Karnataka High Court

State By Udupi Police vs Smt.Mariyamma on 18 December, 2023

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                                                          NC: 2023:KHC:46029
                                                       CRL.A No. 113 of 2015




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 18TH DAY OF DECEMBER, 2023

                                              BEFORE
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 113 OF 2015
                   BETWEEN:

                   STATE BY UDUPI POLICE STATION,
                   UDUPI - 576101.
                                                                ...APPELLANT
                   (BY SRI.M.R.PATIL, HCGP)

                   AND:

                   SMT.MARIYAMMA,
                   AGED ABOUT 43 YEARS,
                   W/O R.RAMESH,
                   R/O 13/1, 4TH CROSS,
                   SOMESHWAR NAGAR,
                   YASHWANTHPUR,
                   BANGALORE - S
                   22.
                                                              ...RESPONDENT
                   (BY SRI. SHRIVATSA, ADVOCATE FOR
Digitally signed
by SANDHYA S
                       SRI. P.N.HEGDE, ADVOCATE)
Location: High
Court of
Karnataka               THIS CRL.A. FILED U/S 378(1) AND (3) CR.P.C PRAYING
                   TO GRANT LEAVE TO APPEAL AND SET ASIDE THE JUDGMENT
                   AND ORDER OF ACQUITTAL DATED 15.09.2014 PASSED BY
                   THE PRINCIPAL SESSIONS JUDGE, UDUPI DISTRICT AT UDUPI
                   IN CRL.A.NO.43/2010 FILED BY THE RESPONDENT HEREIN
                   SETING ASIDE THE JUDGMENT AND ORDER OF CONVICTION
                   AND SENTNECE DATED 29.07.2010 PASSED BY THE ADDL.
                   CIVIL JUDGE (Jr.Dn.) & JMFC, UGUPI, IN C.C.NO.4496/2004,
                   THEREBY, ACQUITTING THE RESPONDENT/ACCUSED OF THE
                   OFFENCES PUNISHABLE UNDER SECTION 38A OF KARNATAKA
                   EXCISE ACT AND ETC.
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                                           NC: 2023:KHC:46029
                                        CRL.A No. 113 of 2015




    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The State has preferred this appeal against the

judgment of acquittal passed by the Principal Sessions

Judge, Udupi District, Udupi, in Crl.A.No.43/2010 dated

15.09.2014.

2. The rank of the parties in this appeal are

referred in the same rank as referred by the trial Court.

3. Brief facts of the prosecution case are that:

The Sub-Inspector of Kaup Range had filed a charge

sheet against the respondent/accused No.2 for the

commission of offences punishable under Sections 32 and

34 r/w 38A of Karnataka Excise Act (for short 'the KE Act')

alleging that on 11.03.2003 at about 3.45 p.m., accused

No.1 being the driver of the lorry bearing registration

No.CTM-9232 found transporting 1472.400 liters of duty

not paid liquor illegally at NH 17, Yenagudde, Katpadi

Village, Udupi Taluk. Accused No.2 is the owner of the

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above said lorry. Thus, the accused has committed the

aforesaid offences.

4. Accused No.1 was absconded and hence, case

was split-up. After appearance of accused No.2, charges

were framed against her. Having understood the same,

accused No.2 pleaded not guilty and claimed to be tried.

5. To prove the case of prosecution, three

witnesses were examined as PWs.1 to 3, eight documents

were marked as Exs.P1 to P8 and 15 material objects were

identified as M.Os.1 to 15. On closure of prosecution side

evidence, statement of accused under Section 313 of

Cr.P.C. was recorded. Accused No.2 had totally denied the

evidence appeared against her, but did not choose to lead

any defence evidence on her behalf. On hearing the

arguments, the trial Court convicted the accused for the

commission of offence punishable under Section 38A of

the KE Act.

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6. Being aggrieved by this judgment of conviction,

accused No.2/respondent had preferred an appeal before

the Principal Sessions Judge, Udupi in Crl.A.No.43/2010.

The same was allowed and the accused was acquitted by

the Appellate Court. Being aggrieved by this impugned

judgment of acquittal, the State has preferred the present

appeal.

