Mahadeva vs State Of Karnataka
2022 Latest Caselaw 794 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

   CRIMINAL REVISION PETITION NO.1132/2012


BETWEEN:

MAHADEVA
S/O RANGAIAH,
AGED 35 YEARS, S. K. DRIVER,
R/AT NAGAVALLI VILLAGE,
CHAMRAJANAGAR TALUK,
AND DISTRICT-571313.
                                         ... PETITIONER
(BY SMT. SOHANI HOLLA, AMICUS CURIAE)


AND:

STATE OF KARNATAKA,
BY EAST POLICE STATION,
CHAMARAJANAGAR-571313.
                                        ... RESPONDENT
(BY SRI S.VISHWA MURTHY, HCGP)


       THIS CRL.R.P. IS FILED UNDER SECTION 397 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER OF THE
LEARNED DIST. & SESSIONS JUDGE, CHAMARAJANAGAR
CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE
TRIAL COURT OF ADDL. C.J. & J.M.F.C., CHAMARAJANAGAR
IN CRL. CASE NO.919/2007 ON 25.01.2012 AND DIRECT
THE ACQUITTAL OF THE PETITIONER OF THE CHARGES
LEVELLED AGAINST HIM AND ETC.,
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY THROUGH VIDEO CONFERENCE,
THE COURT MADE THE FOLLOWING:


                          ORDER

This revision petition is filed by the accused in

C.C.No.919/2007 on the file of the Additional Civil

Judge and JMFC, Chamarajanagar. The petitioner has

assailed the judgment of the Sessions Judge and

Presiding Officer, Fast Track Court, Kollegal, in

Crl.A.No.7/2012 confirming the judgment of conviction

in C.C.No.919/2007.

2. The prosecution case is as below:

On 22.06.2007 P.W.1 Shivaswamy who was

working as Sub-Inspector at Chamarajanagar (East

Police Station) received credible information at about

2:15 pm., that one person was transporting two cans

of kerosene without any licence. On receipt of this

information, P.W.1 went to that place with other police

personnel and seized two cans of kerosene from the

petitioner. He collected some samples of kerosene in

two bottles and drew up a mahazar. Returning to the

police station, he registered FIR, undertook further

investigation and filed the charge sheet against the

petitioner for the offence punishable under Section 3

read with Section 7 of the Essential Commodities Act.

3. The learned Magistrate tried the petitioner

for the above said offence. The prosecution examined 7

witnesses, P.W.1 to P.W.7 and relied upon 5

documents marked as Exs.P.1 to P.5 and 4 material

objects marked as MO.1 to MO.4.

4. Having appreciated the evidence, the

learned Magistrate came to the conclusion that the

prosecution was able to prove its case beyond

reasonable doubt that the petitioner/accused was

transporting kerosene for selling it without any licence

and thus, found him guilty. The learned Magistrate

sentenced the petitioner to undergo simple

imprisonment for three months and pay fine of

Rs.1,000/- with default sentence of simple

imprisonment for one month. The petitioner then

preferred an appeal, Crl.A.No.7/2012. The Appellate

Court also confirmed the judgment of the Magistrate

and thereby dismissed the appeal. Hence, this revision

petition.

5. I have heard the arguments of Smt.Sohani

Holla, Amicus Curiae appointed for the

petitioner/accused and learned Government Pleader for

the respondent - State.

     6.      The     learned      Amicus        Curiae    for    the

petitioner/accused       raised       three   points    during   her

argument.     Firstly,   that     P.W.1       himself    being   the

complainant should not have conducted investigation.

Therefore, the entire investigation was vitiated. The

trial against the petitioner and conviction imposed on

the petitioner is not sustainable on this ground. Second

point that she argued was that out of seven witnesses

examined by the prosecution, independent witnesses

to the mahazar, P.Ws.2 and 4 did not support and only

based on the evidence of the Police Officer and the

constables, the Magistrate could not have convicted

the petitioner. Third point that she argued was that the

petitioner was sitting in an open place and without

ascertaining whether the petitioner really possessed

the plastic cans, P.W.1 proceeded to seize the cans. In

this view, there is no evidence against the petitioner

that he possessed kerosene for being transported

without any licence. She argued that the Appellate

Court has not re-appreciated these aspects of the

matter. Hence, she submitted that the revision petition

deserves to be allowed and the judgments of both the

courts below are to be set aside and petitioner/accused

has to be acquitted of the offence.

