Karnataka High Court

Smt Lakshmi Bai vs State By Superintendent Of Excise on 2 December, 2021

Bench: V Srishananda

                             1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 02ND DAY OF DECEMBER, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.905/2015


BETWEEN:

  1. Smt. Lakshmi Bai
     W/o Late Majanaik
     Aged about 54 years
  2. Hemanthnaik
     S/o Late Manjanaik,
     Aged about 34 years

      Both are residing at Machenahalli
      Thandya, Machenahalli Post, Lakya Hobli
      Chikkamagaluru Taluk & District
      577101
                                            ... Petitioners
(By Sri. Girish B Baladare., Advocate)
AND:

       State by Superintendent of Excise
       Chikkamagaluru Taluk,
       Represented by
       Public Prosecutor,
       High Court Building
       Bangalore-560 001
                                             ...Respondent
(By Sri. V.S.Vinayaka, HCGP)
                                  2


      This criminal revision petition is filed under Section
397 read with Section 401 of Cr.PC praying to set aside
the judgment dated 17.8.2015 passed by the Prl. Sessions
Judge, Chikmagaluru in Crl.A No.144/2014 and the
judgment dated 25.10.2015 passed by the prl. civil judge
and JMFC at Chikmagaluru in C.C.No.813/2011 by
convicting the petitioners for the offence p/u/s 32 of
Karnataka Excise Act and the petitioners to be acquitted
for the offence alleged against them.

      This criminal revision petition coming on for Hearing
this day, the Court made the following:-
                        ORDER

Heard Sri. Girish B. Baladare, learned counsel

appearing for the revision petitioners and Sri. T. S.

Vinayaka, learned High Court Government Pleader

appearing for the respondent and perused the records.

2. The present revision petition is filed against an

order of conviction passed by the learned Magistrate in

C.C. No.813/2011 and confirmed in Crl.A. No.144/2014.

3. Brief facts of the case are as under:

The accused was chargesheeted based on the report

given by Sri. J. Shivakumar. After raiding the accused

party on 30.05.2011 at about 5.00 p.m., at Machenahalli

Thandya wherein, he seized two liters of illicit liquor from

the custody of the accused persons and after collecting the

sample, destroyed the remaining portion of the illicit liquor

and thereafter, prepared a mahazar and registered a case

and filed the charesheet for the offences punishable under

Sections 32 and 38(A) of the Karnataka Excise Act, 1965.

4. The presence of the accused petitioners were

secured and plea was recorded. Accused pleaded not

guilty therefore, the trial was held. In order to prove the

case of the prosecution, the prosecution in all examined

five witnesses as PWs.1 to 5 and relied on nine

documentary evidences, which were exhibited and marked

at Exs.P1 to P9. Thereafter, the accused statement was

recorded as contemplated under Section 313 of Cr.P.C.,

wherein all the incriminatory circumstances were denied by

him. Accused did not place his version about the incident

as contemplated under Section 313(5) of Cr.P.C.

Thereafter, learned trial Magistrate after hearing the

parties in detail and after considering the oral

documentary evidences on record, convicted the accused

for the offences punishable under Sections 32 and 38(A) of

the Act. Learned Magistrate also heard the accused and

considered the prosecution in detail and pass an order of

rigorous imprisonment for a period of one year and to pay

fine of Rs.10,000/- each, in default of which they shall

undergo Simple Imprisonment for six months.

6. Being aggrieved by the same, the accused

preferred an appeal in Crl.A. No.144/2014 on the file of

the Court of the Principal Sessions Judge at

Chikkamagaluru.

7. Learned Judge in the First Appellate Court

secured the records and after hearing the parties,

dismissed the appeal by judgment dated 17.08.2015 and

confirmed the order passed by the learned trial Magistrate.

Being aggrieved by the same, the accused preferred this

revision petition.

8. In the revision petition following grounds are

raised.

• "The order passed by the learned magistrate and Session Court is perverse and devoid on merits same is liable to be set-aside.

