Peerasab S/O. Hussainsab ... vs The State Of Karnataka
2021 Latest Caselaw 3223 Kant

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            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.2174 OF 2013

BETWEEN
PEERASAB S/O. HUSSAINSAB LAKKUNDI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. HAGARIBOMMANAHALLI,
DIST: BELLARY
                                           ...PETITIONER

(BY SRI. H N GULARADDI, ADVOCATE)

AND
THE STATE OF KARNATAKA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR.
                                          ...RESPONDENT

(BY SRI. RAMESH B CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE
ADDL. CIVIL JUDGE (JR.DN.) & II ADDITIONAL JMFC COURT,
RANEBENNUR IN C.C.NO.699/2003 BY ITS ORDER DATED
31.05.2006 AND THE SAME WAS CONFIRMED BY THE FAST
TRACK COURT, RANEBENNUR IN CRL.A.NO.32/2006 BY ITS
ORDER DATED 30.03.2013 AND ACQUIT THE ACCUSED FOR
THE OFFENCES P/U/S 32, 33 & 34 OF KARNATAKA EXCISE ACT.
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      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:


                             ORDER

This revision petition is filed under Section 397 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 (Jr.Dn) and II Additional JMFC Court

Ranebennur in C.C.No.699/2003 dated 31.05.2006

confirmed by the Fast Track Court, Ranebennur in Criminal

Appeal No.32/2006 dated 30.03.2013 for the offence

punishable under Sections 32, 33 and 34 of the Karnataka

Excise Act ( for short "the Act") and sought for allowing the

revision petition by acquitting the accused-revision

petitioner.

2. For the sake of convenience, parties herein are

referred with original ranks occupied by them before the

Trial Court.

3. The brief genesis of the case is that on

12.04.2003, at 9.30 p.m., on P.B. Road, near Gupta Petrol

Bunk, Ranebennur Town, the accused was found carrying

10 blue colour fiber barrels containing 1575 liters of spirit,

worth Rs.31,500/- in order to have personal gain in lorry

bearing registration No.KA-06/8586, without licence and

permit. Since the accused did not stop his lorry though

there was a signal to stop, complainant chased the lorry

and seized it. The accused fled from the spot. The

investigating officer drawn mahazar and lodged

prosecution and later on, submitted charge sheet. Then

the accused was prosecuted and evidence of PW1 to PW7

was recorded and 16 documents were also marked as per

Ex.P1 to Ex.P16 and material objections were also marked

at M.O.1 to M.O.11. The learned Magistrate, after

appreciating the evidence on record, has convicted the

accused for the offences punishable under sections 32, 33

and 34 of the Act and imposed imprisonment for a period

of 6 months with fine of Rs.1,000/- with default clause for

the offences punishable under Section 32 and 34 of the Act

and also imposed sentence of imprisonment for a period of

six months with fine of Rs.500/- for the offence punishable

under Section 33 of the Act. The said order came to be

challenged in Criminal Appeal No.32/2006 before the Fast

Track Court, Ranebennur and the learned Sessions Judge,

by his order dated 30.03.2013 dismissed the appeal by

confirming the conviction order. Being aggrieved by the

concurrent findings, the revision petitioner has filed this

revision petition.

4. Heard the arguments advanced on both sides

and perused the records of the Trial Court.

5. The learned counsel for revision petitioner

would contend that both the Courts below have committed

an error in convicting the accused and failed to consider

that PW2-siezure mahazar witness has turned hostile to

the case of the prosecution and the evidence of official

witnesses is not corroborated by any independent witness.

He would also contend that the provisions of Section 54 of

the Act were not complied with and the evidence is not

properly appreciated. Hence, he would seek for setting

aside the impugned judgment of conviction and order of

conviction.

6. On the contrary, learned HCGP would contend

that both the Courts below have appreciated the oral and

documentary evidence and the seizure is established by

the investigating officer and other excise officials and there

is presumption under Section 40 of the Act. The accused

has not rebutted the presumption and hence, he would

contend that both the Courts below are justified in

convicting the accused. Hence, he would seek for dismissal

of the revision petition.

7. After having heard the arguments and

perusing the records, it is evident that the accused was the

owner of the seized lorry. The allegations of the

prosecution disclose that the said vehicle was used for

illegal transportation of spirit. The accused-revision

petitioner in his statement recorded before the Magistrate

under Section 313 of Cr.P.C., has taken a defence that his

lorry was seized by the financer Shet as he failed to pay

two installments and he was not possessing the lorry at

the time of the incident. However, he has not produced

any documents to show that he purchased the lorry by

using finance of one Shet. Even the accused has not

disclosed the full name of the Shet and what was the loan

advanced by him. Except his formal denial in his

statement recorded under Section 313 of Cr.P.C.,

regarding this aspect, no other material evidence is placed

to show that the accused was parted away with the vehicle

and the said Shet seized his vehicle in the year 2001 itself.

