Kullegowda vs State Of Karnataka
2022 Latest Caselaw 9436 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF JUNE, 2022

                              BEFORE

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

 CRIMINAL REVISION PETITION No.871 OF 2013
BETWEEN:

1) Kullegowda
S/o. Late Bojjegowda,
Aged about 62 years,

2) Smt. B.M. Susheelamma,
W/o. Kullegowda,
Aged about 52 years,

Both R/o. N.E.S. Extension,
4th Cross, Malavalli Town,
Mandya - District,
Pin Code - 571 401.
                                                   ..Petitioners
(By Sri. Somashekhar Kashimath, Advocate;
petition abates as against petitioner No.2
vide order dated 17-06-2022)

AND:

State of Karnataka
through Excise Inspector,
Malavalli Zone,
Malavalli,
District - Mandya
Pincode - 571401.
                                                   .. Respondent

(By Sri. Rahul Rai K., High Court Govt. Pleader)
                                                 Crl.R.P.No.871/2013

                                2


                                   ****
      This Criminal Revision Petition is filed under Section 397
read with 401 of the Code of Criminal Procedure, 1973, praying
to call for the entire records and allow the revision petition by
setting aside the judgment and order of conviction and sentence
passed by the 1st Additional District and Sessions Judge, Mandya
in Criminal Appeal No.105/2012 dated 10-09-2013 and thereby
confirming the order of conviction and modifying the sentence
passed by the I Additional Civil Judge and J.M.F.C., Malavalli in
C.C.No.748/2007, dated 20-09-2012 and acquit the petitioners
in the interest of justice and equity.

      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 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.748/2007, for the offences punishable

under Sections 32 and 38A 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 dated 20-09-2012 and order on sentence dated

21-09-2012.

Crl.R.P.No.871/2013

Aggrieved by the same, both the accused persons

preferred a Criminal Appeal in the Court of the learned I

Additional District and Sessions Judge, Mandya, (hereinafter

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

Criminal Appeal No.105/2012.

The learned Sessions Judge's Court in its order dated

10-09-2013 dismissed the appeal filed by both the accused

and confirmed the judgment of the Trial Court in

C.C.No.748/2007. It is challenging the judgments passed

by both the Trial Court as well the Sessions Judge's Court,

both the accused have preferred the present revision

petition.

2. It is the summary of the case of the prosecution in

the Trial Court that, the present petitioners by converting

their dwelling house which is located at N.E.S. Extension,

4th Cross, Malavalli Town, within the limits of the

respondent - Police Station, was using the said dwelling

house for the purpose of manufacturing illicit liquor. Based Crl.R.P.No.871/2013

on the credible information received by the Deputy

Superintendent of Police, Mandya Sub-Division, Mandya, on

the date 26-09-2007, PW-1 - the Sub-Inspector of Excise

(Enforcement and Investigation), Malavalli, joined by his

staff and panchas conducted a raid on the house of the

petitioners and noticed that, the petitioners were found in

possession in their house of 144 bottles of duplicate Original

Choice Whisky in a plastic bag, 96 bottles of duplicate

Highway Fine Whisky in another plastic bag, 600 empty

bottles of Original Choice Whisky kept in six separate bags,

2 kgs. of Original Choice Whisky corks kept in a plastic

bag, 15 liters of blended spirit kept in a white Can with a

capacity of 35 liters and another empty Can with a capacity

of 35 liters in their house and compound. After enquiry

with the inmates of the house, who were the petitioners

herein, they came to know that the petitioners were

involved in illegal manufacturing of illicit liquor under some

printed name, as such, by drawing a panchanama as per

Ex.P-2 in the presence of panchas, PW-1 seized all the Crl.R.P.No.871/2013

articles. During the process they separated randomly six

bottles each in Original Choice Whisky and Highway Fine

Whisky and one liter of the blended spirit separately and

sealed them for their chemical examination. By enquiry in

the spot, they also came to know that petitioner No.2, who

was the wife of petitioner No.1 was the owner of the said

house, who had permitted to make use of the premises for

the alleged illicit activities. After returning to the office,

PW-1 prepared an FIR and submitted to the Court. After

investigation, charge sheet was filed against the accused

persons for the offences punishable under Sections 32, 38A

and 43 of the Excise Act.

