Karnataka High Court
Gopala vs State By Chikkamagalur Town Police on 1 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 58 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 58 OF 2020
BETWEEN:
1. GOPALA
S/O LATE KRISHNAPPA
AGED ABOUT 55 YEARS
RESIDENT OF BELUR ROAD, FORT,
CHIKKAMAGALUR-577101
...PETITIONER
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
1. STATE BY CHIKKAMAGALUR TOWN POLICE,
CHIKKAMAGALUR
REPRESENTED BY STATE PUBLIC PROSECUTOR
Digitally signed HIGH COURT BUILDING
by SHARANYA T BANGALORE-560001.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
PRAYING TO SET ASIDE THE ORDER DATED 02.11.2019
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU IN CRL.A.NO.12/2018 BY
DISMISSING THE APPEAL BY CONFIRMING THE ORDER DATED
22.12.2017 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND C.J.M., CHIKKAMAGALURU IN C.C.NO.1447/2016 AND THE
PETITIONER IS LIABLE TO BE ACQUITTED FOR THE OFFENCE
P/U/S 32 AND 34 OF KARNATAKA EXCISE ACT ALLEGED
AGAINST HIM.
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CRL.RP No. 58 of 2020
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The factual matrix of the case of the prosecution that
on 22.08.2016 at about 5.15 a.m., CW1 - PSI i.e., PW6
has received the credible information that the accused
No.1 is selling liquors illegally infront of his house by the
side of Belur road in Kote extention of Chikkamagaluru
town. Then CW1 conducted raid along with his staff
members and panchas and seized 25 packets of Amruth
silver cup brandy, 57 pouches of Bangalore Malt Whiskey
and cash of Rs.460/- from the possession of the accused
No.1. The Mahazar was drawn and photograph was taken
in the spot. At that time, the accused No.1 has revealed
that the accused No.2 sold all these liquors to him by
promising that he will pay 5% of commission. Then CW1
brought the accused No.1 and seized materials to the
police station and filed complaint to the Station House
Office. Station House Officer has received the complaint
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and registered the case in Cr.No.240/2016 and sent the
FIR to the Court. Thereafter, CW11 conducted the
investigation and filed the charge sheet against the
accused for the offences punishable under Sections 32 and
34 of Karnataka Excise Act. The accused persons have
secured and they have not pleaded guilty and the trial has
been conducted by the Trial Court. The prosecution mainly
relies upon the evidence of PW1 to PW6 and also the
document Ex.P1 to Ex.P12 and material objects MO.1 to
MO.4.
2. The Trial Court having considered both oral and
documentary evidence available on record, convicted the
accused No.1 for the offence punishable under Sections 34
of Karnataka Excise Act sentenced to undergo simple
imprisonment for a period of one year and fine of
Rs.10,000/-. In default of payment of fine amount, the
accused No.1 shall further undergo simple imprisonment
for a period of two months. MO.2 cash of Rs.460/- is also
confiscated to State and MO.1, 3 and 4 shall be returned
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to the Excise Department for disposal in accordance with
law.
3. Being aggrieved by the judgment of conviction
and sentence, the appeal is filed in appeal number
Crl.A.No.12/2018. The Appellate Court on re-appreciation
of both oral and documentary evidence available on record
particularly considering the evidence of PW1 to PW6
comes to the conclusion that the Trial Court has not
committed any error and confirmed the judgment of the
Trial Court.
4. Being aggrieved by the judgment of conviction
and sentence of the Trial Court and confirmation of
appellate Court, the present criminal revision petition is
filed before this Court. The counsel appearing for the
revision petitioner would vehemently contend that both
the Courts have committed an error in not applying
judicious mind and only relied upon the chief evidence of
the prosecution witnesses that too PW3 to PW6 who are
the official witnesses. Inspite of answers elicited in the
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cross-examination of PW3 to PW6 regarding seizure and
identification of seized articles is concerned and even an
amount of Rs.460/- is alleged recovered from the accused
No.1 and no such details of denominations of note of
Rs.460/- is mentioned, the same is also elicited from the
mouth of witnesses. Inspite of it, the Trial Court and also
the appellate Court comes to the conclusion that the
revision petitioner has committed an offence punishable
under Section 34 of Karnataka Excise Act. The material
objects were not been seized in accordance with law and
compliance of Section 53 and 54 of Excise Act. The alleged
incident of seizure was at 5.15 a.m., and story of the
prosecution is that at that time, there were customers,
they were ran away from the spot and they have seized
empty pouches and also the pouches in which liquor was
there. No details of number of pouches were also
mentioned in the mahazar and discrepancy has not been
taken note of by the Courts, this Court has to exercise its
revisional jurisdiction and Court has to look into the
judgment of the Trial Court and also the appellate Court,
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whether the same suffers from its legality and correctness.
