[Cites 23, Cited by 0]

Karnataka High Court

Gangaram And Anr vs The State Of Karnataka on 6 March, 2026

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                                                            NC: 2026:KHC-K:2159
                                                      CRL.RP No. 200029 of 2024


                      HC-KAR



                                 IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                               DATED THIS THE 6TH DAY OF MARCH, 2026

                                              BEFORE
                               THE HON'BLE MR. JUSTICE G BASAVARAJA
                           CRIMINAL REVISION PETITION NO.200029 OF 2024
                                      (397(Cr.PC)/438(BNSS))
                      BETWEEN:

                      1.    GANGARAM S/O RAM RADHAV,
                            AGE: 54 YEARS,
                            OCC: AGRICULTURE,

                      2.    SANJUKUMAR
                            S/O HARISHCHANDRA RATHOD,
                            AGE: 34 YEARS,
                            OCC: AGRICULTURE,
                            BOTH ARE R/O HONNEKHERI THANDA,
                            TQ: AND DIST: BIDAR-585401.

                                                                 ...PETITIONERS
Digitally signed by
SHIVALEELA            (BY SRI GANESH NAIK, ADVOCATE)
DATTATRAYA UDAGI
Location: HIGH
COURT OF              AND:
KARNATAKA


                      THE STATE OF KARNATAKA
                      THROUGH POLICE, EXCISE POLICE STATION,
                      BIDAR, REPRESENTED BY
                      ADDITIONAL SPP,
                      HON'BLE HIGH COURT OF KARNATAKA,
                      BENCH AT KALABURAGI-585103.
                                                                 ...RESPONDENT
                      (BY SRI VEERANAGOUDA MALIPATIL, HCGP)
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                                            NC: 2026:KHC-K:2159
                                      CRL.RP No. 200029 of 2024


HC-KAR



     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C (OLD)
UNDER SECTION 438 OF BNSS (NEW) PRAYING TO CALL FOR
AND EXAMINE THE RECORDS IN C.C.NO.2829/2018 AND SET
ASIDE THE JUDGMENT PASSED BY THE LEARNED II
ADDITIONAL CIVIL JUDGE AND JMFC-II COURT AT BIDAR BY
ITS JUDGMENT DATED 10TH AUGUST 2022 AND FURTHER THE
SAME BEING PARTLY ALLOWED AND CONFIRMED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AT BIDAR IN
CRIMINAL APPEAL NO.31/2022 DATED 30TH OCTOBER 2023.

     THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA


                        ORAL ORDER

Heard learned counsel for the petitioners and learned

High Court Government Pleader appearing for the

respondent/State.

2. The accused have preferred this revision

petition against the judgment of conviction and order of

sentence dated 10.08.2022 passed in C.C.No.2829/2018

by the II Additional Civil Judge and JMFC-II, Bidar which is

confirmed by the Principal District and Sessions Judge,

Bidar in Criminal Appeal No.31/2022 vide judgment dated

30.10.2023. However, the Appellate Court has acquitted

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accused No.2 for the offence punishable under Section 38A

of the Karnataka Excise Act (for short, 'the Act').

3. The parties are referred to by the same rank

what they had before the trial Court.

4. The brief facts leading to this revision petition

are that:

On 12.04.2018 at 02.00 p.m. near Atiwal railway

gate, accused Nos.1 and 2 were found in illegal possession

of two boxes in a gunny bag containing 96 Tetra packets

of 90 ml quantity liquor in each box, with a total of 192

tetra packets, without having licence or permit, which they

were caught transporting on their Hero Honda Splendor

Plus two wheeler bearing No.KA-38/L-2966 for sale. Thus,

the accused have committed the offences punishable

under Sections 11, 12, 14, 32(1), 38A and 43 of the Act.

After filing the chargesheet, the case was registered in

C.C. No.2829/2018.

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5. On hearing both sides, the Trial Court framed

the charges for the offences punishable under Section 273

of the Indian Penal Code (for short 'the IPC') and Sections

11, 14, 15, 32(1), 38A and 43 of the Act. The same was

read over and explained to the accused. The accused,

having understood the same, pleaded not guilty and

claimed to be tried.

6. In order to prove the guilt of the accused,

prosecution examined five witnesses as, P.W.1 to P.W.5,

eight documents were marked as Exhibit P.1 to Exhibit P.8

and twenty-six material objects were marked as M.O.1 to

M.O.26. On closure of evidence on the prosecution side,

the accused statements under Section 313 of the Criminal

Procedure Code (for short, 'the Cr.P.C.') were recorded.

Accused Nos.1 and 2 have totally denied the evidence of

the prosecution witnesses. However, they did not choose

to lead any defence evidence on their behalf.

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7. Having heard the arguments on both sides, the

Trial Court has convicted accused Nos.1 and 2 for the

offences punishable under Sections 32(1) and 38A of the

Act. The Trial Court has acquitted the accused for the

offence under Section 273 of IPC.

8. Being aggrieved by the judgment of conviction

and order of sentence, the accused have preferred appeal

before the Principal District and Sessions Judge at Bidar in

Criminal Appeal No.31/2022.

9. The Appellate Court has acquitted accused No.2

for the offence punishable under Section 38A of the Act

and confirmed the sentence passed against accused No.2

for the offence punishable under Section 32(1) of the Act

and also confirmed the sentence passed against accused

No.1 for the offences punishable under Sections 32(1) and

38A of the Act.

10. Being aggrieved by the judgments of both the

Courts, the accused have preferred this revision petition.

