Karnataka High Court
Sri.Ramesh S/O Shivanandappa ... vs The State Of Karnataka By Its ... on 29 November, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL. R. P. NO. 2064 OF 2011
BETWEEN:
RAMESH
S/O. SHIVANANDAPPA CHAKRASALI
AGED ABOUT 30 YEARS,
R/O. NEAR BANNIKATTE,
KOPPAL, DIST. KOPPAL.
... PETITIONER
(BY SRI GANAPATHI M. BHAT FOR SRI B.
SHARANABASAVA, ADVOCATE)
AND :
THE STATE OF KARNATAKA
BY ITS SUB-INSPECTOR OF POLICE,
MUNIRABAD POLICE STATION,
R/BY A.P.P. HIGH COURT DHARWAD BENCH,
DHARWAD.
... RESPONDENT
(BY SRI V.M. BANAKAR, ADDITIONAL S.P.P.)
THIS REVISION PETITION IS FILED UNDER SECTION
397 R/W. SECTION 401 OF CR.P.C. SEEKING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 26.08.2010 PASSED BY THE JMFC COURT, KOPPAL
2
IN C.C. NO.636/2008 WHICH WAS CONFIRMED BY THE
JUDGMENT AND ORDER DATED 13.01.2011 PASSED BY
THE COURT OF THE DISTRICT & SESSIONS AND FAST
TRACK COURT - I, KOPPAL, IN CRL. A. NO.38/2010 AND
ACQUIT THE PETITIONER FOR THE CHARGES PUNISHABLE
UNDER SECTIONS 32 AND 34 OF THE KARNATAKA EXCISE
ACT.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed this revision petition challenging the judgment and order dated 26.08.2010 passed in C.C. No.636/2008 on the file of J.M.F.C., at Koppal, wherein he was convicted for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (for short, 'the Act') and sentenced to undergo imprisonment for one year and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further period of imprisonment for two months and the judgment and order passed in Crl. A. No.38/2010 dated 13.01.2011 on the file of the Court of District and Sessions and Fast Track Court-I, 3 Koppal, whereby the said appeal filed by him was dismissed.
2. I have heard the learned counsel for the petitioner and the learned Additional S.P.P. appearing for the respondent - State.
3. It is the case of the prosecution that on 06.09.2007 at about 7.00 a.m. the Sub-Inspector of Excise received a credible information and went near 'Abhay Solvent' in Koppal town and while patrolling the said place found the accused in a motor cycle bearing Reg. No.KA-27/H-6511 moving suspiciously and on inspection found that he was in possession of 48 Original Choice whisky bottles and 24 Old Monk Rum bottles, which he was carrying without any valid license. The said liquor bottles were seized under a panchanama in the presence of panch witnesses and thereafter a case was registered in Crime No.5/2007-08. Two bottles of liquor were taken for sample and the 4 same was sent for chemical examination. After completion of the investigation, charge sheet was filed for the offences punishable under Sections 32 and 34 of the Act.
4. Before the trial Court the prosecution got examined two witnesses and got marked Exs.P-1 to P-5 and M.O. No.1 i.e., two sample bottles. The trial Court convicted and sentenced the accused, as stated supra, and the appeal preferred by the accused before the Sessions Court also came to be dismissed.
5. It is the contention of the learned counsel appearing for the petitioner that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. He contended that P.W.2, who is the Sub-Inspector of Excise has acted in several capacities right from receiving information, arresting the accused and drawing 5 the seizure panchanama, registering the case, conducting investigation and also filing charge sheet. He submits that though 72 liquor bottles are alleged to be seized from the possession of the accused, however only two bottles were produced before the Court and it is not clear as to whether all the bottles contained liquor. He further submitted that under Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 (for short, 'Rules'), no permit or license is required for the possession or transport of 4.6 ltrs. of liquor and therefore contended that the prosecution has failed to establish that the petitioner was in possession of excess of liquor than the prescribed quantity. Hence, seeks to allow the petition contending that the material on record are not sufficient to hold the accused guilty of the offences punishable under Sections 32 and 34 of the Act.