3. In order to prove the alleged guilt against the

accused persons, the prosecution got examined in all five

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

from Exs.P-1 to P-16(a) and Material Objects from MO-1 to

MO-13(c). Neither any witness was examined nor any

documents were marked as Exhibits from the side of the

accused persons.

Crl.R.P.No.871/2013

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

impugned judgment of conviction dated 20-09-2012 and

order on sentence dated 21-09-2012 convicted the accused

persons for the offences punishable under Sections 32 and

38A 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 petition.

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 Crl.R.P.No.871/2013

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. During the pendency of this revision petition, the

death of petitioner No.2 (accused No.2) was reported, as

such, the petition of petitioner No.2 (accused No.2) was

taken as abated vide order dated 17-06-2022.

9. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court

and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

11. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Crl.R.P.No.871/2013

Whether the impugned judgment of conviction and order on sentence passed by the learned I Additional Civil Judge and Judicial Magistrate First Class, Malavalli, in C.C.No.748/2007, which was further confirmed by the learned I Additional District and Sessions Judge at Mandya, in Criminal Appeal No.105/2012, warrants any interference at the hands of this Court ?

12. Learned counsel for the petitioners in his

argument submitted that 'the record of reasons to search

before warrant' which is at Ex.P-6 is very vague in its

timings, in as much as, it mentions that the information was

received 'before 4:50 p.m.' as such, it cannot be accepted

that PW-1 had no time to secure the search warrant and

that he had to rush to the spot with his report under Section

54 of the Excise Act. He further submitted that even

though few hundreds of bottles said to have been

containing illicit whisky were said to have been seized,

however, the slips containing the signatures of the panch

witnesses have not been pasted on all those bottles, except

those which were segregated and kept separate for their Crl.R.P.No.871/2013

chemical examination. He also submitted that there is

delay in sending the seized articles to the Forensic Science

Laboratory (FSL). Finally stating that the neighbours in the

locality have not been examined by the Investigating

Officer, learned counsel submitted that the impugned

judgments thus suffers with some serious doubts in the

case of the prosecution.

13. Per contra, learned High Court Government

Pleader for the complainant/respondent in his brief

argument submitted that, the chemical examiner's report at

Ex.P-8 mentions that the samples examined by it are the

illicit liquor. Since they are random samples, it has to be

necessarily inferred that the goods seized in their entirety

were all illicit liquor only. He further submitted that the

Investigating Officer has given proper reasoning at Ex.P-6,

to conduct raid without obtaining search warrant from the

learned Magistrate. Though he stated that Section 38A of

the Excise Act would not be applicable, by virtue of the

death of petitioner No.2 during the pendency of this Crl.R.P.No.871/2013

petition, still he concluded his argument stating that a

presumption under Section 40 of the Excise Act operates

against accused No.1, as such also, the impugned

judgments cannot be found fault with.

14. Among the five witnesses examined by the

prosecution, the main witnesses who speak about the

alleged raid are, PW-1, PW-2, PW-3 and PW-4. Among

these four witnesses, PW-1 and PW-4 are Departmental

witnesses, whereas PW-2 and PW-3 are independent

witnesses who are said to have accompanied PW-1 and

PW-4 during the raid, by agreeing to be panchas for the

possible seizure panchanama, if made, during the raid.

However, among these four witnesses, it is only PW-1 and

PW-4 who have supported the case of the prosecution, but

PW-2 and PW-3 have not supported the case of the

prosecution.

15. PW-1 (CW-5) - Sri. B.N. Narasimhamurthy and

PW-4 (CW-3) - Sri. Nagabhushana S., in their evidence Crl.R.P.No.871/2013

have uniformly stated that on the date 26-09-2007, while

they were on patrolling duty as the Sub Inspector of Excise

and Excise Guard respectively, based upon a credible

information, requested two panchas who were found in that

place to join them as panchas in a raid and in their

Departmental vehicle, they went to the house of the

accused located in 4th cross of N.E.S. Extension of Malavalli

Town. When they called for the inmates of the house, it

was accused No.1, who came out and on enquiry, he

identified himself as Kullegowda (accused No.1). Informing

about their identity and the purpose of their visit, they (the

raiding team) entered their house, where they noticed that

in the central hall of the house, two plastic bags tied with

a thread were kept. They also noticed two plastic Cans

each with 35 liter capacity. After opening the bag, they

noticed that it was containing bottles filled with liquor.