Further, the accused has not issued any notice to the said

Shet for having seized vehicle illegally nor has he lodged

any complaint in this regard. The evidence led by the RTO

discloses that he was the owner of the vehicle and his

simple assertion is that seizure of the vehicle by Shet for

non-payment of installments. But that was not

substantiated and the seizure of the vehicle with spirit is

established through the evidence of PW1 and PW5. Even

the accused has not prepared to disclose the name of a

person, who is alleged to have seized the vehicle illegally.

Ex.P.12 discloses presence of ethyl alcohol was detected in

the samples of seized articles. The allegations were that

the accused was transporting rectified spirit illegally. The

percentage of ethanol is detected at 95%. It is for the

accused to establish when he was parted away with the

seized vehicle. Ex.P16 also discloses that the Deputy

Commissioner of Excise Department initiated confiscation

proceedings and confiscated the vehicle along with seized

materials. The said proceedings were also against the

present revision petitioner-accused. He has not even

appeared before the Commissioner of Excise Department

to put forward his defence. Hence, prima facie there is

material evidence to establish that the accused was found

transporting rectified spirit illegally.

8. The learned counsel for revision petitioner has

placed reliance on a decision of the Hon'ble Apex Court in

the case of K. L. Subbayya v. State of Karnataka

reported in (1979) 2 SCC 115. In the said case, it is held

that place of search includes car under the Act and it is

observed that the inspector, who searched the car had not

made any recordings of the grounds on the basis he had

reasonable belief. But in the instant case, there is a clear

reference in the complaint itself. Apart from that in the

present case, when the signal was passed, the vehicle did

not stop and the excise officials were required to chase the

vehicle and seized it. Considering these different facts, the

principles enunciated in the above cited decision cannot be

made applicable to the case in hand.

9. The learned counsel has further placed reliance

on a decision of this Court in Criminal Appeal

No.2536/2012 dated 12.07.2019. The facts of the said

case are entirely different and there the raid was

conducted on specific information at a particular place that

too in Hooligere Thanda of Kushtagi taluk. But in the

instant case, when the complainant was patrolling, he saw

the vehicle and then he was required to chase the vehicle.

As such, the principles enunciated in the said judgment

cannot be made applicable to the facts and circumstances

of the case in hand.

10. He has further placed reliance on a decision of

this Court in Criminal Revision Petition No.777/2011 dated

13.12.2018. Again the facts and circumstances of the said

case are entirely different. There the apprehension was

that seizure or the articles was along with personal search.

Hence, the said principles cannot be made applicable to

the facts and circumstances of the case in hand.

11. He has also placed reliance on a decision of

this Court in Criminal Appeal No.2858/2010 dated

13.03.2019. The facts of the said case are entirely

different and the said principles cannot be made applicable

to the case in hand.

12. In the instant case, at the first instance, the

accused disowns the vehicle but the records disclose that

the vehicle belongs to him. He did not explain the

circumstances under which the vehicle was seized or he

parted away the company of the vehicle. The evidence of

PW1 and PW5 clearly establish that the vehicle was seized

with rectified spirit and there was no licence or permit. The

Chemical Examination Report discloses that the sample

was containing ethyl alcohol. Further, as per section 40 of

the Act, there is a presumption in favour of the

prosecution. Under these circumstances, both the Courts

below are justified in convicting the accused looking to his

own defence.

13. However, it is to be noted here that under

Section 32 of the Act, the punishment shall not be less

than rigorous imprisonment of two years with minimum

fine of Rs.10,000/- and under Section 33 of the Act, the

punishment shall not be less than rigorous imprisonment

of two years with minimum fine of Rs.5,000/- and under

Section 34 of the Act, the punishment shall not be less

than one year with minimum fine of Rs.5,000/-. But the

learned Magistrate has imposed sentence of imprisonment

and fine less than the statutory mandate. However, the

First Appellate Court did not consider this aspect and State

has also not preferred any appeal challenging this portion

of the sentence. Hence, this Court cannot interfere with

the order of sentence imposed by the Trial Court. Under

these circumstances, the revision petition is devoid of any

merits and needs to be dismissed. Accordingly, I proceed

to pass the following:

ORDER

The above revision petition is dismissed.

The judgment of conviction and order of sentence passed by the Additional Civil Judge (Jr.Dn) and II Additional JMFC Court Ranebennur in C.C.No.699/2003 dated 31.05.2006 and the judgment passed by the Fast Track Court, Ranebennur in Criminal Appeal No.32/2006 dated 30.03.2013 are hereby confirmed.

In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

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