Karnataka High Court
M Nagaraja vs State By Excise Inspector Of ... on 13 March, 2023
Bench: S Vishwajith Shetty
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CRL.RP No. 931 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. NO. 931 OF 2014
BETWEEN:
M. NAGARAJA
S/O LATE MANJAPPA
AGED ABOUT 59 YEARS
TEA STALL WORKER
R/O THAMMANNA COLONY
KUVEMPU MAIN ROAD
Digitally signed
by B A HOSAMANE BADAVANE
KRISHNA
KUMAR BHADRAVATHI - 577 301.
Location: High
Court of
...PETITIONER
Karnataka
(BY SRI J. PRAKASH, ADV.)
AND:
STATE BY EXCISE INSPECTOR OF POLICE
BHADRAVATHI - 577 301.
...RESPONDENT
(BY SRI MRS. RASHMI JADHAV, HCGP)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED:22.9.14 IN
CRL.A.NO.3/13 BY THE P.O.,FTC, BHADRAVATHI AND
CONSEQUENTLY SET ASIDE THE JUDGEMENT AND ORDER OF
CONVICTION AND SENTENCE DATED:4.12.12 IN C.C.NO.1271/10
PASSED BY THE II ADDL. JMFC, BHADRAVATHI AND THEREBY
ACQUIT THE PETR. FROM THE OFFENCE P/U/S 32 AND 38(A) OF
KARNATAKA EXCISE ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 931 of 2014
ORDER
The petitioner, who is the sole accused has preferred this
Criminal Revision Petition under Section 397 of Code of
Criminal Procedure, 1973 (for short 'Cr.P.C') challenging the
judgment and order of conviction and sentence passed by the
Court of II Additional Civil Judge & JMFC, Bhadravathi (for short
the 'Trial Court) in C.C.No.1271/2010 dated 04.12.2012 and
the judgment and order passed by the Court of Fast Track,
Bhadravathi (for short the 'Appellate Court') in Crl.A.No.3/2013
dated 22.09.2014.
2. Heard the learned counsel for the petitioner and
learned High Court Government Pleader for respondent - State.
3. The petitioner was charged before the Trial Court
for the offences punishable under Section 32 and 38(A) of
Karnataka Excise Act, 1965 (hereinafter referred to as the
'Act'). It is the case of the prosecution that on 08.08.2009 on
receipt of credible information, PW4 along with his staff had
raided the house of the petitioner in which he was also running
a small canteen/hotel and had found that the petitioner was in
possession of 12 bottles of 180 ml whisky, which he had kept
CRL.RP No. 931 of 2014
for sale. These contraband articles were seized under mahazar
by PW4 in the presence of panchas and thereafter the said
articles and the petitioner were produced before PW.3, who had
registered FIR against the petitioner for the aforesaid offences
based on report received from PW4.
4. After receiving the summons from the Trial Court,
the petitioner had appeared before the Court and had pleaded
not guilty and claimed to be tried. The prosecution in support of
its case had examined 4 witness as PWs.1 to 4 and got marked
6 documents as Exs.P1 to P6 and the contraband articles which
were seized from the spot were produced and marked before
the Trial Court as M.O.1. The petitioner during the course of his
Section 313 of Cr.P.C., statement had denied the incriminating
circumstances which were available on record against him.
However, he did not choose to lead any defence evidence nor
did he produce any document in support of his defence.
5. The Trial Court thereafter heard the arguments
addressed on both the sides and by its judgment and order
dated 04.12.2012 convicted the petitioner for the offences
punishable under Section 32 and 38(A) of the Act and
CRL.RP No. 931 of 2014
sentenced him to undergo Rigorous Imprisonment for 1 year
and to pay fine of Rs.10,000/-, in default to pay fine undergo
Simple Imprisonment for 3 months. Being aggrieved by the
said judgment and order of conviction, the petitioner had filed
Crl.A.No.3/2013. The Appellate Court by its judgment and
order dated 22.09.2014 had dismissed the appeal filed by the
petitioner. It is under this circumstance, the petitioner is before
this Court in this revision petition.
6. Learned counsel for the petitioner submits that the
prosecution has failed to prove its case beyond reasonable
doubt against the petitioner. He submits that the prosecution
has not examined any independent witness and the seizure
mahazar is also not supported by any independent panchas. He
submits that requirement of Section 53 and 54 of the Act has
not been complied with and therefore, search conducted by
PW4 itself is bad in law. The Courts below have failed to
appreciate this aspect of the matter and had erred in convicting
the petitioner. Accordingly, he prays to dismiss the revision
petition.
CRL.RP No. 931 of 2014
7. Per contra, learned HCGP appearing for respondent
- State arguing in support of impugned judgment and order of
conviction and sentence submits that the material on record
would go to show that efforts made by PW4 to secure
independent panch and independent witnesses had failed and
merely for the reason that the prosecution witnesses are official
witnesses their evidence cannot be ignored. Accordingly, she
prays to dismiss the revision petition.
