Karnataka High Court
Sri. C.P. Kumar vs State By Mudigere Excise on 13 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2459
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 777 OF 2011
BETWEEN
Sri. C.P. Kumar,
S/o Late Puttaiah,
Aged 21 years,
R/of Jannapura Post,
Mudigere Taluk,
Chickamagalore.
... Petitioner
(By Sri. V.D. Raviraj, Advocate)
AND
State by Mudigere Excise,
Mudigere Taluk,
Chickamagalore.
... Respondent
(By Sri. Vijay Kumar Majage, Addl. SPP)
This CRL.R.P. is filed under Section 397 R/w 401 of
Cr.P.C praying to set aside the order dated 18.06.2011
passed by the Principal Sessions Judge, Chikmagalur in
Crl.A.No. 51/2010 and order dated 18.03.2010 passed by
the Additional Civil Judge (Jr.Dn.) and JMFC, Mudigere in
C.C.No. 59/2010.
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This CRL.R.P. coming on for hearing, this day, the
court made the following:
ORDER
This Criminal Revision Petition has been preferred by the petitioner / accused under Section 397 read with Section 401 of Cr.P.C. praying to set aside the judgment of conviction and sentence dated 18.06.2011 passed in Crl.A.No.51/2010 by the Principal Sessions Judge Chickmagalore confirming the judgment of conviction and sentence dated 18.03.2010 in C.C.No.59/2010 passed by the Additional Civil Judge & JMFC, Mudigere and thereby acquit the petitioner. By the judgment of the Trial Court, the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- along with default clause, for the offence punishable under Section 32 of the Karnataka Excise Act.
2. Sections 32, 34 and 40 of the Karnataka Excise Act, reads thus:
32. Penalty for illegal import, etc.-(1) Whoever, in contravention of this Act, or any rule, :3: notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act imports, exports, transports, manufactures, collects or possesses any intoxicant, shall on conviction, [be punished for each offence with rigorous imprisonment for a term which may extend to [five years and with fine which may extend to fifty thousand rupees]] [Provided that the punishment,-
(i) for the first offence shall be not less than [one year rigorous imprisonment and fine of not less than ten thousand rupees]; and
(ii) for the second and subsequent offences shall be not less than [two year rigorous imprisonment and fine of not less than twenty thousand rupees] for each such offence.
(2) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act,-
(a) save in the cases provided for in Section 37, sells any intoxicant; or
(b) cultivates or fails to take the measures prescribed for checking the spontaneous growth or for the extirpation of the hemp plant; or
(c) taps or draws toddy from any toddy-
producing tree; or :4:
(d) constructs or works any distillery or brewery; or
(e) uses, keeps or has in his possession any materials, still utensils, apparatus or implement whatsoever for the purpose of manufacturing any intoxicant other than toddy; or
(f) removes any intoxicant from any distillery, brewery or warehouse licensed, established or continued under this Act; or
(g) bottles any liquor;
shall on conviction [be punished for each offence with rigorous imprisonment for a term which may extend to [five years and with a fine which may extend to twenty thousand rupees:]
(i) for the first offence shall be not less than [one year rigorous imprisonment and fine of not less than five thousand rupees]; and
(ii) for the second and subsequent offences shall be not less than [one year rigorous imprisonment and fine of not less than ten thousand rupees] for each such offence;] [(3) Whoever, being the owner or in charge of management or control of any public place allows consumption of liquor or whoever consumes liquor in any public place in which consumption of liquor is not permitted under a licence granted by the Excise Commissioner or not permitted under a licence granted by the Excise Commissioner of the Deputy :5: Commissioner, in contravention of the provisions of Section 15-A, shall on conviction be punished with fine which shall not be less than rupees two hundred but which may extend to [five thousand rupees].]
34. Penalty for illegal possession.-
Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon shall on conviction, be punished with imprisonment for a term which may extend to [four years and with fine which may extend to fifty thousand rupees.] [Provided that the punishment,-
(i) for the first offence shall be not less than [one year imprisonment and fine of rupees ten thousand;] and
(ii) for the second and subsequent offences shall be not less than imprisonment for [two years and fine of not less than rupees twenty thousand] for each such offence:
Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant.]
40. Presumption as to commission of offence in certain case.- In prosecutions under :6: Section 32 and Section 34, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that Section in respect of-
(a) any intoxicant; or
(b) any still, utensil, implement or
apparatus whatsoever in the manufacture of any
intoxicant other than toddy; or
(c) any materials which have undergone
any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured, for the possession of which he is unable to account satisfactorily.