Among two Cans, one was containing 15 liters of blended

whisky and another one was empty, but it was smelling of

liquor. When counted, they noticed that there were 144 Crl.R.P.No.871/2013

bottles in the plastic bag, each with a capacity of 180 ml. It

was shown as Original Choice Whisky. In the second bag,

they noticed 96 bottles of Highway Fine Whisky, each with

180 ml. capacity. When they went to the backyard of the

house, they noticed that there were six bags, each

containing 100 empty bottles of 180 ml. capacity each. In

one such plastic bag, they noticed the Corks with the

printed label on them as Original Choice Whisky. They

summoned the Photographer and got the photographs of

all those articles taken. Both these witnesses (PW-1 and

PW-4) have also stated that from out of these goods, they

randomly picked out six bottles of Original Choice Whisky,

each with 180 ml. capacity and six bottles of Highway Fine

Whisky and from out of the 15 liters of blended whisky,

they collected one liter as sample. For sending all these

sample articles for their chemical examination, they got the

slips pasted on them duly signed by the panchas. In that

regard, a seal was also put on those sample articles.

Stating so, all these witnesses have identified the said Crl.R.P.No.871/2013

sample seal at Ex.P-1, seizure panchanama at Ex.P-2 and

the alleged seized articles at MO-1 to MO-13. They have

also identified their signatures on those labels pasted upon

MO-1 to MO-13.

Both of these witnesses (PW-1 and PW-4) have

further stated that they also noticed the presence of

accused No.2 in the house and when enquired, they came

to know her name as Smt. B.M. Susheelamma, Wife of

Kullegowda and that the said property belonged to her.

PW-1 further stated that, after returning to the office,

he prepared an FIR and submitted the same to the Court

with copies to his superiors. It is also stated that he

subjected the seized articles to the Property Form. They

also produced both the accused No.1 and accused No.2 who

were taken into their custody in the spot, before the Court.

PW-1 has further stated that on the date 16-10-2007,

he sent the sample articles for their chemical examination

to Bengaluru with his request letter as per Ex.P-7. He Crl.R.P.No.871/2013

stated that a report was also collected from the Chemical

Examiner as per Ex.P-8. He further stated that he recorded

the statements of CW-1 and CW-2 on the date 26-09-2007

and confiscated the remaining goods to the State, in

accordance with law. Stating so, the witness has identified

the list of articles seized at Ex.P-3, FIR at Ex.P-4, the list of

the details of the articles for submission to the proper

authorities at Ex.P-5, 'the record of reasons to search

before warrant' at Ex.P-6, his requisition letter at Ex.P-7,

the Chemical Examiner's Report at Ex.P-8, order for

confiscation of excise articles at Ex.P-9 and photographs at

Exs.P-10 to P-13.

Both PW-1 and PW-4 were subjected to a detailed

cross-examination wherein they adhered to their original

versions.

16. PW-2 (CW-1) - Nandeesh and PW-3 (CW-2) -

Murthy, though were projected as panchas to the alleged

seizure panchanama at Ex.P-2 and as the persons Crl.R.P.No.871/2013

accompanying the raiding team, but neither of them have

supported the case of the prosecution. Both of them, in a

uniform manner, have stated that, though their signatures

were obtained on Ex.P-2 - spot Mahazar, but they do not

know for what purpose their signatures were obtained.

They have also stated that at the time of obtaining their

signatures, the Police have neither shown them the

accused nor the articles at MO-1 to MO-13. Even after

treating them hostile, the prosecution could not elicit any

further statements from them in its support.