• The learned Magistrate has not applied his mind to the evidence on record while passing the impugned orders and the impugned order is erroneous and bad in the eye of law, even though the Court below acquitted the petitioner for the offence punishable under Section 273 of IPC and Section 38(2) of KE Act but convicted the petitioner for the offence punishable under Section 32 of the KE Act when there is no offence is made out under Section 38 then 32 does not attract against the petitioner, hence conviction itself is bad in law, even I Appellate Court is also fails to observe these facts in a proper manner.

• It is submits that as per the complaint averments it is seen that the respondent police went near the petitioners house only on the basis of the credible information gathered from villagers of the accused and also it is very much

clear that accused have not been caught hold by the respondent police by red handed. Hence, it cannot be presumed that the accused are in the possession of the illicit liquor in their house.

• It is submits that it is the case of the prosecution that they have preparing the illicit liquor for the purpose of share. But there is no nexus to the said allegation made by the prosecution, even PW2 to PW5 who are the raiding officials they are not stated anything about the sale of illicit liquor by the accused. Suppose the accused person were really found to the selling the illicit liquor there would have been customers to purchase the same. But there is nothing on record to show that the customers are present at the spot, under such circumstances it cannot be believed that the accused were selling or offering the illicit liquor has drink, hence the ingredients of the Section 273 of IPC does not attracted against this petitioner.

• It is submits that the ingredients of the Karnataka Excise Act are not attracted against the above petitioner to implicate them in the commission of offence and chemical analysis is

not in accordance with law to find out whether liquor is in the possession of the petitioner was illicit or not and also the PW4 was not received the any chemical report from the chemical expert. Hence the petitioner cannot be penalized for the aforesaid offences.

• It is submits that PW1 and PW2 who were the independent witnesses PW1 Dharmanayaka, who is the Mahazar witnesses under his presence illicit liquor was seized, but he was not supported the case of prosecution and nothing was elicited by the prosecution from the mouth of PW1 at the time of cross examination and also another eye-witness as well as Mahazar witness PW2 Dhanapal he was also not support the case of prosecution regarding the seizure of the illicit liquor from the house of petitioner and nothing was elicited in the cross examination to discard his evidence. Hence, by relying on these two witnesses even seizing of the illicit liquor from the possession of the petitioners is not proved, hence the prosecution have no source of material to substantiate their allegation against the petitioner that they are preparing the illicit liquor for the purpose of selling. Hence without

relying on the evidence of PW1 and PW2 the both the Courts below are accorded the conviction to the petitioners above same is not sustainable in the eye of law. Hence the petitioner are liable to be acquitted for the charged leveled against them.

• It is submits that these independent witnesses who are PW1 and PW2 and they are turned as hostile without supporting the case of prosecution, but the Court below recorded the conviction only based on the evidence of the official witnesses PW3 to PW5. Hence merely based on such evidence without any evidence of independent witnesses the Court cannot hold conviction only based on the evidence of official witnesses. Hence both the Judgments passed by the Courts below are perverse, illegal, capricious and not sustainable in the eye of law.

• It is submits that even though the prosecution was send the illicit liquor for examination and Ex.P4 if the report given by the chemical examiner, but the prosecution was not examined the chemical examiner to substantiate the contents of the said report in the absence non- examination of the author court cannot believe

the said report, even though the prosecution was fails to prove the illicit liquor was in the possession of the accused person, hence presumption U/s 40 does not attracted against the petitioners. Hence it cannot be presumed that the petitioners committed an offence punishable u/s 32 of Karnataka Excise act.

• It is submits that it is the specific defense of the accused/petitioners that the illicit liquor was consumed by the labor class people, hence somebody had put the illicit liquor behind their house which after the road. Hence they are not in the actual possession of said liquor, but this was mismatched by the respondent police to implicate the petitioners in the above offence and the conviction hold against the petitioners only on the basis of the evidence of official witnesses and there evidence cannot be relied upon as they are interested in the conviction of the accused.

• The Trial Court and Appellate Court are without considering the evidence on record in a proper prospective and also by disbelieving the evidence of PW1 and PW2 who are the independent witnesses and they have

consentingly stated regarding the non- involvement of the petitioners in the commission of offence. Hence without looking into these aspects the both the Courts have convicted the petitioners for the aforesaid offences is erroneous, improper under law, hence the petitioner is entitled for the acquittal from the hands of these Hon'ble Court.

