Karnataka High Court
Sri.Renu vs The State Of Karnataka on 21 June, 2023
Bench: S Rachaiah
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NC: 2023:KHC:21388
CRL.RP No. 279 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 279 OF 2014
BETWEEN:
SRI.RENU
S/O NIRVANAIAH
Digitally AGED ABOUT 29 YEARS
signed by N
UMA RESIDING AT ACHANGI VILLAGE
Location: KASABA HOBLI
HIGH SAKALESHPURA TALUK
COURT OF HASSAN DISTRICT - 573 201.
KARNATAKA
...PETITIONER
(BY SRI. PRAKASH M PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS EXCISE SUB-INSPECTOR
SAKLESHPUR - 573 134.
BY STATE PUBLIC PROSECUTER
...RESPONDENT
(BY SRI. RAHUL RAI K, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED IN CRL.A.NO.112/2011 DATED 14.02.2014 FOR THE
OFFENCE P/U/S 32(1) OF KARNATAKA EXCISE ACT, ON THE
FILE OF ADDL. SESSIONS JUDGE, AT HASSAN, AND THE
CONVICTION AND SENTENCE THAT THE PETITIONER TO
UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR AND PAY A
FINE OF RS. 10,000/- PASSED IN C.C.NO.382/2008 DATED
19.09.2011, ON THE FILE OF CIVIL JUDGE AND JMFC,
SAKALESHPURA AND ALLOW THIS CRIMINAL REVISION
PETITION.
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CRL.RP No. 279 of 2014
THIS CRIMINAL REVISION PETITION, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 17.09.2011 in C.C.No.382/2008 on the
file of the Court of Civil Judge and JMFC, Sakaleshapura and its
confirmation judgment and order dated 14.02.2014 in
Crl.A.No.112/2011 on the file of the Court of the Additional
Sessions Judge at Hassan, has filed this revision petition
seeking to set aside the concurrent findings recorded by the
Courts below, wherein the petitioner / accused is convicted for
the offence punishable under Section 32(1) of the Karnataka
Excise Act (for short 'Act').
2. The petitioner is the accused before the Trial Court
and appellant before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on
07.02.2008 at about 5.00 p.m., on receiving credible
information, the complainant and his team along with panchas
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CRL.RP No. 279 of 2014
went to Achangi Village, near Railway Bridge and noticed that
the accused / petitioner was holding 10 litres capacity of plastic
can. It is stated that, on seeing the complainant and his team,
the petitioner had tried to escape from the spot. However, he
was caught hold and on inspection, it is found that, the said
plastic can contained illicit liquor. After seizing the said can and
liquor, an FIR was registered against the petitioner and after
investigation, a charge sheet came to be filed.
4. To prove the case of the prosecution, the
prosecution examined, in all, four witnesses namely PWs.1 to 4
and got marked Exhibits P1 to 5 and identified M.O.1 and
M.O.2. The Trial Court after appreciating the oral and
documentary evidence on record, convicted the petitioner for
the offence punishable under Section 32(1) of the Act. Being
aggrieved by the same, the petitioner preferred an appeal
before the Appellate Court, the Appellate Court confirmed the
judgment of conviction rendered by the Trial Court. Being
aggrieved by the same, the petitioner has preferred this
revision petition seeking to set aside the concurrent findings.
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CRL.RP No. 279 of 2014
5. Heard Shri Prakash M.Patil, learned counsel for the
petitioner and Shri Rahul Rai, learned High Court Government
Pleader for
6. Learned counsel for the petitioner submits that the
concurrent findings recorded for conviction is opposed to the
facts, evidence and law. Hence, the same is liable to be set
aside.
7. It is his further contention that, the investigating
officer ought to have followed the procedure while conducting
the search and seizure. However, the said procedure has not
been followed. In the absence of the procedure being followed,
the search and seizure, if any, held to be illegal and the
conviction based on such search and seizure ought not to have
been recorded.
8. It is his further contention that, the information in
respect of cognizable offence should be either reduced in
writing or oral. Based on the information, FIR should have to
be lodged before conducting the search and seizure. In the
present case, the investigating officer did not register any FIR
before proceeding to the spot. However, the FIR has been
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CRL.RP No. 279 of 2014
registered on the basis of seizure mahazar, which is
unsustainable.
9. The learned counsel for the petitioner further
submitted that, these two aspects should have been considered
by the Courts below while appreciating the evidence and law.
