Karnataka High Court

Umesh Bhat vs State Of Karnataka on 11 January, 2024

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                                                      NC: 2024:KHC:1475
                                                 CRL.RP No. 496 of 2020




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                  DATED THIS THE 11TH DAY OF JANUARY, 2024
                                     BEFORE
                      THE HON'BLE MR JUSTICE S RACHAIAH
                 CRIMINAL REVISION PETITION NO. 496 OF 2020
             BETWEEN:
                UMESH BHAT
                AGED ABOUT 38 YEARS
                S/O LATE KRISHNA BHAT
Digitally       R/O KALI NIVAS,
signed by
SUDHA S         KAPETTU, AMBALPADY POST
Location:       UDUPI TALUK,
HIGH COURT      UDUPI DISTRICT - 576 103.
OF
KARNATAKA
                                                          ...PETITIONER
             (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)

             AND:
                STATE OF KARNATAKA
                BY SUB INSPECTOR OF EXCISE
                UDUPI RANGE II, UDUPI
                REPRESENTED BY
                STATE PULBIC PROSECUTOR,
                HIGH COURT BUILDINGS,
                BANGALORE - 560 001.

                                                         ...RESPONDENT
             (BY SRI. RAHUL RAI K, HCGP)

                  THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
             TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
             DATED 16.07.2015 MADE IN C.C.NO.1009/2012 BY THE COURT
             OF I ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI AND THE
             JUDGMENT AND ORDER DATED 27.01.2020 MADE IN
             CRL.A.NO.47/2015 AND ETC.,

                  THIS PETITION, COMING ON FOR DICTATING ORDERS,
             THIS DAY, THE COURT MADE THE FOLLOWING:
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                                                      NC: 2024:KHC:1475
                                                 CRL.RP No. 496 of 2020




                                 ORDER

1. This revision petition is filed by the petitioner, being

aggrieved by the judgment of conviction and order of sentence

dated 16.07.2015 in C.C.No.1009/2012 passed by the I

Additional Civil Judge & JMFC, Udupi and its confirmation

judgment and order dated 27.01.2020 in Crl.A.No.47/2015

passed by the Principal District and Sessions Judge at Udupi,

has filed this revision petition seeking to set aside the

concurrent findings recorded by the Courts below. The Trial

Court and the Appellate Court convicted the petitioner for the

offences punishable under Sections 32 r/w 38-A of the

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

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that, on

10.03.2012 at about 7.30 p.m., on Mooduperampalli junction of

Shivalli village on Ambalpady road, the accused was

transporting the liquor in an autorickshaw bearing registration

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No.KA-20-A-7657 without having any license. The said vehicle

was intercepted. The petitioner ran away from the spot by

leaving the vehicle, even though the respondent tried to catch

hold of him, they failed to catch him. After they came back to

the spot and conducted search of the said vehicle, they found

that there were number of boxes containing different branded

liquors. In one box, there were 8 whisky bottles namely

Bagpiper, each bottle measuring 750 ml. In another box, there

were 48 bottles of Royal Challenge, measuring 180 ml., and

other three boxes containing 48 bottles each of Original Choice

whisky. In all total, 144 bottles. After seizing the said liquor,

samples have been drawn and sent for FSL. After conducting

the investigation, a charge sheet came to be filed by the

respondent - Police against the accused.

4. To prove the case of the prosecution, the

prosecution examined 4 witnesses namely PWs.1 to 4 and got

marked 8 documents as Exhibits P1 to P8 and also identified 3

material objects M.O.1 to M.O.3. The Trial Court after

appreciating the oral and documentary evidence on record,

convicted the accused / petitioner. Being aggrieved by the

same, the petitioner preferred an appeal before the Appellate

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Court, the Appellate Court after re-appreciating the oral and

documentary evidence on record, 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 finding.

5. Heard Shri Nishit Kumar Shetty, learned counsel for

the petitioner and Shri Rahul Rai.K., learned High Court

Government Pleader for the respondent - State.

6. It is the submission of the learned counsel for the

petitioner that, the concurrent findings recorded for conviction

by the Trial Court and the Appellate Court are against the

settled principles of law and also against to the evidence on

record and therefore, the findings recorded for conviction are

perverse, illegal and opposed to the law and facts of the case.

Hence, the same is liable to be set aside.

7. It is further submitted that, the procedure adopted

in conducting the search and seizure by the Investigating

Officer is not appropriate and the same is opposed to the law.

The said aspect has not been considered by the Courts below

while appreciating the evidence on record. Even though the

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vehicle was parked near the road and there were no persons in

the autorickshaw in which the alleged liquor was being

transported, the Investigating Officer deliberately not followed

the procedure and not obtained the permission from the

Jurisdictional Magistrate.

8. It is further submitted that even though the

Investigating Officer produced Ex.P2 dated 10.03.2012, there

was no impediment for them in obtaining the permission from

the Magistrate before conducting the search and seizure. If the

search and seizure is made without following the procedure, the

said search and seizure needs to be vitiated. However, the

Courts below failed to consider the said aspect and recorded

the conviction which is not appropriate and the said conviction

is liable to be set aside.

