Devaraju vs The State Of Karnataka
2022 Latest Caselaw 8172 Kant

                                                          ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JUNE, 2022

                              BEFORE

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

 CRIMINAL REVISION PETITION No.948 OF 2013
                   c/w.
 CRIMINAL REVISION PETITION No.769 OF 2013


CRIMINAL REVISION PETITION No.948 OF 2013

BETWEEN:

Nagaraju,
S/o. Kullappa,
Aged about 30 years,
R/o. Basavanakeri Ganga
Mathstara Beedi, Malavalli
Town Mandya Dist. 571 430.
                                                  ..Petitioner
(By Sri. Raja L., Advocate)

AND:

The State of Karnataka
Represented by Malavalli
Police Station, Malavalli
Taluk, Mandya Dist. 571 430.
                                                 .. Respondent
(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                ****
      This Criminal Revision Petition is filed under Section 397
(1) of the Code of Criminal Procedure, 1973, praying to call for
the records from the Courts below and set aside the conviction
                                                   Crl.R.P.No.948/2013
                                              c/w.Crl.R.P.No.769/2013
                                 2


order passed by the learned I Additional Civil Judge and JMFC,
Malavalli in C.C.No.673/2010 dated 18-12-2012 and learned 1st
Additional Sessions Judge, Mandya in Criminal Appeal
No.145/2012 dated 26-06-2013, and pass any other suitable
order that is deemed fit on the facts and circumstances of the
case by allowing this appeal, in the interest of justice and equity.

CRIMINAL REVISION PETITION No.769 OF 2013

BETWEEN:

Devaraju,
S/o. Puttaraju,
Aged about 49 years,
R/o. Basavanakeri Ganga
Mathstara Beedi, Malavalli
Town, Mandya Dist. 571 401.
                                                     ..Petitioner
(By Sri. Raja L., Advocate)

AND:

The State of Karnataka
Malavalli Police Station,
Malavalli Taluk,
Mandya Dist. 571 430.
                                                    .. Respondent

(By Sri. Nageshwarappa, High Court Govt. Pleader)

                                ****
      This Criminal Revision Petition is filed under Section 397
(1) of the Code of Criminal Procedure, 1973, praying to call for
the records from the Courts below and set aside the conviction
order passed by the learned I Additional Civil Judge and JMFC,
Malavalli in C.C.No.673/2010 dated 18-12-2012 and learned 1st
Additional Sessions Judge, Mandya in Criminal Appeal
No.145/2012 dated 26-06-2013, and pass any other suitable
order that is deemed fit on the facts and circumstances of the
                                               Crl.R.P.No.948/2013
                                          c/w.Crl.R.P.No.769/2013
                              3


case by allowing this petition, in the interest of justice and
equity.

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

                         ORDER

The present petitioners, as accused Nos.1 and 2

respectively, were tried by the Court of the learned I

Additional Civil Judge and Judicial Magistrate First Class,

Malavalli, (hereinafter for brevity referred to as "the Trial

Court") in C.C.No.673/2010, for the offences punishable

under Sections 32 and 34 of the Karnataka Excise Act,

1965 (hereinafter for brevity referred to as "the Excise Act")

and were convicted for the said offences by its judgment of

conviction and order on sentence dated 18-12-2012.

Aggrieved by the same, both the accused persons

preferred a Criminal Appeal in the Court of the learned I

Additional Sessions Judge, Mandya, (hereinafter for brevity

referred to as the "Sessions Judge's Court") in Criminal

Appeal No.145/2012.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

The learned Sessions Judge's Court in its judgment

dated 26-06-2013 dismissed the appeal filed by both the

accused and confirmed the judgment of the Trial Court in

C.C.No.673/2010 dated 18-12-2012. It is challenging the

judgments passed by both the Trial Court as well the

Sessions Judge's Court, both the accused have preferred

these two revision petitions.

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

Trial Court is that, on 17-07-2010, at about 10:15 a.m., the

present petitioner - Sri. Nagaraju, who was accused No.1 in

the Trial Court along with one Sri. Devaraju who was

accused No.2 in the Trial Court were found carrying in total

66 (sixty-six) bottles of three varieties of whisky at

Anantharamaiah Circle, Malavalli, which is a public place,

within the limits of the complainant Police Station and thus

have committed the alleged offences punishable under

Sections 32 and 34 of the Excise Act.

