Karnataka High Court

Manjappa vs State Of Karnataka on 16 August, 2023

Bench: Rajendra Badamikar

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF AUGUST, 2023

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

     CRIMINAL REVISION PETITION NO.101 OF 2013

BETWEEN:

1.     MANJAPPA S/O NAGAPPA,
       AGED 37 YEARS,
       R/O HANCHINASIDDAPURA VILLAGE,
       BHADRAVATI TALUK,
       SHIMOGA DISTRICT-577 301.

2.     K.R. KUMAR S/O RAMAPPA,
       AGED 34 YEARS,
       R/O DEVARAHALLI VILLAGE,
       CHANNAGIRI TALUK,
       SHIMOGA DISTRICT-577 213.
                                        ....PETITIONERS
(BY SRI. CHETAN NAG .S, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY SUB-INSPECTOR OF POLICE,
RURAL POLICE STATION, BHADRAVATI.
                                        ...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W 401 OF CR.P.C. PRAYING TO SET ASIDE
THE ORDER DATED 10.01.2013 PASSED BY THE P.O., F.T.C.,
BHADRAVATHI IN CRL.A.NO.128/2012 AT ANNEXURE-A AND
ORDER DATED 15.06.2012 PASSED BY THE III ADDL. C.J. &
J.M.F.C., BHADRAVATHI IN C.C.NO.2981/2010 AT ANNEXURE-
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B AND ACQUIT THE PETITIONERS OF THE OFFENCES
CHARGED AGAINST THEM U/Ss 32 AND 34 OF THE
KARNATAKA EXCISE ACT.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 03.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

This revision is filed under Section 397(1) r/w 401

of Cr.P.C., challenging the judgment of conviction passed

by the III Additional Civil Judge and JMFC, Bhadravathi in

CC.No.2981/2010 dated 15.06.2012 whereby the learned

Magistrate has convicted the accused for the offences

punishable under Sections 32 & 34 of Karnataka Excise

Act, 1965 (for short 'KE Act') and confirmed by Fast Track

Court, Bhadravathi in Crl.A.No.128/2012 dated

10.01.2013.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that on 19.06.2006, at about 3.00 p.m., the complainant

H.R. Govindappa PSI and CW4 Basavarajappa as well as

CW5 had been to Kudligere village on patrolling duty.

When they reached Kudligere bus stop, they found the

accused standing there and seeing the Police Officers,

they tried to ran away and on suspicion, they were

apprehended by the police officers. They noticed that

near the place where accused stood, a gunny bag was

there and on verification, it was found containing 300

arrack sachets of 100 ml each concealed in a fertilizer

bag. The accused were not possessing any license to sell

the arrack and they disclosed that they obtained arrack

sachets from Chitradurga in a Tata sumo bearing

No.KA 19 M 9947. The complainant conducted the

recovery mahazar and then arrested accused after

seizure of the material objects. Thereafter, he took the

accused to the police station and lodged the FIR on his

own report. He has also recorded statements of some of

the witnesses, including the mahazar and staff and later

on the charge sheet is being submitted by CW8.

4. On the basis of submission of the charge

sheet, the learned Magistrate has taken cognizance. The

accused initially remanded to judicial custody and

subsequently, they were enlarged on bail. The

prosecution papers were also furnished to them. The

charge under Sections 32 & 34 of the KE Act is framed

against them and same is read over and explained to

them. The accused have pleaded not guilty and claimed

to be tried.

5. To prove the guilt of the accused, prosecution

has examined in all three witnesses and also placed

reliance on four documents marked at Exs.P1 to P4.

MO.1 is the seized sample of 5 arrack sachets sent to the

FSL. After hearing the arguments and after appreciating

the oral and documentary evidence, the learned

Magistrate has convicted the accused by imposing

rigorous imprisonment for a period of one year with a fine

of Rs.10,000/- with a default clause for both the offences.

6. Being aggrieved by this judgment of conviction

and order of sentence, the accused have approached the

Fast Track Court, Bhadravathi, in Crl.A.No.128/2012. The

learned Sessions Judge, after re-appreciating the oral and

documentary evidence, dismissed the appeal by

confirming the judgment of conviction and order of

sentence passed by trial Court. Against these concurrent

findings, this revision is filed.

7. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned HCGP for

the State. Perused the records.

