Sheshyanaika vs State By
2022 Latest Caselaw 4989 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF MARCH, 2022

                          BEFORE

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

       CRIMINAL REVISION PETITION NO.404/2013

BETWEEN:

SHESHYANAIKA
S/O GANIYA NAIKA
AGED ABOUT 42 YERAS
R/O HANCHI THANDA
SORABA TALUK
SHIMOGA DISTRICT.                             ...PETITIONER

              (BY SRI M.K.GIRISH, ADVOCATE)

AND:

STATE BY
SUB-INSPECTOR OF EXCISE
SORABA.                                  ...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 ORDER DATED 28.02.2013 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-III SHIVAMOGGA, IN
CRIMINAL APPEAL NO.12/2012 AND JUDGMENT DATED
28.12.2011 PASSED BY THE CIVIL JUDGE AND JMFC, SORABA
IN    C.C.NO.242/2010  AND    ACQUIT    THE   REVISION
PETITIONER/ACCUSED FOR THE ALLEGED OFFENCE.

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

This criminal revision petition is filed to set aside the

judgment dated 28.02.2013 passed by the Presiding Officer, Fast

Track Court-III Shivamogga, in Criminal Appeal No.12/2012 and

judgment dated 28.12.2011 passed by the Civil Judge and JMFC,

Soraba in C.C.No.242/2010 and acquit the petitioner.

2. Heard the learned counsel for the petitioner and

learned High Court Government Pleader appearing for the State.

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

that, on receipt of credible information by the Excise Inspector

on 30.03.2010, the excise officials have conducted raid in the

house of the petitioner herein in the presence of panch witness

at about 10.30 p.m., wherein they found 15 liters of illicit liquor.

They have drawn the mahazar and registered the case,

investigated the matter and filed the charge sheet.

4. The prosecution, in order to prove the case,

examined 3 witnesses as P.Ws.1 to 3 and got marked the

documents as Exs.P1 to P8(a). The material object sample

bottle is marked as M.O.1.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the petitioner

for the offence punishable under Section 32(1) of the Karnataka

Excise Act ('the Act' for short) and ordered to undergo rigorous

imprisonment for a period of 1 year and imposed fine of

Rs.10,000/-. In default of payment of fine, to undergo simple

imprisonment for a period of 6 months.

6. Being aggrieved by the judgment and conviction of

sentence, the petitioner preferred an appeal in Crl.A.No.12/2012

and the Appellate Court also, on reconsideration of both oral and

documentary evidence placed on record, dismissed the appeal.

Hence, the present revision petition is filed.

7. The main contention of the learned counsel for the

petitioner is that only three witnesses are examined and out of

the three witnesses, P.Ws.2 and 3 are the official witnesses of

the same department and apart from that, only relied upon the

evidence of P.W.1. The counsel also brought to the notice of this

Court the discussion made by the Trial Court extracting the

evidence of P.W.1. The P.W.1 in his evidence categorically

admitted that he cannot say what are the contents of Ex.P1, who

prepared Ex.P1 and also, he cannot say the timings of the Ex.P1-

mahazar. Inspite of these answers elicited from the mouth of

P.W.1, the Trial Court accepted the evidence of P.W.1 and the

very seizure itself is doubtful, when the document of Ex.P1 is not

proved.

8. The counsel would also submit that there is no

compliance of Sections 53 and 54 of the Act. The counsel, in

support of his argument, relied upon the judgment of the Apex

Court K.L.Subhayya v. State of Karnataka reported in AIR

1979 SC 711, wherein the Apex Court has held with regard to

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. Hence, it requires interference of this

Court.

9. Per contra, learned High Court Government Pleader

appearing for the State would submit that, on receipt of credible

information, the Excise Inspector along with his officials

conducted the raid in the house of the petitioner. She would

also submit that the Excise Inspector has prepared the search

warrant in terms of Ex.P5. Even though, only three witnesses

are examined, the Court has to see the quality of the evidence

available before the Court and not the quantity. She would

further contend that Search Warrant is marked as Ex.P5, Seizure

Report is marked as Ex.P6 and Chemical Test Report is marked

as Ex.P8 and all these materials are considered by the Trial

Court as well as the Appellate Court. Hence, it does not require

interference of this Court.

10. Having heard the respective counsel and also on

perusal of the material on record, the points that would arise for

consideration of this Court are:

(i) Whether both the Courts have committed an error in convicting the petitioner and sentencing him for the offence punishable under Section 32(1) of the Act and it requires interference of this Court by exercising revisional jurisdiction?

(ii) What order?

Point No.(i):

11. Having heard the respective counsel and also

considering the material on record, this Court has to examine

the material on record, whether perverse finding is recorded by

the Trial Court and the same is confirmed by the Appellate Court

without looking into the material on record.

12. The first limb of argument is that the prosecution

mainly relied upon the evidence of P.Ws.1 to 3 and they are the

interested witnesses. It is not in dispute that, witnesses P.Ws.2

an 3 are from the same department and according to them, they

received the credible information and hence, they went and

conducted raid and seized 15 liters of illicit liquor.