3. In order to prove the alleged guilt against the

accused persons, the prosecution got examined in all five Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

witnesses from PW-1 to PW-5 and got marked documents

from Exs.P-1 to P-6 and Material Objects from MO-1 to

MO-4. Neither any witness was examined nor any

documents were marked as Exhibits from the side of the

accused persons.

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

impugned judgment of conviction and order on sentence

dated 18-12-2012 convicted the accused persons for the

offences punishable under Sections 32 and 34 of the Excise

Act and sentenced them accordingly.

As observed above, both the accused persons

preferred an appeal before the learned Sessions Judge's

Court, which after hearing both side, dismissed the appeal,

confirming the judgment of conviction and order on

sentence passed by the Trial Court. Challenging the

judgments of both the Trial Court as well the Sessions

Judge's Court, both the accused persons are before this

Court, in the present revision petitions.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

5. The respondent - State is being represented by the

learned High Court Government Pleader.

6. Learned counsel for the revision petitioners/accused

persons and learned High Court Government Pleader for

the respondent/complainant are appearing physically

before the Court.

7. The Trial Court and the Sessions Judge's Court's

records were called for and the same are placed before this

Court.

8. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court

and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

10. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the impugned judgment of conviction and order on sentence passed by the learned I Additional Civil Judge and Judicial Magistrate First Class, Malavalli, dated 18-12-2012, in C.C.No.673/2010, which was further confirmed by the learned I Additional Sessions Judge at Mandya in Criminal Appeal No.145/2012, warrants any interference at the hands of this Court ?

11. Learned counsel for the petitioners/accused, in his

brief argument submitted that, the conviction of the

accused persons by the Trial Court since is solely based

upon the evidence of the two Police witnesses, who were

examined as PW-1 and PW-2 and since the independent

witnesses have also not supported the case of the

prosecution, the impugned judgment of conviction and

order on sentence passed by the Trial Court which was

further confirmed by the learned Sessions Judge's Court

deserves to be set aside.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

12. Per contra, learned High Court Government

Pleader for the respondent complainant, in his brief

argument submitted that, merely because PW-1 and PW-2

were the Police witnesses, by that itself, their evidence

cannot be doubted or discarded, when in fact, their

evidence is also supported by the documentary evidence

like the seizure panchanama and the seizure of the articles

under the said panchanama including MO-1 to MO-3 and

MO-4. He further submitted that, the Police had no reasons

for falsely implicating the accused persons, as such, merely

because the independent witnesses have not supported the

case of the prosecution, the judgment of conviction and

order on sentence passed by the Trial Court cannot be held

to be erroneous.

13. The case of the prosecution has begun with PW-1

- Sri.M.K. Ramesha, the then Circle Inspector of Police of

Malavalli Town. He is said to have received a credible

information at 10:15 a.m. on 17-07-2010. Even according

to the said Police Officer, who was examined as PW-1 Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

(CW-1), on the said day at about 10:15 a.m., while he was

on patrolling duty, he received through telephone, a

credible information that near Anantharamaiah Circle in

Malavalli, two unidentified persons were carrying liquor

bottles in a plastic bag and a plastic cover unauthorisedly.

It is based upon the said credible information, he, joined by

his staff including CW-4 and CW-5, while patrolling in Town

Street ('pete beedi' - '¥ÉÃmÉ ©Ã¢' in Kannada), they noticed

the accused persons coming on the road from

Anantharamaiah Circle, among whom, accused No.1 was

carrying a plastic bag on his head with contents in it and

accused No.2 was holding a black colour plastic cover in his

hand. Both of them were enquired by the Police Officer

(PW-1) and that the articles they were carrying were also

examined. From the said examination, it was noticed that

in the bag the accused No.1 was carrying, there was a

carton box which was containing 48 (forty-eight) bottles of

Super Jack Classic whisky, each bottle containing 180 ml. of

such liquor. In the cover held by the second accused, it had Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

12 (twelve) bottles of Original Choice Whisky and six

Haywards Tetra pack whisky. When enquired, neither of

them could state about the details of they securing those

items under any licence or permit nor did they possess any

bills, permit or licence for purchase of the said articles.

