Sunita W/O. Sangmesh Lamani vs The State Of Karnataka
2022 Latest Caselaw 10912 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 19TH DAY OF JULY 2022

                         BEFORE

         THE HON'BLE MR.JUSTICE K. NATARAJAN

     CRIMINAL REVISION PETITION NO. 2315 OF 2013

BETWEEN:

1.     SUNITA W/O. SANGMESH LAMANI
       AGE: 24 YEARS, OCC: COOLIE,
       R/O. AMINAGAD, TQ. HUNAGUND,
       DIST. BAGALKOT.

2.     LAXMI D/O. KRISHNAPPA LAMANI
       AGE: 21 YEARS, OCC: COOLIE,
       R/O. AMINAGAD, TQ. HUNAGUND,
       DIST. BAGALKOT.
                                       ... PETITIONERS
(BY SRI. P. N. HOSAMANE, ADVOCATE)

AND:

STATE OF KARNATAKA,
THROUGH EXCISE SUB-INSPECTOR,
HUNAGUND POLICE STATION,
REPT BY SPP
HIGH COURT DHARWAD.
                                      ... RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
                                   2




      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. 1973, SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
PASSED IN CRL. A. NO.52/2012 DATED 24.09.2013 BY THE COURT
OF DISTRICT AND SESSIONS JUDGE, BAGALKOT AND ADDITIONAL
CIVIL JUDGE AND JMFC COURT, HUNAGUND IN C.C. NO.725/2009,
DATED 12.04.2012 AND ACQUIT THE PETITIONERS FOR THE
OFFENCES UNDER SECTION 34 OF KARNATAKA EXCISE ACT.


     THIS PETITION COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:


                             ORDER

This revision petition is filed by the petitioner-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 of sentence

passed by the Additional Civil Judge and JMFC, Hunagund

(herein after referred to as the 'Trial Court') in

C.C.No.725/2009 for the offences punishable under Sections

32 and 34 of Karnataka Excise Act (for short 'K.E. Act') and

the same was modified by the up held by the District and

Sessions Judge, Bagalkot (herein after referred to as the 'first

Appellate Court') in Criminal Appeal No.52/2012 dated

24.09.2013.

2. Heard the arguments of learned counsel for the

petitioners and the learned High Court Government Pleader.

3. The ranks of the parties before the Trial Court is

retained for the convenience of the Court.

4. The case of the prosecution is that the on the Suo

moto complaint registered by the Excise Sub-Inspector Sri. H.

S. Vajramatti on 12.06.2009, alleging that on the credible

information received on 12.06.2009 at about 7.00 a.m. that

the accused have unlawfully purchased 300 packets of illicit

liquor in order to sell the same at Hunagund bus stand.

Immediately he along with other staff members went to the

spot and arrested the accused and seized 300 packets of

liquor and out of that six packets taken for sample and

registered the FIR. Thereafter, the accused produced before

the Court. Subsequently, the charge sheet came to be filed.

After taking cognizance, the Trial Court framed the charges to

which accused persons denied the charges and claims to be

tried. In order to prove the case, the prosecution examined

four witnesses and got marked six documents and one

material object. After recording the evidence, that statement

of the accused under Section 313 of Cr.P.C. has been

recorded, the case of the accused is one of the total denial but

he has not entered the defense. After the arguments the Trial

Court found the accused guilty and convicted the accused

Nos.1 and 2 and passed the sentence to undergo rigorous

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

offence punishable under Section 32 of K.E. Act and another

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

offence punishable under Section 34 of K.E. Act. Being

aggrieved by the same, the accused approached the Sessions

Court in an appeal. Where the first Appellate Court acquitted

the accused for the offence punishable under Section 32 of

K.E. Act and confirmed the judgment of conviction and order

of sentence for the offence punishable under Section 34 of

K.E. Act. Hence, the accused Nos.1 and 2 are before this

Court.

5. The learned counsel for the petitioners mainly

argued on the point that the Trial Court and the first Appellate

Court committed error in accepting the evidence of the

prosecution witnesses though the Police Officials went to the

spot without registering FIR for getting the reason recorded in

writing, seized the liquors without obtaining the warrant under

Section 53 of the K.E. Act, even if they not able to get the

warrant of search they have to filed the record of reason for

not obtaining the warrant under Section 54 of the K.E. Act and

seized on the spot but it was not done by the complainant.

Therefore the very registering the FIR and complaint not

sustainable, thereby conviction on that point is not sustainable

in the law. Therefore, he prayed for setting aside the same.

6. The learned counsel for the petitioner also relied

upon the judgment of the Co-ordinate Bench of this Court in

Criminal Appeal Nos.2805/2009 and 2892/2012 and also the

judgment of this Court in Criminal Petition Nos.278/2018 and

279/2018 dated 09.03.2022.

