Karnataka High Court
Shanthappa vs The State Of Karnataka on 11 January, 2024
-1-
NC: 2024:KHC:1442
CRL.RP No. 1391 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRL.RP. NO.1391 OF 2016
BETWEEN:
SHANTHAPPA
S/O. MAHADEVAPPA,
AGED ABOUT 65 YEARS,
OCC: BUSINESS,
R/O. NANJEDEVANAPURA VILLAGE,
CHAMARAJANAGARA DISTRICT-573116.
...PETITIONER
(BY SRI. MANJE GOWDA B.V., ADV. FOR
SRI CHANDRASHEKARA K. A., ADV.)
AND:
THE STATE OF KARNATAKA
Digitally signed BY THE POLICE OF
by SANDHYA S
Location: High CHAMARAJANAGARA RURAL POLICE STATION,
Court of CHAMARAJANAGAR DISTRICT-573116.
Karnataka
REPRESENTED BY:
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BANGALORE -560001.
...RESPONDENT
(BY SRI.M.R.PATIL, HCGP)
CRL.RP FILED UNDER SECTION 397 R/W 401 CR.P.C BY
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
09.09.2016 PASSED BY THE PRL. DIST. AND S.J.,
-2-
NC: 2024:KHC:1442
CRL.RP No. 1391 of 2016
CHAMARAJANAGAR IN CRL.A.NO.32/2015 AND RESTORE THE
ORDER OF ACQUITTAL DATED 04.07.2015 PASSED BY THE
PRL. C.J. AND J.M.F.C., CHAMARAJANAGAR IN
C.C.NO.152/2012 FOR THE OFFENCE P/U/S 34 OF KARNATAKA
EXCISE ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is preferred against the
judgment of conviction and order of sentence passed by
the Principal District and Sessions Judge, Chamarajanagar
in Crl.A.No.32/2015 dated 09.09.2016.
2. For the sake of convenience, the parties in this
revision petition are referred to as per the status and rank
before the trial Court.
3. The brief facts of the prosecution case are that on
03.05.2011 at about 4.00 p.m., in Nanjedevanapura, the
accused was possessing 28 pouches of Haywards Cheers
Whisky containing 180 ML each with an intention to sell
the same without having any license thereby, the accused
NC: 2024:KHC:1442
has committed the offence punishable under Section 34 of
the Karnataka Excise Act, 1965 ("1965 Act" for brevity).
4. After filing of charge sheet, cognizance was taken
against the accused and case was registered in
C.C.No.152/2012. In response to the summons, the
accused appeared before the trial Court and enlarged on
bail. The charges framed against the accused for the
alleged commission of offence. The same was read over
and explained to the accused, having understood the
same, the accused pleaded not guilty and claimed to be
tried.
5. To substantiate the case of prosecution, 7 witnesses
were examined as P.W.1 to P.W.7, 6 documents were
marked as Ex.P1 to Ex.P6, 2 material objects were marked
as M.O.1 and M.O.2. On closure of prosecution side
evidence, the statement under Section 313 of Cr.P.C. was
recorded. The accused had totally denied the evidence
appearing against him, but he has not chosen to lead any
defense evidence on his behalf.
NC: 2024:KHC:1442
6. Having heard the arguments on both sides, the trial
Court acquitted the accused. Being aggrieved by this
judgment of acquittal, the State has preferred appeal in
Criminal Appeal No.32/2015 before the Principal District
and Sessions Judge, Chamarajanagar. The appeal was
allowed by the Appellate Court and the order of acquittal
was set aside and accused/revision petitioner was
convicted for the offence under Section 34 of the
Karnataka Excise Act, 1965 and sentenced to undergo
simple imprisonment for two years and to pay a fine of
Rs.10,000/-, in default of payment of fine, he was directed
to undergo simple imprisonment for two months. Being
aggrieved by this judgment of conviction and order on
sentence passed by the Appellate Court, the revision
petitioner has filed this revision petition.
7. Learned counsel appearing on behalf of the petitioner
would submit that, the author of Ex.P6 FSL report, has not
been examined by the Prosecution. Only one pouch said to
have contained 180 ml of alleged contraband has been
NC: 2024:KHC:1442
chemically examined, not all the 28 pouches alleged to
have been seized by the Prosecution. The above said
pouch only contains the Whisky and the rest of the
pouches did not contain any such contraband. Then the
very case of the Prosecution itself is not maintainable,
since 180 ml of Whisky comes under the permissible limit.
Search Warrant is the condition precedent to conduct the
raid under Section 54 of 1965 Act. In the case on hand,
P.W.1 without obtaining search warrant or recording the
reasons for not obtaining such search warrant by
producing the case Diary or SHD before the Court, had
conducted raid, which is not permissible. Though 28
pouches alleged to have been seized on 03.05.2011, all
the 28 pouches were not sent for chemical analysis to
examine the same, however, handed over to P.W.7/Excise
Sub-Inspector only on 19.07.2011 i.e., 75 days after the
seizure of contraband. No explanation was offered by the
Prosecution to keep these articles for such a long time and
all 28 pouches have not been produced before the Court.