3. Heard the learned counsel for the petitioner -
accused and the learned Additional SPP for the respondent.
4. The factual matrix of this petition is as under:
On 27.07.2009 at about 7.00 p.m. PW-3 M. Shivananda, Excise Sub-Inspector, Mudigere, along with his staff was conducting Excise patrolling in the vicinity of Jannapura village. At that time, PW-3 received credible information that a person by name C.P. Kumara was in possession of certain articles used for preparation of illicit :7: liquor and was also preparing illicit liquor using the said articles. Receiving the said information, PW-3 proceeded to Chinniga Colony and then secured two witnesses to act as panchas and explained them the purpose of his visit. Then he along with his staff and panchas, went to the house of the accused. The accused was in the house and on seeing PW-3 and his staff in uniform, the accused became perplexed but told his name as Kumar but refused that he was in possession of illicit liquor. However, PW-3 on conducting search of the said place in the presence of the accused, found an apparatus used for manufacture of illicit liquor in the bathroom behind the house of the accused. They found an oven and on the oven there was an aluminium caldron of capacity 50 litres containing 30 litres of boiling jaggery waste and on the said aluminium caldron there was a wooden slab connected with a rubber pipe for preparation of illegal liquor. On the wooden slab there was another small aluminium vessel containing cold water and the pipe of the wooden slab was connected to a blue plastic can of capacity of 5 litres and already that can was filled with :8: illicit liquor to the brim. There were also two empty plastic pots each of capacity 15 litres containing jaggery odour. The accused also submitted that he had no licence for possessing the same. Therefore, PW-3 and his staff ceased the fire and took possession of all the articles by conducting a mahazar as per Exhibit P-1 in the presence of PWs 1 and 2 and also obtained samples of jaggery dirt and illicit liquor from the seized possession of the accused and put the sample bottles in a white cloth and sealed the same with departmental seal and also affixed identity slips with name and address of accused to the said bottles and other seized articles. The mahazar was drawn by PW-3 Excise Inspector in between 7.00 p.m. and 8.00 p.m. as per Exhibit P-2. Subsequent to completion of the investigation, PW-3 laid a charge-sheet against the accused relating to the case in Crime No.3/2009-10.
5. After laying the charge-sheet against the accused, the substance of the charge was read out to the accused, wherein the accused did not plead guilty but claimed to be tried. Accordingly, plea of the accused was recorded. The :9: prosecution examined in all 3 witnesses as PWs 1 to 3 and got marked 7 documents as Exhibits P-1 to P-7 and also got marked MO-1 and MO-2. Subsequently, the accused was examined as required under Section 313 Cr.P.C. The accused denied all the incriminating evidence appearing against him. Subsequently, the Trial Court after going through the evidence of PW-1 and so also the contents at Exhibit P-1 of the mahazar which was conducted in the presence of PWs 1 and 2 and so also the sample seal at Exhibit P-2 and so also the contents of the FIR at Exhibit P-5, the FSL report at Exhibit P-6 and based upon the documentary evidence as well as the evidence of PW-3, the Trial Court in C.C.No.59/2010, convicted the accused for the offence punishable under Section 32 of the Karnataka Excise Act.
The said judgment of the Trial Court was challenged before the First Appellate Court in Crl.A.No.51/2010. The First Appellate Court on re-appreciation of the evidence, by its judgment dated 18.06.2011 confirmed the judgment of conviction and sentence passed by the Trial Court. : 10 : Aggrieved by the concurrent findings of both the courts below, this Revision Petition has been preferred questioning the legality and correctness of the orders.
6. The learned counsel for the petitioner has strenuously contended that the articles which were said to be used for production of illicit liquor, namely aluminium caldron, vessel, wooden slab with rubber pipe, two empty plastic pots containing 5 litres of illicit liquor, 30 litres of jaggery dirt were seized, none of the above materials had been produced before the Trial Court in evidence nor had been identified. Further, the panch witnesses who were examined, namely PWs 1 and 2 have not supported the case of the prosecution. On the other hand, both of them have denied their presence on the spot on the said day and consequently denied seizure of materials under PF No.3/2009. Hence, the learned counsel contends that the prosecution has failed to prove the very commission of the offence by the accused and failed to establish the seizure of the materials used for committing the offence. Thus he submits that the accused is liable to be acquitted. : 11 :
Further, though the Investigating Officer is said to have seized the illicit liquor and sent the same for chemical examination and though had obtained FSL report as per Exhibit P-6, however, the prosecution has failed to examine CW-4 who had seized samples for FSL report, which is fatal to the case of the prosecution.
