Karnataka High Court

The State Of Karnataka vs Mr C V Dinesh on 4 January, 2024

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                                                      CRL.RP No. 59 of 2015




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 4TH DAY OF JANUARY, 2024

                                         BEFORE
                         THE HON'BLE MR JUSTICE G BASAVARAJA
                      CRIMINAL REVISION PETITION NO. 59 OF 2015

                BETWEEN:

                THE STATE OF KARNATAKA
                BY SUB-INSPECTOR OF EXCISE (E & I),
                SULLIA TALUK, D.K.DIST-574239.
                                                              ...PETITIONER
                (BY SRI. M.R. PATIL, HCGP)

                AND:

                1.    MR. C. V. DINESH
                      S/O VIJAYAN,
                      AGED ABOUT 26 YEARS,
                      CHERULIYIL, CHAURIYADATH HOUSE,
                      PULLOTTU VILLAGE, KIDANGALLURU TQ.
                      THRISHOOR DIST-680027.

Digitally       2.    MR.VIJU C.S.
signed by             AGED ABOUT 24 YEARS,
SANDHYA S
Location:             S/O SUBRAMANYAN,
High Court of         R/AT CHERULIYIL, CHAURIYADATH
Karnataka
                      HOUSE, PULLOTTU VILLAGE,
                      KIDANGALLURU TALUK,
                      THRISHOOR DIST-680027.
                                                            ...RESPONDENTS
                (BY SMT. ARCHANA, AMICUS CURIE FOR R1 AND R2)

                     THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
                THAT THIS HON'BLE COURT MAY BE PLEASED TO: A) MODIFY
                THE JUDGMENT AND ORDER DATED 25.7.2009 PASSED IN
                C.C.NO.697/2006 BY THE LEARNED CIVIL JUDGE & JMFC,
                SULLIA RELEASING THE ACCUSED U/S 4(1) OF THE
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                                             NC: 2024:KHC:354
                                       CRL.RP No. 59 of 2015




PROBATION OF OFFENDERS ACT AFTER CONVICTING THEM
FOR THE OFFENCES P/U/S 11,14,32 & 34 OF KARNATAKA
EXCISE ACT, WHICH WAS CONFIRMED BY THE LEARNED ADDL.
SESSIONS JUDGE, FTC, PUTTUR IN ORDER DATED 28.2.2013
PASSED IN CRL.A. NO.277/2009 AND CRIMINAL APPEAL
NO.10/2012 AND ETC.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
                           ORDER

The State has preferred this revision petition against

the judgment and order passed by the Addl. Sessions

Judge, Fast Track Court, Puttur, D.K. in Crl.A.No.277/2009

dated 28.02.2013.

2. The rank of the parties in this appeal are

referred to as per their status before the trial Court.

3. The brief facts of the case of the prosecution is

that on 29.09.2003 at about 8.00 a.m. Cw.1-Vishwanatha,

Circle Inspector of Police, Sulia Taluk along with his team

and independent panch witness proceeded to a place

situated at Arambooru of Aletty village on Sampaje Sulia

road on the basis of the credible information received by

him that the accused persons were transporting spirit in a

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lorry without any license or permit. Cw.1-Vishwanatha

stopped the lorry bearing registration No.KL-13-B-4203 at

the above referred place and on verification he found that

the accused persons were transporting and they were in

illegal possession of 74 white plastic cans filled with 30

liters of spirit in each can. It is alleged that the 74 white

plastic cans were hidden under the woods in the lorry. The

accused persons have not produced any permit or license

to transport the spirit. Hence, the police have seized the

same under the mahazar. After completion of the

investigation, the Sub-Inspector of Excise has submitted a

charge sheet against the accused for commission of the

offences punishable under Sections 32, 34, 38A, 43A, 11

and 14 of Karnataka Excise Act.

4. The trial Court has framed the charges under

Sections 32 and 34 of Karnataka Excise Act. The same was

read over and explained to the accused persons, having

understood the same accused persons have pleaded not

guilty and claimed to be tried.

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5. To prove the guilt of the accused the

prosecution has examined 8 witnesses as PW.1 to PW.8.

13 documents were marked as Ex.P1 to Ex.P13 and

Material objects were marked as MO.1 to MO.74.