8. The learned counsel for the revision petitioner

contended that as per the case of the prosecution, 300

liquors sachets were concealed in a gunny bag. But

complaint was lodged by the same person i.e., the

Investigation Officer and PW3, who had submitted the

charge sheet has not done any investigation and entire

investigation is done by complainant himself, which

caused prejudice to the accused. He would also contend

that the mahazar witnesses were not examined to prove

the mahazar and the property was not found in the

custody of the accused. But it is alleged that it was lying

near the place where the accused were standing. He

would also contend that the Investigation Officer has not

chargesheeted accused Nos.3 & 4 on the ground of no

evidence and their addresses cannot be traced. But

interestingly, accused No.4 himself has filed the bail

petition and obtained bail which was ignored by the

investigating agency. He would also contend that the

vehicle number is also disclosed as per the case of the

prosecution by the accused. But no attempts were made

to secure the details of the vehicle from the competent

authority, which clearly disclosed that the investigation

was not in accordance with law.

9. Learned counsel for the revision petitioner

further contends that the author of Ex.P4-FSL report is

not examined, which is fatal to the case of the

prosecution. He would further assert that in Mahazar-

Ex.P2, there is reference that seized articles were sealed

by putting seal 'ML'. But the FSL report Ex.P4 discloses

that the properties were sealed with the letter 'M'. Hence,

it is evident that the properties seized were not sent to

FSL and hence, the prosecution has failed to substantiate

the contention. He would contend that both the Courts

below have failed to appreciate this aspect and hence, he

would seek for interference of this Court by allowing the

revision.

10. Per contra, the learned HCGP would support

the judgment of conviction and order of sentence. It is

contended that marking may be different, but both the

Courts have appreciated the evidence in proper

perspective and 313 statement is formal denial and there

is no rule that the evidence of investigating agency is to

be discarded. Hence, he would contend that no illegality

is found with the judgment of conviction and order of

sentence and hence, he would seek for interference by

this Court.

11. Having heard the arguments and having

perused the records, now the following point would arise

for my consideration:

"Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?"

12. As per the case of the prosecution, the

accused have committed offences under Sections 32 & 34

of the KE Act. It is the assertion of the complainant that

he is working as ASI. On 09.06.2006, at 3.00 p.m., he

was on patrolling duty along with CWs.4 & 5 and in

Kudligere bus station, they found two persons in a

suspicious manner and when they tried to ran away, they

apprehended them. There was a gunny bag near the

place where they were standing and it was containing

300 sachets of 100 ml liquor which were seized by him by

drawing the mahazar. He further deposed that he seized

the property and has taken 5 sachets as sample and

sealed them with 'ML' mark and then lodged a complaint

by himself and issued FIR. He further deposed that on the

same day he arrested the accused and also recorded the

statement of CWs.2, 3, 4 & 5 and then sent the seized

articles for FSL. He further deposed that on 30.09.2006,

he received the FSL report and then handed over the

investigation to PW3 i.e., CW8. On the contrary, PW8,

simply deposed that he submitted the charge sheet.

Hence, it is evident that the entire investigation is done

by PW1 complainant itself.

13. It is the specific assertion by PW1 that the

gunny bag was near the place where the accused were

standing. He claims that adjoining the bus stand there

are number of commercial establishments, but he asserts

that since the persons were not willing to act as panchas,

they were not secured as panchas. The said fact is not

mentioned in the mahazar. PW1 is the complainant as

well as Investigating Officer and he has done the entire

major investigation.

14. PW2 is the constable who accompanied the

complainant and he has also deposed as per the say of

the complainant, but he claims that accused were holding

the gunny bag and seeing the police, they threw the

gunny bag and attempted to ran away. This statement is

completely contrary and inconsistent to evidence of PW1.

PW1 claims that the gunny bag was lying in the bus stand

near the place where the accused were standing, but PW2

claims that it was in the hands of accused. These two

stands are inconsistent and contrary.

15. Further, as per the case of the complainant, no

other persons were found in the bus stand except the

accused, but PW2 claims that there were many other

persons in the bus stand. If this version is taken into

consideration, it is hard to accept that gunny bag lying in

the bus stand was belonging to the accused. To clarify

this doubt, the prosecution has not examined the

mahazar witnesses. It is asserted that one mahazar

witness is dead and his death extract is said to have been

produced. But nothing prevented the prosecution from

examining the other mahazar witnesses and no such

attempt has been made.

