Karnataka High Court
Smt. Parvathamma vs The State Of Karnataka on 4 December, 2023
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CRL.RP No. 297 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO. 297 OF 2017
BETWEEN:
SMT. PARVATHAMMA @ BETTADAMMA,
W/O LATE RAMEGOWDA,
AGED ABOUT 51 YEARS,
R/AT HETHURU VILLAGE,
SAKALESHPURA TALUK,
HASSAN DISTRICT - 571 334.
...PETITIONER
(BY SRI. PRATHEEP K.C, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY POLICE INSPECTOR,
SPECIAL POLICE STATION,
EXCISE ENFORCEMENT & LOTTERY
PROHIBITION WING, HASSAN DISTRICT,
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
Digitally signed
by CHAITHRA P HIGH COURT OF KARNATAKA,
Location: High BANGALORE - 01.
Court of
Karnataka ...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
401 OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT DATED 14.11.2016 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HASSAN IN
CRL.A.NO.109/2016 AND IN C.C.NO.419/2011 DATED
05.04.2016 PASSED BY CIVIL JUDGE AND JMFC AT
SAKALESHPURA AND ACQUIT THE PETITIONER FOR THE
OFFENCE PUNISHABLE UNDER SECTION 32(1) OF KARNATAKA
EXCISE ACT AND SECTIONS 272, 273 OF IPC.
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CRL.RP No. 297 of 2017
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Pratheep K.C., learned counsel for the
petitioner and Sri.Vinay Mahadevaiah, learned HCGP for
the respondent-State.
2. The petitioner, who is the sole accused, has
preferred this criminal revision petition under Section 397
read with 401 of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.' for short), challenging
the judgment of conviction and order of sentence passed
by the Civil Judge and JMFC, Sakaleshpura, Hassan
District, in C.C.No.419/2011 dated 05.04.2016 and the
judgment passed by the V Additional District and Sessions
Judge, Hassan District in Crl.A.No.109/2016 dated
14.11.2016, wherein both Courts passed concurrent
findings in respect of offence under Section 32 of the
Karnataka Excise Act, 1965 (hereinafter referred to as 'the
Act' for short) and Sections 272 and 273 of IPC.
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3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioner is the accused and the respondent-State is the
complainant before the trial Court.
4. It is the case of the prosecution that on
08.02.2011 at about 4.00 p.m. at Hethuru village, Olala
Dinne Road, PW-1 was on patrol duty and he received
credible information that the accused was in illegal
possession of intoxicant liquor and fermentation of jaggery
near her house. Therefore, he along with three panchas
and sub-staff came to the house of accused and conducted
a raid and seized 5 liters of intoxicant liquor and 300 liters
of fermentation of jaggery kept in 6 mud pots behind the
house of accused and conducted seizure panchanama as
per Ex.P1, which led to registration of FIR and
investigation.
5. Based on the complaint, a case was registered
and after investigation, the Investigation Officer filed the
charge sheet. After receipt of charge sheet, the learned
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Magistrate took cognizance under Section 109(1)(b) of
Cr.P.C. and trial Court framed charges for the aforesaid
offences against the accused and read over to accused.
She pleaded not guilty and claimed to be tried.
6. The prosecution in all examined 8 witnesses as
PWs.1 to 8 and got marked 9 documents as per Exs.P1 to
P9 and material object as per M.O.1. After completion of
the evidence, the statement of accused under Section 313
of Cr.P.C. was recorded, where she had denied all the
incriminating circumstances, but she did not enter the
witness box to lead defence evidence.
7. After hearing both sides, the learned trial Judge
convicted the accused for the offence punishable under
Section 32 of the Act and Sections 272 and 273 of IPC and
sentenced her to undergo rigorous imprisonment for a
period of one year and to pay fine of Rs.5,000/-, in default
of payment of fine, to undergo simple imprisonment for
three months for the offence punishable under Section 372
of the Act. So far as Sections 272 and 273 of IPC, the
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accused was liable to pay fine of Rs.2,000/- each and
sentenced her to undergo simple imprisonment of 60 days
each.
8. Being aggrieved by the same, the accused
preferred an appeal before the First Appellate Court and
the First Appellate Court confirmed the judgment of
conviction and order of sentence passed by the trial Court.
Aggrieved by the judgment of conviction and order of
sentence passed by the trial Court as well as First
Appellate Court, the accused has preferred this petition.
9. Learned counsel for the petitioner submits that
the prosecution has failed to prove its case beyond
reasonable doubt against the petitioner. In the instant
case, the independent pancha witnesses have turned
hostile to the case of the prosecution, the material object
seized on the day of alleged incident, has not been
produced before the Court and the seized intoxicant and
the contents of 6 mud pots were not sent to chemical
examination, the other local independent panch witnesses
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have not been cited as witnesses; the Investigating Officer
has not complied the requirement of Sections 53 and 54 of
the Act; though PW.1 received information of cognizance
offence, he did not enter the same in station house diary
and before conducting search, the Investigation Officer did
not obtain any search warrant from the Court or any
Competent Authority under the Act. Hence, the trial Court
as well as First Appellate Court have failed to appreciate
these factual and legal aspects of the matter and erred in
convicting the petitioner. Hence, he prays to allow the
petition.
