Karnataka High Court

Mahadeva vs State Of Karnataka on 16 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.355/2015

BETWEEN:

MAHADEVA
S/O CHIKKARANGAIAH,
AGED ABOUT 39 YEARS,
CARPENTER,
R/AT DASAMUDDAIAHNA PALYA,
MARALENAHALLI ROAD,
TUMAKURU-572 101.                         ... PETITIONER

   (BY SRI M.S.RAJENDRA PRASAD, SENIOR COUNSEL FOR
        SRI PRANOY KUMAR POKARNA A, ADVOCATE)

AND:

STATE OF KARNATAKA
THROUGH EXCISE POLICE,
TUMAKURU-572 101.                        ... RESPONDENT

              (BY SMT.RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 20.03.2015 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU, IN CRIMINAL
APPEAL NO.76/2013 AND ALSO JUDGMENT DATED 12.06.2013,
PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC-III,
TUMAKURU IN C.C.NO.2617/2008.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is filed under Section 401 of Cr.P.C., praying

to call for the records and set aside the Judgment dated

20.03.2015 passed in Crl.A.No.76/2013 by the II Additional

District and Sessions Judge, Tumakuru and the judgment dated

12.06.2013 in C.C.No.2617/2018 passed by the II Additional and

JMFC-III, Tumakuru and pass such other order as deems fit in

the facts and circumstances of the case.

2. Heard the learned senior counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

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

that when the police have conducted a raid in front of the house

of this petitioner, they found 41 Macdowel Whisky bottles.

Hence, the same was seized by drawing the Mahazar and a case

has been registered. The police have investigated the matter and

filed the charge-sheet for the offences punishable under Sections

34 and 38 of the Karnataka Excise Act, 1965 ('the Excise Act' for

short).

4. The prosecution in order to prove the case examined

the witnesses as PWs.1 to 6, got marked the documents as

Exs.P1 to P4(a) and the material objects - MOs.1 to 41-sample

bottles. The petitioner/accused has not led any defense

evidence.

5. The trial Judge after considering both oral and

documentary evidence convicted the petitioner for both the

offences for a period of one year with fine of Rs.10,000/-.

Hence, an appeal is filed before the Appellate Court in

Crl.A.No.76/2013.

6. The Appellate Court on re-appreciation of both oral

and documentary evidence placed on record, confirmed the

conviction. However, modified the order on sentence in

Crl.A.No.76/2013 filed by the petitioner for a period of six

months, in default of payment of fine amount. Hence, the

present revision petition is filed before this Court.

7. The main contention of the learned senior counsel

appearing for the petitioner before this Court is that the very

conclusion of the Trial Court that Ex.P2 is not disputed, is not

correct. It is the burden on the prosecution to prove the said

document. The Trial Court as well as the Appellate Court on the

material available on record ought to have held that the

evidence of P.Ws.4 and 5 and Ex.P2 are not acceptable since

P.Ws.4 and 5 are the interested witnesses. The learned senior

counsel also would submit that it is the contention of the

prosecution that on the credible information they conducted the

raid, but they have not complied the provisions of Section 54 of

the Excise Act, wherein, they have to record the ground of his

belief in committing the offence, the same is not found in any of

the records. The learned senior counsel also would submit that

the witnesses, who have been examined are all interested

witnesses and PWs.1 and 2 are also the Village Accountants,

they were taken together while conducting the raid. The learned

senior counsel also would submit that the persons, who went

with raid are the Assistant Commissioner, Tahasildar, Revenue

Inspectors, Superintendent of Excise Department and other

officials belongs to the Excise Department and their evidence

cannot be believed. Both the Courts have failed to consider the

said aspect while appreciating the material available on record.

8. The learned senior counsel appearing for the

petitioner in support of his arguments, 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, regarding

non compliance of Section 54 of the Excise Act.

9. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that in

the Mahazar itself, it is specifically mentioned that on credible

information they went and found this petitioner, who is in front

of the house keeping the illicit liquor bottles and the same was

seized in the presence of the witnesses. The said witnesses

were also examined before the Trial Court and proved the

document Ex.P1-Mahazar; Ex.P2 - FSL report and Ex.P3 is PF

report regarding seizure is concerned and nothing is elicited in

the cross-examination of prosecution witnesses and only took

the contention in the revision that they are the interested

witnesses. Hence, the very contention of the learned senior

counsel for the petitioner cannot be accepted.