7. Per contra, the learned High Court Government

Pleader supported the judgment of both the Courts below and

contended that the question of obtaining the warrant and

recording the reasons for not obtaining the warrant has not

been raised by the petitioner in the Trial Court as well as

before the first Appellate Court, even this question was not

raised in the cross examination of PW-1. Therefore, it cannot

be accepted and hence the contention of four witnesses clearly

supported the case of the prosecution, thereby the judgment

of the first Appellate Court by modifying the judgment passed

by the Trial Court is correct. Hence, she prayed for dismissal

of the petition.

8. Having heard the arguments of both counsel and

perused the records.

9. On perusal of the records reveals that, it is well

settled by the Hon'ble Supreme Court in various judgments

that the concurrent findings in both the Courts below shall not

be interfering normally until injustice caused to the parties and

committed error by the first Appellate Court it can be rectified

revision under the provision under Section 397 of Cr.P.C. By

keeping 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. of

Excise Department has stated that on 12.06.2009 at about

7.00 a.m. he received a credible information that two persons

were selling the illicit liquor at Bus stand at Hunagund village.

Immediately he along with the panchas visited the spot and

seized 300 packets of illicit liquors under the panchanama

marked at Ex.P.4 and took out six packets out of them for

sample. Thereafter, arrested the petitioner brought to the

Station and registered the case and produced him before the

Court. Ex.P.5 is the complaint, Ex.P.6 is the FIR. The PW-1

punch witness also supported the case and Ex.P.1 is the

panchanama. Ex.P.4 is the chemical examination report,

where they seized liquor is illicit liquor as per the FSL report.

10. Considering the facts and circumstance of the case,

the Trial Court held the conviction of the accused under

Sections 32 and 34 of K.E. Act, but Section 32 has been

acquitted as the liquor was not the imported liquor. Therefore

the first Appellate Court acquitted the accused for the offence

punishable under Section 32 of K.E. Act.

11. However, on perusal of records, especially the

evidence of PW-3 who is the Investigating Officer/complainant

the seized the illicit liquor was not followed the procedure. As

per reading of the Section 53 of the K.E. Act reveals as under:

"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."

12. On reading of Section 54 which empowered to The

Excise Commissioner and Deputy Commissioner or Police

Officer without search warrant they can search and seized the

same by recording the reasons for not obtaining the warrant

under Section 53 of K.E. Act.

Sections 53 and 54 of the Act is as under:

"Sections 53 and 54 show that the Excise officer has to obtain a warrant if he wants to raid a particular place. Section 54 shows that the Excise Officer need

not obtain the warrant from the Magistrate. If the matter is urgent.

In a case where the accused is found in possession of intoxicants beyond the permitted limit and carrying in a car Sections 53 and 54 have no relevance an it is not necessary for the Excise Officer to obtain any warrant from the Magistrate before seizing them.

Where the evidence against A 2 was that the car belonged to him, it is difficult to hold that A 2 knowingly permitted his car to be used for carrying the intoxicant State of Karnataka v Subbayya, 1947(1) Kar L.J.JR. 66 Sh.N.229."

13. Admittedly, the accused said to be selling the liquor

in the bus stand of Hunagund. 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

that should be used as FIR in future. But here in this case,

PW-3 not at all produced any such document and marked

before the Court that he has made an attempt to obtain

search warrant from the Magistrate or else he has recorded

the reason for not obtaining search warrant but proceeded to

spot for seizing the liquor. Therefore, once the cognizable

offence is made out, the police officer or excise department

shall have to be register the FIR before proceeding to spot as

held by the Hon'ble Supreme Court in Lalita Kumari Vs.

State of Uttara Pradesh without registering the FIR

proceeded to the spot seizing and preparing panchanama is

violation of the provisions of Cr.P.C. In a similar

circumstance, this Court in the case of Crl.P.No.278/2018 c/w

Crl.P.No.279/2018 dated 09.03.2022 has quashed the

proceedings by invoking the provisions under Section 482 of

Cr.P.C. Likewise, the Co-ordinate Benches of this Court has

also 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 Supreme Court reported

in the case of K.L. Subbayya Vs. State of Karnataka

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

set aside the judgment of sentence passed by the trial Court

and upheld by the appellate Court. In view of the judgment of

the Hon'ble Supreme 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 first 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 first appellate Court is required to be set

aside. Accordingly, I pass the following order.

14. The petition is allowed. The judgment of conviction

and order of sentence passed by the trial Court dated

12.04.2012 in C.C.No.725/2009 and partly up held by the first

appellate Court dated 24.09.202013 in Criminal Appeal

No.52/2012 are set aside. The petitioners/accused are

acquitted for the offences punishable under Sections 32 and

34 of the K.E. Act. Their bail bonds stand cancelled.

15. The fine amount, if any, deposited by the

petitioners is ordered to be refunded to them after due

identification.

16. Send a copy of this order and the records to the

trial Court.

Sd/-

JUDGE

SMM-Para 01 to 12 NAA- Para 13 to till end