6. On closure of prosecution side evidence,

statement under Section 313 of Cr.P.C was recorded. The

accused persons have denied the evidence of prosecution

witnesses but they have not chosen to lead any defence

evidence on their behalf but during the course of cross

examination of the prosecution witness the hand writing of

PW.7 is marked as Ex.D1. On hearing the arguments the

trial Court has convicted the accused for the commission

of the offence punishable under Sections 32 and 34 of

Karnataka Excise Act, 1965 read with Section 34 of IPC

and after obtaining the report from the Probation Officer

the trial Court has released the accused under Section

4(1) of the Probation of Offenders Act, 1958 on executing

a bond undertaking to keep peace and good behaviour for

a period of two years. Being aggrieved by this impugned

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judgment of conviction and sentence passed by the trial

Court the accused have preferred the appeal before the

Addl. Sessions Court, Fast Track Court, Puttur, D.K in

Crl.A.No.10/2012. The State has also preferred the appeal

against the order on sentence as the trial Court has

released the accused under the Probation of Offenders Act,

1958 in Crl.A.No.277/2009. The Addl. Sessions Judge, Fast

Track Court, Puttur, D.K has dismissed the appeal filed by

the State and appellate Court also dismissed the appeal

filed by the accused as barred by time. As against this the

State has preferred this revision petition. Accused have

not preferred any revision petition against the dismissal of

the appeal Crl.A.No.10/2012 on the file of the Addl.

Sessions Judge, Fast Track Court at Puttur, D.K.

7. Learned HCGP Sri.M.R.Patil has submitted the

arguments the judgment passed by both the Courts are

opposed to law, facts and probabilities of the case. Same

was illegal and liable to be set aside. The learned JMFC

after having convicted the respondents for the offence

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punishable under Sections 11, 14, 32 and 34 of the

Karnataka Excise Act ought to have imposed adequate

sentence on the respondents for the offences with which

they are convicted. To substantiate his arguments he laid

on the decision in the case of State of Punjab vs. Prem

Sagar and Ors. arising out of SLP (Crl.) No.4285/2007

had sought for allowing the revision petition.

8. As against this, learned amicus curiae

Smt.Archana submitted her arguments that the decision

relied by the learned HCGP is not applicable to the case on

hand as the facts of the case arises out of the Punjab

Excise Act. The trial Court has released the accused under

Section 4(1) of the Probation of Offenders Act after

obtaining the report from the concerned Probation Officer.

The accused have not committed any offence prior to the

alleged commission of the offence. After arrest of the

accused, the accused Nos.1 and 2 were in judicial custody

for a period of 15 days. Considering the nature and gravity

of the offence and also antecedents of the accused the

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trial Court has released the accused under the Probation of

offenders Act, 1958 that there is no bar in the Karnataka

Excise Act, 1965 to release the accused under the

Probation of Offenders Act. The appellate Court has also

properly appreciated the facts of the case in accordance

with law and facts and dismissed the appeal preferred by

the State and to substantiate her arguments she relied on

the decision of Rahamtulla and Ors. vs. State of

Karnataka decided on 20.09.1977 and she also relied on

the decision of the Hon'ble Apex Court in the case of Ishar

Das vs. The State of Punjab decided on 31.01.1972 in

Crl.A.No.64/1969.

9. Having heard the arguments on both sides and

on perusal of records the following points would arise for

my consideration:

(i) Whether the State has made out the grounds to interfere with the impugned order passed by the trial Court which is confirmed by the appellate Court in Crl.A.No.277/2009?

(ii) What order?

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My answer to the above points are as under:

     Point No.(1) :     Negative,
     Point No.(2) :     As per final order.


     Regarding Point No.1:

10. I have carefully examined the materials placed

before this Court. The trial Court has convicted the

accused for the commission of offence punishable under

Sections 11, 14, 32 and 34 of the Karnataka Excise Act,

1965 read with Section 34 of IPC. After conviction of the

accused the trial Court has passed the order on sentence

which reads as under:

"Heard on the sentence.