Further, the learned counsel for the revision petitioner / accused has strenuously contended that the search of the house of the accused is in violation of the mandatory provisions of Sections 53 and 54 of the Karnataka Excise Act, 1965 in as much as, no search warrant was obtained from the Magistrate to make a search or the reasons for not having obtained the search warrant were not recorded.
Section 54 of the Karnataka Excise Act, 1965, reads as under:
"54. Power to search without warrant.--
Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an Officer-in-charge of a : 12 : 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.--
(a) at any time by day and night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under the 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."
(emphasis supplied)
7. In this particular case, it is clear that the Excise Sub-Inspector has not obtained warrant from the concerned Magistrate as contemplated under Section 53 of the Karnataka Excise Act, before proceeding to conduct raid in the house of the accused. Though it may be taken : 13 : that since PW-3 was apprehensive that the accused / petitioner may escape from the premises before he could go to the spot along with panch witnesses to make the seizure, he ought to have recorded the grounds of his belief, in writing, before proceeding to conduct the raid. This mandatory procedure, as contemplated under Section 54 of the Karnataka Excise Act, as well, has not been followed by the Assistant Excise Inspector. Hence, the raid and seizure conducted without following the prescribed procedure under the Act, cannot be sustained in law.
Added to this, the chemical examiner who had seized the liquor and has given the FSL report to prove the fact that the object seized was liquor, has also not been examined in this case.
Further, the panch witnesses PW-1 and PW-2 have turned hostile to the case of the prosecution and have stated that they were not at all present at the time of the seizure.
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8. Hence, all these material irregularities go to the root of the prosecution case in order to prove that the orders of both the Trial Court and the Appellate Court cannot be sustained. He further submitted that the seizure of liquor and jaggery dirt from the possession of the accused is also not proved, since both the Panchas to the seizure panchanama have turned hostile. Despite of which the Trial Court in C.C.No.59/2010, has erroneously come to the conclusion that the prosecution has proved the guilt of the accused and convicted the accused under Section 32 of the Karnataka Excise Act.
In support of his contention, the learned counsel has placed reliance on a decision of the Apex Court in the case of K.L. SUBHAYYA vs. STATE OF KARNATAKA (AIR 1979 SC 711). For all these reasons, the learned counsel seeks for acquittal of the accused.
9. Per contra, the learned Additional SPP for the State has taken me through the 313 statement of the accused as recorded by the Trial Court in C.C.No.59/2010. Though the accused has specifically : 15 : stated that the materials which were found behind the house of this accused was kept by some other person, it cannot be believed since the same has been admitted by the very accused himself while the raid was conducted by PW-3. Hence, he contends that the grounds which have been urged by the learned counsel for the petitioner does not hold any substance to call for interference of the impugned judgment of conviction and sentence passed by the Trial Court in C.C.No.59/2010 which has been confirmed by the First Appellate Court in Crl.A.51/2010 in its order dated 18.06.2011. On all these grounds, the learned Addl. SPP for the State prays for dismissal of this Criminal Revision Petition by confirming the concurrent orders of both the Trial Court and the Appellate Court.
10. On hearing the learned counsel for the petitioner and the learned Additional SPP for the State, it is seen that in the case on hand, neither search warrant has been obtained nor reasons were recorded by the concerned Excise Officer. In other words, there is violation of the mandatory provisions of Sections 53 and 54 of the : 16 : Karnataka Excise Act, 1965. Therefore, it is suffice to state that the search conducted is illegal and therefore all the further proceedings done by PW-3 Excise Inspector, in furtherance of the illegal search, are vitiated. Both the Trial Court as well as the First Appellate Court have failed to appreciate this mandatory requirement under Sections 53 and 54 of the Karnataka Excise Act, 1965. Hence, it has resulted in a miscarriage of justice and the orders passed by both the courts below ought to be set aside in view of the reasons assigned supra. Hence, the following:
ORDER The Criminal Revision Petition filed by the accused under Section 397 read with Section 401 Cr.P.C. is hereby allowed. Consequently, the order passed by the Trial Court in C.C.No.59/2010 convicting the accused under Section 32 of the Karnataka Excise Act which was confirmed by the First Appellate Court by order dated 18.06.2011 in Crl.A.51/2010, are hereby set aside. The petitioner accused is acquitted of the offence charged under Section 32 of the Karnataka Excise Act. If any fine : 17 : amount has been deposited by the petitioner / accused, the same shall be refunded to him, under proper identification.
Sd/-
JUDGE KS