Karnataka High Court

Kumara vs The State Of Karnataka on 19 February, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                        CRL.RP No. 61 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 19TH DAY OF FEBRUARY, 2025

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         CRIMINAL REVISION PETITION NO. 61 OF 2021

                   BETWEEN:

                   1.    KUMARA
                         S/O DODDASWAMYGOWDA
                         AGED ABOUT 39 YEARS,
                         R/AT MUDALAKOPPALU VILLAGE
                         KASABA HOBLI,
                         HUNSUR TALUK
                         MYSURU DISTRICT-571105
                                                                ...PETITIONER

                            (BY SRI. DINESHKUMAR RAO K., ADVOCATE)

                   AND:

                   1.    THE STATE OF KARNATAKA
Digitally signed
                         BY EXCISE SUB-INSPECTOR
by DEVIKA M              HUNSUR RANGE
Location: HIGH           HUNSUR-571 105
COURT OF
KARNATAKA                REPRESENTED BY SPP
                         HIGH COURT BUILDING
                         BENGALURU-560001.
                                                               ...RESPONDENT

                               (BY SMT. PUSHPALATHA B., ADDL. SPP)

                          THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
                   CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
                   OF CONVICTION AND SENTENCE DATED 28.12.2015 AND
                   01.01.2016 PASSED BY THE CIVIL JUDGE AND JMFC, HUNSUR
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                                                NC: 2025:KHC:7963
                                           CRL.RP No. 61 of 2021




IN C.C.NO.503/2013 CONFIRMED BY THE JUDGMENT AND
ORDER DATED 23.10.2020 PASSED BY THE VIII ADDITIONAL
DISTRICT     AND     SESSIONS    JUDGE,    MYSURU       SITTING   AT
HUNSUR IN CRLA..NO.11/2016 (CONVICTING THE PETITIONER
FOR THE OFFENCE PUNISHABLE UNDER SECTION 32 OF
KARNATAKA EXCISE ACT 1965) AND ACQUIT THE PETITIONER
OF THE CHARGES LEVELED AGAINST HIM.


     THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:


CORAM:     HON'BLE MR. JUSTICE H.P.SANDESH

                         ORAL ORDER

1. Heard the learned counsel for revision petitioner

and also learned counsel for respondent.

2. This revision petition is filed against the order of

conviction and sentence by the Trial Court in

C.C.No.503/2013 dated 28.12.2015and confirmation order

by the First Appellate Court in Crl.A.No.11/2016 dated

23.10.2020 for the offence punishable under Section 32 of

Karnataka Excise Act, 1965.The Trial Court convicted the

accused for one year and imposed sentence of Rs.10,000/-

and the same is confirmed in the criminal appeal.

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3. The factual matrix of case of prosecution before

the Trial Court that during the month of February and

March-2013, general elections to local bodies was declared

and therefore, excise Commissioner of Mysuru in order to

check irregularities and malpractices in the said elections,

directed all his subordinate official to perform night

patrolling duties within the jurisdiction of each excise

inspectors and sub-inspectors. In view of the same, on

21.02.2013, received credible information from controlling

room of Excise Department that in Moodalakoppalu village,

accused being the owner of one petty shop, indulged with

sale of liquor without valid licence and permit. Therefore,

Excise sub-inspector of Hunsur Range, become alert and

intended to conduct raid. In the process, he secured the

presence of his sub-ordinate officials and went near the

shop of accused situated in Moodalakoppalu village and he

confirmed that, accused being petty shop-keeper indulged

with illegal possession and sale of liquor without valid

permit and license. Therefore, he prepared a search

warrant as required under Section 54 of Karnataka Excise

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Act and conducted raid in the presence of panch

witnesses. He seized 32 bottle, each containing 180 ml of

liquor, 10 tetra packets each containing 90 ml of

Mackdowell brandy whiskey, 10 Nackout tins, containing

each 330 ml of Bear, total 6.660 Ltr Bhatham and 3.300

Ltr Bear, 24 bottles each containing 180 ml of Windosor

Deluxe Whiskey, 4 tetra packets containing each 90 ml of

Macdowell brandy whiskey and 4 Nackout bears containing

each 330 ml and seized the same by drawing the mahazar

and accused was apprehended and produced before the

Magistrate. The case was registered in Cr.No.6/2012-13

and investigated the matter and invoked the offences

under Karnataka Excise Act and charge sheet was filed

under Section 32 of Karnataka Excise Act. The Magistrate

took the cognizance and secured the accused and he did

not plead guilty and hence the trial was conducted. The

prosecution mainly examined PW1 to PW5 and got marked

the Ex.P1 to Ex.P9. The accused was also subjected to 313

statement and he did not choose to lead any defense

evidence.

