Smt.Muddibai vs State Of Karnataka By Excise ...
2023 Latest Caselaw 6091 Kant

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                                                       NC: 2023:KHC:30982
                                                  CRL.RP No. 555 of 2015




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 30TH DAY OF AUGUST, 2023
                                        BEFORE
                   THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                    CRIMINAL REVISION PETITION NO. 555 OF 2015


                BETWEEN:

                SMT. MUDDIBAI,
                W/O BASAVARAJ NAIK,
                AGED ABOUT 45 YEARS,
                OCC: COOLIE,
                R/O HANUMANAHALLI VILLAGE,
                DAVANAGERE TALUK DISTRICT - 577 002.
                                                            ...PETITIONER
                (BY SRI. N. RAMAKRISHNA, ADVOCATE FOR
                    SRI. M. R. HIREMATHAD, ADVOCATE)

                AND:

                STATE OF KARNATAKA BY EXCISE POLICE,
                REP. BY STATE PUBLIC PROSECUTOR,
                HIGH COURT BUILDINGS,
Digitally       BANGALORE.
signed by
                                                           ...RESPONDENT
RENUKAMBA
KG              (BY SRI. JAIRAM SIDDI, HCGP)
Location:              THIS CRIMINAL REVISION PETITION IS FILED UNDER
High Court of   SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
Karnataka
                JUDGMENT AND ORDER PASSED IN CRL.A.NO.113/2013 ON
                THE FILE OF THE 2ND ADDL.DIST. & SESSIONS JUDGE,
                DAVANAGERE      DATED:5.5.2015   BY    DISMISSING    THE
                JUDGMENT AND ORDER IN C.C.NO.91/2011, JMFC-II COURT,
                DAVANAGERE DATED:8.10.2013.
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                                                   NC: 2023:KHC:30982
                                              CRL.RP No. 555 of 2015




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

This revision petition is filed by the accused challenging the

judgement of conviction and order of sentence passed in

C.C.No.91/2011 on the file of the II Judicial Magistrate First

Class, Davanagere and confirmed by the II Additional Sessions

Judge, Davanagere in Criminal Appeal No.113/2013.

2. For the sake of convenience, the parties herein are

referred to their original rankings occupied by them before the

Trial Court.

3. As per case of the prosecution, on 26.10.2010 at

about 3.30pm., the Davanagere Excise Inspector, Range-II had

came over to Hanumanhalli, Ichaghatta Road near railway

track. At that time, he found accused was possessing and

transporting 05 liters of illicit Liquor in a plastic can and then he

arrested the accused and seized the property by drawing a

mahajar. Then the Inspector along with accused and seized

property went to the Excise Office and lodged a First

Information Report. Later on, he sent the sample of the seized

property to the F.S.L to ascertain that the seized property

NC: 2023:KHC:30982 CRL.RP No. 555 of 2015

contains prohibited material and after receipt of the report, he

filed a charge sheet.

4. The accused was initially arrested but later on he

was enlarged on bail. The learned Magistrate has taken

cognizance and prosecution papers were furnished to the

accused. The accusation came to be denied by the accused.

The prosecution has examined in all three witnesses as PW-1 to

PW-3 and placed reliance on three documents and one material

object. After conclusion of the evidence of the prosecution the

statement of accused under Section 313 CR.P.C was recorded

to enable the accused to explain incriminating evidence

appearing against him in the case of the prosecution. The case

of the accused is total denial. However, accused did not choose

to lead any oral or documentary in support of his defence.

5. Having heard the arguments and after appreciating

the oral and documentary evidence, the learned Magistrate by

exercising the powers under Section 248(2) of Cr.P.C has

convicted the accused for the offences punishable under

Section 32(1) of Karnataka Exercise Act, 1965 and Section 273

of I.P.C and sentenced her to undergo rigorous imprisonment

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for one year and imposed fine amount of Rs.10,000/-with

default clause.

6. Being aggrieved by this judgment of conviction and

order of sentence, the accused approached the learned II

Additional Sessions Judge, Davanagere in Criminal Appeal

No.113/2013. The learned Sessions Judge after re-

appreciating the oral and documentary evidence by judgment

dated 05.05.2013, dismissed the appeal and confirmed the

judgment of conviction order of sentence passed by the learned

II Judicial Magistrate First Class, Davanagere. Being aggrieved

by these concurrent findings, the accused before this Court.

7. Heard arguments of learned counsel for the revision

petitioner and learned High Court Government Pleader for the

respondent and perused the records.

8. Learned counsel for the revision petitioner would

contend that the mandatory provisions of Section 54 of the

Karnataka Exercise Act, 1965 were not followed by the

Investigating Agency and before registration of the F.I.R. a raid

was conducted and thereby the entire proceedings are vitiated.

