachets of illicit liquor

were recovered at the instance of the present

petitioner/accused and there is a presumption under Section

40 of the K.E. Act and no rebuttal evidence is placed to

disprove the same. He would also contend that both the

panchas being independent witnesses have supported the

case of the prosecution regarding recovery and he would

contend that both the courts below are justified in convicting

the accused/revision petitioner and sought for dismissal of

the revision.

10. Having heard the arguments advanced by the

learned counsels for the parties appearing on both sides and

on perusing the records, it is evident that the present

petitioner was prosecuted for the offence punishable under

Section 32 of the KE Act and he was imposed sentence of

Rigorous Imprisonment for a period of one year with fine of

Rs.20,000/-. The allegation does establish that the

complainant on receiving credible information went to

Rakkasagi Village and in the outskirts of Rakkasagi Village,

the accused was found selling 250 sachets of illicit liquor and

the same were seized by drawing a mahazar from 8.00 a.m.

to 8.30 a.m. on 08.08.2009. The record also does establish

that the Investigating Officer has also recorded that, there

was apprehension of destruction of evidence and he had no

time for obtaining a search warrant. The records also

disclose that the Investigating Officer reported the seizure

immediately to the concerned Magistrate at 3.00 p.m., on

the same day reporting that since he had no time to obtain

search warrant and as there was threat in respect of

destruction of evidence, suddenly he proceeded for raid, as

such, he has reported the matter to the Magistrate at 3.00

p.m. Hence, though the search warrant is not obtained, the

records disclose that the Investigating Officer has

immediately reported the recovery to the concerned

Magistrate with reasons. Hence, it cannot be said that, there

is no strict compliance of Section 54 of the K.E. Act and as

such, the said ground cannot be acceptable. Further, it is

also evident that, PWs. 1 and 3 are the independent panch

witnesses and they have given consistent evidence regarding

they accompanying the Investigating Officer for raid and

seizure of 250 sachets containing 100 ml. illicit liquor, by

drawing mahazar as per Ex.P1. Their evidence also discloses

that the material object (MO No.1) seized is taken as

sample.

11. Learned counsel for the petitioner would further

contend that, there is no evidence to show that all the

sachets are containing illicit liquor. He would also invite

attention of the Court towards cross-examination, wherein

the suggestion was made that the other sachets were

containing only water. In that event, the accused ought to

have moved an application before the concerned court for

checking of the other sachets. But, no such steps were

taken. The accused has also not led any evidence to show

that other sachets were containing only water, that too in

the year 1999. During that period, the water sachets were

not available and if it is not distilled water, there is no need

for selling the water sachets and it is not the case made out

by the accused. Even the statement of accused under

Section 313 of Cr.P.C. is silent in this regard. The evidence

of PWs.1 and 3 is corroborated by the evidence of PW.2 and

evidence is consistent and corroborative to each other.

There is no reason to discard or disbelieve their evidence.

12. Learned counsel for the revision petitioner has

placed reliance on a decision of this Court in the case of

Criminal Revision Petition No.772/2009 dated 31.01.2014

and he argued that all sachets were not sent for chemical

analysis report. But, however, in the said case, huge

quantity of whisky bottles were recovered and only 15 such

bottles were sent for chemical analysis. In the instant case,

250 sachets were recovered and only one sample sachet was

sent for chemical analysis report. It is not the case of the

accused that that the sachet which was sent for chemical

analysis is not recovered from his custody and except formal

denial, there was no other evidence.

13. Considering the facts and circumstances of the

case in hand, the principles enunciated in the above cited

case cannot be made applicable to this case, considering the

fact that, in the instant case, it is the illicit liquor. Further

nothing prevented the accused seeking for sending other

sachets also for chemical examination during the course of

the trial and his statement under Section 313 of Cr.P.C. is

also silent in this regard. For the first time, these grounds

are urged in the revision court and these grounds are also

not urged before the Appellant Court.

14. The learned counsel has also placed reliance on a

decision reported in 2012 (4) AIR KAR 18 (M.R.

Manjunath Ramappa Gowda Vs. The Authorized Officer

and Deputy Commissioner of Excise, Chickmagalur

District and another). But, in the said case, the chemical

analysis report itself was not at all marked. But, in the

instant case, the chemical analysis report is already marked

as Ex.P6. No doubt, in the said case, only one sachet was

sent for chemical analysis report and in all 33 sachets were

recovered from the vehicle. But in the instant case, the

petitioner was found to be selling illicit liquor sachets.

Further, the sample was sent for Chemical Analysis and the

report has also received as per Ex.P6. In statement of the

accused recorded under Section 313 of Cr.P.C., it is no

where stated that the all the seized sachets were not

containing liquor.

15. Under these circumstances, considering the facts

and circumstances of the present case, the principles

enunciated in the above cited decisions do not come to the

aid of the revision petitioner in any way.

16. The trial Court has appreciated the oral and

documentary evidence in detail and convicted the accused

with sentence of Rigorous Imprisonment for two years and

fine of Rs.20,000/-. The mandate of the law is that the

Rigorous Imprisonment shall not be less than one year and

fine shall not be less than Rs.10,000/- in case of first

offender. It is not the case that the accused is a habitual

offender. Under these circumstances, the trial Court has

exercised discretion in accordance with law and imposed

reasonable sentence. The First Appellate Court has re-

appreciated the oral and documentary evidence and arrived

at a just conclusion and affirmed the judgment of conviction

holding that, impugned judgment and order of the trial Court

do not call for any interference. Therefore, there is no reason

to interfere with the concurrent findings of the trial Court as

well as the Appellate Court. Hence, the revision petition is

devoid of any merits and needs to be dismissed.

Accordingly, I proceed to pass the following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

KGR*