Karnataka High Court
Hanumant S/O Ratan Naik vs The State Of Karnataka on 21 December, 2023
-1-
NC: 2023:KHC-D:14995
CRL.RP No. 100139 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100139 OF 2019 (397)
BETWEEN:
HANUMANT S/O. RATANA NAIK,
AGED 34 YEARS, RYOT,
R/OL: SHIRALAGI, TQ: SIDDAPUR,
UTTAR KANNADA DISTRICT.
...PETITIONER
(BY SRI. S.P. KANDAGAL, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH DHARWAD,
THROUGH PSI, SP. P S, EXCISE
AND LOTTERY PROHIBITION, SISRI DIVISION SIRSI.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
SAMREEN THIS CRIMINAL REVISION PETITION IS FILED UNDER
AYUB
DESHNUR SECTION 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE,
Digitally signed 1973, PRAYING THAT, CALL FOR THE RECORDS PERTAINING TO
by SAMREEN
AYUB DESHNUR CRIMINAL APPEAL NO. 70/2012 ON THE FILE OF THE COURT OF I
Date: 2023.12.22
11:13:19 +0530 ADDL. DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT
SIRSI, AND EXAMINE THE LEGALITY, CORRECTNESS AND PROPRIETY
OF THE FINDING, SENTENCE AND ORDER RECORDED IN THE
PROCEEDINGS IN THE ABOVE APPEAL AND PASS AN ORDER SETTING
ASIDE THE ORDER CONVICTING THE PETITIONER OF THE OFFENCES
UNDER SECTION 32 AND 34 OF THE KARNATAKA EXCISE ACT AND
-2-
NC: 2023:KHC-D:14995
CRL.RP No. 100139 of 2019
SEC 273 OF IPC AND QUASHING THE SENTENCE IMPOSED ON THE
PETITIONER FOR THE SAID OFFENCES.
THIS PETITION, COMING ON FOR HEARING ON 30.10.2023 AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
This revision petition is filed by the accused being
aggrieved by the judgment of his conviction and order of
sentence passed in C.C.No.474/2010 dated 13.04.2012 by
the Judicial Magistrate First Class, Siddapur (for short 'the
Trial Court) and affirmed by the I Additional District and
Sessions Judge, U.K. Karwar sitting at Sirsi in Criminal
Appeal No.70/2012 dated 13.12.2018.
2. Parties to this revision petition are referred to as
per the rank before the Trial Court for the purpose of
convenience.
3. That complainant by name Uddappa B. Kattikar,
P.S.I., at the relevant time submitted a complaint based
upon the seizure panchanama at Ex.P.1 alleging that on
05.07.2010 at about 5.20 p.m., on receipt of credible
NC: 2023:KHC-D:14995
information regarding storage and transportation of illicit
liquor near Gadageri tank of Shiralagi village of Siddapur
taluka, himself and his police estaff and two panchas went
to the said place in a departmental jeep bearing registration
No.KA-30/G-367 at about 6.30 p.m. They went to the said
place and parked their jeep at a distance by screening the
same. By walk they started moving towards the pond. At
that point of time one person by holding a can in his hand
was found moving towards the pond. He was identified as
Hanamant S/o. Ratana Naik. At about 6.45 p.m., they went
to catch hold him. On seeing the police, he threw away the
said can and ran away from the said place. His police
constables i.e., P.C. Nos.639 and 687 chased him but they
could not catch hold him.
4. On opening the cap of the said can in the
presence of panchas and smelled it, it was noticed that the
said can was containing illicit liquor being stored in the can
measuring 4 litres and it was worth Rs.800/-. For the
purpose of sample, one bottle illicit liquor was taken for the
purpose of chemical examination and said can was sealed.
NC: 2023:KHC-D:14995
Thus it is alleged that, the said accused i.e., the revision
petitioner was found transporting the said illicit liquor and
thereby committed offences punishable under Sections 32
and 34 of the Karnataka Excise Act, 1965 (for short 'the
K.E. Act'). With these allegations he lodged the complaint
as per Ex.P.2 which was registered in Crime No.28/2010 of
Sirsi Police Station and criminal law was set in motion.
5. During the course of investigation accused was
arrested and was enlarged on bail. The Investigating
Officer after completion of the investigation filed the charge
sheet against the accused for the aforesaid offences.
6. Before the learned Trial Court to bring home the
guilt of the accused, prosecution in all examined seven
witnesses in the shape of PW.1 to PW.7, got marked the
documents at Ex.P.1 to 4 and also the article seized
marked at M.O. No.1 and closed the prosecution evidence.
7. On hearing the arguments of both sides and on
assessment of the evidence, the Trial Court found the
accused guilty of committing the aforesaid offence and
imposed the sentence by directing the accused to undergo
NC: 2023:KHC-D:14995
rigorous imprisonment for a period of one year and pay fine
of Rs.10,000/- with default sentence for both the offences
each.
