Karnataka High Court

Devanna S/O. Chandya Nayak vs State Of Karnataka on 1 August, 2022

Bench: Shivashankar Amarannavar

                             1




            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 01 S T DAY OF AUGUST 2022
                          BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

       CRIMINAL REVISION PETITION NO.2284 OF 2013


BETWEEN:

1.     DEVANNA S/O. CHANDYA NAYAK
       AGE: 32 YEARS , OCC: COLLIE,
       R/O. JOGINAHALLI TANDA,
       NOW RESIDING AT PRAKASH DABA ,
       HUNAGUND , DIST. BAGA LKOT.

2.     PRAKASH S/ O. DA SA NAYAK
       AGE:36 Y EARS, OCC: BUSIN ESS,
       R/O. JOGINAHALLI TANDA,
       NOW RESIDING AT PRAKASH DABA ,
       HUNAGUND , DIST. BAGA LKOT.
                                            ...PETITIONERS

(BY SRI. PRAKASH N. HOSAMANI , AD VOCATE)


AND:

STATE OF KARNATAKA
THROUGH PSI HUN AGUND POLICE ST ATION,
REPT BY SPP HIGH COURT,
DHARWAD.
                                            ... RES PONDENT
(BY SRI. PRAS HAN TH V. MOGA LI, HCGP)
                                    2




     THIS     CRIMINAL    REVISION     PETITION   IS   FILED      UN DER
SECTION 397 READ WITH 401 OF CR.P.C. SEEKI G TO SET
ASIDE   THE    JUDGMENT      AND   ORDER    OF    CONVICTION           AND
SENTENCE PASSED IN CRIMINAL APPEAL NO.64/ 2012 DATED
13.09.2013 BY THE DIST. AND SES SIONS JUD GE, BA GALKOT ,
AND PRL. CIVIL J UDGE AND JMFC COURT , HANAGUND , IN C.C.
NO.407/ 2010     D ATED      10.05.2012     AND        A CQUI T        THE
PETITIONERS     F OR   THE   OFFEN CE    UNDER    SECTI ON        34    OF
KARNATAKA EXCIS E ACT .


     THIS     CRIMINAL REVISION        PETITION   COMING       ON      FOR
ORDERS T HIS DAY , THE COURT MADE THE FOLLOWING:


                              ORDER

This revision petition is filed by the petitioners-accused Nos.1

and 2 under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.') for setting aside the

judgment of conviction and order on sentence passed by the

learned Principal Civil Judge and JMFC, Hunagund (herein after

referred to as the 'Trial Court') in C.C.No.407/2010 for an offence

punishable under Section 34 of Karnataka Excise Act, 1965 (for

short 'K.E. Act') and the same was upheld by the learned District

and Sessions Judge, Bagalkot (herein after referred to as the

'Appellate Court') in Criminal Appeal No.64/2012 dated 13.09.2013.

2. Heard the arguments of learned counsel for the

petitioners and the learned High Court Government Pleader.

3. The parties will be referred to as per their ranks in the

trial Court.

4. The case of the prosecution is that, on 30.03.2010 at

about 7:45 pm the complainant-PSI Hungund Police Station(PW-3)

received credible information that the accused are selling liquor in

the Prakash Dhaba without any valid licence. When the raid was

conducted, the accused were found in possession of liquor bottles of

different brands worth Rs.2,520/- and selling them without any

licence and thereby committed an offence under Section 34 of the

KE Act. At the time of the raid, one person, who was sitting on the

counter, ran away and PW-3 arrested accused No.1, who was found

selling liquor to customers. On the basis of the report filed by PW-

3, FIR was registered. Subsequently, charge sheet came to be

filed. After taking cognizance, the Trial Court framed the charge to

which the accused persons denied the charge and claimed to be

tried.

In order to prove the case, the prosecution examined six

witnesses and got marked four documents and eight material

objects. After recording the evidence, the statement of the accused

under Section 313 of Cr.P.C. has been recorded. The case of the

accused is one of total denial and did not lead any defence

evidence. After hearing the arguments, the Trial Court found the

accused Nos.1 and 2 guilty and convicted them for an offence under

Section 34 of KE Act and sentenced to undergo simple

imprisonment of one year and to pay fine of Rs.10,000/- each.

Being aggrieved by the same, accused Nos.1 and 2 approached the

Sessions Court in an appeal wherein the Appellate Court confirmed

the judgment of conviction and order on sentence passed by the

trial Court. Hence, accused Nos.1 and 2 are before this Court

challenging the same.

5. The learned counsel for the petitioners mainly argued

on the point that, the trial Court and the Appellate Court committed

an error in accepting the evidence of the prosecution witnesses

though the Police Officials went to the spot without obtaining the

search warrant under Section 53 of the K.E. Act. Even if they were

not able to get the warrant of search, they ought to have recorded

the reason for not obtaining the warrant as required under Section

54 of the K.E. Act. Therefore, the very registering of the FIR and

the complaint is not sustainable and thereby, the conviction on that

point is not sustainable in the law. Therefore, he prayed for setting

aside the impugned judgments passed by the courts below.