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11. The learned counsel for the petitioners would

submit that the judgment of conviction and order of

sentence recorded by the learned Trial Judge is contrary to

law, facts and evidence on record. The Trial Court has lost

sight in appreciating evidence of the prosecution witnesses

namely, PW.1 to 5. PW.1 and 2 are the seizure mahazar

witnesses. They have not supported the case of the

prosecution. Section 54 of the Act is not complied with.

PW.3 himself is the complainant and conducted substantial

part of investigation. PW.3 acting in dual capacity against

the fairness of the prosecution case. The Trial Court has

failed to appreciate the evidence in its proper perspective.

The impugned judgment of conviction and order of

sentence recorded against the accused for the offences

punishable under Sections 32(1) and 38A of the Act, while

acquitting accused No.2 for the offence punishable under

Section 38A of the Act, gives rise to serious doubt

regarding the prosecution story. The benefit of doubt has

to be given to the revision petitioners. There is no

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consistency in the evidence of the prosecution witnesses.

There are many contradictions in the depositions of the

witnesses which gives rise to doubt about the

prosecution's story. That as per the prosecution, the raid

was conducted on 12.04.2018, the commodities seized at

M.O.1 to M.O.26 were sent for chemical examination only

on 26.07.2018. There is an inordinate delay in sending the

sealed articles to the chemical examination, which is fatal

to the case of the prosecution. P.W.3 and P.W.5 are official

witnesses and their evidence has not been substantiated

by any independent witnesses.

12. To substantiate his argument, the petitioners

counsel relied on the decision in Crl.RP.No.1524/2019

disposed of on 31.08.2023 in the case of Koushik C. Vs.

State by Excise Police.

13. The learned High Court Government Pleader

would submit that both Courts have properly appreciated

the materials on record in accordance with law and facts,

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and that there are no grounds to interfere with the

impugned judgments passed by both Courts. He sought

dismissal of this revision petition.

14. Having heard the arguments and on perusal of

the records, the following point arises for my

consideration:

"Whether the judgment of conviction and order on sentence passed by the learned Magistrate, which was confirmed by the learned Sessions Judge, is perverse, arbitrary and erroneous so as to call for any interference by this Court."

15. I have examined the materials placed before

this Court. It is the case of the prosecution that on

12.04.2018 at 02.00 p.m., near Atiwal Railway Gate,

accused Nos.1 and 2 were found in illegal possession of

two boxes kept inside a gunny bag. The boxes contained

96 tetra packets liquor of 90 ml each, with a total of 192

tetra packets, and they were in possession of the same

without a licence or permit. They were caught while

transporting the same on their Hero Honda Splendor plus

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two-wheeler bearing registration No.KA-38/L-2966 for the

purpose of sale. Thus, the accused have committed

offences under Sections 11, 12, 14, 32(1), 38(A) and 43 of

the Act.

16. The trial Court has convicted the accused for

the offences under Sections 32(1) and 38A of the Act. The

appellate Court acquitted accused No.2 for the offence

under Section 38A of the Act. However, it convicted

accused No.2 for the offence under Section 32(1) of the

Act. The appellate Court confirmed the sentence passed

against accused No.1 for the offences under Sections

32(1) and 38A of the Act.

17. It is the case of the prosecution that, the

Investigating Officer has seized the properties under

Ex.P1-Mahazar. Laxman and Babu are examined as PWs.1

and 2. Both witnesses have not supported the case of the

prosecution. These two witnesses were treated as hostile

and with permission of the Court they were cross-

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examined. Even in the cross-examination, they have

categorically denied the contents of Ex.P1 and seizure of

whisky tetra packets. At the time of seizure mahazar, FIR

was not registered.

18. In view of the judgment of the Hon'ble Supreme

Court in the case of K.L.Subbayya v. State of

Karnataka [1979(2) SCC 115], at paragraph No.2, has

held as under:

"Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus:

"Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief-

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(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."

19. In the case on hand, the Investigating Officer

has conducted seizure mahazar on 12.04.2018 between

2:30 and 3:30 p.m. and he has not whispered anything as

to compliance of Section 54 of the Act. Accordingly,

Investigating Officer has failed to comply the mandatory

provisions under Section 54 of the Act.

20. Soon after the seizure of the property, the

Investigating Officer has not complied the mandatory

provisions of Section 43A of the Act and Section 102

Cr.P.C. The Investigating Officer has not explained

anything about 43-A of the Act and Section 102 of Cr.P.C.

Both the Courts have not considered the same.

21. Considering the facts and circumstances of the

case, it is crystal clear that, both the Courts have failed to

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appreciate this legal issue. The approach of both the

Courts below is perverse and it has resulted in miscarriage

of justice. As such, the judgment of conviction, order on

sentence passed by both the Courts below are not

sustainable under law and call for interference.

Accordingly, the revision petition needs to be allowed.

Hence, the point arose for consideration is answered in the

affirmative.

22. As such, I proceed to pass the following:

ORDER

(i) The revision petition is allowed;

(ii) The impugned judgment of conviction and

order on sentence dated 10.08.2022 passed

in C.C.No.2829/2018 by the II-Additional

Civil Judge and JMFC-II, Bidar, which is

partly confirmed by the Principal District

and Sessions Judge, Bidar in Criminal

Appeal No.31/2022 vide judgment dated

30.10.2023, is hereby set aside;

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(iii) Accused Nos.1 and 2 are acquitted of the

offence punishable under Section 32(1) of

the Karnataka Excise Act;

(iv) Accused No.1 is acquitted of the offence

punishable under Section 38A of the

Karnataka Excise Act;

(v) The Trial Court is directed to return the fine

amount, if any, deposited by the accused in

accordance with law;