Kullegowda vs State Of Karnataka
2023 Latest Caselaw 1626 Kant

                                             CRL.RP.597/2014
                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF FEBRUARY 2023

                          BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   CRL.R.P.No.597/2014

BETWEEN:

1.     KULLEGOWDA
       S/O LATE BOJJEGOWDA
       AGED ABOUT 63 YEARS.

2.     NAVEENA
       S/O KULLEGOWDA
       AGED ABOUT 31 YEARS.

3.     SMT. B.M. SUSHEELAMMA
       W/O KULLEGOWDA
       AGED ABOUT 52 YEARS.

       ALL R/O KURUBARA HOSTEL ROAD
       MALAVALLI TOWN, MANDYA
       DISTRICT, PIN CODE - 571 401.     ...PETITIONERS

(BY SRI SANDESH J. CHOUTA, SR. COUNSEL A/W
    SRI SOMASHEKAR KASHIMATH, ADV.,
    V/O DATED 17.02.2013 PETITIONER NO.3,
    PETITION IS DISMISSED AS ABATED)

AND:

STATE OF KARNATAKA
THROUGH EXCISE INSPECTOR
MALAVALLI ZONE, MALAVALLI
DISTRICT, MANDYA
PIN CODE - 571 401.                      ...RESPONDENT

(BY SRI MAHESH SHETTY, HCGP)
                                              CRL.RP.597/2014
                             2



     THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:20.09.2012 PASSED BY THE
JMFC, MALAVALLI IN C.C.NO.749/2007 AND CONFIRMING THE
ORDER DATED:27.5.2014 PASSED BY THE I ADDL. AND S.J.,
MANDYA IN CRL.A.NO.104/2012. AND ACQUIT THE PETRS.

     THIS PETITION HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING:

                          ORDER

1. This criminal revision petition under Section 397 read

with Section 401 CrPC is filed by the accused challenging the

judgment and order of conviction and sentence dated

20.09.2012 passed by the I Addl. Civil Judge & JMFC,

Malavalli, and the judgment and order dated 27.05.2014

passed by the I Addl. District & Sessions Judge, Mandya, in

Crl.A.No104/2012.

2. Heard the learned Senior Counsel for the petitioners

and the learned HCGP for the respondent-State.

3. Brief facts of the case as revealed from the records that

may be necessary for the purpose of disposal of this petition

are, on 22.08.2007 at about 9.30 p.m. after receiving

credible information with regard to illegal storage and

manufacture of illicit liquor in the house of the accused CRL.RP.597/2014

situated at NES Extension, 4th Cross, Malavalli Town, Mandya

District, from the Deputy Commissioner of Excise, Mandya,

the Sub-Inspector of Excise of Malavalli Zone, his officials and

the Sub-Inspector of Malavalli Town Police Station, conducted

a raid on the dwelling house of the accused persons and

found that illicit liquor was manufactured and stored in the

said house. At the time of raid, accused no.2 who allegedly

was in the house, after seeing the raiding party, pushed the

Excise Officer and managed to escape from the spot. In all,

273 bottles containing 180 ml of liquor which totally

amounted to 49.140 litres of liquor was seized from the

house of the accused and in addition to the same, several

cans, plastic bags, empty bottles, equipments for

manufacturing liquor was also seized and a mahazar as per

Ex.P-1 was prepared in the spot in the presence of PWs-1, 2

& 5. Some bottles were separately kept for the purpose of

forwarding the same to the Forensic Science Laboratory (FSL)

for chemical examination. On the basis of the mahazar, the

police recovered the property found in the house of the

accused and returned to the Police Station and a case was

registered against the accused for having committed the CRL.RP.597/2014

offences punishable under Sections 32 & 38-A of the

Karnataka Excise Act, 1965 (for short, 'the Act').

4. The Police after investigation filed charge sheet against

the accused for the aforesaid offences. The accused had

appeared before the Trial Court and claimed to be tried, and

therefore, the prosecution in order to prove its case, had

examined seven witnesses as PWs-1 to 7 and marked 15

documents as Exs.P-1 to P-15 and 26 material objects

recovered from the spot were also marked as MOs.-1 to 26.