13. In order to prove the seizure, the prosecution mainly

relied upon the document of Ex.P1 and no doubt, Ex.P1 disclose

that mahazar was drawn at 10.30 p.m. on 30.03.2010. The

prosecution also relied upon the evidence of P.W.1, who is also

an attesting witness to Ex.P1-mahazar. P.W.1 is a villager of the

same village. It is his evidence that when he gave the

information to the Excise Department, along with him, C.Ws.2 to

4 were also there. Hence, it is clear that P.W.1 is an interested

witness. It is also elicited that there are other houses

surrounding the house of the petitioner and more than 25 to 30

persons were there at the time of conducting the raid.

14. It is important to note that no independent witnesses

are examined before the Trial Court, inspite of the fact that there

were 25 to 30 persons at the spot. Apart from that, P.W.1 has

stated in his evidence that, through him the information was

given, according to his admission in the cross-examination. It is

also important to note that, in paragraph No.4, answer is elicited

with regard to the fact that there was a panchayath earlier and

this petitioner had lodged the complaint against one

Ramachandra Naika and there was an ill-will in connection with

the said incident and he also admits in the cross-examination

that panchayath was held in this regard. It is important to note

that, he categorically admits that he cannot tell where Ex.P1 was

drawn, the timings of the mahazar and also the details of

description of the place of mahazar.

15. Inspite of these answers are elicited from the mouth

of P.W.1, the Trial Court considered the evidence of P.W.1. The

very seizure itself is doubtful as contended by the petitioner and

P.W.1 is not able to state regarding the timings of Ex.P1 and also

he is not aware of the contents of Ex.P1. Hence, the very

seizure itself is doubtful and the same is not credible to accept

the case of the prosecution. The other two witnesses i.e.,

P.Ws.2 and 3 are the official witnesses and the evidence of

official witnesses cannot be discarded as contended by the

learned counsel for the respondent.

16. P.W.2 was subjected to cross-examination. In the

cross-examination, he categorically admits that when raid was

conducted, there was no customers and also admits that the

same is a residential house. He also admits that he had received

a phone call on the very same day but, he cannot tell where he

was and when he received the information. He also admits that

there were houses surrounding the house of the petitioner-

accused and admits that neighboring owners have not assisted

in drawing the mahazar. But, he categorically admits that the

same is not mentioned in the mahazar. Having elicited the

answer from the mouth of P.W.2 also, it is clear that the house is

surrounded by other houses in the village and no local

independent witnesses are made as witnesses. Apart from that,

when they refused to sign the mahazar, the same is not

mentioned in the mahazar.

17. The other witness is P.W.3, who is an Excise Guard.

In his cross-examination, he admits that information was

received at 9.45 p.m. and they were at the distance of 10 to 15

Kms. when they received the information and they visited the

spot at 10.30 p.m. He also says that there were 50 persons at

the spot when raid was conducted and admits that there are

houses surrounding the house of the petitioner. It is also

important to note that, in the cross-examination, he says that

mahazar was drawn in the night when raid was conducted and

he also cannot tell, who gave the dictation to prepare the

mahazar. But, he claims that he himself wrote the mahazar

Ex.P1. However, admits that the same is not mentioned in at

Ex.P1-mahazar.

18. Having considered all these answers elicited from the

mouth of P.W.1, it is not in dispute that P.W.1 is an interested

witness, who gave the information according to his admission in

the cross-examination. Apart from that, no independent

witnesses have signed the mahazar and the witnesses P.Ws.2

and 3 are the interested witnesses and both of them have

categorically admitted that more than 25 to 30 persons were

there at the post. P.W.2 also admits that he has not mentioned

anything about refusal of the persons, who were at the spot to

sign the mahazar while preparing the same and the mahazar is

also not proved. It is also important to note that, P.W.1

categorically says that he does not know the contents of Ex.P1

and also he cannot tell at what time, mahazar was drawn.

19. When such being the case, both the Courts have

committed an error in not properly appreciating the evidence on

record. The witnesses P.Ws.2 and 3 are official witnesses and

according to them, there were number of persons at the time

when raid was conducted and no local witnesses have signed the

mahazar.

20. It is the other contention that there is no compliance

of Sections 53 and 54 of the Act and the Apex Court also, in the

judgment referred (supra) has held with regard to 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.

21. In the instant case, the Excise Inspector, who had

searched the house of the petitioner has not recorded the

ground on the basis of which he has arrived at a conclusion that

an offence of the Act was committed, before proceeding to

search the house. Hence, the judgment of the Apex Court aptly

applies to the case on hand and the judgment of the Trial Court

as well as the Appellate Court are not sustainable in the eye of

law.

Point No.(ii)

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

following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned judgment dated 28.02.2013 passed by the Presiding Officer, Fast Track Court-III Shivamogga, in Criminal Appeal No.12/2012 and the judgment dated 28.12.2011 passed by the Civil Judge and

JMFC, Soraba in C.C.No.242/2010 are hereby set aside.

(iii) If the petitioner has deposited any fine amount in respect of the offence under Section 32(1) of the Act, the same shall be refunded to him on proper identification.

Sd/-

JUDGE

ST