7. The learned Government Pleader for the

respondent - State submitted that there is no rule that

the Police Officer who registers the FIR should not

conduct the investigation. The entire cross-

examination by P.W.1 does not disclose any personal

interest that he possessed in charge sheeting the

petitioner. Element of bias has not been brought out

and in this view, the investigation conducted by PW.1

cannot be said to be bad. He further argued that

though the independent witnesses, P.Ws.2 and 4

turned hostile, it cannot be a ground for disbelieving

the entire prosecution case. The testimony of P.Ws.1,

3, 5, 6 and 7 is consistent and their evidence clearly

shows that the petitioner was found in possession of

kerosene cans when they were seized on 22.06.2007

and that he did not have licence too. The trial Court

has appreciated the evidence in right perspective and

the Appellate Court has also re-appreciated the

evidence. The courts below have consistently held on

facts that the petitioner was found in possession of

kerosene without any licence and thereby, he

committed the offence punishable under Section 3 read

with Section 7 of the Essential Commodities Act.

Findings on facts cannot be disturbed in the revision

petition and therefore, revision petition is liable to be

dismissed.

8. I have considered the arguments.

9. On perusal of the evidence adduced by

P.W.1 what is found is that he received credible

information on 22.06.2007 at about 2.15 pm., when he

was in police station and then came to the spot with

the police constables, and seized the kerosene from

the possession of the petitioner. He drew up the

mahazar as per Ex.P.2 at that place in the presence of

two independent witnesses namely P.Ws.2 and 4.

Based on the report given by him, FIR was registered

as per Ex.P.3. The evidence discloses that he

conducted investigation and then filed the charge

sheet. If the cross-examination of P.W.1 is perused, it

becomes clear that nothing is elicited from him that he

had personal interest in the matter. As a police officer,

he received credible information and then took further

action. Therefore, being a police officer, if he

discharged his duties in accordance with law, it cannot

be said that he was precluded from holding

investigation after seizing the kerosene from the

petitioner.

10. With regard to legal point urged by the

Amicus Curiae, it is to be stated that there is no rule as

such that the police officer at whose instance the FIR is

registered cannot conduct investigation. The Hon'ble

Supreme Court in the case of Mukesh Singh Vs.

State (Narcotic Branch of Delhi) reported in AIR

2020 SC 4794 has clearly held that merely because

the informant is the investigator, by that itself the

investigation would not suffer the vice of unfairness or

bias and on this ground the accused is not entitled for

acquittal. Therefore, in view of authoritative

pronouncement of the Hon'ble Supreme Court in this

regard, the argument of Amicus Curiae cannot be

accepted. The investigation by the police officer who

registered the FIR is vitiated only when bias or

unfairness in the investigation is forthcoming or if it is

proved that the police officer proceeded against the

petitioner with vengeance. In this case, these aspects

are not forthcoming. The arguments of Amicus Curiae

cannot be accepted.

11. So far as the seizure of kerosene from the

petitioner is concerned, it is true that the evidence

discloses that the petitioner was sitting in an open

place. The mahazar was conducted by P.W.1 at that

place in the presence of P.Ws.2 and 4. Both of them

have not supported the mahazar marked at Ex.P.2.

But this cannot be a reason for disbelieving the

testimony of P.W.1 and other witnesses. The trial Court

has clearly held that the testimonies are believable.

The Appellate Court has also confirmed it. Even if

re-look is given to the testimonies of witnesses, I do

not find that they have been discredited in the cross-

examination. There is no rule as such that the evidence

given by a police officer or constables should not be

believed in the absence of evidence by independent

witnesses. Therefore, here is a case where the

testimonies of P.Ws.1, 3, 5 to 7 are believable. There is

ample proof that the petitioner possessed kerosene

without any licence. Even the FSL report confirms that

the seized material was kerosene. Therefore, I do not

find any ground to interfere with the reasons assigned

by the trial Court as well as the Appellate Court.

12. The sentence imposed by the trial Court and

confirmed by the Appellate Court need not be

interfered with as it is adequate and reasonable in the

facts and circumstances. Therefore, revision petition is

dismissed.

The learned Amicus curiae does not want to claim

the fee as she wants to work pro bono and in this

regard, she is permitted to file a memo.

Sd/-

JUDGE

PB