Having failed to appreciate it properly, the impugned
judgments have been passed, which requires to be set aside.
Having said thus, the learned counsel for the petitioner prays to
allow the petition and further prays to set aside the concurrent
findings.
10. Per contra, the learned HCGP for the State
justifying the concurrent findings and submitted that, the illicit
liquor which was being carried out by the petitioner was proved
by the prosecution and the sample of the said liquor was sent
for chemical examination. The report clearly indicates that the
sample sent for examination contains alcohol and it was not fit
for human consumption. Such being the fact, there was no
occasion for the Court to disbelieve the evidence of panch
witnesses and also the official witnesses. Hence, the Courts
below have rightly held that the petitioner committed an
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CRL.RP No. 279 of 2014
offence under Section 32(1) of the Act. Having said thus, the
learned HCGP prays to dismiss the petition.
11. Having heard the learned counsel for the respective
parties and also perused the concurrent findings recorded for
conviction, it is appropriate to have a cursory look upon the
evidence and law to ascertain as to whether the Trial Court and
the Appellate Court committed any illegality or error in
recording the conviction.
12. PW.1 stated to be panch witness to the seizure
mahazar, which is marked as Ex.P1 and also witness to Ex.P2,
which is sample seal. He identified MO.1 and MO.2. In the
cross-examination, he has admitted that, he did not know in
front of whose house the accused was arrested. He has further
admitted that, he was present till 5.30 p.m. PW.2 was working
as Senior Excise official stated that, on 07.02.2008 at about
5.00 p.m., the petitioner was standing near Railway Bridge by
holding plastic can in his hand. He denied the suggestions
made by the petitioner and supported the case of the
prosecution. PW.3 was Sub-Inspector of Excise Department,
Sakaleshapura Sub Division, he has supported the case of the
prosecution. He has conducted the investigation and submitted
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CRL.RP No. 279 of 2014
the charge sheet. In the cross-examination, he has stated that
he has apprehended the petitioner. PW.4 was independent
witness and working as coolie. He is said to be the witness for
Ex.P1 and Ex.P2 and he has stated that MO.1 and MO.2 were
seized in his presence. He has admitted in the cross-
examination that, except him no other persons were present at
the time of drawing the spot and seizure mahazar.
13. On careful perusal of the evidence of all these
witnesses, there are some discrepancies or inconsistencies
noticed in the evidence of PWs.1 and 4. According to PW.1, he
was the witness to Exs.P1 and P2. However, PW.4 says except
him, nobody was present at the time of drawing Exs.P1 and P2.
So far as evidence of PWs.2 and 3 is concerned, PW.2 says he
has apprehended the petitioner with the assistance of
Thammanagowda and driver Ravi. However, PW.3 says he has
apprehended the petitioner.
14. Besides, these discrepancies, it is also necessary to
have a cursory look upon the law. It is settled principles that
before conducting search and seizure of the place, the
investigating officer had to take permission from the
jurisdictional Magistrate in terms of Section 53 of the Act. On
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CRL.RP No. 279 of 2014
perusal of the entire records and also the evidence, it appears
that, the investigating officer has not complied the said
provision. There is another provision provides privilege to the
investigating officer. In a case, where the investigating officer
could not obtain the permission from the Magistrate, he has to
write the reasons for not having obtained such permission,
which satisfy the requirement of Section 54 of the Act.
However, on careful perusal of the entire records, the
investigating officer neither followed the procedure stipulated
under Sections 53 nor 54 of the Act. Since, the procedure had
not been followed by the investigating officer, the said search
and seizure are held to be illegal and the registration of
criminal case against the petitioner should have been vitiated.
15. It is noticed that the Trial Court and the Appellate
Court committed grave error in not considering these aspects
and passed impugned judgments which require to be set aside.
As the error committed by the Courts below are apparent and
patent, interfered by this court in exercising the revisional
jurisdiction is justified.
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16. In the light of the observation made above, the
concurrent findings recorded for conviction by the Courts below
are deserves to be set aside.
17. Accordingly, I proceed to pass the following:
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 17.09.2011 passed in
C.C.No.382/2008 by the Civil Judge and JMFC,
Sakaleshapura and judgment and order dated
14.02.2014 passed in Crl.A. No.112/2011 by the
Additional Sessions Judge at Hassan, are set
aside.
(iii) The petitioner is acquitted for the offence
punishable under Section 32(1) of the Karnataka
Excise Act.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