8. I have carefully considered the arguments
addressed on both the sides and also perused the material
available on record.
9. It is the specific case of the prosecution that on
08.08.2009 at about 5.00 p.m, PW4 had received credible
information about storage of illicit liquor in the house of the
petitioner for the purpose of sale and on receipt of such
information, PW4 along with PW1 had raided the house of the
petitioner and had seized contraband articles under a mahazar
Ex.P1.
10. PW1, who is the Senior Excise Guard was one of the
panch to the said seizure. PW.2, who is another Excise
CRL.RP No. 931 of 2014
Inspector had taken the seized contraband articles to the
Forensic Science Laboratory for the purpose of chemical
examination of the same. PW3 is the Excise Inspector who had
taken over the investigation from one Venkatesh and had filed
charge sheet against the petitioner. The Excise Inspector,
Venkatesh who had initially carried on investigation was not
examined in this matter. Indisputably the search and seizure
has been carried in the present case in the residence of the
petitioner and the contraband articles were seized from the Tea
shop which is situated in a portion of the petitioner's house.
11. Section 53 of the Act provides for securing a search
warrant from the jurisdictional Magistrate for the purpose of
holding search of any place if the competent officer has got
reason to believe that the intoxicant/contraband articles are
kept or concealed in the said place or for arrest of any person
whom he has a reason to believe had committed the offences
mentioned in the said section. Section 54 of the Act provides
for power to search without warrant.
12. From reading of Section 54 of the Act, it is very
clear that in the event if the competent officer has reason to
CRL.RP No. 931 of 2014
believe that offence mentioned in the said section is likely to be
committed or is being committed and that a search warrant
cannot be obtained without giving opportunity to the offender
to escape, he may after recording the grounds for his belief
proceed to search the place and also arrest the accused found
in the said place whom he has reason to believe to be guilty of
such offence as mentioned in the said section.
13. 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 house of the
petitioner and arresting him. Ex.P5 is the document which is
said to have been prepared by PW4 in compliance of
requirement of Section 54 of the Act. During the course of his
deposition, PW4 has not stated anything about he preparing
Ex.P5 prior to he conducting search and seizure of petitioner's
property. A perusal of Ex.P5 would go to show that said
document is prepared after the search and seizure was
conducted by PW.4. Therefore, requirement of compliance of
Section 54 of the Act is not established by the prosecution.
CRL.RP No. 931 of 2014
14. The compliance of Section 53 and 54 of the Act is
mandatory in nature. The Hon'ble Supreme Court in the case of
K L SUBBAYYA vs. STATE OF KARNATAKA - AIR 1979 SCC
711 has held that compliance of Section 53 and 54 of the
Karnataka Excise Act is mandatory and non compliance of the
same would vitiate the conviction order passed against the
accused .
15. PW1 who had accompanied PW4 for the purpose of
raiding the petitioner's house has stated during the course of
his cross-examination that when the raid was conducted there
was nobody inside the Tea stall. He has also admitted that
there were several houses surrounding the crime location but
they have not recorded the statement of any person residing in
the said house. PW.4 however has stated that when they went
to raid the petitioner's house, the neighborers had gathered
there and when he made a request to them to act as panch,
they have refused. The statement of PWs.1 and 4 regarding
availability of independent witnesses and independent panchas
are therefore contradictory. Though PW4 has stated that
neighbourers refused to act as witnesses and panchas he has
not stated anything with regard to step taken by him in this
CRL.RP No. 931 of 2014
regard. He has not spoken about issuing any notice to the
neighbourers to act as witnesses or panchas.
16. Undisputedly, the prosecution has not examined
any independent witness in the present case. During the course
of search and seizure, the prosecution has not complied with
statutory requirement by complying Section 53 and 54 of the
Act. In a case where the statutory requirement which is
mandatory in nature is not complied with by the prosecution
and where the prosecution has failed to give proper reason for
non-examination of independent witness and for not securing
independent panchas, it would be highly unsafe to place
reliance on the prosecution witness who are official witnesses
for convicting the accused . The Trial Court as well as the
Appellate Court has failed to appreciate these aspects of the
matter and have erred in convicting the petitioner for the
offences for which he was charged. Under the circumstance,
the impugned judgment and order of conviction and sentence,
which is questioned by the petitioner in this revision petition
cannot be sustained. Accordingly, the following:-
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CRL.RP No. 931 of 2014
::ORDER::
Criminal Revision Petition is allowed.
The judgment and order of conviction
and sentence passed by the Court of II
Additional Civil Judge & JMFC, Bhadravathi
dated 04.12.2012 in C.C.No.1271/2010 which
has been confirmed by the Court of Fast Track,
Bhadravathi in Crl.A.No.3/2013 dated
22.09.2014 are set-aside.
The petitioner is acquitted of the offences
for which he was charged.
Sd/-
JUDGE
NMS