8. This judgment of conviction and order of
sentence was challenged by the accused by preferring an
appeal before the first appellate Court in Criminal Appeal
No.70/2012. The learned first appellate Court on hearing
the arguments and on evaluation of evidence, confirmed
the judgment of conviction, whereas reduced the sentence
directing the accused to undergo rigorous imprisonment for
a period of six months for the offence punishable under
Section 32 of the K.E. Act and so also imposed the sentence
of three months for the offence punishable under Section 34
of the K.E. Act with a direction to run the sentences
concurrently.
9. It is the judgment of conviction and order of
sentence passed by the Trial Court as well as confirmed by
the first appellate Court is challenged by the revision
petitioner/accused by preferring this revision petition.
NC: 2023:KHC-D:14995
10. Learned counsel Shri. S.P. Kandagal for the
revision petitioner/accused in addition to narrating the
contents of the complaint and facts of the case submits
that, first of all the prosecution utterly failed to prove the
offences alleged against the accused under Sections 32 and
34 of the K.E. Act and Section 273 of the Indian Penal
Code, 1860 (for short 'the IPC'). The offence under Section
273 of IPC is liable to be set aside. There is no violation of
Sections 32 and 34 of the K.E. Act by the accused. The law
mandated that the possession of such illicit liquors must be
known to the accused and it must be proved by the
prosecution that it was accused who manufactured the said
illicit liquor. There are discrepancies and contradictions in
the oral evidence adduced by the prosecutions. Relying
upon various evidence placed on record by the prosecution,
it is prayed by the counsel for the accused/revision
petitioner to allow the revision petition and set aside the
order of conviction of sentence passed against the accused.
11. As against this submission, the Additional State
Public Prosecutor Shri. M. B. Gundawade, submits that, the
NC: 2023:KHC-D:14995
evidence adduced by the prosecution clinchingly establishes
about transportation of illicit liquor by the accused. As he
was found in possession of the said illicit liquor, there is no
explanation. On seeing the police van he ran away from
the said place by throwing the said can containing the illicit
liquor. On examination of said can by opening the cap it
was noticed by the complainant that, it contained the illicit
liquor. The said can was opened in the presence of panchas.
They have also supported the case of the prosecution.
Therefore, according to his submission, on cumulative
reading of the evidence of the panchas and also the police
officials who conducted the raid on the accused do establish
that accused has committed the offence in the manner
alleged in the complaint. He too in support of his
submission relied upon the evidence led by the prosecution.
12. I have given my anxious consideration to the
arguments of both sides. Perused the records.
13. The points that would arise for my consideration
as are under:
NC: 2023:KHC-D:14995
i) Whether the learned Trial Court and the
first appellate Court have committed illegality or
perversity in finding the accused guilty of
commission of offences under Section 32 and 34
of K.E. Act?
ii) If so, whether judgment of conviction and
order of sentence passed the by the Trial Court
and affirmed by the first appellate Court required
interference by this Court?
14. It is the case of the prosecution that this accused
was found in possession of illicit liquor and was found
transporting the same. As per the provisions of Sections 32
and 34 of the K.E. Act, "whoever, in contravention of this
Act, or any rule, notification or order, made, issued or given
thereunder, or of any license or permit granted under this
Act imports, exports, transports, manufactures, collects or
possesses any intoxicant, on conviction he shall be
punished for a rigorous imprisonment for a term which may
extend to five years and fine which may extend to fifty
thousand rupees."
NC: 2023:KHC-D:14995
15. So also Section 34 of the K.E. Act speaks for
penalty for illegal possession. This Section says that,
"whoever, without lawful authority has in his possession any
quantity of any intoxicant knowing the same to have been
unlawfully imported, transported, manufacture, cultivated
or collected, or knowing the prescribed duty not to have
been paid thereon shall on conviction, be punished with
imprisonment for a term which may extend to four years
and fine which may extend to fifty thousand rupees."
16. Before proving the said offence, it is the bounded
duty of the prosecution to prove the ingredients of these
offences. When the accused is charged of the offences
under Section 32 and 34 of K.E.Act, the links with regard to
the commission of the offence have to be proved in
accordance with law.
17. So far as documentary evidence relied upon by
the prosecution are, Ex.P.1 is the panchanama prepared by
the complainant on 05.07.2010. It is stated in the
complaint that, on receipt of credible information the
complainant - PSI on 05.07.2010 along with his police
- 10 -
NC: 2023:KHC-D:14995
official and panchas went to Gadigeri village in a
departmental jeep and parked the jeep screening itself. At
about 6.45 p.m., they noticed that one person i.e., accused
was found carrying a can. On seeing the police he ran away
by throwing the said can. On examining the said can, it was
containing the illicit liquor. The said persons was identified
as Hanumant Ratana Naik, resident of Shiralagi. That
means the complainant and his police officials are knowing
this accused by name. The said can was containing 4 litres
of illicit liquor worth Rs.800/-. In the presence of panchas
he prepared the panchanama as per Ex.P.1. Sealed the can
and took one bottle of illicit liquor for the purpose of
chemical examination. Lodged the complaint by sending
the FIR as per Ex.P.2. Ex.P.4 is the chemical examiner
report wherein the said illicit liquor was containing 22% of
alcohol with sediment.
