Karnataka High Court

Thimmappa S/O Govindappa vs The State Of Karnataka on 9 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

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

          CRIMINAL REVISION PETITION NO.635/2012

BETWEEN:

1.     THIMMAPPA
       S/O GOVINDAPPA
       AGED ABOUT 39 YEARS
       AGRICULTURIST
       R/O VADDINAKOPPA
       SHIVAMOGGA TALUK AND DISTRICT.

2.     THIPPESWAMY
       S/O HOSURAPPA
       AGED ABOUT 61 YEARS
       COOLIE, R/O VIDYANAGARA
       SHIVAMOGGA TALUK AND DISTRICT.     ... PETITIONERS

               (BY SRI B.S.PRASAD, ADVOCATE)
AND:

THE STATE OF KARNATAKA
BY OLD TOWN POLICE STATION
BHADRAVATHI.                               ... RESPONDENT

               (BY SMT.RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE CONVICTION AND SENTENCE IN C.C.NO.451/2009
DATED 30.12.2010 PASSED BY THE CIVIL JUDGE AND
PRINCIPAL JMFC., AT NARASIMHARAJAPURA AND THE
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JUDGMENT AND ORDER DATED 29.05.2012 PASSED BY THE
PRL. SESSIONS JUDGE AT CHIKMAGALUR IN CRL. APPEAL
No.35/2011 AND ACQUIT THE PETITIONERS OF ALL THE
CHARGES LEVELED AGAINST HIM.

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

                               ORDER

This petition is filed under Section 397 read with Section

401 of Cr.P.C., praying to set aside the conviction and sentence

dated 30.12.2010 passed in C.C.No.451/2009 by the Civil Judge

and Principal JMFC., Narasimharajapura and the judgment and

order dated 29.05.2012 in Crl.A.No.35/2011 passed by the

Principal Sessions Judge at Chikmagalur, and acquit the

petitioners of all the charges leveled against them.

2. Heard the learned counsel appearing for the

petitioners and the learned High Court Government Pleader

appearing for the respondent-State.

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

that on 18.03.2009, the Excise Sub-Inspector received credible

information that there is a transportation of illicit liquor.

Immediately, they came and started watching at Muthinakoppa

Village of Shankarapura Circle. At that time, on the road leading

from N.R.Pura to Shivamogga at about 8:45 p.m, the vehicle

Maruti Omni Car bearing registration No.KA-27-M-879 came and

thereafter in the presence of panch witnesses, the vehicle was

stopped and the said vehicle was driven by the first accused and

when accused No.1 was questioned, he told that he is carrying

Toddy and whey they opened the back door, there accused No.2

was sitting and by the side of him, there were 35 liters capacity

of 11 plastic Cans and Cans were opened, there they found 30

liters in each can totally 330 liters of Toddy and when accused

Nos.1 and 2 were questioned, they told that they were not

having any permit or licence, the same was seized by drawing

Panchanama and taking sample. The vehicle was also seized.

Thereafter, a case has been registered. The police have

investigated the matter and filed the charge-sheet.

4. The prosecution in order to prove the case examined

the witnesses as PWs.1 to 7 and got marked the documents as

Exs.P1 to P7. The petitioners/accused have not led any evidence

before the Trial Court. However, got marked MOs.1 to 22 i.e.,

sample bottles - 11 nos and 30 liters capacity of 11 cans.

5. The trial Judge after appreciating both oral and

documentary evidence convicted the petitioners herein for the

offences punishable under Sections 32(2)(c) of the Karnataka

Excise Act and Section 38A of the Karnataka Excise Act ('Act' for

short) against the third accused. Being aggrieved by the said

order of conviction and sentence, an appeal is filed before the

Appellate Court in Crl.A.No.35/2011. The Appellate Court

confirmed the conviction and sentence in respect of accused

Nos.1 and 2 and acquitted accused No.3. Being aggrieved by the

conviction, accused Nos.1 and 2 have filed the present revision

petition before this Court.

6. The learned counsel appearing for the petitioner

would vehemently contend that before seizure, the Investigating

Officer has not recorded the grounds for seizure is concerned.

Both the Courts have committed a serious error in convicting the

petitioners without looking into the material available on record.

The Trial Courts have committed a serious error in relying up on

the evidence of PWs.3 to 7, who are interested and official

witnesses and whose evidence suffers from legal infirmities. The

Trial Court have committed an error in convicting the accused

when none of the witnesses have deposed with regard to the

true version of the State and shifted the burden on the

petitioners, which is against the principles of criminal

jurisprudence in proving the case. The learned counsel also

would vehemently contend that the very approach of the Trial

Court as well as the Appellate Court is erroneous and the

contradictions elicited from the mouth of witnesses have not

been considered by the Trial Court as well as the Appellate

Court. Hence, it requires an interference of this Court.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

both the Courts have considered particularly, the evidence of

PWs.3 to 7, they are the official witnesses and their evidence is

consistent and minor discrepancies, which has been found, not

goes to the very route of the prosecution. Hence, it does not

require any interference of this Court.

8. Having heard the learned counsel appearing for the

petitioners and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record and also considering both oral and documentary

evidence placed on record, the points that would arise for

consideration of this Court are:

(i) Whether the Trial Courts have committed an error in convicting the petitioners and sentencing them for an offence punishable under Sections 32(2)(c) of the Karnataka Excise Act and it requires an interference of this Court by exercising the powers under Section 397 read with Section 401 of Cr.P.C?