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4. The Trial Court having considered the material

on record, particularly PW1 and PW2 have turned hostile

and PW3 and PW5 are the raiding parties and PW4 is the

person who carried the seized articles to the FSL and

having considered the evidence of PW3 and PW5 comes to

the conclusion that prosecution has proved the case and

convicted and sentenced, the same has been challenged

before the First Appellate Court in Crl.A.No.11/2016 and

First Appellate Court also on re-appreciation of both oral

and documentary evidence, accepted the evidence of PW3

and PW5 who have conducted the raid and also conducted

the major portion of the investigation of accused No.5 and

comes to the conclusion that evidence ofPW3 and PW5 is

credible and nothing is there to disbelieve the evidence of

PW3 and PW5 and confirmed the same. Being aggrieved

by the said judgment of conviction and sentence, the

present revision petition is filed.

5. The main contention urged in the revision

petition that even though PW1 and PW2 who are

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independent witnesses have not supported the case of the

prosecution and turned hostile and though not accepted

the evidence of PW1 and PW2 and committed an error in

accepting the evidence of PW3 and PW5 and their

evidence is inconsistence and suffers from legal infirmities.

The evidence of PW3 does not corroborate with evidence

of PW5. It is also contended that PW5 is the investigating

officer as he clearly admitted that he has not made his

higher officer or other officer as witnesses to the charge

sheet and also categorically admits that he does not have

personal knowledge as to the credible information received

by the instructor which is contrary to the chief

examination. When such admission is given with regard to

not having any credible information, the very conducting

of raid itself is doubtful. The counsel also would

vehemently contend that the very finding of Trial Court

and also the First Appellate Court that evidence of PW3

and PW5 is credible is erroneous and fails to take note of

both of them are interested witnesses since they have

conducted the raid and they are the raiding parties. The

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counsel also would vehemently contend that when the

they are the raiding parties, Court has to examine into the

medical aspects and the same has not done. The counsel

also would vehemently contend that revision petitioner is

physically handicap and the same is also emerged in the

evidence. The Court has to take note of the fact and also

extend the benefit of doubt in favour of the petitioner in

view of no independent witnesses.

6. Per Contra, the counsel appearing for the

respondent-State-Addl. SPP would contend

thatprosecution main case is also that when the raid was

conducted apprehended with the liquor and the same is

seized by drawing the mahazar even though independent

witnesses have turned hostile and Court has to consider

the evidence of PW3 and PW5 and both the Courts also

taken note of evidence and their evidence is credible and

hence rightly accepted the evidence of PW3 and PW5 and

it does not requires any interference.

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7. Having heard the learned counsel for revision

petitioner and also counsel for respondent-State and also

considering the grounds urged in the revision petition, the

point that would arise for consideration of this Court are:

1) Whether both the Courts have committed an error in convicting and sentencing and confirming the order of the Trial Court and whether it requires interference of this Court by exercising the revisional jurisdiction and whether the order suffers from legality and correctness?

2) What Order?

8. Having heard the respective counsel and also

the counsel appearing for the State and also looking into

the material on record, it is the specific case of the

prosecution that raid was conducted on 21.02.2013 based

on the credible information received from controlling room

of excise department that accused being owner of petty

shop indulged with sale of liquor without valid license and

permit and accordingly when the raid was conducted,

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found the liquor in the said shop and the same was seized

by drawing the mahazar. In order to prove the case of the

prosecution, mainly relies upon the evidence of PW1 to

PW5. Admittedly, PW1 and PW2 are the mahazar

witnesses that both of them have not supported the case

of the prosecution but they says signature was taken in

the Excise office. Both the Courts also comes to the

conclusion that evidence of PW1 and PW2 is not credible

evidence. However, comes to the conclusion that evidence

of PW3 and PW5 consistent and no question of hostility.

No doubt PW3 and PW5 are the raiding parties, law is also

settled that even if they are the raiding parties, the Court

cannot discard their evidence, only Court has to look into

whether their evidence is credible or not.