The incriminating circumstances available on record was

denied by the accused during the course of their Section 313

Cr.PC statement. However, they did not choose to lead any

defence evidence nor did they produce any documents in

support of their defence. Thereafter, the Trial Court heard the

arguments addressed on both sides and by judgment and

order dated 20.09.2012 convicted the accused for the

offences under Sections 32 & 38-A of the Act and sentenced

them to undergo rigorous imprisonment for a period of three

years and pay fine of Rs.20,000/- each and in default to

undergo simple imprisonment for a period of 9 months. Being CRL.RP.597/2014

aggrieved by the said judgment and order of conviction and

sentence, the accused had filed Crl.A.No.104/2012 before the

Appellate Court and the said appeal was dismissed on

27.05.2014. It is in this factual background, the accused

persons are before this Court in this revision petition.

5. Learned Senior Counsel appearing for the accused

submits that the courts below have erred in convicting the

petitioners for the alleged offences. He submits that it is the

specific case of the prosecution that after receipt of credible

information, a raid was conducted on the dwelling house of

the accused persons. If that is so, the prosecution should

have first registered the FIR and before proceeding to raid,

ought to have obtained necessary search warrant from the

jurisdictional Magistrate. He submits that Section 53 of the

Act, therefore, has not been complied by the prosecution. He

also submits that independent panch witnesses to the seizure

have not supported the case of the prosecution, and

therefore, it cannot be said that the prosecution has proved

the seizure. He also submits that the prosecution has not

forwarded the entire quantity of seized liquor to the FSL for CRL.RP.597/2014

examination, and therefore, it cannot be said that the entire

contraband articles seized by the prosecution was illicit liquor.

He submits that the FSL officer who has given the report as

per Ex.P-4 has not been examined and the same would be

fatal to the case of the prosecution. He also submits that all

the witnesses examined on behalf of the prosecution are

official witnesses, and therefore, reliance cannot be placed on

their evidence for the purpose of convicting the accused,

unless their evidence is corroborated by the evidence of

independent witnesses. In support of his arguments, he has

placed reliance on the following judgments:

1. LALITHA KUMARI Vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS: (2014)2 SCC 1.

      2.      ESWARAMURTHY       Vs.         THE   SUB-
      INSPECTOR OF POLICE : 2011(1) MWN (CR.)
      320.


      3.      HABEEB    MOHAMMAD       Vs.    STATE    OF
      HYDERABAD : AIR 1954 SC 51.


      4.      PARVEEZ   PASHA   Vs.    THE    STATE BY
      TILAK      PARK     POLICE        STATION          :
      CRL.R.P.NO.155/2012.
                                                   CRL.RP.597/2014




     5.    NAGESH Vs. THE STATE OF KARNATAKA :
     CRL.R.P.NO.772/2009.


     6.    SHRINIVAS Vs. STATE OF KARNATAKA :
     ILR 2014 KAR 5560.


     7.    S. THIPPESWAMY Vs. THE STATE            OF
     KARNATAKA ILR 2015 KAR 5560.


     8.    SMT. ANASUYA AND OTEHRS Vs. THE

STATE OF KARNATAKA : CRL.A.NO.2227/2006.

9. K.L. SUBBAYYA Vs. STATE OF KARNATAKA : (1979) 2 SCC 115.

10. NAGARAJ PATAGAR Vs. STATE BY SIRSI TOWN POLICE : CRL.P.NO.10942/2013.

11. MUTTAPPA Vs. THE STATE OF KARNATAKA : CRL.A.NO.2892/2012.

6. Per contra, learned HCGP appearing for the respondent

submits that the alleged offences against the accused are

cognizable offences, and therefore, the officers who have

received the credible information cannot be expected to

register FIR, and thereafter, proceed to the spot. He submits

that this Court in Crl.P.No.3073/2020 and connected matters,

has appreciated this aspect of the matter and held that in

such circumstances, the officers cannot be expected to CRL.RP.597/2014

register the FIR on the basis of credible information, and

thereafter, proceed to the spot where the crime was

committed. He submits that Ex.P-6 is the document which

would go to show that the prosecution has complied the

requirement of Section 54 of the Act, and therefore,

compliance of Section 53 of the Act is not necessary. He also

submits that the sample bottles which were kept separate at

the time of seizure have been forwarded to the FSL and the

report at Ex.P-14 clearly states that the articles forwarded

were examined by the expert and was certified that the same

was not fit for human consumption. He submits that the

courts below concurrently recorded a finding of guilt against

the petitioners, and therefore, no interference is called for by

this Court in exercise of its revisional jurisdiction, and

accordingly, prays to dismiss the revision petition.