17. The very basis of proceeding to the house of the

accused persons by PW-1 and his team is about the alleged

credible information said to have been received by him

(PW-1) about the activities in illicit liquor in the house of the

accused persons. According to PW-1, since there was no

sufficient time enabling him to obtain search warrant before

proceeding to conduct the raid of the house of the accused,

he prepared a document called 'the record of reasons to

search before warrant' as per Ex.P-6. It is this document Crl.R.P.No.871/2013

which the learned counsel for the petitioners seriously

contends as not in order. His only contention is that, the

said document, major portion of which, appears to be in

cyclostyled form, mentions that the credible information

was received by the signatory to that Report even prior to

4:50 p.m. With this, he submits that it (Ex.P-6) does not

clearly and specifically mention as to at what exact time

they received the credible information, as such, it cannot

be held that they had no sufficient time to obtain the search

warrant from the learned Magistrate.

18. A perusal of the document at Ex.P-6, i.e. 'the

record of reasons to search before warrant' would go to

show that, the alleged search in the house of accused is

said to have been commenced at 5:00 p.m. on the same

day i.e. on the date 26-09-2007.

A reading of the first paragraph of the said document

at Ex.P-6 goes to show that on the date 26-09-2007, at

5:00 p.m., an information was received about the Crl.R.P.No.871/2013

possession or manufacture or sale of illicit liquor in the

address of the accused and he (the signatory to Ex.P-6)

along with the raiding team including the panchas

proceeded to the spot and commenced the search activity

at 5:00 p.m.

In the second paragraph, he has stated that the said

information was received by him 'before 4:50 p.m.'

No doubt, it does not specifically say as to at what

exact time the credible information has been received,

however, the timing mentioned there as '4:50 p.m' cannot

be isolated and read. When the said paragraph in its

entirety is read, the said sentence that the information was

received 'prior to 4:50 p.m.' is further continued and shows

that by the time the information was received by them, they

had no sufficient time to obtain necessary orders by the

Court for searching of the premises. It is therefore he had

to prepare the document called 'the record of reasons to Crl.R.P.No.871/2013

search before warrant' under Section 54 of the Excise Act

and rushed to the spot.

A reading of the said document in its entirety would

clearly impart a meaning that there was hardly a difference

of ten minutes for him between the receipt of the

information and he reaching the spot and initiating the act

of search. Thus, the said interval period of ten minutes,

since being too short for him to obtain any order or warrant

from the Court for the search, he had invoked his power

under Section 54 of the Excise Act by preparing the

document called 'the record of reasons to search before

warrant' as per Ex.P-6.

Therefore, the argument of the learned counsel for

the petitioners that Ex.P-6 is too vague, as such, it cannot

be relied and acted upon, is not acceptable.

19. The evidence of PW-1 and PW-4 gives a clear and

detailed account of how all the four of them i.e. including

PW-2 and PW-3 (panchas) proceeded to the spot and after Crl.R.P.No.871/2013

identifying themselves to the inmates in the house

continued their search activity. Merely because the two

independent witnesses (panchas) i.e. PW-2 and PW-3 have

not supported the case of the prosecution, that itself is not

sufficient to either disbelieve or suspect the evidence of

PW-1 and PW-4. However, it cannot be ignored of the fact

that, both PW-1 and PW-4 are the Departmental

Officers/officials. In such an event, if their evidence is

capable of inspiring confidence in the Court to believe them,

then there is no bar in accepting their evidence and

proceeding further in the matter.

The said principle is laid down by the Hon'ble Apex

Court in the case of Karamjit Singh Vs. State (Delhi

Administration) reported in AIR 2003 Supreme Court

1311, wherein the Apex Court 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 Crl.R.P.No.871/2013

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.

20. In the instant case, a detailed reading of the

evidence of PW-1 and PW-4 since goes to show that their

evidence has come out uniformly and has given a detailed

account about the act of raiding the house of the accused

and the seizure of the articles including MO-1 to MO-13

and since both PW-1 and PW-4 have successfully withstood

the detailed searching cross-examination and have adhered

to their original versions, I do not find any reason either to

suspect or disbelieve their evidence. Thus, the conducting

of the raid on the house of the accused No.1 and accused

No.2 in the evening of the date 26-09-2007 by PW-1 and

PW-4 at 4:50 p.m. stands established.