Hence, the revision petitioner prays for acquittal.
5. Per Contra, the counsel appearing for the State
would submits that the Trial Court in detail discussed the
evidence of PW6, though they are the official witnesses
and they are from the particular department and merely
because they are the official witnesses and their evidence
cannot be discredited and the material collected during the
course of the investigation is also spoken by PW3 to PW6
and nothing is elicited in the cross-examination of PW3 to
PW6, the same has been observed by the Trial Court while
considering the evidence of PW3 to PW6. The counsel also
would submits that in the appeal before the appellate
Court in paragraph No.14, the appellate Court after re-
considering the material available on record, comes to the
conclusion that the Trial Court has not committed any
error and contention by the appellant's counsel before the
appellate Court cannot be accepted. The PW1 though
turned hostile, taken note of Ex.P2 and MO.1 - photograph
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and also taken note of the evidence of PW3 and PW6 and
their evidence is consistent apart from the evidence of
PW4 and PW5 and their evidence also corroborates the
evidence of PW3 and PW6. The PW3 and PW6 have
categorically testified regarding the raid conducted by
them along with CW1 and CW2. Hence, it does not require
interference.
6. Having heard the revision petitioner's counsel
and the counsel appearing for the State and also
considering the grounds which have been urged in the
revision petition, the point that would arise for the
consideration of this Court are:
1) Whether the judgment of conviction
and sentence and also the confirmation made
by the appellate Court suffers from its legality
and correctness?
2) What Order?
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POINT Nos.1 and 2:
7. Having heard the revision petitioner's counsel
and also the counsel appearing for the respondent and
also considering the material available on record, the case
of the prosecution is that on 22.08.2016 at about 5.15
a.m., on receiving credible information, the PW1
conducted raid and seized 25 packet of Amruth Silver cup
brandy, 57 pouches of Bangalore Malt Whiskey and cash of
Rs.460/- from possession of accused No.1 and mahazar
was drawn and investigation is completed and the I.O has
filed the charge sheet. The Trial Court having considered
both oral and documentary evidence available on record,
acquitted accused No.2 and convicted and sentenced the
accused No.1 who is the revision petitioner before this
Court. Now, looking into the evidence available on record,
no doubt the PW1 and PW2 have not supported the case of
the prosecution according to the prosecution, they went
along with PW1 and PW2 to the spot. Both of them not
supported the case of the prosecution and they says that
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police brought the accused No.1 and they took the
signature and also taken photograph. The photo was not
taken at the spot. No doubt the photo -Ex.P3 discloses
that the accused is found in the photograph and with
regard to the seizure is concerned, PW1 and PW2 have not
supported the case of the prosecution and only the
evidence of PW3 to P6 remains since PW1 says he cannot
say what has been seized at the spot. The PW2 also says
that he cannot say what has been seized at the spot. Now,
the Court has to consider the evidence of PW3 to PW6, the
PW3 is Head constable, he also says that when they went
to the spot, public who were consuming the liquor, they
ran away from the spot. The accused No.1 apprehended at
the spot and also seized an amount of Rs.460/- at the
spot. In the cross-examination, PW3 says that regarding
his part of the raid and seizure, he categorically admits
that he has not given any such statement before the
investigating officer, though he claims that he himself and
one Kumar apprehended the accused No.1 and in this
regard also he has not stated specifically about the
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apprehension of accused No.1 and also he categorically
admits that he did not secure any panch witnesses at the
spot. He cannot tell number of pouches seized at the spot.
He also not able to give any details of serial number. The
liquor which was found in the cardboard box, the same is
also not produced before the Court. He categorically
admits that statement of accused No.1 was not taken at
the spot. But, it is the case of the prosecution that the
accused No.1 only revealed that accused No.2 has
supplied the same and assured him to give 5% of
commission.
8. Having perused the discussion made by the
Trial Court, nothing is discussed except the chief evidence
of PW3, he only says that nothing is elicited in the cross-
examination, not only in respect of this witness, in respect
of all the witnesses. The PW4, PW5 and PW6 are also the
witnesses who conducted the raid. The PW4 also says that
he cannot give any details of the denomination of notes
which was seized and also in the P.F, pouch batch number,
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serial number and denomination of notes are also not
mentioned, the same is also not discussed by the Trial
Court.