9. It is further submitted that even though the alleged

offence said to have occurred at about 7.30 p.m., the

Investigating Officer has not made any efforts to secure the

panchas from local vicinity. The seizure mahazar said to have

drawn in the presence of official witnesses who are working

under the Investigating Officer which appears to be doubtful

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and the said seizure is liable to be set aside. In spite of several

other lacunae found in the investigation, the Courts below

failed to take note of the said aspect and recorded the

conviction which is liable to be set aside. Making such

submission, learned counsel for the petitioner prays to allow

the revision petition.

10. Per contra, Shri Rahul Rai.K., learned High Court

Government Pleader (for short 'HCGP') vehemently justified the

concurrent findings recorded for conviction and submits that,

the petitioner was transporting the liquor in total containing

several carton boxes. The total liquor which was being

transported measuring 49.200 liters which is exceeding the

permissible limit.

11. It is further submitted that when the Investigating

Officer was unable to obtain permission from the Jurisdictional

Magistrate before conducting the search and seizure, even

after search being conducted and the items were seized, the

Investigating Officer may write the reasons for having not

obtained the permission and submit the same along with the

charge sheet as per Section 54 of the Act. The Investigating

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Officer has produced the document and stated the reasons for

not having obtained the permission, therefore, there is no error

committed by the Investigating Officer in conducting the search

and seizure.

12. It is further submitted that the evidence of official

witnesses cannot be brushed aside on the ground that they are

the interested witnesses if their evidence is reliable and

acceptable even after it is subjected for cross-examination. In

the present case, the evidence of the official witnesses inspired

the confidence of the Court. Therefore, the Trial Court

recorded the conviction and the Appellate Court confirmed the

same.

13. It is further submitted that since the petitioner

herein invoked the revisional jurisdiction of this Court, this

Court cannot traverse beyond its jurisdiction to appreciate the

evidence on record. Therefore, it is appropriate to reject the

revision petition. Making such submission, the learned HCGP

prays to dismiss the petition.

14. After having heard the rival contentions urged by

the learned counsels for the respective parties and also perused

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the findings of the Courts below in recording the conviction, it

appears that the petitioner was transporting liquor without

having license as alleged by the prosecution. The evidence of

PW.1 who is the complainant clearly indicates that on

10.03.2012, himself and other staff who were on patrolling

duty and they have noticed that an autorickshaw was coming

from the opposite direction. After they crossed the auto, he

and his staff have noticed that some boxes were being

transported which were resembling the liquor boxes.

Immediately, they took 'U' turn and came back near the auto,

by that time, the driver of the said auto, parking his vehicle and

ran away from the spot.

15. PW.1 has further stated that, after having

conducted search, he found several liquor bottles of different

brands were being transported in the said auto. The liquor

bottles have been seized in the presence of the panch

witnesses and samples were drawn from the said bottles and

they were sent for FSL. According to him, the petitioner was

not present when the seizure of the liquor was made.

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16. Similarly, PWs.2 and 3 who were assisting in the

said investigation as panch witnesses, who were also working

as Excise Guards. Both these witnesses supported the case in

respect seizure of the said liquor and they have affixed their

signatures to the said seizure mahazar which is marked as

Ex.P1.

17. PW.4 was working as Excise Sub-Inspector,

Honnavara region, said to have conducted partial investigation

and took samples to the FSL and also brought report from the

FSL. He has identified MOs.1 to 3 which are the samples which

PW.4 has taken to FSL for chemical analysis.

18. On overall reading of evidence of all the witnesses,

it makes it clear that, all these witnesses are official witnesses

attached to the Department of Excise. PWs.2 and 3 acted as

panch witnesses to the said seizure mahazar. As per the

evidence of PW.1, it appears that the petitioner was not there

when they came near the auto in which the alleged liquor was

being transported. Such being the fact, they could have

obtained the permission from the Jurisdictional Magistrate

before conducting the search and seizure and they could have

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secured the independent panch witnesses to support the

seizure panchanama.

19. In the present case, the evidence on record reveals

that the Investigating Officer neither complied Section 53 of

the Act nor secured the independent panch witnesses to

substantiate the search and seizure. In the absence of these

two requirements, it creates doubt regarding the alleged

transportation of liquor in the auto. The said doubt should be

given in the form of benefit in favour of the accused. The

Courts below have failed to consider this aspect and recorded

the conviction which is illegal and perverse and therefore, the

said conviction is required to be set aside.

20. The compliance report submitted by the

Investigating Officer in terms of Section 54 of the Act which

appears to be unacceptable on the facts and circumstances of

the case. Therefore, the Courts below ought not to have acted

upon Ex.P2 and the evidence of official witnesses while

appreciating the evidence on record. Having failed to consider

the evidence of official witnesses and Ex.P2 properly resulted

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in arriving at a wrong conclusion. Therefore, the conviction is

liable to be set aside.

21. In the light of the observations made above, I

proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of

sentence dated 16.07.2015 in C.C.No.1009/2012

passed by the I Additional Civil Judge & JMFC,

Udupi and judgment and order dated 27.01.2020

in Crl.A.No.47/2015 passed by the Principal

District and Sessions Judge at Udupi are set

aside.