                                                   Crl.R.P.No.871/2013




     21.     The    evidence    of   PW-1   and    PW-4     further

establishes that the articles shown in Ex.P-5 were seized by

them in the spot including the articles marked at MO-1 to

MO-13. Both these witnesses, more particularly, PW-1 has

given a detailed account of how the samples were obtained

and how those samples were segregated and got separated

by specifically marking and pasting with the signatures of

the panchas pasted upon them and sealing with the model

seal at Ex.P-1. Thus, without giving any scope for

tampering of those articles, PW-1 has taken precaution to

retain them as in the condition they were at the time of

their seizure. Further, he has also stated that even the

remaining articles from which MO-1 to MO-13 were

separated as samples, were also seized by them under the

same panchanama at Ex.P-2 and were taken along with

them. He has stated that he subjected those articles to

Property Form. Though the said Property Form, which can

be found in the records of the Trial Court placed before this

Court, has not been marked as an exhibit, still, his Crl.R.P.No.871/2013

evidence that he has subjected them to Property Form, has

not been specifically denied. Further, the documentary

evidence at Ex.P-3 read with Ex.P-5 gives the details of all

those articles seized by PW-1 during the raid, from the

house of accused No.1 and accused No.2. As such, merely

because PW-1 is said to have not pasted the slips on each

of the bottles seized by him, which run into few hundreds of

bottles, by that itself, it cannot be held that the seizure

creates doubt in the mind of the Court. Thus, the seizure of

the articles mentioned in Ex.P-5 and segregation of MO-1 to

MO-13 from them, also stands proved.

22. The evidence of PW-1 coupled with the

documentary evidence at Ex.P-7 would go to show that

those sample articles which were thirteen in number (MO-1

to MO-13) were sent by him for their chemical examination

to the Central Chemical Laboratory, Excise Department,

Bengaluru. The report given by the said Chemical Examiner

which is at Ex.P-8 shows that the samples taken as Original

Choice Whisky were containing 33.5o U.P. as strength of Crl.R.P.No.871/2013

alcohol. The other six sealed bottles of Highway Fine

Whisky were containing 49.9o U.P. as strength of alcohol in

them. 1000 ml. (one liter) sample blended Whisky was

also containing 48.3o U.P. as strength of alcohol in them.

It is noticing the presence of the degree of strength of

alcohol in the samples received by them, the Chemical

Examiner has opined that that there was presence of

ethanol in them, which was not in accordance with the

Standard of Indian Bureau of Standards and that they were

illicit liquor. The said finding of none else than the Chemical

Examiner finds no reason to disbelieve it, as such, it is

established that, the goods seized from the house of

accused No.1 and accused No.2 were the illicit liquors and

that the possession of which, by the accused persons was

admittedly without any valid licence or permit by the

competent authority.

23. The evidence of PW-5 the Chief Officer of the

Town Municipality, Malavalli, who has stated that he has

issued the house tax extract with respect to the house, Crl.R.P.No.871/2013

where the raid was said to be conducted and has identified

the said extract at Ex.P-16, would go to show that the said

house, as on the date of the raid, was standing in the name

of petitioner No.2, who admittedly, is the wife of the

present petitioner No.1. Further, the photographs at

Exs.P-10 to P-13, which corroborates the narration of how

the places in the house was depicting at the time of raid

also shows that the seizure of the goods as mentioned in

Ex.P-2 was made by PW-1 joined by PW-2 to PW-4.

24. It was alleged by the learned counsel for the

petitioners that, mere presence of the articles without the

knowledge on the part of the alleged possessor would not

attract Section 32 of the Excise Act.

A careful reading of Section 32 of the Excise Act goes

to show that it does not specifically mention that the

knowledge on the part of the possessors is mandatory in

every act of alleged illegal possession or illegal

manufacturing of illicit liquor. However in the instant case, Crl.R.P.No.871/2013

when we see the quantity and nature of the goods seized

from the house of accused No.1 and accused No.2, which is

described in Exs.P-2, P-3 and P-5 and also as could be seen

in the photographs at Exs.MO-1 to MO-13, it is to the

knowledge of any one that such a kind of large quantity of

bottles, which, according to Ex.P-2 and Ex.P-5, 144 bottles

+96 bottles =240 bottles, filled with illicit liquor, 600 empty

liquor bottles and 2 kgs. of corks with the name as Original

Choice Whisky printed upon them and 15 liters of blended

whisky, themselves would clearly go to show that, their

possession in different places in their house was with the

clear and complete knowledge about the same by the

accused. As such, the evidence of PW-1 and PW-4 coupled

with the documentary evidence at Exhibits P-2, P-5 and

MO-10 to MO-13 themselves establish that the accused,

after knowing the nature of the articles were with the

knowledge and possession of the same. Therefore, the

argument of the learned counsel for the petitioners on the

said point also, is not acceptable.