16. Further, the mahazar is marked at Ex.P2 and it

clearly discloses that the five sample sachets taken

separately were sealed with seal having the English word

'ML'. The said fact is again reiterated by the complainant

i.e., PW1. Ex.P4 is the FSL report. Though the learned

counsel for the accused disputes the admissibility of this

document, the said arguments hold no water. This

document is not challenged by the accused during the

course of the evidence and hence, it is admissible in

evidence. In this regard, the learned counsel for the

revision petitioner has placed reliance on a decision

reported in 2020 SCC OnLine KAR 5221. But the facts

and circumstances of the said case are entirely different

and in the said case, the contents of the documents i.e.,

experts report came to be disputed and hence, it is held

that examination of the author of the document is

essential and provisions of Sections 293 & 294 Cr.P.C., do

not assist the prosecution. But in the instant case, the

contents of Ex.P4 are not denied and hence, the said

principles cannot be made applicable to the facts and

circumstances of the case.

17. However, on perusal of Ex.P4, the description

on the parcel received, it is specifically noticed that one

sealed white cloth packet containing the seal impression

'M' in red wax and was said to have contained five

sachets is received. If Ex.P4 is perused, it is evident that

the sealed packet was containing sealed impression 'M'.

But Mahazar Ex.P2 and the evidence of PW1 disclose that

the sample packet was sealed with seal impression 'ML'.

In that view of the matter, it is evident that the property

which is sealed was not sent to the FSL and hence, the

FSL report does not assist the prosecution in any way.

When Ex.P4 is not helpful to the prosecution and when

the prosecution fails to prove that the arrack sachets

were seized, the question of convicting the accused does

not arise at all.

18. The learned counsel for the revision petitioner

further asserts that the entire investigation is done by the

complainant himself and no independent witnesses were

also examined and only the official witnesses were

examined. He contended that the complainant has acted

in the dual role of complainant and Investigation Officer

which is fatal to the prosecution and in support of his

case, he placed reliance on a decision reported in KCCR -

2004-2-920. No doubt, there is no specific bar under the

law that Investigating Officer need not act as

complainant, but it depends on circumstances and if

prejudice is not caused to the accused, such conduct of

the Investigating Officer is not fatal. In the instant case,

the entire investigation is done by the complainant and

the conduct of the Investigating Officer-PW1 creates

suspicion as the seized article was having sealed

impression 'ML', but the property sent by him to the FSL

was with sealed impression 'M'. Hence, the conduct of the

Investigating Officer itself has caused lot of prejudice to

the accused in view of the divergent contentions raised

by the prosecution. As such, the non examination of

independent witnesses is fatal to prosecution.

19. Further, the investigation is not done in a

proper way. All along, it is asserted by the prosecution

that there is no material evidence and proper identity of

accused Nos.3 & 4 is established. But admittedly, accused

No.4 was enlarged on bail by the Court and hence,

contention of the Investigating Officer in this regard

cannot be accepted. Further, the vehicle number was also

specifically said to have been disclosed and nothing

prevented the Investigating Officer from getting 'D'

extract of the vehicle to ascertain the real culprits, but

that was also not done. The entire approach of the

Investigating Officer has prejudiced the accused which

has resulted in erroneous findings. Both the Courts below

have failed to look into the matter and in a mechanical

way only by relying on the evidence of PW1 and PW2,

proceeded to convict the accused, ignoring that the

complainant himself is a Investigating Officer and further,

the independent witnesses were not examined and the

property seized and property sent to FSL did not tally

with each other. Hence, it is evident that the prosecution

has failed to bring home the guilt of the accused beyond

all reasonable doubt.

20. Looking to these facts and circumstances, it is

evident that entire approach of both the Courts below is

perverse and arbitrary which has resulted in miscarriage

of justice. Hence, judgment of conviction and order of

sentence passed by the trial Court and confirmed by the

appellate Court calls for interference. As such, point

under consideration is answered in the affirmative.

Hence, the revision petition needs to be allowed and

accordingly I proceed to pass the following:

ORDER

1) The revision petition is allowed.

2) The judgment of conviction and order of sentence passed by the III Additional Civil Judge and JMFC, Bhadravathi in CC.No.2981/2010 dated 15.06.2012 and confirmed by Fast Track Court, Bhadravathi in Crl.A.No.128/2012 dated 10.01.2013 are set aside.