The evidence of prosecution witnesses is not corroborative
NC: 2024:KHC:1442
to each other and full of contradictions. Even with regard
to seizure of pouches and drawing up mahazar at Ex.P1 as
per P.W.2, the trial Court was pleased to properly
appreciate the entire evidence adduced by the prosecution
and acquitted the accused. But the Appellate Court
without proper appreciation of evidence, reversed the
order of acquittal which is liable to be set aside. On all
these grounds, learned counsel sought for allowing the
revision petition.
8. Per contra, learned HCGP Sri.M.R.Patil appearing for
State, submitted his arguments that, the Appellate Court
has properly appreciated the evidence on record in
accordance with law and facts. That there are no grounds
to interfere with the impugned judgment of conviction and
order on sentence passed by the Appellate Court. On all
these grounds, learned HCGP sought for dismissal of the
revision petition.
NC: 2024:KHC:1442
9. Having heard the arguments on both sides and on
perusal of the material on record, the following points
would arise for my consideration:
(i) Whether the Appellate Court committed an
error in reversing the judgment of acquittal
passed by the trial Court.
(ii) What order?
10. My answer to the above points is as under:
Point No.1 in the affirmative
Point No.2 as per the final order.
Regarding Point No.1:
11. I have carefully examined the material placed on
record before this Court.
12. It is the case of the Prosecution that the accused was
in possession of 28 pouches of Haywards Cheers Whisky
which contained 180 ML with an intention to sell the same
without any valid license. The trial Court, in its judgment
at paragraph 10 has observed as under:
NC: 2024:KHC:1442
"It is the argument of the learned APP that the
prosecution has to prove its case beyond all
reasonable doubt, therefore the accused is liable
for maximum punishment. As per Section 54 of
Karnataka Excise Act, 1965 the Excise Officer or
the Police Officer can enter and search any place
and seize anything therein which he has reason
to believe that a search warrant cannot be
obtained without affording the offender an
opportunity of escape or of concealing evidence
of the offence, but he should record the grounds
for not taking warrant. In this case, CW-
1/P.W.1 has neither taken the warrant from the
concerned Magistrate nor recorded any reason
for not taking search warrant before seizure and
arrest of the accused. In AIR 1979 SUPREME
COURT 711 between K.L.Subbaiah V/S State
of Karnataka it is held by the Hon'ble Supreme
Court that searching the place without making
any record of the ground on the basis of which a
belief has been made that an offence is being
committed under the Act, renders a search
completely without jurisdiction. It is further
held that both the Sections 53 and 54 of
Karnataka Excise Act contains valuable
NC: 2024:KHC:1442
safeguards for the liberty of the citizen in order
to protect them from ill-founded or frivolous
prosecution or harassment. I have applied this
decision of the Hon'ble Supreme Court to the
case on hand. Hence, the act of non taking of
warrant and non-recording of reason for not
taking the warrant from the Magistrate renders
entire seizure and arrest of the accused without
jurisdiction. Therefore, the accused is entitled
for acquittal. Hence, I answer point No.2 in the
negative."
13. On a careful examination of the material placed
before this Court, it is crystal clear that the Investigating
Officer has seized the properties on 03.05.2011. However,
has submitted his report to the concerned Officer on
19.07.2011, after lapse of 75 days. The Investigating
Officer has not explained the delay in submitting the
report to the concerned officer. Accordingly, the
Investigating Officer has failed to comply the mandatory
provisions of Section 43-A of the Karnataka Excise Act,
1965. The Investigating Officer has also not explained as
to the non-compliance of mandatory provisions of Section
- 10 -
NC: 2024:KHC:1442
54 of the Karnataka Excise Act, 1965. Apart from this, the
Investigating Officer has not sent all 28 pouches for
chemical examination, but he has sent only 180 ml Whisky
for chemical examination which comes under the
permissible limit.
14. Viewed from any angle, I do not find any legal
evidence to convict the accused for the alleged
commission of offence punishable under Section 34 of the
Karnataka Excise Act, 1965. Learned Sessions Judge has
not properly appreciated the evidence on record, in
accordance with law and facts. Learned Sessions Judge
has ignored the mandatory provisions of Section 43-A,
Section 54 of 1965 Act and also Section 102 of Code of
Criminal Procedure. The Appellate Court has also ignored
the provisions of Rule 21 of the Karnataka Excise Rules.
Accordingly, the Appellate Court has committed an error in
reversing the judgment of acquittal. Hence, I answer
point No.1 in the affirmative.
- 11 -
NC: 2024:KHC:1442
Regarding Point No.2:
15. For the aforesaid reasons and discussions, I proceed
to pass the following:-
ORDER
(i) The revision petition is allowed.
(ii) The judgment of conviction and order on
sentence passed by the Principal District and Sessions
Judge, Chamarajanagar in Crl.A.No.32/2015 dated
09.09.2016 is set aside.
(iii) The accused is acquitted for the commission of
offence punishable under Section 34 of the Karnataka
Excise Act, 1965.
Send a copy of the judgment along with TCR to the
concerned Court.
Sd/-
JUDGE
MPK
CT:bms