18. To prove the criminal activity of the accused that
he was transporting the illicit liquor, prosecution relies upon
the evidence of Parashuram Ananth Madagaonkar a pancha.
According to his evidence he accompanied with the police to
- 11 -
NC: 2023:KHC-D:14995
Gadigeri pond on 05.07.2010 in the evening hours and they
noticed the accused herein moving with a can. On seeing
the police he ran away from the spot by throwing away the
said can. He states that on examination of said can it was
containing illicit liquor. In his presence the panchanama
was prepared and sample bottle was taken for the purpose
of chemical examination. Though this PW.1 is directed with
severe cross examination but, nothing worth is elicited. As
per his evidence towards the eastern side accused was
found running on the road by throwing can. He is
consistent about preparation of panchanama in his presence
and putting his signature on Ex.P.1. He identified M.O.
No.1 being the sample bottle containing illicit liquor. He
cannot say the names of the police who traced the accused.
According to him when he was getting down from the jeep,
he has seen the said accused. No doubt there is some
contradiction with regard to taking of the sample from the
said can, but this will not go to the root of the case. He is
an independent pancha who has seen and taking of sample
as per M.O.No.1.
- 12 -
NC: 2023:KHC-D:14995
19. PW.2-Sahadev Shivaji Yammoji, PW.3- Prashanth
P. Pawaskar, PW.4-Uddappa B. Kattikar and PW.5-Narayan
S. Gouda are the police officials who accompanied with the
complainant and all together went to Gadigeri and found
the accused moving with a can.
20. On reading the evidence of all these witnesses,
they are corroborates in nature. So to say though these
witnesses have been thoroughly cross examined by the
defence but nothing worth is elicited from their mouth so as
to disbelieve their examination in chief. Evidence of these
police officials corroborates with the evidence of PW.1.
21. PW.6-Manjuanth S. Patagar is the person carried
sample bottle for the purpose of chemical examination.
22. PW.7-Ganesh P. Hegde is Head Constable who
has filed the charge sheet against the accused.
23. Thus, on reading the entire evidence of
prosecution witnesses coupled with the M.O. so collected at
the time of seizure, they do establish that accused was
found transporting illicit liquor and on seeing the police he
ran away.
- 13 -
NC: 2023:KHC-D:14995
24. When the accused was found transporting illicit
liquor without any license as mandated under Sections 32
of the K.E. Act, then it attracts violation of Sections 32 and
34 of K.E. Act. Both these Sections are penal Sections
under the provisions of K.E. Act. When the accused is not
possessing any license to sell the said illicit liquor, the
question of presumption as defined under Section 40 of the
K.E. Act, comes into operation. So to say, under Section 40
of the K.E. Act, the prosecution under Sections 32 and 34 of
the K.E. Act, it shall be presumed, until the contrary is
proved, that the accused person has committed the offence
punishable under that Section in respect of any intoxicant,
utensils or witness in the manufacture of an intoxicant or
from which any material which have manufacture.
25. There is no rebuttal evidence adduced by the
defence so as to presume that he was innocent. The cross
examination directed to prosecution witness is not worth
reading, so as to disbelieve the evidence of these witnesses
so examined by the prosecution. So therefore, if all these
factual features are put together, I do not find any factual
- 14 -
NC: 2023:KHC-D:14995
or legal error being committed by the Trial Court in finding
the accused guilty for the aforesaid offences.
26. The Trail Court has convicted the accused
rigorously and the first appellate Court has rightly
considered that the punishment so imposed by the Trial
Court is very harsh in nature and reduced the sentence.
27. As the offence has taken place in the year 2010
and now we are in 2023. There are no mitigating
circumstances to show any leniency in view of the
punishment prescribed for aforesaid offence. Therefore, the
revision partition so filed by the petitioner fails and is liable
to be dismissed.
28. The judgment of conviction and order of
sentence passed by the Trial Court and confirmed by the
first appellate Court with modification of sentence, require
no interference by this Court.
29. Therefore, the aforesaid points are answered in
negative.
- 15 -
NC: 2023:KHC-D:14995
30. Resultantly, I pass the following:
ORDER
i) Revision petition is dismissed.
ii) The judgment of conviction and order
of sentence passed by the Trial Court in C.C.No.
474/2010 dated 13.04.2012 and confirmed by the
first appellate Court in Criminal Appeal
No.70/2012 dated 13.12.2018 are confirmed.
iii) The order of sentence so passed by the
first appellate Court is undisturbed.
iv) The accused is directed to surrender
before the Trial Court within 15 days from today.
v) The Trial Court is directed to secure the
presence of the accused.
vi) Send the copy of order portion of this
judgment to the Trial Court as well as first
appellate Court through mail forthwith.
vii) Send back the Trial Court and first
appellate Court records along with copy of the
judgment forthwith.
Sd/-
JUDGE