It is further the case of PW-1 that, when the second

accused was physically searched, he was found in

possession of a sum of `1,700/- in cash. Thereafter, a

panchanama was drawn in the presence of independent

panchas, as per Ex.P-1. Out of the three categories of

whisky that was being transported by the accused persons,

two bottles from the carton box and one tetra pack and one

bottle original choice whisky from the plastic cover were

kept separate as samples for their further scientific

examination. Thereafter, the accused persons along with

the goods were brought to the Station and a report was

prepared as per Ex.P-2 and based upon the said report, an

FIR was registered as per Ex.P-3. The articles seized were

subjected to the Property Register and the accused were Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

produced before the learned Magistrate in accordance with

law.

14. PW-2 (CW-4) - K. Panchalingaiah in his

examination-in-chief has corroborated the evidence of PW-1

in total. He has stated that, as a Police Sub-Inspector,

while working in the complainant Police Station, on the date

of the incident, he has accompanied PW-1 and noticed that

both the accused persons were carrying some articles in a

public place. After enquiring with them regarding the

plastic cover and the bag that were being carried by them,

and when the plastic bag and black colour bag were got

opened and verified, it was noticed that, both of them were

carrying in total 66 (sixty-six) bottles of whisky without any

licence, permit or bill for purchase of the said articles.

About the seizure of the articles and drawing a panchanama

in the presence of the panchas also, PW-2 has repeated

exactly what PW-1 has stated in his evidence.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

Both PW-1 and PW-2 in their evidence have identified

the sample of the alleged liquor bottles said to have been

collected in the spot, under the panchanama at MO-1 to

MO-3 and alleged seized currency amount of `1,700/- at

MO-4. Both these witnesses were subjected to cross-

examination from the accused's side, however, both the

witnesses adhered to their original versions even in their

cross-examination also.

15. PW-3 (CW-2) - Vishakanta and PW-4 (CW-3) -

Shivanna were examined by the prosecution, projecting

them as panchas for the seizure panchanama said to have

been drawn in the spot whereunder 66 (sixty-six) liquor

bottles including MO-1 to MO-3 and a cash amount of a sum

of `1,700/- at MO-4 were said to have been recovered from

the possession of the accused persons. However, both

these witnesses though have identified their signatures on

the panchanama in Ex.P-1 at Exs.P-1(c) and P-1(d), but

stated that they have put their signatures at the request of

the Police, without knowing for what purpose their Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

signatures were obtained by the Police. They have

categorically stated that, neither they have seen the

accused persons nor the liquor bottles at MO-1 to MO-3 nor

even MO-4 at any time earlier. They have also stated that

they have not given any statements before the Police.

Both these witnesses were permitted to be treated as

hostile witnesses at the request of the prosecution and the

prosecution was permitted to cross-examine them.

However, the prosecution could not get any further support

from them in their cross-examination.

16. PW-5 (CW-6) - D.P. Dhanaraj is the Investigating

Officer, who has spoken about he conducting the

investigation in the matter and filing a charge sheet.

17. A careful analysis of the above evidence placed by

the prosecution would go to show that, among the five

witnesses examined by it, PW-5 is the Investigating Officer.

The material witnesses are PW-1 to PW-4, among whom,

PW-3 and PW-4 who are projected as independent Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

witnesses have not supported the case of the prosecution.

It is only two Police Officers i.e. PW-1 and PW-2 who have

supported the case of the prosecution.

18. Our Hon'ble Apex Court, in the case of Karamjit

Singh Vs. State (Delhi Administration) reported in AIR

2003 Supreme Court 1311, has observed that, the

testimony of police personnel should be treated in the same

manner as testimony of any other witness and there is no

principle of law that without corroboration by independent

witnesses their testimony cannot be relied upon. The

presumption that a person acts honestly applies as much in

favour of police personnel as of other persons and it is not a

proper judicial approach to distrust and suspect them

without good grounds. It will all depend upon the facts and

circumstances of each case and no principle of general

application can be laid down.

19. In the instant case, it is not denied that PW-1 was

the Circle Inspector of Police on duty on the alleged date of Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

incident and that he was on patrolling duty. His evidence

that on the said date, he received a credible information

about two unknown persons carrying unauthorisedly liquor

bottles with them, has also not been specifically denied in

his cross-examination. His evidence that joined by his staff

and panchas, he proceeded to the spot and conducted an

enquiry with the accused persons also has not been

specifically denied, however, a suggestion was made to the

witness suggesting that the accused were not present in the

spot on the said date and time. The witness has denied the

said suggestion. Except making few general denial

suggestions, nothing was elicited from the cross-

examination of PW-1 which could have weakened the case

of the prosecution or stood in support of the accused to

dilute the credibility of the evidence of PW-1.