• It is submits that conviction by the both the Courts below only based on the evidence of the official witnesses PW3 to PW5, hence the prosecution has utterly failed to prove the guilt of the accused for the charges leveled against them behind reasonable doubt. Hence they are entitled for the acquittal by setting aside the Judgment of both the Courts below.

• Viewed from any angle the judgment passed by the Courts below is not sustainable and liberty is reserved to urge additional grounds at the time of arguments. "

9. Reiterating the above grounds, Sri. Girish B.

Baladare, learned counsel appearing for the revision

petitioners vehemently contended that only two liters of

illicit liquor allegedly have been seized by the head of the

raid party in the alleged crime and it is not supported by

the independent witnesses. The panch witnesses Ex.P1 -

Mahazar have turned hostile to the case of the prosecution

in toto and therefore, Mahazar is not proved in accordance

with law and learned trial Magistrate and the learned Judge

in the First Appellate Court have rightly recorded an order

of conviction resulting in miscarriage of justice and sought

for allowing the revision petition.

10. He also pointed out that the sentence is

excessive and having regard to the fact that the first

accused is a lady and aged about 50 years as on the date

of incident and now she is 60 years, this Court may take

lenient view and let the accused person on probation.

11. Per contra, Sri. V.S. Vinayaka, learned High

Court Government Pleader vehemently contended that

there is no bar for the trial Court to accept the evidence of

the head of the raid party in proving the mahazar. He also

contended that just because the mahazar witnesses have

turned hostile to the case of the prosecution itself would

not come in the way of trial Magistrate appreciating the

material evidence on record and recording an order of

conviction as is held in catena of judgments of the Hon'ble

Apex Court and this Court and therefore, sought for

dismissal of the revision petition in toto.

12. Insofar as an alternate plea is concerned, he

contended that having regard to the language employed

especially in the proviso to Section 32 of the Act, the trial

Magistrate has granted minimum sentence of rigorous

imprisonment of one year and awarded fine of Rs.10,000/-

which is just and proper in the facts and circumstances of

the case and no leniency can be shown and accused is also

not entitled for probation.

13. In view of the grounds urged and the materials

on record and having regard to the scope of the revision

petition, the following points would arise for consideration:

1. Whether the findings recorded by the learned Magistrate that the accused is guilty of the

offence punishable under Section 32 of the Karnataka Excise Act,1965 which is confirmed by the First Appellate Court in Crl.A. No.144/2014 is suffering from patent factual defects, error of jurisdiction, legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?

14. In the case on hand, admittedly, the entire

case is based on the Mahazar - Ex.P1. PW.1 is the raid

party, PW.5 Shivakumar has seized 2 liters of illicit liquor

on 30.05.2011 at about 5.00 p.m. The Mahazar witnesses

are examined before the trial Magistrate as PWs. 1 and 2.

No doubt, they have turned totally hostile to the case of

the prosecution. However, in a matter of this nature, just

because the mahazar witnesses have turned hostile to the

case of the prosecution itself would not cause serious dent

to the case of the prosecution as is held by the Hon'ble

Apex Court in the case of LELLA SRINIVASA RAO Vs.

STATE OF ANDRA PRADESH reported in AIR 2004 SC

1720.

15. In fact, the trial Magistrate at paragraph No.21

of his judgment has relied on the said decision and also

applied the legal principles enunciated therein. Therefore,

the contentions urged on behalf of the revision petitioner

that the Mahazar is not proved in accordance with law

cannot be countenanced in law. Further, the trial

Magistrate has also taken note off, the suggestions made

to the prosecution witnesses stating that somebody had

kept the illicit liquor required by the side of the house of

the accused persons and the same has been sized by the

head of the raid party and falsely implicated the accused

persons. However, the said suggestion remains as

suggestion on record. In the absence of any possible proof

or any version or explanation placed by the accused

persons at the time of recording the accused statements,

or by examining themselves. The very suggestion shows

that the head of the raid party seized 2 liters of illicit liquor

from near the house of the accused persons. The said

aspect of the matter is also taken note of by the trial

Magistrate while recording an order of conviction.

