Sri. Narasimha Murthy vs The State Of Karnataka
2022 Latest Caselaw 3574 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.328/2013

BETWEEN:

SRI NARASIMHA MURTHY,
AGED ABOUT 26 YEARS,
S/O SRI CHIKKANARASIMHAIAH,
RESIDENT OF MADAPATNA,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK-562 130.                ... PETITIONER

               (BY SRI G.NATARAJ, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY RPC LAYOUT POLICE, EXCISE RANGE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGLURU-560 001.                       ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 01.01.2013 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN CRL.A.NO.70/2012 AS THE SAME IS BAD IN LAW
AND ALSO TO SET ASIDE THE JUDGMENT AND SENTENCE
DATED 28.07.2012 PASSED BY THE CJM, BENGALURU RURAL
DISTRICT, BENGALURU IN C.C.NO.1314/2010.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

2. The factual matrix of the case of the prosecution is

that on 06.10.2009, on credible information, the police

conducted the raid and at the time, this petitioner was

proceeding along with 48 O.C. Super Whisky of 180 ML in a

carton box in a plastic bag for the purpose of selling and was

caught by C.W.1 and his staff and hence invoked the offence

punishable under Sections 11, 14 read with 32, 38A and 43 of

the Karnataka Excise Act ('the said Act' for short). The police

have investigated the matter and filed the charge-sheet. The

prosecution mainly relies upon the evidence of P.W.1 to P.W.5

and Exs.P.1 to 4 and MOs.1 to 266 sample liquor bottles. The

learned Magistrate after considering both oral and documentary

evidence placed on record, particularly the evidence of P.W.1 to

P.W.3 has not been challenged and P.W.4 and P.W.5, who are

the official witnesses of the department were cross-examined

but no effective cross-examination and hence comes to the

conclusion that seizure has been proved at the instance of the

petitioner and convicted the accused for the said offences.

3. Being aggrieved by the judgment of conviction, an

appeal was filed before the Appellate Court in Crl.A.No.70/2012.

The Appellate Court on re-appreciation of the material on record,

considered the evidence of P.W.1 to P.W.3 and so also P.W.4

and P.W.5 and in paragraph No.13 comes to the conclusion that

the evidence of P.W.1 to P.W.3 has remained unchallenged. It is

also observed that he had every opportunity to move the Court

to recall P.W.1 to P.W.3 and the same has not been done and

one of the independent panch witness P.W.3 has fully supported

the case of the prosecution and he has also not been cross-

examined. The Court has also taken note of the chemical

analysis report in each of the 26 bottles subjected for chemical

analysis and there was consumable ethyl alcohol. Regarding

compliance of Section 54 of the said Act is concerned, the

learned Magistrate relying upon the unshaken evidence of P.W.1

to P.W.3 and unperturbed evidence of P.W.4 and P.W.5 coupled

with the documentary proof has come to the conclusion that the

accused was illegally transporting the liquor. There is no any

procedural irregularity in the conduct of the case or error of law

and hence confirmed the order.

4. Being aggrieved by the conviction as well as

confirmation, the present revision petition is filed.

5. The learned counsel for the petitioner not disputes

the fact that P.W.1 to P.W.3 have not been cross-examined.

However, the learned counsel contend that P.W.4 and P.W.5

were cross-examined and most of the witnesses are official

witnesses, except P.W.3 and both the Courts failed to consider

the said fact into consideration. The learned counsel brought to

the notice of this Court with regard to non-compliance of Section

54 of the Act. In support of his contention, he relied upon the

judgment of the Apex Court in the case of K.L. SUBHAYYA v.

STATE OF KARNATAKA reported in AIR 1979 SC 711,

wherein the Apex Court discussed Section 54 recording the

grounds of his belief and the failure on the part of the

Investigating Officer. The learned counsel brought to the notice

of this Court paragraph No.3 of the judgment, wherein an

observation is made 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 reasonable belief that an offence under the

Act, was being committed before proceeding to search the car

and thus the provisions of Section 54 are not at all complied

with.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

first of all, the evidence of P.W.1 to P.W.3 has not been

challenged and apart from that, P.W.4 and P.W.5 are not

effectively cross-examined, except the suggestion and there is

nothing on record to disbelieve the case of the prosecution. The

learned counsel submits that in Ex.P.3, the Investigating Officer,

who conducted the raid has categorically stated that he has

received the information at 4.00 p.m. and he was unable to get

the permission from the Court and also assigned the reasons

that there was no time to get the permission and there are

chances of the accused fleeing away from the spot and also

tampering of the material. There was no time and hence

intimated the same to the Court and the said letter is given on

06.10.2009 and hence there is compliance of Section 54 of the

said Act.

7. Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader appearing for

the respondent-State and also on perusal of the material

available on record, the points that arise for the consideration of

this Court are:

(i) Whether both the Courts have committed an error in convicting and confirming the conviction and sentence and whether the orders suffer from legality and correctness?

(ii) What order?

Point No.(i):

8. Having heard the respective learned counsel, the

main contention of the learned counsel for the petitioner is that

there is no compliance of Section 54 of the said Act and in

support of his contentions, he relied upon the judgment of the

Apex Court in the case of Subhayya (supra). No doubt, in

paragraph No.3 of the said judgment, the Apex Court has

observed that there is no compliance of Section 54 of the said

Act. But in the case on hand, Ex.P.3 is marked before the Trial

Court, wherein the Investigating Officer on the day of conducting

the raid has recorded the reasons and grounds that he has

received the credible information at 4.00 p.m. and there was no

time to take permission from the Court and if any permission is

sought, in the meanwhile he may destroy the material and he

was proceeding along with motorcycle and hence reasons has

been recorded. Having taken note of the document, which has

been marked as Ex.P.3, it is clear that on the very same day on

06.10.2009 itself, the intimation was given to the Magistrate

recording the reasons for conducting the raid and apart from

that, the petitioner was proceeding in the motorcycle with liquor

bottles and there was likelihood of fleeing away from justice, if

proceeded to get the permission and hence there is a force in

the contention of the learned High Court Government Pleader

that reasons and grounds are recorded before proceeding to

seizure and apprehend the petitioner. Hence, the judgment

relied upon by the petitioner in the case of Subhayya (supra)

will not come to the aid of the petitioner since there is

compliance under Section 54 of the said Act.

9. The other contention of the learned counsel for the

petitioner is that the evidence of the prosecution does not prove

the allegations of seizure as well as arrest of the petitioner. On

perusal of the entire evidence available before the Court, P.W.1

to P.W.3 are the official witnesses and P.W.2 is the independent

witness and the evidence of those witnesses has been

unchallenged. P.W.3, who is the raiding party, was present at

that time and he categorically says that he was part of seizure

and he had signed the panchanama Ex.P.2 and identified the

accused from whom the liquor was seized by the excise official.

His evidence also not been cross-examined and not made efforts

to recall and cross-examine the witness and this fact is also

considered by the Appellate Court that no effort has been made

even for cross-examination of P.W.1 to P.W.3. No doubt, P.W.4

and P.W.5 have been cross-examined and they are also part of

the raiding witness i.e. Excise Inspector and Excise Guard. In

the cross-examination of P.W.4, except suggesting that he did

not go to the spot and seize any article, nothing is elicited from

the mouth of P.W.4. In the cross-examination of P.W.5 also

except the suggestion that he did not go to the spot and seize

the liquor, nothing is elicited. Taking note of the cross-

examination of P.W.4 and P.W.5, there is no effective cross-

examination. The evidence of P.W.1 to P.W.3 has been

unchallenged and even though P.W.4 and P.W.5 have been

cross-examined, there is no effective cross-examination. Under

the circumstances, this Court cannot come to the conclusion that

the Trial Court as well as the Appellate Court have committed an

error. On appreciation of the evidence also, both the Courts

have not committed any error.

10. The learned counsel for the petitioner would submit

that a chance may be given to cross-examine P.W.1 to P.W.3

and the said contention cannot be accepted for the reason that

this is the matter of the year 2013 and the incident was taken

place in 2009 and no effort was made before the Trial Court

even for recalling the witness and even also before the Appellate

Court also not made any request to remand the matter for cross-

examination. The petitioner only took the contention regarding

non-compliance of Section 54 of the said Act and hence I do not

find any good grounds even for remanding the matter and the

lapse on the part of the petitioner cannot be filled in a revisional

jurisdiction exercising the revisional powers. In order to invoke

the revisional jurisdiction, there must be capricious order or

perverse order and the same is not found in the case on hand.

The evidence of the prosecution witnesses is unchallenged and

no effective cross-examination with regard to P.W.4 and P.W.5.

The seizure mahazar witness, who has been examined as P.W.5

is not only the part of seizure mahazar, but also he identified the

petitioner that from him only liquor was seized. When such

being the evidence on record, it is not a case for exercising the

revisional jurisdiction.

11. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD