Panchalinga S/O Late Siddashetty vs State By Excise Department
2021 Latest Caselaw 1426 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 27TH DAY OF JANUARY 2021

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.968 OF 2011

BETWEEN:

Panchalinga
S/o. late Siddashetty,
a/a 29 years
R/a Alambur village,
Beligere Hobli,
Nanjanagud Taluk
Mysore District.
                                                   ..Petitioner
(By Sri. Gireesha S.N. for
Sri.Manjappa N.D., Advocate)

AND:

State by Excise Department
Rep. by its Public Prosecutor.

                                                 .. Respondent
(By Sri. Thejesh P., High Court Govt. Pleader)

                                 ****

      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to set aside the
judgment dated 22-07-2011 in Crl.A.No.145/2010 passed by the
IV Additional Sessions Judge, Mysore and set aside the judgment
dated 30-10-2010 in C.C.No.2068/2007, passed by the Court of
Additional Civil Judge and Judicial Magistrate First Class,
Nanjangud, etc.
                                                    Crl.R.P.No.968/2011
                                   2


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:

                             ORDER

The present petitioner was tried as an accused by the

Court of the Additional Civil Judge and Judicial Magistrate First

Class, Nanjangudu, (hereinafter for brevity referred to as the

"Trial Court") in C.C.NO.2068/2007, for the offences punishable

under Sections 32 and 34 of the Karnataka Excise Act, 1965

(hereinafter for brevity referred to as the "Act") and was

convicted by the judgment of conviction and order on sentence

dated 30-10-2010.

Aggrieved by the same, the accused preferred an appeal in

Criminal Appeal No.145/2010, in the Court of the IV Additional

Sessions Judge, Mysore (hereinafter for brevity referred to as the

"Sessions Judge's Court"), which after hearing both side

dismissed the appeal filed by the accused by its judgment dated

22-07-2011. Not satisfied with the same, the accused has

preferred the present revision petition.

2. The summary of the case of the prosecution in the

Trial Court is that, on 03-09-2007, the Excise Inspector received

a credible information that, the accused was selling original Crl.R.P.No.968/2011

Choice Deluxe whisky bottles, each bottle containing 180 ml of

whisky in it, without holding any valid permit or licence, as such,

he was in unlawful possession of the same. On the basis of the

said information, the complainant who is PW-6 joined by her

staff went to the hut situated near Alambur Gate on Nanjangudu

- T. Narasipura Road and found that, the accused was in

possession of twenty-six bottles of original choice Deluxe whisky,

each bottle containing 180 ml of whisky in it. All those bottles

were found placed in a wire basket. On questioning the accused,

the raiding team could not get any satisfactory reply by him

about the legality of the accused possessing the whisky bottles.

It was also satisfied to the raiding team by their questioning

that, he had stored those whisky bottles only for the purpose of

their sale to the consumers. All those whisky bottles were

seized from the possession of the accused at the spot under a

seizure panchanama as per Ex.P-1 and the complainant,

returning to the Police Station, registered a complaint against the

accused for the offences punishable under Sections 32 and 34 of

the Act.

3. Charges were framed against the accused for the

alleged offences. Since the accused pleaded not guilty, the Crl.R.P.No.968/2011

prosecution, in order to prove the alleged offences against the

accused, examined in all six witnesses from PW-1 to PW-6 and

got marked documents from Exs.P-1 to P-4(a) and also got

marked material objects at MO-1 and MO-2 and closed its side.

Neither any evidence was led from the accused's side nor any

documents were got marked as exhibits.

4. After hearing both side, the Trial Court by its impugned

judgment dated 30-10-2010 convicted the accused for the

offences punishable under Sections 32 and 34 of the Act and

sentenced him to undergo Rigorous Imprisonment for a period of

one year and to pay a fine of `10,000/- and in default for

payment of fine, to undergo six months' imprisonment.

Challenging the same, the accused preferred a criminal appeal

in Criminal Appeal No.145/2010 in the Sessions Judge's Court,

which also, after hearing both side, by its judgment dated 22-07-

2011 dismissed the appeal and confirmed the impugned

judgment of conviction passed by the Trial Court. It is against

the said judgment of conviction and order on sentence, the

accused has preferred the present revision petition.

5. The respondent - State is being represented by the

learned High Court Government Pleader.

Crl.R.P.No.968/2011

6. The Trial Court and the Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court and

Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965, warrants any interference at the hands of this Court?

10. Learned counsel for the petitioner in his single point

argument submitted that, since no independent witnesses have

been examined in this matter, the evidence of the prosecution

witnesses loses its trustworthiness, as such, the accused

deserves to be acquitted.

Crl.R.P.No.968/2011

11. Per Contra, learned High Court Government Pleader

for the respondent - State in his argument submitted that, all the

prosecution witnesses have supported the case of the

prosecution. Even though PW-4 and PW-6 are the official

witnesses, but the remaining witnesses are independent

witnesses who have fully supported the case of the prosecution.

Since the accused was caught red handed and admittedly, he

was in possession of a considerable quantity of illicit liquor

without any valid licence or permit for possessing it and that the

accused was possessing the same for the purpose of its sale to

the consumers, both the Courts have rightly convicted him for

the alleged offences.