7. I have carefully considered the arguments addressed on

both sides and also perused the material available on record.

8. It is the specific case of the prosecution that after

receiving the credible information from the Deputy

Commissioner of Excise, Mandya, the Excise Officer along CRL.RP.597/2014

with his staff and the Sub-Inspector of Police of Malavalli

Town Police Station had conducted a raid on the dwelling

house of the accused persons and had found huge quantity of

illicit liquor storage and also found equipments used for the

purpose of manufacturing illicit liquor. The illicit liquor found

in the dwelling house and also the equipments, cans, bottles,

drums, etc., that were found inside and outside the dwelling

house of the accused were seized by the prosecution under

mahazar - Ex.P-1, for which PWs-1 & 2 were panchas. PWs-1

& 2 have turned hostile to the case of the prosecution and

they have not supported the seizure mahazar.

9. It is not in dispute that the raid was conducted by the

Excise Officer and its staff along with the Sub-Inspector of

Police of Malavalli Town Police Station on the dwelling house

of the accused. Section 53 of the Act reads as under:

"53. Power of Magistrate to issue a warrant.-if a magistrate, upon information and after such enquiry (if any) as he thinks necessary, has reason to belive that an offence under section 32, section 33, section34, section 36 or section 37 has been, is being, or is likely to be, committed, he may issue a warrant,-

CRL.RP.597/2014

(a) for the search of any place in which he has reason to belive that any intoxicant, still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed, and

(b) for the arrest of any person whom he has reason to belive to have been, to be, or to be likely to be, engaged in the commission of any such offence.

10. Section 54 of the Act is an exception to Section 53 of

the Act and it provides that in the event if the officers have

reasonable apprehension that the persons are likely to escape

before proceeding to the spot, they are required to record

reasons for not obtaining the search warrant as provided

under Section 53 of the Act, and thereafter, proceed further.

The Hon'ble Supreme Court in the case of K.L.SUBHAYYA VS

STATE OF KARNATAKA - AIR 1979 SC 711, has held that

compliance of Sections 53 & 54 of the Act is mandatory and

non-compliance of the same is not only fatal to the case of

the prosecution, but conviction itself gets vitiated. Similar

view has been taken by this Court in the case of NAGARAJ

PATAGAR VS STATE BY SIRSI TOWN POLICE & ANOTHER in CRL.RP.597/2014

Crl.P.No.10942/2013 disposed of on 05.02.2014, wherein this

Court has held that non-compliance of the requirement of

Sections 53 & 54 of the Act would not only render search and

seizure vitiated, but the same is an incurable defect.

11. Learned HCGP has submitted that Ex.P-6 prepared at

the spot is in compliance of Section 54 of the Act, and

therefore, compliance of Section 53 of the Act is not

necessary in the present case. A perusal of Ex.P-6 would go

to show that the same is prepared at the spot of crime by

CW-6 - Ramegowda. A reading of Section 54 of the Act

makes it very clear that the officer who has an apprehension

or reason to believe that the offences mentioned in the said

Section is being or is likely to be committed and a search

warrant cannot be obtained from the concerned Magistrate,

then he has to record reasons for the same before proceeding

to the spot. In the present case, Ex.P-6 was drawn at the

spot, and therefore, it cannot be said that the requirement of

Section 54 of the Act has been complied with by the

prosecution. Section 54 of the Act provides that the officer

concerned before proceeding to the spot is required to record CRL.RP.597/2014

the grounds for not obtaining the search warrant, whereas

Ex.P-6 has been drawn in the spot, and therefore, in my

considered view the requirement of compliance of Sections 53

& 54 has not been made by the prosecution in the present

case.

