Karnataka High Court
Sri Raghu K vs Santhosh Kumar M on 4 January, 2024
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NC: 2024:KHC:467
CRL.RP No. 847 of 2016
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.847 OF 2016
BETWEEN:
1. SRI RAGHU K
S/O KRISHNEGOWDA
NO.3803, 12TH CROSS 9TH MAIN,
THYAGARAJANAGAR
NEAR POLICE STATION,
BSK 3RD STAGE
BANGALORE-560085
...PETITIONER
(BY SRI. D GANGADHARA, ADVOCATE)
AND:
1. SANTHOSH KUMAR M
S/O MAHADEVI S TELI
Digitally signed NO.4185, CHAITHANYA DHAMA
by SANDHYA S
Location: High
2ND B MAIN, 4TH PHASE
Court of GIRINAGAR
Karnataka
BANGLAORE-560085
...RESPONDENT
(BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED
7.6.2016 PASSED BY THE PRL. DIST. AND S.J.,
CHIKKAMAGALURU IN CRL.A.NO.169/2015 AND ALSO
CONFIRM THE EARLIER ORDER DATED 24.06.2015 PASSED BY
THE PRL. C.J. AND J.M.F.C., CHIKMAGALURU IN
-2-
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CRL.RP No. 847 of 2016
C.C.NO.873/2013.I.A.NO.1/2016 FOR SUSPENSION OF
SENTENCE.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The accused/revision petitioner has preferred this
Revision Petition against the judgment of conviction and order
of sentence passed by the Principal District and Sessions Judge,
Chikkamagalur in Criminal Appeal No.169 of 2015 dated 07th
June, 2016 (for brevity, hereinafter referred to as the "trial
Court").
2. For the sake of convenience, the parties in this appeal
are referred to as per their status and rank before the trial
Court.
3. It is the case of the prosecution that 25th April, 2013
about 12.15 pm in Kaimara village and surrounding places
Excise Inspector along with his staff had been doing patrolling
duty, at that time he received reliable information that the
accused-C.V. Suresh has stored liquor in his house situate at
Arasinaguppe village. After receipt of information, complainant
secured two persons as panchas and proceeded to the house of
accused along with panch witnesses and conducted raid. On
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search, they found 90 ml. 160 Martin Special Whisky sachets in
a plastic bag in the kitchen of the accused's house. Out of
those 160 sachets, 52 sachets were separated as samples
under the panchanama and the remaining liquor sachets were
seized under mahazar; accused was arrested on the spot and
thereafter, they have registered the case against the accused.
On completion of investigation, Investigating Officer has
submitted charge sheet against the accused for commission of
offence punishable under Section 32 and 38A of the Karnataka
Excise Act, 1965 (for brevity, hereinafter referred to as "the
Act"). After taking cognizance, the trial Court has registered a
case against the accused in CC No.873 of 2013 for commission
of offence punishable under Sections 32 and 38 of the Act.
Accused has obtained bail. Charges were framed against the
accused for the alleged commission of offences. Having
understood the same, the accused pleaded not guilty and
claimed to be tried.
4. To prove the guilt of the accused, prosecution has
examined four witnesses as PWs1 to 4 and eight documents
were marked as Exhibits P1 to P8 and 52 Captain Martins
Whisky sachets were marked as MOs No.1 and 2. On closure of
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prosecution side evidence, statement of accused under Section
313 of Code of Criminal Procedure was recorded. The accused
has totally denied the evidence of prosecution witnesses, but
has not chosen to lead any defence evidence.
5. Having heard the documents, the trial Court acquitted
the accused for the offence punishable under Sections 32 and
38 of the Act. Being aggrieved by the said judgment of
acquittal, the State has preferred appeal before the Principal
District and Sessions Judge in Criminal Appeal No.169 of 2015.
The appeal came to be allowed by the Appellate Court by
setting aside the judgment of acquittal dated 24th June, 2015
passed in CC No.873 of 2013 on the file of the Principal Civil
Judge and JMFC, Chikkamagalur, accused was convicted for the
offence punishable under Section 32 of the Act and sentenced
the revision petitioner to undergo rigorous imprisonment of
three years and to pay fine of Rs.10,000/- and in default to pay
fine, the accused shall undergo simple imprisonment three
months. Being aggrieved by the impugned judgment of
conviction and order of sentence, passed by the Appellate
Court, the accused/Revision Petitioner has preferred this
revision petition.