The learned counsel for the accused vehemently argued that the accused persons are young persons and they have not committed any other offences other than this offence and submitted that the accused persons may be released under Probation of Offenders Act. The learned counsel also relied on the ruling reported in 2004 Crl.L.J.3266 {Ramisetty

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Venkateswara Rao Vs. State} the Hon'ble Andhra Pradesh High Court has held as hereunder:

"Criminal P.C.(2 of 1974) S.360-Probation of Offenders Act (20 of 1958), S.4 -

Release of accused on probation- Application for-No restriction provided as regards to nature of offences or offences under particular enactment - No reason to deny benefit to offence under A.P.Prohibition Act-Appellant/accused is young, has no shady antecedents and quantity of liquor seized from his possession was negligible-Shall be released on probation of good conduct."

As per the above decision even under the case of this nature also the benefit of Probation of Offenders Act can be extended to the accused persons. The very enactment Probation of Offenders Act is a social legislation, which is meant to reform the offenders so as to prevent them from becoming hardened criminals, which is also necessary to protect the younger generation from becoming professional

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criminals and a menace to the society. Considering the age of the accused persons I am of the opinion that the Section 4 of the Probation of Offenders Act, 1958 can be invoked and the accused persons are to be released under the Probation of Offenders Act. However, under the facts and circumstances of the case I feel it is just and necessary to consider the possibility of extending the benefit of Section 4 of the Probation of Offenders Act, 1958 to the accused persons. Therefore, it is necessary to call for the report of the Probation Officer about the antecedents of the accused persons. Hence, I proceed to pass the following:

ORDER Call for the report of the Probation Officer about the antecedents of the accused persons."

11. After obtaining the report from the Probation

Officer the trial Court has passed this order as under:

"On 24.11.2008 judgment was pronounced holding the accused persons was guilty and the question of sentence

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was deferred till the receipt of report from the probation officer. Now the probation officer has given report. I have perused the same. He has opined that benefit of Section 4 of P.O.Act be given to the accused no.1 and 2 in this case. Having regard to the age of accused persons and considering the facts and circumstances of the case I am of the opinion that the accused no.1 and 2be given the benefit of the P.O. Act. The accused no.1 and 2 are released under Section 4(1) of P.O.Act subject to executing bond undertaking to keep peace and good behaviour for a period of two years."

12. In paragraphs 16 and 17 of the judgment of the

appellate Court, the appellate Court has observed as

under:

"16. The Hon'ble High Court of Karnataka in Rahamathulla & Ors.'s case made a clear observation that if the conditions required from the application of provisions of Probation act as in existence then Court can resort to it. In this case the Hon'ble High Court was dealing with the

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case arising out transportation of 1414 Brandy bottles in a Car by the accused. In this judgment the Hon'ble High Court of Karnataka relied the judgment of Hon'ble Apex Court in "Isher Das vs. State of Punjab" reported in AIR 1972 SC 1295 to the effect that, "the provisions of Sec.4 of the P.O.Act point to the conclusion that their operation is not excluded in the case of persons found guilty of offences under the said Act(Excise) though a minimum punishment is prescribed there under."

It was also considered the conditions prescribed for application of provision of Sec.4 of the Probation of Offender's Act viz.,(1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the Court finding him guilty is of the opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct, (3) the accused in such an event enters the bond

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with or without surety to appear and receive sentence when called upon during such period not exceeding 3 years as the Court may direct and, in the mean time to keep the peace and be of good behaviour.

17. It is pertinent to note from the trial Court records that the report of the Probation Officer has been called, obtained, wherein the good conduct has been explained and the Probation Officer did recommend for application of Sec.4(1) of the Probation Act and only after such satisfaction the said provisions has been applied. Hence in the light of the settled law there is no bar under the stature for extending the provisions of Probation Act the Judicial discretion exercised by the Court below in applying the provisions of P.O. Act is based on the sound legal principles and it stands to its reason. Hence the contention of the prosecution that the application of the provisions of the Probation Act is not accepted. In the result Point No.1 is answered in the Affirmative."

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were in judicial custody for a period of 15 days. It is also

not in dispute that the alleged commission of offence

committed by the accused is first offence and there are no

materials to show that the accused have convicted in any

other offences prior to the commission of the offence. Only

after obtaining report from the Probation Officer the trial

Court has passed the order by releasing the accused under

Section 4(1) of Probation of Offenders Act.

14. The above observation made by the trial Court

and the appellate Court are in accordance with law and