12. Further, admittedly in the present case, the raid has

been conducted on the dwelling house belonging to the

accused person. The credible information received was to the

effect that the accused had stored illicit liquor and were

manufacturing illicit liquor in the said dwelling house. The raid

was admittedly conducted during night hours. Therefore,

there could not have been any apprehension or reasonable

ground to believe that the accused were likely to escape even

before obtaining the warrant from the jurisdictional

Magistrate. Under the circumstances, I am of the considered

view that non-compliance of the requirement of Sections 53 &

54 of the Act in the present case is fatal to the case of the

prosecution.

13. It is also not in dispute that the prosecution has not

forwarded the entire quantity of liquor that was seized by CRL.RP.597/2014

them under Ex.P-1. Out of 273 bottles of liquor, only 26

bottles were forwarded to the FSL for chemical examination.

The coordinate bench of this Court in the case of SHRINIVAS

VS STAE OF KARNATAKA, THROUGH GUNDLUPET POLICE,

CHAMARAJANAGAR - ILR 2014 KAR 5949, in identical

circumstances where the prosecution had not forwarded the

entire quantity of liquor seized by it for chemical examination

to the FSL, has observed as under:

".....No doubt, there is a Forensic Science Laboratory report to indicate that the material objects that were produced, namely 5 bottles of whisky, did contain liquor. However, it was necessary for the prosecution to have established that the entire quantity of liquor that was seized was in fact liquor and not any other substance. This was possible if the prosecution had produced a certificate as specified under Section 59-A of the Excise Act, which prescribes that any document purporting to be a certificate under the hand of an Inspector of Excise who has undergone the prescribed training in the examination and analysis of intoxicants and materials and who is authorised by the State Government in this behalf, in respect of any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated in such certificate, in any proceedings under this Act. Therefore, it was possible for the prosecution to have established a case against the accused by merely producing a certificate issued CRL.RP.597/2014

under Section 59-A of the Excise Act. For otherwise, merely on the production of five bottles of whisky out of the total extent that was said to have been seized, could not establish the case of the prosecution. The Court below has overlooked this primary ingredient of the offence which was required to be established by the prosecution. It is to be pointed out that Section 59-A of the Excise Act apparently reduces the burden of the prosecution in having to produce the material evidence at every date of hearing and to establish the same. Such a procedure is made for the convenience of the prosecution. That has been lost sight of both by the prosecution and the Courts below. Therefore, merely on the production of the material objects 1 to 5, the case could not have been established against the accused."

14. Even in the present case, the prosecution has not

produced the certificate as provided under Section 59-A of

the Act which would have established that the entire liquor

seized under Ex.P-1 was in fact spurious liquor and not any

other substance.

15. The FSL report which is available at Ex.P-4 does not

disclose the details of the examination and it only states that

the article which was subjected for examination was not fit

for human consumption. The author of this document has not CRL.RP.597/2014

been examined by the prosecution. The courts below have

failed to appreciate these lacuna in the case of the

prosecution. In addition to the same, the prosecution has not

examined any independent witnesses regarding the raid and

seizure. On the other hand, the address of the dwelling house

would go to show that it is situated in a residential locality,

and therefore, the prosecution could have examined the

neighbourers in support of its case. When the prosecution has

failed to comply the mandatory requirement of law while

conducting the raid and seizure and during the course of

investigation when the prosecution has failed to explain non-

examination of the independent witnesses, it is highly unsafe

to place reliance on the evidence of the official witnesses and

record a finding of guilt against the accused persons.

16. In my considered view, the courts below have failed to

appreciate the aforesaid aspects of the matter and have erred

in convicting the petitioners for the alleged offences. The

impugned judgment and order of conviction which is

challenged by the accused in this revision petition, therefore,

cannot be sustained. Accordingly, the following order:

CRL.RP.597/2014

17. The revision petition is allowed. The judgment and

order of conviction and sentence dated 20.09.2012 passed by

the I Addl. Civil Judge & JMFC, Malavalli, and the judgment

and order dated 27.05.2014 passed by the I Addl. District &

Sessions Judge, Mandya, in Crl.A.No104/2012, are set aside.

The petitioners are acquitted of the offences under Sections

32 & 38-A of the Act.

SD/-

JUDGE

KK