9. The other witness PW5 is also the retired P.S.I,
he has sent the seized articles to the FSL. In his cross-
examination also, he did not mention the pouch having
liquor and empty pouches and the same is not mentioned.
In Ex.P10, he has not mentioned the batch number of the
said pouches. This evidence also not discussed by the Trial
Court.
10. The witness PW6 who conducted the raid also
says that on credible information, he has secured the
panch witnesses and conducted the raid. In the cross-
examination, this witness also submit that he did not
mention anything about the information he has received in
his report as well as in the mahazar. He also admits that
no one showed the place to him and only he says that the
person who gave the information has given the details, the
same is not mentioned in his report. He admits that the
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cardboard box in which the liquor was found is also not
produced before the Court. He did not mention the
denomination of note which was seized at the spot in the
panchanama and also in his report. He did not mention
anything in the panchanama with regard to the empty
pouches and also the pouches in which the liquor was
found. An attempt is made before the Court while
deposing that the number was found and hence did not
mention the same. He categorically admits that either in
his report or in his mahazar, he has not mentioned the
number of said pouches. He did not obtain any signature
of the panch witnesses.
11. Having considered his evidence and I have also
pointed out that the Trial Court except extracting the chief
evidence of these witnesses of PW3 to PW6, not discussed
anything about the cross-examination and the Trial Court
only given the reasons that the witnesses are subjected to
cross-examination and nothing is elicited and no
discussion made at all by the Trial Court. The Trial Court
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convicted the accused No.1 by invoking offence punishable
under Section 34 of Karanataka Excise Act. It is also
unfortunate that the appellate Court also while re-
considering the evidence available on record, even not
gone through the answers elicited from the mouth of PW3
to PW6 and instead of that in paragraph No.14 comes to
the conclusion that contention of the appellant's counsel
cannot be accepted, simply because PW1 and PW2 being
mahazar witnesses have not fully turned hostile, only
relies upon the evidence of PW1 and PW2 on the ground
that they have identified their signatures on Ex.P2 and
also on MO.1. Their evidence is very clear that the accused
No.1 was brought and his signature was taken. Both PW1
and PW2 have stated that they have not aware of what
they have seized at the spot and they have not been to
the spot. When such being the case, merely found the
signature on Ex.P2 and MO.1 cannot be a basis to convict
the accused. However, the Court comes to the conclusion
that there is a corroboration of PW3 and PW6 and the
evidence of PW4 and PW5. The appellate Court also fails to
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take note of the answers elicited from the mouth of
witnesses with regard to the seizure of notes as well as
mentioning of the details in the report as well as in the
panchanama and comes to the conclusion that there is a
presumption under Section 114(e) of Indian Evidence Act
that the official acts have been duly performed. The very
approach of the appellate Court is also erroneous. No
doubt the evidence of official witnesses cannot be
discarded, but the evidence of official witnesses should be
credible to accept their evidence and answers elicited from
mouth of PW3 to PW6 with regard to the very seizure is
concerned and also according to the prosecution, the
alleged raid was conducted at 5.15 a.m., and at that time
also the customers were their at the spot and they were
ran away from the spot cannot be believed. This theory of
5.15 a.m., consuming the liquor in the early morning also
not been substantiated and also the seizure of cash to the
tune of Rs.460/- from the possession of the accused No.1
and all the witnesses who are the part of the raid also not
given any details. The details of denomination of notes
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was also not mentioned in the panchanama as well as
nothing is mentioned in the report with regard to the
credible information, the same is admitted by the PW6
who has received the information and conducted the raid
and also he categorically admits that he was not aware of
the spot and nobody shown the place in which he was
selling the liquor, but he made an attempt to convince the
Court that the information given to him was revealed the
place in which the liquor was selling and then he went to
that spot.
12. Having taken note of no discussion was made
by the Trial Court with regard to the evidentiary value of
PW3 to PW6 except mentioning that nothing is elicited in
the cross-examination and the appellate Court has also
blindly believed the evidence of PW3 to PW6 and fails to
take note of answers elicited from the mouth of these
witnesses particularly the panch witnesses. Based on the
official witnesses convicted the accused No.1/revision
petitioner and the appellate Court confirmed the accused
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No.1/revision petitioner. The very case of prosecution has
not been proved by leading any credible evidence before
the Court. Hence, I answered the point No.1 as
affirmative.
13. In view of discussions made above, I pass the
following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The impugned judgment of conviction and
sentence dated 22.12.2017 passed in
C.C.No.1447/2016 is set-aside. The very fine
amount which is deposited is ordered to be
refunded in favour of the revision petitioner on
proper identification.
Sd/-
JUDGE
RHS