Crl.R.P.No.871/2013

25. Since it is considering these materials placed

before them, both in the form of oral and documentary

evidence, both the Trial Court and Sessions Judge's Court

have rightly come to the conclusion of holding the accused

No.1 (petitioner No.1 herein) guilty of the offence

punishable under Section 32 of the Excise Act and convicted

him and sentenced in proportionate to the gravity of the

proven guilt accordingly, I do not find any reason to

interfere in the said judgments.

26. The impugned judgments have also convicted the

accused No.1 who is the present petitioner for the offence

punishable even under Section 38A of the Excise Act.

Section 38A of the Excise Act speaks about the penalty

for allowing the premises, etc., to be used for the purpose

of committing an offence under the Act.

In the instant case, even according to the

prosecution, the alleged offence under Section 38A of the

Excise Act was attributed mainly against accused No.2 Crl.R.P.No.871/2013

(petitioner No.2 herein), since the property in which the

illegal activity was said to be carrying was standing in her

name, as evidenced in the evidence of PW-5 and

documentary evidence at Ex.P-16. Since the very petitioner

No.2 (accused No.2) is reported to be dead during the

pendency of the revision petition, and that her petition has

stood abated by the order of the Court, the offence

punishable under Section 38A of the Excise Act would not

stand as against accused No.1, though the offence

punishable under Section 32 of the Excise Act would lie

against him. As such it is only to modify the said judgment

of conviction under Section 38A of the Excise Act, as against

accused No.1 (petitioner No.1) and to the said limited

extent, interference by this Court is warranted.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands partly

allowed.

Crl.R.P.No.871/2013

[ii] The impugned judgment of conviction dated

20-09-2012 and order on sentence dated

21-09-2012, passed by the learned I Additional Civil

Judge and Judicial Magistrate First Class, Malavalli, in

Criminal Case No.748/2007, holding the petitioner

No.1 herein (accused No.1) guilty for the offence

punishable under Section 38A of the Karnataka Excise

Act, 1965, which was further confirmed by the

learned I Additional District and Sessions Judge at

Mandya, in Criminal Appeal No.105/2012, dated

10-09-2013, is hereby set aside.

[iii] The accused No.1 (petitioner No.1) - Sri.

Kullegowda, S/o. late Bojjegowda, Aged about 62

years, R/o. N.E.S. Extension, 4th Cross, Malavalli

Town, Mandya District, Pin Code-571 401, stands

acquitted for the offence punishable under Section

38A of the Karnataka Excise Act, 1965.

Crl.R.P.No.871/2013

[iv] However, the impugned judgment impugned

judgment of conviction dated 20-09-2012 and order

on sentence dated 21-09-2012, passed by the

learned I Additional Civil Judge and Judicial

Magistrate First Class, Malavalli, in Criminal Case

No.748/2007, holding the petitioner No.1 herein

(accused No.1) guilty for the offence punishable

under Section 32 of the Karnataka Excise Act, 1965

and sentencing him accordingly for the proven guilt,

which was further confirmed by the learned I

Additional District and Sessions Judge at Mandya, in

Criminal Appeal No.105/2012, dated

10-09-2013, stands confirmed.

[v] The order regarding the destruction of MO-1 to

MO-13 remains unaltered.

[vi] Petitioner No.1 (accused No.1) is directed to

surrender before the learned I Additional Civil Judge

and Judicial Magistrate First Class, Malavalli, within Crl.R.P.No.871/2013

forty-five (45) days from today and to serve the

sentence.

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 person, in accordance with law, to serve

the sentence.

Sd/-

JUDGE

BMV*