12. A perusal of the Trial Court records would go to show

that, PW-1, PW-2 and PW-5 have uniformly stated that, they

joined by the raiding team on 03-09-2007, proceeded to the

house (hut) of the accused at Alambur Gate on Nanjangud - T.

Narasipura Road and noticed that, the accused was in possession

of twenty-six bottles of original choice Deluxe whisky, each bottle

containing 180 ml of whisky in it. They further stated that it was

in their presence, the accused was enquired and the details were Crl.R.P.No.968/2011

ascertained and it was also confirmed that he was in illegal

possession of such huge quantity of whisky. It is in their

presence, the Mahazar as per Ex.P-1 was drawn. All these three

witnesses have also identified the accused in the Court as the

one in whose possession the seized goods were recovered from.

Nothing could be elicited in their cross- examination either

favouring the accused or shaking the credibility of their evidence.

As such, the evidence of PW-1, PW-2 and PW-5 have remained

un-disturbed with regard to the raid conducted by the raiding

team headed by PW-6 and seizing the articles at MO-2 in their

presence in the seizure panchanama at Ex.P-1.

13. PW-4 - Sri. Shivaraju was the Excise Guard and PW-6

- Smt. M.N. Susanna was the Excise Inspector, who have

uniformly stated that on 03-09-2007, PW-6 received a credible

information about the accused possessing and selling huge

quantity of liquor without any valid licence or permit. It is

based on that, she summoned panchas to the Station and

accompanied by them, she went to the place where the accused

was found in possession of twenty-six bottles of original choice

Deluxe whisky and after enquiring the accused and confirming

that he had no valid licence or permit to possess or sell them, Crl.R.P.No.968/2011

proceeded to seize the entire goods by drawing a seizure

panchanama as per Ex.P-1. She has identified the accused in the

Court. She has also stated that after taking the accused and the

seized articles along with Panchanama with her, a case was

registered against him and an FIR was submitted to the Court.

PW-6 has also stated that on the very same day of seizure, the

bottles which were the seized articles were properly sealed and

on 10-09-2007 they were sent for their chemical examination to

the Regional Forensic Science Laboratory at Mysuru. She has

also identified the Mahazar at Ex.P-1, the copy of the specimen

seal at Ex.P-2, report of the Chemical Examiner at Ex.P3 and the

FIR at Ex.P-4. The denial suggestions made to her in her cross-

examination were not admitted as true by the witness.

14. PW-4 - Shivaraju the Excise Guard has also stated

that he accompanied PW-6 and twenty-six whisky bottles with

original choice deluxe whisky in it were seized in a raid from the

possession of the accused on 03-09-2007. He too has identified

the accused in the Court and also MO-1 and MO-2. His evidence

also could not be shaken in his cross-examination.

Therefore, the evidence of PW-4 and PW-6 is further

corroborated by the evidence of PWs 1, 2 and 5, which clearly Crl.R.P.No.968/2011

go to show that the accused was found in illegal possession of

twenty-six bottles of a branded whisky, each bottle containing

180 ml of whisky in it and he was found selling the same to the

consumers.

15. PW-3 - Smt. P. Prema is the Investigating Officer in

this matter, who has stated about she sending the seized articles

for their chemical examination to the Regional Forensic Science

Laboratory at Mysuru on 10-09-2007 and receiving the report on

11-10-2007 as per Ex.P-3 and after confirming through the said

report that the seized article was the liquor which was possessed

by the accused without any licence or permit, she has filed the

charge sheet against the accused for the alleged offences.

16. Thus, the evidence of PW-1, PW-2 and PW-5 who are

the independent witnesses is further corroborated by the

evidence of PW-4 and PW-6. The entire act of investigation said

to have been conducted in this case by PW-3 is further

corroborated by the evidence of PWs. 1, 2, 5, and PWs 4 and 6.

The document at Ex.P-3 which is the FSL report is also not in

dispute, which report goes to show that the Chemical Examiner

has examined the contents of all the twenty-six bottles of Crl.R.P.No.968/2011

whisky, each measuring 180 ml, sent to him and noticed the

presence of alcohol content at 42.55% V/V in all the twenty-six

bottles. Therefore, it is clearly established that the accused was

found in illegal possession of 4,680 ml of liquor without any valid

licence or permit to possess them. Except the denial, the accused

has not taken any defence from his side. However, as already

observed, even the defence of denial taken by him could not

shake the evidence of PW-4 and PW-6. Consequently, it has to

be held that the prosecution has proved the guilt of the accused

for the offences punishable under Sections 32 and 34 of the Act

beyond all reasonable doubts.

17. It is thus appreciating the materials placed before it

the Trial Court has convicted the accused for the alleged guilt

which was further confirmed by the learned Sessions Judge's

Court in the criminal appeal.

18. The sentence ordered by the Trial Court for the proven

guilt also being proportionate to the gravity of the proven guilt,

I do not find any reason to interfere in the finding of conviction

of the accused for the alleged offences and sentencing him for

the alleged offences.

Crl.R.P.No.968/2011

Accordingly I proceed to pass the following:

ORDER

The Criminal Revision Petition stands

dismissed.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*