6. The learned counsel for the petitioners also relied upon

the judgment of a Co-ordinate Bench of this Court in Criminal

Appeal Nos.2805/2009 and 2892/2012 and also the judgment of

this Court in Criminal Revision Petition No.2315/2013 disposed of

on 19.07.2022.

7. Per contra, the learned High Court Government Pleader

supported the judgments of both the Courts below and contended

that the question of obtaining the search warrant and recording the

reasons for not obtaining the search warrant has not been raised by

the petitioners before the Trial Court as well as the Appellate Court.

Even this question was not raised in the cross examination of PW-1.

Therefore, it cannot be accepted and hence the evidence of the

witnesses clearly supports the case of the prosecution and thereby

the judgment of the Appellate Court affirming the judgment passed

by the Trial Court is correct. Hence, he prays for dismissal of the

petition.

8. Having heard the arguments of both the counsel,

perused the records.

9. It is well settled by the Hon'ble Supreme Court in

various judgments that, the concurrent findings of both the Courts

below shall not be interfered with normally, unless injustice is

caused to the parties and an error committed by the Appellate

Court, can be rectified in revision under the provision under Section

397 of Cr.P.C. By keeping the aforesaid law in mind and going to

the case of the prosecution, where it reveals, as per the evidence of

PW-3-the P.S.I. that, on 03.09.2007 at about 7:45 pm, he received

a credible information that the accused are selling liquor in Prakash

Dhaba without licence. Immediately he along with the panchas

visited Prakash Dhaba, one person sitting on the counter ran away

and another was selling liquor to customer at the instructions of

the person sitting on the counter and he found liquor bottles of

different brands worth Rs.2,520/- and seized them under

panchanama Ex.P.1 and took out one bottle of each brand for

sample. Thereafter, arrested petitioner No.1(accused No.1) and

brought him to police station and registered the case and produced

him before the Court. Ex.P.2 is the complaint, Ex.P.4 is the FIR.

The PWs-1 and 2-panch witnesses have not supported the case of

the prosecution. Ex.P.1 is the panchanama. Ex.P.3 is the chemical

examination report, wherein it is opined that the seized bottles

contain alcohol.

10. Considering the facts and circumstance of the case, the

Trial Court held the conviction of the petitioners/accused Nos.1 and

2 under Section 34 of K.E. Act. The Appellate Court confirmed the

judgment of conviction and order on sentence.

11. However, on perusal of records, especially the evidence

of PW-3, who is the complainant, while seizing the liquor, he has

not followed the procedure contained in Sections 53 and 54 of K.E.

Act. For better understanding, the said provisions are extracted as

under:

"53. Power of magistrate to issue a warrant.-If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons 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, he may issue a warrant-

(a) For the search of any place in which he has reason to believe, that any intoxicant, still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed, and

(b) For the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be, engaged in the commission of any such offence."

Section 54 of the Act is as under:

54. "Power to search without warrant.-

Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an Officer-in-charge 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.-

(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) detained 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."

12. On reading of Section 54, it empowers the Excise

Commissioner or a Deputy Commissioner or any Police Officer

without a search warrant, they can search and seize the same by

recording the reasons for not obtaining the search warrant under

Section 53 of K.E. Act.

13. The accused were said to be possessing and selling the

liquor in the Prakash Dhaba. Absolutely, there was no time for the

complainant-PW.3 for obtaining search warrant from the Magistrate

under Section 53 of K.E. Act. But Section 54 of the K.E. Act

provides that, by recording the reason in writing as to why search

warrant cannot be obtained, can proceed further. But here in this

case, PW-3 has not at all produced any such document before the

Court that he has made an attempt to obtain search warrant from

the Magistrate nor has recorded the reason for not obtaining search

warrant but proceeded to the spot for raid. In a similar

circumstance, this Court has acquitted the accused in

Crl.A.No.2892/2012 dated 15.07.2020 and in Crl.A.No.2805/2009

dated 07.07.2017 by following the judgment of the Hon'ble Apex

Court reported in the case of K.L. Subbayya Vs. State of

Karnataka reported in 1979 (2) SCC 115. The Hon'ble Apex Court

has observed in the said case as under:

" In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had to reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with.

This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the research completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him."

In view of the judgment of the Hon'ble Apex Court as well as

Section 53 and 54 of K.E. Act, PW-3 has not at all followed the

mandatory provisions. Therefore, conviction and sentence by the

trial Court and upheld by the appellate Court is not sustainable

under law. Therefore, by invoking Section 397 of Cr.P.C., the

judgment of conviction and sentence passed by the trial Court and

upheld by the appellate Court requires to be set aside. Accordingly,

I pass the following order.

14. The Criminal Revision Petition is allowed. The judgment

of conviction and order on sentence passed by the trial Court dated

10.05.2012 in C.C.No.407/2010 and upheld by the appellate Court

by judgment dated 13.09.2013 in Criminal Appeal No.64/2012 are