7. Learned High Court Government Pleader

Sri.M.R.Patil for appellant/State has submitted his

arguments that the impugned judgment of acquittal

passed by the learned Sessions Judge is contrary to the

law and facts of evidence on record. There is no reason

assigned and justified as the evidence could not be

believed to sustain the conviction while recording the

acquittal. Learned Sessions Judge has not properly

appreciated the evidence on record in accordance with law

and facts. On these grounds, he sought for allow this

appeal.

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8. Learned counsel for the respondent/accused

No.2 has submitted his arguments that the learned

Sessions Judge has properly appreciated the evidence on

record in accordance with law and facts and there are no

grounds to interfere with the impugned judgment of

acquittal passed by the learned Sessions Judge, Udupi and

sought for dismissal of this appeal.

9. Having heard the arguments on both sides and

on perusal of records, following points would arise for my

consideration:

1. Whether the State has made out a

ground to interfere with the impugned

judgments of acquittal?

2. What order?

10. My answer to the above points is as under:

     Point No.1 :          In the negative;

     Point No.2 :          As per final order.

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Regarding point No.1:

11. I have carefully examined the materials placed

before this Court. The respondent was accused No.2

before the trial Court. Case against accused No.2 came to

be split up. Accused No.2/respondent was convicted for

the offence punishable under Section 38A of the KE Act.

The case of the prosecution was that on 11.03.2003 at

about 3.45 p.m., accused No.1 being the driver of the

lorry bearing registration No.CTM-9232 found transporting

1472.400 liters of duty not paid liquor illegally at NH-17,

Yenagudde, Katpadi Village, Udupi Taluk. Accused No.2

who is the respondent herein being the owner of the above

said lorry knowingly permitted to transport the said liquor.

Thus, accused No.2 has committed the offence punishable

under Sections 32 and 34 r/w 38A of the KE Act.

12. A perusal of the judgment passed in

C.C.No.4496/2004, I have noticed that the trial Court has

not assigned any proper reason for conviction of accused

No.2 for the commission of the aforesaid offence.

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13. The Appellate Court has observed in paragraph

13 of its judgment, which reads as under:

"13. PW.1 Excise Inspector has deposed that on 11-03-2018 at about 3.30 pm. he and his staff were checking the vehicles and at that time one lorry came and they made signal to stop and he did not stop and moved further and they chased him and thereafter, after 90 meters the said driver stopped the lorry and the driver and another person jumped from the lorry and ran away in the lands and they tried to catch hold of them but could not secure them. He has further deposed that thereafter, when they made search in the lorry, they found some boxes and they contained Windsor Whisky and Koday Liquor and they secured PW.3 Sathish and another Halagappa and they were not having time to obtain search warrant and therefore, they prepared search memo and made search of the lorry and it was having No.CTM-9323 and in the cabin there was xerox copy of R.C. book and in that it was written CTM 9323 and the name of one R.Ramesh, S/o.Hanumanthappa, Ramahalli, Kengeri Hobali, Bangalore South and they seized liquor bottles which were in the lorry and prepared sample and prepared seizure mahazar Ex.P1. He has further deposed that thereafter, he prepared FIR which is at

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Ex.P2 and sample seal which is at Ex.P3 and the search memo which is at Ex.P4. He has further deposed that he has seen the driver who ran away and he could identify him. He has further deposed that the seized liquor bottles and lorry has been handed over to the Authorized Officer. The liquor bottles which were seized were marked at MOs.1 to

15. He has further deposed that accused No.1 was absconding and thereafter, he was arrested on 28- 03-2006 and thereafter, he has been released on bail. The only one question is asked in the cross- examination of PW.1 for which he has answered that there were 2 persons in the lorry and they were male. PW.1 has not stated anything regarding accused No.2. The accused No.2 is a lady."

14. On re-examination, reconsideration and re-

appreciation of the entire materials on record, I found no

illegality or infirmity in the impugned judgment of acquittal

passed by the Sessions Judge. Hence, I answer point No.1

in the negative.

15. For the aforesaid reasons and discussions, I

proceed to pass the following:

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ORDER

1. The appeal is dismissed;

2. The judgment of acquittal passed in

Crl.A.No.43/2010 dated 15.09.2014 on the

file of Principal Sessions Judge, Udupi

District, Udupi, is hereby confirmed;