[Cites 11, Cited by 0]

Karnataka High Court

Mr.Patrick D Souza vs The State Through Police Inspector on 18 December, 2025

                           -1-
                                   CRL.A No.1114 of 2014


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 18TH DAY OF DECEMBER, 2025
                        BEFORE
       THE HON'BLE MR. JUSTICE G BASAVARAJA
          CRIMINAL APPEAL NO.1114 OF 2014

BETWEEN:

MR. PATRICK D'SOUZA
AGED 51 YEARS,
S/O LATE LAWRENCE D'SOUZA,
R/AT ELLIYARPADAVU,
AMBLAMOGARU VILLAGE AND POST,
BANTWAL TALUK,
DAKSHINA KANNADA DISTRICT-575 017
                                            ...APPELLANT

(BY SRI. P. P. HEGDE, SR. COUNSEL FOR
 SMT. SAKSHA BHAGAVAN, ADV.)

AND:

THE STATE THROUGH POLICE INSPECTOR,
EXCISE ENFORCEMENT
AND LOTTERY PROHIBITION WING,
SPECIAL POLICE STATION,
MANGALORE-REPRESENTED BY
THE STATE PUBLIC POSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-01.
                                          ...RESPONDENT

(BY SRI. RANGASWAMY R., HCGP.)

     THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:19.11.14 PASSED BY THE
PRL.S.J., MANGALORE IN S.C.NO.62/2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 32 AN 34 OF
KARNATAKA EXCISE ACT AND THE APPELLANT/ACCUSED IS
SENTNECED TO UNDERGO R.I. FOR ONE YEAR AND TO PAY
FINE OF RS.TEN THOUSAND (RS.10,000/-) AND IN DEFAULT,
                                     -2-
                                                CRL.A No.1114 of 2014


HE SHALL UNDERGO FURTHER S.I. FOR SIX MONTHS FOR THE
OFFENCE P/U/S 32 AND 34 OF KARANTAKA EXCISE ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   11.11.2025  AND  COMING   ON   FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:

CORAM:     HON'BLE MR. JUSTICE G BASAVARAJA

                            CAV JUDGMENT

The appellant has preferred this appeal against the

judgment of conviction and order on sentence passed by the

Prl. Sessions Judge, D.K., Mangalore in S.C.No.62/2012 dated

19.11.2014.

2. For the sake of convenience, parties herein are

referred to as per their rank before the trial court.

3. Brief facts leading to this appeal are that, the Police

Inspector, Excise Enforcement and Lottery Prohibition Wing

Special Police Station, Mangalore, has filed the charge-sheet

against the accused for the offences punishable under Section

32 and 34 of Karnataka Excise Act, 1965 (hereinafter referred

to as 'the Act' for short) and Section 328 of IPC.

4. It is the case of the prosecution that on

12.03.2011, the Sub-Inspector of Police, Excise Department

and Lottery Prohibition Wing Special Police Station, Mangalore,

received credible information regarding unlawful possession

and transportation of illicit liquor by accused in Karnataka-

Kerala border. On receipt of such information, the police

officials went near the pathway of Elliyarpadavu near

Elliyarpadavu-Kuthar public road at Amblamogaru village of

Mangalore Taluk. In that place, they found the accused in

possession of plastic can containing five litres of intoxicant/

illegally manufactured liquor. The accused was transporting the

same for the purpose of selling to general public. The accused

by such acts attempted to administer liquor containing ethyl

alcohol, which was not fit for human consumption. The said

liquor contained poisonous substance and the accused was

proceeding to sell the same to general public with an intent to

cause hurt and knowing that if the said liquor was consumed,

it would cause hurt to such person. Thus the accused has

committed the alleged offences.

5. The accused was apprehended at the spot and after

his production before the learned Magistrate, he was remanded

to judicial custody and after filing of charge-sheet, case was

registered in C.C.No.3181/2011. Thereafter, case was referred

to the Court of Sessions and was registered as S.C.No.62/2012.

6. The learned Sessions Judge has framed the charges

against the accused for the commission of alleged offences. The

same was read over and explained to the accused. Having

understood the same, accused pleaded not guilty and claimed

to be tried.

7. To prove the guilt of the accused, the prosecution in

all, examined five witnesses as PWs.1 to 5 and nine documents

were marked as Exhibits P1 to P9. One material object marked

as M.O.1. On closure of prosecution side evidence, statement

under Section 313 of Cr.P.C was recorded. Accused has totally

denied the evidence of prosecution witnesses. However, he has

not chosen to lead any defence evidence on his behalf.

8. Having heard the arguments on both sides, the trial

Court has acquitted the accused for the offence punishable

under Section 328 of Indian Penal Code and convicted the

accused for the offence punishable under Sections 32 and 34 of

Karnataka Excise Act.

9. Being aggrieved by this judgment of conviction and

order on sentence passed by the trial Court, the

appellant/accused has preferred this appeal.

10. Sri.P.P.Hegde, learned Senior Counsel would submit

that the impugned judgment is incorrect, improper and illegal

and not sustainable under law and facts. The prosecution rests

upon the recovery as alleged in the seizure mahazar dated

12.03.2011 marked as Ex.P.1. The independent witness PW.4

has turned hostile. He has clearly stated that mahazar was not

prepared at the spot and his signature was obtained in the

office of the Excise Department. The evidence of PW.1 and

PW.2 is also contradictory to each other and unbelievable. The

trial Court Judge has erred in looking into Exhibit P7, which is

not proved in accordance with law. He would further submit

that, without registration of the FIR, the seizure mahazar is

conducted, which is illegal. The Investigating Officer has not

complied with the mandatory provision of Section 54 of the Act,

as the Investigating Officer has not obtained search warrant

from the concerned authority and has not assigned any reasons

for seizure of the property without search warrant. Further, he

would submit that the trial Court has not properly appreciated

the evidence on record in accordance with law and facts and on

all there grounds, sought for allowing this appeal.