9. The PW3 is the Excise guard and he deposed

before the Court that on credible information only

conducted the raid. On perusal of evidence of PW3,

particularly in the cross examination, he says credible

information is received by the Inspector but he is not

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having any information at what time he has received the

credible information and also he admits in the cross

examination that the witness to Ex.P1 one Mr.Ravi who is

the testator of Yashodarappa, but he categorically admits

that PW1 is now working as driver of the Department but

earlier he was not there. Hence, it is clear that the PW1 is

the Driver of the Excise Department and the fact that he

is not the resident. It is also important to note that he

was not able to give details of the location and claims that

at the time of conducting the raid, there was a darkness

and also he does not know about the description of the

seizure place.

10. The other witness is PW5 who is also a

Inspector of Excise Department and he re-iterates with

regard to the conducting of the raid, but in the cross

examination he says that when the credible information

was received, he cannot say who was there in the duty

and also cannot say who has done the work on that day,

but he claims that in the witness list he has mentioned,

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but the same is not mentioned and the same is also not

placed before the Court.

11. Having perused this cross examination of

PW3 and PW5, it is very clear that they are not having

any time and information for the said credible

information, but also nothing is mentioned with regard to

the credible information is concerned and it is important

to note that he claims that totally 8 persons went to the

raid and also categorically admits that the raiding parties

have not signed the Mahazar, but PW3 claims that totally

5 persons were sent including the raiding parties and the

evidence of PW3 and PW5 is contrary to very mahazar

itself. The PW5 also claims that senior officers also part of

the raid and they were there at the spot, but they left the

place immediately and the same is not mentioned in the

mahazar also and with regard to the very raid is

concerned also that there were 8 persons and seniors

were also left the place after the raid and nothing is

mentioned in the mahazar also in view of admission of

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PW5 and even the same is also not spoken by the PW3

and evidence of PW3 and PW5 is contrary to each other.

12. It is important to note that he is having a

shop for running the shop also no material is collected,

though contend that they have collected the document of

Ex.P9 and with regard to existence of shop and house

nothing is mentioned in the Ex.P9 and regarding very

existence of shop and house also nothing is placed on

record and PW5 also not able to give details of the

mahazar and description of the mahazar and when such

contradictions are available before the Court nothing is

mentioned with regard to senior officers were also there

at the time of conducting the raid and the same is also

not mentioned in the mahazar when such contra evidence

available before the Court and it cannot be turned that

the evidence of PW3 and PW5 is credible. This Court

already made it clear that if the evidence of PW3 and PW5

is credible, the Court cannot discard the same, but the

evidence of PW3 and PW5 with regard to the raid and also

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the location and also document Ex.P9 does not discloses

anything about the existence of shop and residence in

Ex.P9 and in the absence of independent witnesses

evidence and only based on the official witnesses who are

all the part of the raid, same is not credible, inspite of no

credible evidence, the Trial Court and First Appellate

Court committed an error in accepting the evidence of

PW3 and PW5 and those witnesses evidence also contrary

to each other and discrepancies are also not considered

by the Trial Court. Hence, the Trial Court committed an

error in convicting and sentencing the petitioner for the

offences punishable under Section 32 of Karnataka Excise

Act, 1965. The First Appellate Court also lost sight of

material on record and accepted the reasoning of the Trial

Court without looking into the specific evidence of PW3

and PW5 and their evidence is not credible and when such

being the case and when there is a perversity in the

finding of the Trial Court as well as when there is no legal

evidence with regard to the conducting of raid and seizure

is concerned when the independent witnesses have

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turned hostile. Apart from that in the cross examination of

PW1 it is elicited that he being the driver of the excise

department, though he was not the driver at the time of

conducting the raid, he is also a interested person and

though he has not supported, but there is no any credible

evidence before the Court and hence, the finding of the

Trial Court as well as the First Appellate Court suffers

from legality and correctness and hence, this Court can

exercise the revisional jurisdiction and set-aside the

order. Hence, I answer the point as 'Affirmative'.

13. In view of the discussions made above, I pass

the following:

ORDER

i) The Revision Petition is allowed.


          ii)    The order passed by the Trial Court and
                 First   Appellate    Court    convicting   the

accused for the offence punishable under Section 32 of Karnataka Excise Act, 1965 is hereby set-aside. Consequently, if any fine amount is deposited by the revision