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6. Learned Counsel appearing for the petitioner remains
absent. However, this Court has perused the grounds taken in
the revision petition and heard the arguments of Sri M.R. Patil,
learned High Court Government Pleader appearing for
respondent-State.
7. Having heard the learned High Court Government
Pleader and having perused the records, the following point
would arise for my consideration in this revision petition:
1. Whether the judgment of conviction and order
of sentence passed by the appellate Court is
illegal, capricious and opposed to law and facts?
2. What order?
8. My answer to the above points are as under:
Point No.1: in the affirmative;
Point No.2: as per final order
Regarding Point No.1:
9. I have carefully examined the material placed before
this Court. It is the case of prosecution that on 25th April, 2013
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at about 12.15 pm in Kaimara village and surrounding places
Excise Inspector along with his staff had been doing patrolling
duty, at that time he received reliable information that the
accused-C.V. Suresh has stored liquor in his house situate at
Arasinaguppe village. Thereafter, Excise Officials seized the
same under mahazar. To prove the case of prosecution, four
witnesses were examined as PWs1 to 4 and eight documents
were marked as Exhibits P1 to P8 and two objects were marked
as Material objects as MOs 1 and2.
10. PW1-Chandrashekara, Excise Guard and PW4-
Chandrappa, Inspector of Excise, Chikkamagalur have deposed
as to seizure of Material Objects 1 and 2 in the house of the
accused. PW2-Ranganatha, has deposed in his evidence as to
the submission of model sachets of Captain Martin Whisky to
the Laboratory along with the Articles Exhibit P2. PW3-
Vijaykumar said to be attestor to the mahazar Exhibit P1 and 4,
has not supported the case of prosecution. Exhibit P1-mahazar
reveals that excise officials have seized the Whisky sachets in
the house of the accused on 25th April, 2013 at 12.15 pm and
this mahazar is prepared on 25th April, 2013 between 12.15 to
1.30 pm. Soon after the seizure of Whisky sachets, the
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Investigating Officer, without any reasonable delay, has not
produced the same before the office not below the rank of
Superintendent of Excise authorised by the Government in this
behalf as required under Section 43-A of the Act. Investigating
Officer has also not submitted the report as to seizure of
property to the jurisdictional Magistrate as required under
Section 102 of Code of Criminal Procedure. Before search of
the house, the Investigating Officer has not complied with the
mandatory provisions of Section 54 of the Act. The
Investigating Officer has not explained anything as to non-
compliance of Section 43-A and Section 54 of the Act and also
the provisions of Section 102 of Code of Criminal Procedure,
1973.
11. Apart from this, Exhibit P8-certificate issued by the
Panchayat Development Officer of Village Panchayat
Dasarahalli, Chikkamagalur Taluk, reveals that the House Khata
No.96/117 Assessment No.121, belongs to one Saroja W/o C.V.
Suresha of Arasinaguppe, Mallenahalli Post, Chikkamagalur and
C.V. Suresh, is residing in this house. The owner of the house
is one Saroja, who is not arrayed as accused in this case. The
Investigating Officer has not explained anything in this regard.
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Even the Investigating Officer has not collected the katha and
assessment extract pertaining to the house in question. The
learned Sessions Judge has observed that prosecution has
failed to prove the guilt of the accused under Section 38A of
the Act. The learned Sessions Judge has ignored the
mandatory provisions of Sections 43A and 54 of the Act and
Section 102 of Code of Criminal Procedure. Hence, the
impugned judgment of conviction and order of sentence passed
by the learned Sessions Judge, is illegal, capricious and
opposed to law and facts and requires to be set aside. Hence, I
answer point No.1 in the affirmative.
Regarding Point No.2:
12. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
1. Revision petition is allowed;
2. Judgment of conviction and order of sentence
dated 07th June, 2016 passed in Criminal Appeal
No.169 of 2015 by the Principal District and
Sessions Judge, at Chikkamagaluru, is set aside;
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3. Judgment of acquittal dated 24th June, 2015
passed in CC.No.873 of 2013 by the Principal Civil
Judge and JMFC, Chikkamagaluru, is confirmed;
4. Send the trial Court records along with copy of
the order to the court below.
Sd/-
JUDGE
LNN