20. Similarly, the evidence of PW-2 that at the

relevant point of time, he was working as the Police Sub-

Inspector in the complainant Police Station and that on the

date of alleged incident, he had accompanied his superior Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

i.e. PW-1, has not been specifically denied in his cross-

examination. Though it was denied that the accused

persons were not carrying the liquor bottles un-

authorisedly, the witness has not admitted the said

suggestion as true. Thus, in the short cross-examination of

PW-2, the accused persons could not able to weaken the

credibility of the evidence of PW-2 also.

Thus, even though PW-3 and PW-4 who are

independent panchas have not spoken about the accused

persons carrying un-authorisedly the liquor bottles with

them and being caught by PW-1 and PW-2 red-handed,

however, the evidence of PW-1 and PW-2 though they are

Police Officers inspires confidence to believe them. As such,

merely because they are Police Officers (Police Witnesses),

their evidence cannot be discarded. Thus, it goes to show

that on the alleged date, time and place, both the accused

were carrying 66 (sixty-six) bottles containing alleged liquor

in them without any authority of law or permit or receipt or

bill.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

21. The evidence of PW-5 the Investigating Officer

coupled with the documentary evidence i.e. Forensic

Science Laboratory (FSL) report at Ex.P-6 would go to show

that, the Forensic Science Laboratory has examined the

contents of all the three bottles and a tetra pack sent to it

by the Investigating Officer and has opined that there was

presence of ethanol in all the said articles. The percentage

of ethanol in articles No.1, 2 and 3 was 42% v/v at 25oC.

Therefore, it is further established that the whisky bottles

which were being carried by the accused persons when they

were apprehended by PW-1 and PW-2 contained ethanol at

42% in them.

22. The next question that would follow is, whether

the prosecution has proved that, without possessing any

licence or authority or permit to carry those whisky bottles

in a public place and being in possession of the same, the

accused have committed the offences punishable under

Sections 32 and 34 of the Excise Act.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

Section 32 of the Karnataka Excise Act, 1965 reads as

follows:

"32. Penalty for illegal import, etc.- (1) whoever, in contravention 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, be punished for each offence with rigorous imprisonment for a term which may extend to five years and with fine which may extend to fifty thousand rupees Provided that the punishment.-

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

(ii) for the second and subsequent offences shall be not less than two year rigorous imprisonment and fine of not less than twenty thousand rupees for each such offence.

(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
                                                       Crl.R.P.No.948/2013
                                                  c/w.Crl.R.P.No.769/2013



          (b)       cultivates or fails to take the
   measures       prescribed        for        checking       the

spontaneous growth or for the extirpation of the hemp plant; or

(c) taps or draws toddy from any toddy-producing tree; or

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

(e) uses, keeps or has in his possession any materials, still utensils, 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 be punished for each offence with rigorous imprisonment for a term which may extend to five years and with a fine which may extend to twenty thousand rupees:

Provided that the punishment, -

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

(ii) for the second and subsequent offences shall be not less than one year Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

rigorous imprisonment and fine of not less than ten thousand rupees for each such offence;

(3) Whoever, being the owner or in charge 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 15-A, shall on conviction be punished with fine which shall not be less than rupees two hundred but which may extend to five thousand rupees.

(4) whoever violates the provisions of Section 13-A or the Rules made thereunder shall on conviction be punished with a fine of rupees five thousand for each time, up to first five offences. In case of subsequent offence, he shall be punished with an imprisonment for a term of six months or with fine which may extend to ten thousand rupees or with both."

As analysed above, the accused persons were found in

possession and carrying 66 bottles of three brands of

whisky without any licence or permit or any appropriate and Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

convincing documents and thus have committed the offence

punishable under Section 32 of the Excise Act.

Section 34 of the Karnataka Excise Act, 1965, reads as

follows:

"34. Penalty for illegal possession.- Whoever without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon shall on conviction, be punished with imprisonment for a term which may extend to four years and with fine which may extend to fifty thousand rupees.

Provided that the punishment, -

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

(ii) for the second and subsequent offences shall be not less than imprisonment for two years and fine of not less than rupees twenty thousand for each such offence: Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant."