10. Per contra, the learned High Court Government
Pleader for the respondent-State submits that the
judgment of conviction and order of sentence passed by
both the Courts are in accordance with law on the basis of
the materials available on record. Further, the official
witnesses have supported the case of the prosecution.
There is no animosity between the accused and the official
witnesses. Hence, based on the oral testimony of the
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official witnesses, conviction can be sustained. Hence, he
prays to dismiss the petition.
11. Having heard the arguments of learned counsel
for revision petitioner and learned High Court Government
Pleader for the respondent-State, the following points
would arise for consideration:
1. Whether the petitioner has made out
sufficient grounds to exercise power of
revision and call for interference by the
impugned order?
2. What order?
12. Point No.1: It is the case of prosecution that,
on 08.02.2011 at about 4.00 p.m. at Hethuru village, Olala
dinne road, accused was in illegal possession of 5 liters of
intoxicant liquor and 300 liters of fermentation of jaggery
kept in 6 mud pots behind her house, knowing fully that
the said intoxicant was adulterated and not fit for human
consumption. Therefore, PW.1 and his staff conducted the
ride and seized 5 liters of intoxicant liquor under damaged
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six mud pots kept behind the house of the accused,
conducted seizure panchanama and lodged the complaint.
13. On perusal of the materials available on record,
PW.1-Ganesh, an independent witness to the prosecution
case under seizure mahazar witness-Ex.P1, who turned
hostile to the case of the prosecution.
14. PW.2-Dinesh and PW.3-Kushala, who are also
independent witnesses under seizure mahazar witnesses-
Ex.P1, they too turned hostile to the case of the
prosecution and in the cross-examination, they have
completely denied the case of the prosecution. Therefore,
the evidence of independent witnesses does not come to
the help of prosecution.
15. PW.4 - Akashigowda, PW.5-Rangaswamy G.M.,
Head Constable, PW.6-Dharmappa H., Head Constable and
PW.7-Thopegowda K.H., Police Constable, who are all the
members of the riding party have deposed that on receipt
of information they visited the house of the accused and
conducted raid and seized 5 liters of intoxicant liquor and
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300 liters of fermentation of jaggery kept in 6 mud pots
behind the accused house and thereby conducted seizer
panchanama as per Ex.P1 and also seized 180 ml
intoxicant in a bottle as per M.O.1.
16. PW.8 is the Investigation Officer, who
registered the case and sent FIR to Jurisdictional Court
and his Higher Authority and filed charge sheet before the
Court.
17. Undisputedly, the search and seizure have been
carried out in an open place and the alleged intoxicants
were seized within a distance of 20 feet from the house of
the accused and not from the possession of the accused.
18. Section 53 of the Act provides for securing the
search warrant from the Jurisdictional Magistrate for the
purpose of holding search of any place, if the Competent
Authority has got reasons to believe that the intoxicant
articles are kept or concealed in the said place or for arrest
of any person whom he has reason to believe had
committed the offence mentioned in the said Section.
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19. Section 54 of the Act provides for power to
search without warrant.
20. From the reading of Section 54 of the Act, it is
clear that in the event, if the Competent Authority has
reason to believe that offence punishable under the said
Section is likely to be committed or is being committed
and that a search warrant cannot be obtained without
giving an opportunity to the offender to escape, he may
after recording the grounds for his belief, proceed to
search a place and also arrest the accused found in the
said place, who he has reason to believe to be guilty of
such offence as mentioned in such Section.
21. In the present case, admittedly, the
requirement of Section 53 of the Act has not been
complied with by PW-4 before carrying out search and
seizure in the intended place and arrest of the accused.
Ex.P.1-seizure panchanama is the document which is said
to be prepared by PW-4 in compliance of requirement of
Section 54 of the Act. But, during the course of cross-
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examination, PW-4 has not stated anything about
preparing Ex.P.1 prior to the conduct of search and seizure
of the accused and her belongings. Therefore, requirement
of compliance of Section 54 of the Act is not established by
the prosecution.
22. The compliance of Sections 53 and 54 of the Act
are mandatory in nature. The Hon'ble Supreme Court in
the case of K.L.SUBBAYYA v/s STATE OF KARNATAKA
reported in AIR 1979 SCC 711 has held that, compliance
of Sections 53 and 54 of the Act is mandatory and non-
compliance of the same would vitiate the conviction order
passed against the accused.
23. Undisputedly, none of the prosecution witnesses
have supported the case of prosecution and during the
course of search and seizure, the prosecution has not
complied with the statutory requirements of Sections 53
and 54 of the Act.
24. In a case where the statutory requirements
which is mandatory in nature, is not complied with by the
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prosecution and where the prosecution has failed to give
proper reasons for non-examination of independent
witnesses, it would be highly difficult to place reliance on
the prosecution witnesses, who are official witnesses for
convicting the accused.