He would also contend that only official witnesses have been

examined and alleged seized property were said to have been

NC: 2023:KHC:30982 CRL.RP No. 555 of 2015

sent to F.S.L. after more than one month and this delay is not

explained. Hence, he would contend that, there are material

latches in the investigation and both the Courts have to failed

to appreciate any of these aspects. Hence, she seeks for

indulgence of this Court by allowing the revision petition and

setting aside the judgment of conviction and order sentence

passed by the both Courts.

9. Per contra, learned High Court Government Pleader

supporting the judgment of conviction and order sentence

passed by the both Courts, would contend that both the Courts

have rightly appreciated the evidence of the prosecution

witnesses and there is no reason for disbelieving their

statement and hence, both Courts were justified in convicting

the accused and imposing minimum sentence prescribed under

statute. Hence, he would seek for rejection of the revision

petition.

10. Having heard the arguments and perusing the

records, the following point would arise for my consideration:

a) Whether judgment of conviction and order of sentence

passed by the trial Court and confirmed by the

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Appellate Court are perverse, arbitrary and erroneous

so as to call for interference by this Court?

11. Accused has been prosecuted for the offences

punishable under Sections 11, 14 and 32(1) of Karnataka

Exercise Act and Section 273 of I.P.C. The allegations of the

prosecution discloses that on 26.10.2009, when complainant

was in the office, he received an credible information that the

illegal illicit liquor being transported in Hanumnhalli and

immediately, he secured the staff and two panchas and

proceeded for raid and when the they were waiting near

ichghatta road, they apprehended accused, who was coming

there by holding a plastic can and it was found to contain illicit

liquor and 180m.l was taken as sample. It is further alleged

that from 3.30 to 4.30pm., mahajar was drawn as per EX.P1

and returned to the police station, where in he lodged F.I.R as

per EX.P2. Then he further alleged that on 14.12.2010 he sent

the sample for F.S.L examination and on 16.12.2010 he

received the report.

12. The allegations of the complaint disclose that when

the complainant was in his office, he received a credible

information regarding transportation of illicit liquor in

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Hanumanhalli village. His allegation further discloses that he

secured panchas as well as staff and proceeded for raid. He did

not comply with the mandatory provisions under Section 54 of

the Karnataka Exercise Act before proceeding for raid regarding

urgency. He did not record any reasons.

13. Even otherwise after having received a credible

information, he did not register any F.I.R nor recorded in case

diary. He directly went for raid and said to have apprehended

the accused. Hence, it is evident that after drawing the mahajar

he lodged an F.I.R and hence, it is completely against Section

154 of Cr.P.C as the investigation commenced before

registration of the case for a cognizable offence.

14. PW-1 and 3 claim to be seizer mahajar witnesses.

But their evidence discloses that accompanied the complainant,

as they were summoned by the Exercise Officer and from office

they have proceeded for raid. No doubt they have deposed

regarding recovery in their presence but their evidence is

silence regarding seizer of plastic can. The seized plastic can is

also not produced before the Court. On the contrary, both PW-1

and 3 have admitted that they are friends and they attended

number of raid cases along with Exercise Officials and they

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have deposed in number of matters on behalf of prosecution. It

clearly establishes that they are stock witnesses and hence,

their evidence cannot be accepted.

15. Apart from ttha, though the seizer was held on

26.10.2010 the property was sent to F.S.L on 14.12.2010.

There is delay of more than 45 days in sending the property to

the F.S.L and no explanation is offered for this delay. No

doubt, the report of the F.S.L produced at Ex.P3 is not seriously

challenged, but it discloses that the property sent was

containing ethyl alcohol and was not fit for human

consumption, but there is no evidence to show that the same

property itself was recovered from the custody of the accused.

The investigation officer has not even obtained signature of the

accused on the seizer mahajar and investigation was

commenced prior to the registration of F.I.R. Further PW-2

himself is the complainant and he himself has submitted that

the charge sheet and his conduct has prejudiced the accused.

Both the Courts below have failed to appreciate any of these

aspects and mandatory requirements of the law. Entire

approach of the both the Courts below is erroneous and

arbitrary which has resulted in miscarriage of justice. The

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judgement of both the Courts below suffer from perversity and

hence, calls for interference by this Court.

16. Considering these facts and circumstances, the

point for consideration is answered in the affirmative. As such

the revision petition needs to be allowed.

17. Accordingly, the revision petition is allowed and

judgement of conviction and order of sentence dated

08.10.2013 passed in C.C.No.91/2011 on the file of the II

Judicial Magistrate First Class, Davanagere and confirmed by

the II Additional District and Sessions Judge, Davanagere in

criminal appeal No.113/2013 are set aside.

18. The accused stands acquitted for the offence

alleged against her. The bail bonds executed by the accused

stand cancelled. The fine, if any paid, shall be refunded to the

accused.

Sd/-

JUDGE

DSP

CT:PH