Therefore, the contention urged on behalf of the accused

that there was no seizure of liquor cannot be countenanced

in law.

16. Learned judge in the First Appellate Court re-

appreciated the entire materials evidence on record

including the contention urged on behalf of the accused

persons regarding taking lenient view and grant of

probation to the accused persons in this judgment and

negated the contentions urged on behalf of the appellant

by re-appreciating the entire materials on record.

17. This Court in the light of grounds urged in the

revision petition referred to supra and to re-consider the

matter having regard to the scope of the revision, this

Court this Court does not find any legal infirmity, patent

factual defects, error of jurisdiction or perversity in the

findings recorded by the trial Magistrate and confirmed by

the learned judge in the First Appellate Court and

therefore, point No.1 is answered in the negative.

18. Insofar as point No.2 is concerned, the

materials available on record clearly shows that there was

seizure of 2 liters of liquor and there is no criminal

antecedents with regard to the accused. Section 32 of the

Karnataka Excise Act, 1965 reads as under:

" 32. Penalty for illegal import, etc.-

(1) Whoever, in contavention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1[be punished for each offence with rigorous imprisonment for a term which may extend to 2[five years and with fine which may extend to fifty thousand rupees.] 2]1

1[Provided that the punishment,-

(i) for the first offence shall be not less than 2[one year rigorous imprisonment and fine of not less than ten thousand rupees]2; and

(ii) for the second and subsequent offences shall be not less than 2[two years

rigorous imprisonment and fine of not less than twenty thousand rupees] 2 for each such offence.]1

1. Substituted by Act 1 of 1970 w.e.f. 23-12- 1969. 2. Substituted by Act 36 of 1987 w.e.f.10- 8-1987 and again Substituted by Act 14 of 2005 w.e.f. 11.4.2005.

(2) Whoever in contravention of this Act, or of any rule, notification or order made, issued or given thereunder, or of any licence or permit granted under this Act,-

(a) save in the cases provided for in section 37, sells any intoxicant; or

(b) cultivates or fails to take the measures prescribed for checking the spontaneous growth or for the extirpation of the hemp plants; or

(d) constructs or works any distillery or brewery; or

(e) uses, keeps or has in his possession any materials, still, utensil, apparatus or implement whatsoever for the purpose of

manufacturing any intoxicant other than toddy ;

or

       (f)    removes     any   intoxicant   from   any
distillery,   brewery      or   warehouse      licensed,

established or continued under this Act ; or

(g) bottles any liquor; shall, on conviction, 1[be punished for each offence with rigorous imprisonment for a term which may extend to 2 [five years and with a fine which may extend to twenty thousand rupees]2]1 .

1[Provided that the punishment,-

(i) for the first offence shall be not less than 2 [one year rigorous imprisonment and fine of not less than five thousand rupees]2; and

(ii) for the second and subsequent offences shall be not less than 2 [one year rigorous imprisonment and fine of not less than ten thousand rupees]2 for each such offence.]1

1. Substituted by Act 1 of 1970 w.e.f. 23- 12-1969.

2. Substituted by Act 14 of 2005 w.e.f. 11.4.2005.

1[(3) Whoever, being the owner or incharge of management or control of any public place allows consumption of liquor or whoever consumes liquor in any public place in which consumption of liquor is not permitted under a licence granted by the Excise Commissioner or the Deputy Commissioner, in contravention of the provisions of section 15A, shall on conviction be punished with fine which shall not be less than rupees two hundred but which may extend to 2[five thousand rupees.]2]1

1. Inserted by Act 15 of 2001 w.e.f.

19.4.2001.

2. Substituted by Act 14 of 2005 w.e.f. 11.4.2005."

19. Since the accused is a first time offender, the

minimum sentence that would be imposed will be to the

extent of five years and fine, may extend to Rs.50,000/-.

Since he is the first time offender, minimum of one year

rigorous imprisonment and fine of Rs.10,000/- is to be

imposed. The same has been imposed by the learned trial

Magistrate be confirmed by the First Appellate Court.

20. Therefore, this Court is of the considered

opinion that there is no scope for further reduction of the