25. Learned counsel for the petitioner contended
that though PW.1 received credible information as to
submission of cognizance offence, he failed to enter the
same in station house dairy. Therefore, it would amounts
to violation of the ratio as laid down in the case of
LALITHA KUMARI v/s STATE OF UP reported in 2014 (2)
SCC 1.
26. In this regard, learned counsel relied on the
decision in the case of PRADEEP MENDON AND OTHERS
v/s STATE OF KARNATAKA in Crl.P.No.5689/2018 dated
03.04.2019, wherein the Co-ordinate Bench of this Court
at paragraphs 6 and 7 held as under:-
"6. Having heard the learned Advocates
appearing for parties and on perusal of records it
would clearly disclose that FIR registered against
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petitioners was for the offences punishable under
Sections 120B, 399, 402 and 511 of IPC which are
cognizable offences, for which no preliminary
enquiry is required to be held. Thus, on receipt of
credible information the informant who is the police
inspector in the instant case, ought to have taken
steps immediately to register the FIR mandatorily as
prescribed under Section 154 Cr.P.C particularly
when the credible information disclosed cognizable
offence.
7. In fact Sri. Nishith Kumar Shetty, learned
Advocate appearing for petitioners is correct in
submitting that jurisdictional police had all time at
their disposal not only to receive credible
information but also had time to secure panchas by
issuing notices to them and yet they did not register
the FIR. In fact, entry found in the general diary
even according to the entries made in the FIR
discloses that it was around 7.15 a.m, on 16.2.2018
information had been received and incident is said
to have occurred at 3.30 p.m. Thus, the procedure
adopted by the jurisdictional police registering the
FIR in respect of cognizable offence without entering
the gist of the credible information in the General
Diary/Station House Diary, yet, proceeding to the
scene of occurrence and apprehending the alleged
accused is contrary to Section 154 Cr.P.C. Hence,
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procedure adopted by the respondent - police being
contrary to Section 154 Cr.P.C., continuation of
proceedings against petitioners would definitely be
onerous and waste of precious judicial time."
27. Further, learned counsel for the petitioner relied
on the decision reported in Crl.P.No.2451/2022 dated
03.08.2023, wherein the Co-ordinate Bench of this Court
at paragraphs 4, 5 and 10 held as under:-
"4. Learned counsel for the petitioners submit
that, the credible information was received at 6.00
p.m. and the Police Officer without registering the
FIR at the first instance has conducted a raid which
is impermissible as held by the Hon'ble Supreme
Court in the case of Lalitha Kumari -Vs- State of
UP, reported in 2014 (2) SCC 1. He further submits
that, the credible information was received at 6.00
p.m., and the FIR was registered at 9.00 p.m. and
there is no entry in the Station House Dairy with
regard to the credible information so received,
hence, conducting of investigation is contrary to
Section 154 Cr.P.C. In support, he places reliance
on the decision of the Co-ordinate Bench of this
Court in Crl.P.No.5689/2018.
5. Learned High Court Government Pleader
for the respondent-State would submit that, it is
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not necessary to register the FIR, when the Police
Officer receives credible information and to prevent
the commission of the crime, the Police Officer
without registering the FIR can conduct
investigation. In support, she places reliance on the
decision of the Co-ordinate Bench of this Court in
Crl. Revision Petition No.538/2014 disposed of on
22.03.2022.
10. In the instant case, the Police Officer
without making entry in the Station House Dairy
with regard to the Commission of the cognizable
offence has conducted the investigation, and the
same is contrary to Section 154 of Cr.P.C. Hence,
the conducting of the investigation without
complying with Section 154 of Cr.P.C., culminating
in submitting the charge sheet stands vitiated."
28. In view of the facts and circumstances on the
ratio laid down supra, in the case where the statutory
requirement which is mandatory in nature and is not
complied by the prosecution and where the prosecution
has failed to give proper reasons for non-examination of
independent witnesses and non-seizure of intoxicant, the
trial Court as well as the first Appellate Court have failed
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to convict the accused for the offences for which she was
charged. Under these circumstances, the impugned
judgment of conviction and order of sentence which are
questioned by the accused in this revision petition cannot
be sustained and hence, point No.1 raised above is
answered in the affirmative. Accordingly, the following:-
ORDER
i. The criminal revision petition is allowed;
ii. The judgment of conviction and order of
sentence dated 05.04.2016 passed by the
Civil Judge and JMFC, Sakaleshpura, Hassan
District, in C.C.No.419/2011 and the
judgment dated 14.11.2016 passed by the
V Additional District and Sessions Judge,
Hassan District in Crl.A.No.109/2016, are
here by set aside.
iii. The petitioner/accused is acquitted of the
charges leveled against her;
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iv. The trial Court is directed to return the fine
amount, if any, deposited by the
petitioner/accused, and
v. Registry is directed to send back the trial
Court records along with copy of this order
to the concerned trial Court.
Sd/-
JUDGE
CPN
CT:BHK