(ii) What order?

Point No.(i):

9. Having heard the respective counsel and also looking

into the contentions of the learned counsel for the petitioners,

the petitioners' counsel mainly 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, regarding recording the grounds

of his belief, regarding information in which they have received.

The learned counsel also brought to the notice of this Court that

the provision under Sections 53 and 54 of the act contain

valuable safeguards for the liberty of the citizen in order to

protect them from ill-founded or frivolous prosecution or

harassment. The Apex Court also in the judgment has observed

that, the inspector who had searched the car of the accused had

not made any record of any ground on the basis of which he had

a reasonable belief that an offence under the Act was being

committed before proceeding to search the car. Nothing is found

on the record in the case on hand.

10. The learned counsel also relied upon the judgment of

this Court in Crl.RP.No.562/2015, wherein, the very judgment

of the Apex Court in K.L.Subhayya's case (supra), is extracted

regarding non compliance of Section 54 of the Act and allowed

the Revision Petition.

11. The learned counsel also relied upon the order

passed by this Court in Crl.RP.No.52/2014 regarding non-

compliance of Sections 53 and 54 of the Act, which has been

extracted and allowed the Revision Petition.

12. The learned counsel also relied upon the judgment of

this Court in the case of M.R.Manjunath v. Authorised Officer

reported in LAWS(KAR)-2012-2-30, passed in

Crl.RP.No.635/2012. This is in respect of the FSL report and

non-examination of the FSL report author and the same is

brought to the notice of the prosecution. No doubt, the principles

are laid down in the judgments referred supra and followed by

the decisions regarding non-compliance in the Act; the

Investigating Officer before searching the vehicle should record

the grounds of his belief regarding its information.

13. In the case on hand, no such material is placed

before the Court regarding compliance of Section 54 of the Act

before proceeding to the spot and seizure of the alleged illicit

liquor. No doubt, in the cross-examination of the Investigating

Officer, who seized no question was put to the witness i.e.,

P.W.4. But in the cross-examination, it is elicited that he has

received the information over the mobile and at that time he was

going through N.R.Pura Excise Office surroundings and he was

on gust duty and he went to spot along with CWs.3 and 4. The

Koppa Excise Inspector also came to the spot. But he claims

that when they went to spot, it was around 7'o clock; he claims

that he had secured accused Nos.1 and 2 from Shankarapura

Circle but no material is on record regarding compliance of

Section 54 of the Act. It is his evidence that he has secured

CWs.1 and 2 i.e., PWs.1 and 2 and they were standing at the

circle near the spot. But the other witness-P.W.6 reiterates that

they have received the information when they are in

Shankarapura circle. In the cross-examination, he categorically

admits that the superior officers have not called local panch

witnesses to the spot. However, P.W.6 admits that CWs.1 and 2

are also residing at a little distance from the place of seizure.

But he claims that those persons, who were coming in the said

spot, but his evidence is contrary to the evidence of P.W.4, who

claims that PWs.1 and 2 are standing near the circle and he

secured them. He also claims that they did not measure the

Toddy available in the respective cans. There are contradictions

in the evidence of P.W.3 and P.W.6 regarding seizure of the said

Toddy and the cans are not produced before the Court. P.W.3

categorically admits that he has conducted the investigation and

also admits that in Ex.P4, no where it is mentioned that the

Toddy was seized from the Maruti Van and the same is not found

in column No.4.

14. PWs.3, 4 and 6 have all categorically stated that

they did not enquire from which place the accused persons have

brought the Toddy. The very admission given by P.W.3, is that

the Toddy was seized from the Van, the cans are not produced

before the Court, which creates a reasonable doubt regarding

investigation in the mind of the Court about the very seizure.

PWs.1 and 2 are the Mahazar witnesses and PWs.3 to 7, are the

official witnesses. In the cross examination of PWs.4 and 6

regarding the name of panch witnesses and one witness states

that they were proceeding towards the spot. One witness says

that there is a residence at some distance from the place of

seizure. P.W.7, who took the seizure request to the FSL only

examined particularly on non compliance of Section 54 of the Act

as well as the evidence of prosecution witnesses viz., PWs.1 to 3

and their evidence is contrary to the evidence of each of the

witnesses. Hence, the prosecution also not proved the FSL

report by examining the author. These facts are not considered

by the Trial Court as well as Appellant Court while re-

appreciating the material available on record. Hence, I am of

the opinion that this Court by exercising the revisional

jurisdiction comes to a conclusion that the order passed by the

Trial Court is perverse and not based on the material available

on record, particularly, non compliance of Sections 53 and 54 of

the Act. No where, it is found regarding the recording of the

reasons by the Investigating Officer of his belief regarding the

committing of the offence. Hence, it requires an interference of

this Court.

Point No.(ii):

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

following:

ORDER

(i) The revision petition is allowed.

      (ii)    The     impugned   conviction   and   sentence
              dated        30.12.2010         passed      in
              C.C.No.451/2009 by the Civil Judge and

Principal JMFC., Narasimharajapura and the judgment and order dated 29.05.2012 in Crl.A.No.35/2011 passed by the Principal Sessions Judge at Chikmagalur, are hereby set aside.