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

23. A careful reading of the above Section would go

to show that, for constituting an offence under Section 34 of

the Excise Act, it is not just sufficient to establish that a

person was found in possession with some quantity of any

intoxicant without lawful authority, but it is also equally

necessary to establish that the possessor should have the

knowledge that the articles in his possession have been

unlawfully imported, transported, manufactured cultivated

or collected, or that he should have the knowledge that the

prescribed duty has not been paid on the said articles.

Thus, apart from mere possession, the knowledge regarding

procuring those articles in an unlawful manner or non-

payment of the duty upon the articles in his possession are

also necessary ingredients which necessarily have to be

proved to convict the accused for the offence under Section

34 of the Excise Act.

24. In the instant case, even though the prosecution

through PW-1 and PW-2 could able to establish that the Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

present petitioners i.e. accused Nos.1 and 2 were in

possession of few varieties of whisky, for which, they could

not able to produce any documents including any licence or

permit, but the prosecution could not able to establish and

prove that the petitioners as accused Nos.1 and 2 had the

knowledge that the articles which they were possessing and

carrying with them were the articles which were unlawfully

imported, transported, manufactured or cultivated or

collected or that they had the knowledge that the prescribed

duty on those articles was not being paid. However, both

the Trial Court and the learned Sessions Judge's Court,

merely by coming to a conclusion that the accused before

them were found in possession and transportation of

considerable quantity of whisky bottles (sixty-six), which

comes to 66 bottles X 180 ml. = 11,880 ml., jumped to a

finding that, the prosecution has not only proved that the

accused have committed the offence punishable under

Section 32 of the Excise Act, but also the offence punishable

under Section 34 of the Excise Act, even though there was Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

total absence on the part of the prosecution proving

regarding the knowledge on the part of the accused persons

regarding the unlawful possession or transportation of the

articles and also the knowledge that the prescribed duty

was not being paid thereon, at the time of the alleged

offences. Since the conviction of the accused persons with

reference to the alleged offence under Section 32 of the

Excise Act and the sentence ordered for the proven offence

which is proportionate to the gravity of the proven guilt

though deserves to be confirmed, but their conviction for

the offence punishable under Section 34 of the Excise Act

since now proved to be uncalled for and perverse,

interference by this Court to that limited extent is

warranted.

Accordingly, I proceed to pass the following:

ORDER

[i] Both these Criminal Revision Petitions stand partly

allowed.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

[ii] The impugned judgment of conviction and order

on sentence dated 18-12-2012, passed by the learned I

Additional Civil Judge and Judicial Magistrate First Class,

Malavalli, in Criminal Case No.673/2010, holding the

petitioners herein (accused No.1 and accused No.2) guilty

for the offence punishable under Section 34 of the

Karnataka Excise Act, 1965, which was further confirmed by

the learned I Additional Sessions Judge at Mandya, in

Criminal Appeal No.145/2012, dated 26-06-2013, is hereby

set aside.

Both the accused persons (petitioners in these two

revision petitions) i.e. Sri. Nagaraju (accused No.1),

S/o. Kullappa, Aged about 30 years, R/o. Basavanakeri

Ganga, Mathstara Beedi, Malavalli Town, Mandya District

and Sri. Devaraju (accused No.2) S/o. Puttaraju, aged

about 49 years, R/o. Basavanakeri Ganga, Mathstara Beedi,

Malavalli Town, Mandya District, stand acquitted for the

offence punishable under Section 34 of the Karnataka

Excise Act, 1965.

Crl.R.P.No.948/2013 c/w.Crl.R.P.No.769/2013

However, the impugned judgment of conviction and

order on sentence dated 18-12-2012, passed by the learned

I Additional Civil Judge and Judicial Magistrate First Class,

Malavalli, in Criminal Case No.673/2010, which was further

confirmed by the learned I Additional Sessions Judge at

Mandya, in Criminal Appeal No.145/2012 dated

26-06-2013, for the offence punishable under Section 32 of

the Karnataka Excise Act, 1965, stands confirmed.

Registry to transmit a copy of this order along with the

Trial Court and Sessions Judge's Court's records to the

concerned Courts immediately so as to enable the

concerned Trial Court to proceed further in the matter to

secure the accused persons, in accordance with law for the

accused to serve the sentence.

Sd/-

JUDGE

BMV*