6
6. Per contra, the learned Additional S.P.P. submitted that the evidence of both P.Ws.1 and 2 are sufficient to prove the case of the prosecution that the accused was in possession of 72 liquor bottles without any valid permit or license and under Section 40 of the Act there is presumption in favour of the prosecution and against the accused that he has committed the offence punishable under Sections 32 and 34 of the Act and accordingly he submits that there is no illegality committed by the Courts below and seeks to dismiss the revision petition.
7. It is the case of the prosecution that on 06.09.2007 at about 7.00 a.m. P.W.2 i.e., the Sub-Inspector of Excise received some credible information and receiving such information he along with his staff and panchas went near one 'Abhay Solvent' and while patrolling near the said place saw the accused going on a motor cycle 7 bearing Reg. No.KA-27/H-6511 from Koppal towards Hospet and on interception noticed two wooden box and on inspection they found that the accused was carrying 48 bottles each containing 180 ml. of Original Choice whisky bottle and in another box 24 bottles each containing 180 ml. Old Monk Rum bottles and in total the accused was in possession of 72 liquor bottles.
8. It is the case of the prosecution that the accused was not possessing any permit or license to carry the liquor bottles. It is relevant to see that two bottles of liquor each containing 180 ml. were seized in the presence of panch witnesses and they were sealed and sent for chemical examination. As per the Chemical Analysis Report marked at Ex.P-5, the same contained ethyl alcohol. Though it is stated by P.W.2 that 72 bottles were seized, however the remaining 70 bottles were not produced before the Court. It is 8 not established as to whether all the remaining bottles contained liquor. Though P.W.1, one of the pancha witness examined in the case deposed that there were 48 Original Choice whisky bottles and 24 Old Monk liquor bottles in the possession of the accused and the bottles were seized under a panchanama Ex.P-1, however, samples from the remaining bottles were neither sent for chemical examination nor the bottles were produced before the Court. The accused has denied that he was in possession of the liquor bottles as alleged by the prosecution. From the evidence of P.Ws.1 and 2 it cannot be conclusively held that the accused was in possession of 72 liquor bottles without any valid license or permit.
9. That in a decision reported in 1977 - KantLJ - 2 - 463 in the case of Mahapursha Durga Joglekar v. State of Karnataka, this Court at para 4 has observed as under : 9
"4. Granting that all those ten bo ttles were reco vered from the possessio n of the petitio ner at the time and place alle ged by the prose cution, there is no le gal e vidence to show that each of those bottles contained brandy as allege d. It is undisputed that the contents of only one of those bo ttles was sent to the Chemical Examiner for analysis, and it is not known why the contents of othe r nine bottles were not sent to him. Merely because those bottles bo re those labe ls, it is difficult to come to the conclusion and ho ld that the y contained brandy or some othe r intoxicant. The learned Magistrate as also the learne d Sessions Judge appear to have proceeded on the assumption that even the other nine bottles co ntaine d brandy, re lying upon the labe ls found on them. But there is no warrant for such assumption. It was incumbe nt on the prosecutio n to place convincing and co gent e vide nce on record to show that those othe r bo ttles also contained brandy or other into xicant. Such evide nce is wanting here . So le ly re lying upon the labe ls, it is hazardous to hold that what was contained in those nine bottles 10 was e ithe r brandy or so me othe r into xicant."
10. The above decision is squarely applicable to the present case. When the prosecution has failed to establish its case against the accused beyond all reasonable doubt, then question of presumption under Section 40 of the Act cannot be pressed into service. In view of the above discussion, I pass the following :
ORDER i. The petition is allowed.
ii. The impugned judgment and order of conviction and sentence dated 26.08.2010 passed by the JMFC Court, Koppal in C.C. No.636/2008 confirmed by the judgment and order dated 13.01.2011 passed by the Court of the District & Sessions and Fast Track Court -
I, Koppal, in Crl. A. No.38/2010 is set aside.11
iii. The accused is entitled for fine amount deposited, if any, before the trial Court.
iv. The bail bond stands cancelled.
Sd/-
JUDGE hnm