10. Having heard the learned senior counsel appearing

for the petitioner and the learned High Court Government

Pleader appearing for the State and on perusal of the material

available on record, the points that would arise for consideration

of this Court are:

(i) Whether the Trial Court as well as the Appellate Court have committed an error in not appreciating the material available on record and passed any perverse order. Whether it requires an interference of this Court by exercising the revisional jurisdiction?

(ii) What order?

Point No.(i):

11. Having heard the respective counsel and on perusal

of the material available on record, the very first contention of

the learned senior counsel for the petitioner is that there is no

compliance of Section 54 of the Excise Act. The Apex Court in

K.L.Subhayya's case (supra), referred by the learned senior

counsel for the petitioner, has categorically held that both

Sections 53 and 54 contain valuable safeguards for the liberty of

the citizen in order to protect them from ill-founded or frivolous

prosecution or harassment. It is also 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. Hence, comes

to the conclusion that Section 54 of the Excise Act has not yet

complied with and the order passed by the respective Courts are

vitiates. In the case on hand also, on perusal of Ex.P1-Mahazar,

it clearly discloses that the Assistant Commissioner, Tahasildar

and Revenue officials i.e., Village Accountants and also the

officials belongs to the raiding party, all went together. But

nothing is mentioned in Ex.P1 that they have recorded the

grounds of his belief that this petitioner has committed an

offence.

12. It is also important to note that it is not the case of

the prosecution that he was having 41 bottles of liquor in his

possession to sell the same to the general public only in the

Mahazar, it is stated that he was in conscious possession of 41

bottles of liquor but no compliance of Section 54 of the Excise

Act. The Apex Court also in the judgment has categorically held

that both Sections 53 and 54 contain valuable safeguards for the

liberty of the citizen in order to protect them from ill-founded or

frivolous prosecution or harassment. In the case on hand,

raiding parties are also official witnesses and the mahazar

disclose that Assistant Commissioner, Tahsildar and all revenue

officials and also the officials belonging to Excise Department

together went to the spot and there is no explanation as to how

all of them gathered together. Apart from that, there is no

reason mentioned in the mahazar regarding compliance of

Sections 53 and 54 of the Excise Act. Hence, there is a force in

the very contention of the learned counsel for the petitioner that

mandatory compliance is not complied.

13. The second limb of argument of the learned counsel

for the petitioner before this Court is that all the witnesses are

official witnesses but, in the mahazar in Ex.P1, it is stated that

local witnesses were not found. But, except mentioning the

same, nothing is stated as to where they attempted to secure

local witnesses. On perusal of the records also, it is seen that

P.Ws.1 and 2 are the revenue officials and the raid was also

conducted along with the superiors of the Revenue Department

i.e., Assistant Commissioner, Tahsildar and the Trial Court,

ought to have taken note of this aspect into consideration. Apart

from that, other witnesses are also the official witnesses of

Excise Department and no independent witnesses are examined

before the Trial Court.

14. When such being the factual aspects of the case, the

very safeguard as contemplated under Sections 53 and 54 of the

Excise Act is not complied with. First of all, the grounds are not

stated before conducting the search and apart from that, no local

witnesses are secured. It is also the case of the prosecution that

the petitioner was having 41 bottles of illicit liquor in front of the

house and nothing is available on record, as to why he kept the

same in front of the house. Hence, the very seizure itself is

doubtful and only believing the evidence of official witnesses, the

Trial Court and the Appellate Court have come to the conclusion

that the prosecution has proved the case beyond reasonable

doubt.

15. The material available on record does not inspire the

confidence of the Court even for confirmation of the offences

which have been invoked against the petitioner herein. Hence, I

am of the opinion that both the Courts have committed an error

and passed perverse order and failed to take note of the

evidence of the witnesses, who are part of conducting the raid

and also no compliance is made in respect of Sections 53 and 54

of the Excise Act. Hence, I answer point No.(i) as 'affirmative'.

Point No.(ii)

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

following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned judgment dated 20.03.2015 passed in Crl.A.No.76/2013 by the II Additional District and Sessions Judge,

Tumakuru and the judgment dated 12.06.2013 in C.C.No.2617/2018 passed by the II Additional and JMFC-III, Tumakuru are hereby side aside.