11. Learned High Court Government Pleader

Sri.Rangaswamy.R, would submit that the trial 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 trial Court. Accordingly, he sought for dismissal

of the appeal.

12. Having heard the arguments on both sides and on

perusal of the materials, the following points would arise for

consideration:

1. Whether the judgment of conviction and order

on sentence passed by the trial Court is illegal, capricious,

perverse and not sustainable under law?

2. What order?

Regarding Point No.1:

13. Before appreciation of the evidence on record, it is

necessary to mention the decision of the Hon'ble Apex Court in

the case of in the case of K.L.Subbaiah v. State of Karnataka

reported in 1979 (2) SCC 115, in which at para Nos.3 and 4 it

is observed as under:

"3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with.

4. This, therefore, renders the entire search without jurisdiction and, as a logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal

lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far- reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him".

14. To prove the guilt of the accused, the prosecution

has examined PW1-Lokanath, PC No.743, PW2, Narayana

Baindur, retired Sub Inspector, PW3-B.Ganapathy Achar,

Retired Police Inspector. PW4-K.Ganesh Pai, the driver of the

police vehicle and PW5-M. K. Keshava Murthy, the Inspector of

Excise.

15. PW4-K.Ganesh Pai said to be the attestor to the

Exhibit P1- seizure mahazar, has not supported the case of the

prosecution. He was treated as hostile witness with the

permission of the Court. He was cross-examined by the

Assistant Public Prosecutor. Even in his cross-examination, he

has categorically denied the contents of Exhibit P1-seizure

mahazar and also the statement said to have been recorded by

the Investigating Officer under Section 161 of Code of Criminal

Procedure, which is marked as Exhibit P9.

16. The substance of the evidence of PW1 to PW3 who

are the official witnesses is that, on 12.03.2011, credible

information was received by PW1 and CW4 that one Patrick

D'souza of Amblamogaru village, Elliyarpadavu, is transporting

illicit liquor from Kerala to Karnataka Border. So they shared

the information to CW1 and they, along with their staff and

pancha, PW2 went in their jeep via Thokkottu, Kuttaru,

Ranipadav and reached Elliyarpadavu at 10.30 a.m. and they

were watching the said person at about 11.30 a.m. They saw

one person coming on Kaludari camping one plastic white

polythene bag, and on confirmation, they went near him and

that person ran away from the spot leaving the polythene bag.

Then PW1 and CW4 chased him for one furlong and

apprehended him and produced him to CW1. The said person

was interrogated by CW1 before Pancha. He disclosed his name

as Patrick D'souza and stated that plastic polythene bag

contains Kallabhatti Sarai. They found a black plastic can in

that plastic bag and the cap was removed and on smelling the

content, they found that it is illicit liquor. The said can was full.

He was carrying the can with liquor for sale. CW1 extracted 180

ml. of the liquor from the bulk as sample in a bottle, which was

seized, sealed by affixing the signature chits of pancha and

CW1. The remaining bulk liquor was also seized and sealed

under mahazar Exhibit P1.

17. In the case of hand, Exhibit P1- seizure mahazar

drawn on 12.03.2011 in between 11.30 a.m., to 12.20 noon

near Elliyarpadavu. The Investigating Officer has submitted the

FIR to the Court on the same day at 4.00 p.m. However, the

Investigating Officer has not produced the seizure mahazar

along with the FIR.

18. A perusal of the evidence placed before this Court,

makes it is crystal clear that after seizure of the property under

mahazar, the Investigating Officer has not submitted the

seizure report to the Jurisdictional Magistrate as required under

with Section 102 of Code of Criminal Procedure and also not

complied with the provision of Section 43A of Karnataka Excise

Act, 1965. Even, the statement of witnesses was recorded on

13.03.2011 as shown in the statement, same were not

produced at the earliest point of time. Same were produced

before the Court only at the time of filing charge-sheet i.e., on

24.05.2011. The Investigating Officer has not explained

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anything as to delay in submitting the statement of witnesses

before the Court, it will create a reasonable doubt as to the

alleged act of the accused. The prosecution has also not placed

any materials as to compliance of the provisions of Sections 53

and 54 of the Karnataka Excise Act.

19. The interested testimony of the official witnesses

has not been supported by any independent witnesses and one

of the Independent witnesses has not supported the case of the

prosecution. The prosecution has failed to elicit any favourable

answers from him.

20. Viewed from any angle, I do not find any cogent,

convincing, corroborative legal evidence before the Court to

convict the accused for the alleged commission of offence.

However, the trial Court has convicted the accused only on the

interested testimony of the official witnesses. The trial Court

has not considered the non-compliance of aforesaid mandatory

provisions of Karnataka Excise Act, 1965 and also Section 102

of Code of Criminal Procedure. Considering the facts and

circumstances of the case and also keeping in mind the

aforesaid decision, I am of the opinion that the prosecution has

failed to prove the guilt of the accused beyond all reasonable

doubt. Hence, I answer point No.1 in the Affirmative.

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Regarding Point No.2:

21. For the aforestated reasons and discussion, I

proceed to pass the following:

ORDER

i) Appeal is allowed.

ii) The judgment of conviction and order on sentence

passed by the Prl. Sessions Judge, D.K., Mangalore in Sessions

Case No.62/2012 dated 19.11.2014 is set aside.