Karnataka High Court
Kumar vs State By Excise Enforcement & on 19 April, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC:15614
CRL.A No. 224 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 224 OF 2014
BETWEEN:
1. KUMAR
S/O NANYA NAIKA
AGED ABOUT 34 YEARS,
R/O G.RANGANAHALLI TANDA,
KASABA HOBLI,
SIRA TALUK,
TUMKUR DISTRICT-572137
...APPELLANT
(BY SRI. S G RAJENDRA REDDY.,ADVOCATE)
AND:
1. STATE BY EXCISE ENFORCEMENT &
LOTTERY PROHIBITION WING,
SPECIAL POLICE STATION,
Digitally SIRA
signed by TUMKUR DISTRICT
LAKSHMI RPTD. BY S.P.P.,
T HIGH COURT OF KARNATAKA,
BENGALURU-560001.
Location:
High Court
of ...RESPONDENT
Karnataka (BY SRI. RAHUL RAI K., HCGP)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:12.3.2014 PASSED BY THE PRL.
SESSIONS JUDGE, TUMKUR IN S.C.NO.113/13 AND ACQUIT
THE APPELLANT FOR THE OFFENCE P/U/S 32, 34 OF
KARNATAKA EXCISE ACT AND U/S 328 OF IPC.
THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:15614
CRL.A No. 224 of 2014
JUDGMENT
The judgment and order dated 12.03.2014 passed by
the Court of the Principal District and Sessions Judge,
Tumkur in Sessions Case No.113/2013, convicting the
accused/appellant for the offences punishable under
Section 32, 34 of the Karnataka Excise Act and Section
328 of IPC is assailed in this appeal.
2. Heard the arguments of the learned counsel for
appellant, learned High Court Government Pleader for the
State. Perused the evidence and material on record.
3. The case of the prosecution is that on
14.12.2010 at about 6.10 a.m., based on a credible
information, CW.1 - R. Bhanuprasad working as a police
sub-inspector went to G. Ranganahalli Tanda, Kasaba
Hobli, Sira Taluk, wherein the accused was found in illegal
possession of about 8 ltrs of country liquor kept in a 10
ltrs plastic can and 560 ltrs of wash kept in drums etc., for
preparation of liquor. The same was seized under a
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mahazar - Ex.P1 in the presence of panchas. Sample was
taken and sent for FSL examination, and as per report -
Ex.P5, the sample sent contained ethyl alcohol unfit for
human consumption.
4. The prosecution in all examined 5 witnesses
and got marked 5 documents and MO.1 -plastic bottle
containing sample liquor. The trial Court relying on the
evidence of PWs.4 and 5, proceeded to convict the
accused/appellant holding that the evidence of PW.5 is
corroborated by the report of chemical analyzer at Ex.P5
and as per the said report the illicit liquor contained ethyl
alcohol, which was unfit for human consumption. It is
observed that the evidence of PWs.4 and 5 shows that raid
was conducted on 14.12.2010 and the accused was
manufacturing liquor unauthorizedly, without any valid
license or permit by the Government.
5. It is the specific case of prosecution that a
credible information was received by PW.4 and based on
the said information he along with his staff and panchas
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namely PWs.2 and 3 went to the land of the accused,
wherein he was found in possession of 8 ltrs of country
liquor and 560 ltrs of wash kept for preparing the country
liquor. The prosecution has not placed any material to
show that such a credible information was received. Prior
to proceeding to the spot to conduct a raid, no case was
registered though the credible information was in respect
of cognizable offence. Atleast, the prosecution should have
produced the Station House Diary to show that the police
received the information and proceeded to the spot to
conduct a raid.
6. Ex.P1 is the mahazar said to have been
prepared at the time of seizure of the country liquor etc .,
from the possession of the accused. The panch witnesses
namely PWs.2 and 3 have turned hostile and not
supported the case of prosecution. Hence, the entire case
is based on evidence of PWs.4 and 5 namely the official
witnesses.
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7. According to PW.4, the accused was found in
possession of 10 ltrs can which contained 8 ltrs of country
liquor. The said can along with liquor was seized and half
litre of liquor was taken as sample in a plastic bottle and
sealed for sending for FSL examination. The prosecution
has not produced and marked the can said to have
contained 8 ltrs of country liquor. According to PWs.4 and
5, half litre of liqour was taken as sample in a bottle for
sending it to the FSL. However, as per Ex.P5 - chemical
analysis report, three bottles containing 500 ml each were
examined, which contained ethyl alcohol. Neither PW.4
nor PW.5 have deposed about taking samples of 500 ml of
liquor in three bottles. Even in Ex.P1, the same does not
find any mention.
8. As regards the seizure of 560 ltrs of wash said
to be the raw material used for the preparation of illicit
liquor, said to have kept in pots and drums, there is
absolutely no material except the oral evidence of PWs.4
and 5. Neither the pots and drums are seized nor
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produced before the Court. According to PW.1, the said
pots and drum were confiscated to the State. However, in
Ex.P1 there is no mention about the seizure of the pots
and drums. The panch witnesses have turned hostile.
There is no independent corroboration to the evidence of
PWs.4 and 5.
9. Having examined the entire evidence and
material on record, it cannot be held that the prosecution
has established the guilt of the accused beyond reasonable
doubt. The impugned judgment is therefore, liable to be
set aside. Hence, the following:
ORDER
Appeal is allowed.
The judgment and order dated 12.03.2014 passed by
the Court of Principal District and Sessions Judge, Tumkur
in Sessions Case No.113/2013 is hereby set aside.
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Appellant/accused is acquitted of the offences
punishable under Section 32 and 34 of the Karnataka
Excise Act and Section 328 of IPC.
The bail bonds of the accused shall stand cancelled.
Fine amount if any deposited, shall be refunded to
the accused.
SD/-
JUDGE
HB
