Karnataka High Court
Sri K Muniramu vs State Of Karnataka on 17 July, 2023
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NC: 2023:KHC:25693
CRL.RP No. 809 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 809 OF 2015
BETWEEN:
1. SRI K MUNIRAMU
S/O SRI KADE GOWDA
AGED ABOUT 56 YEARS
RETIRED GOVERNMENT OFFICIAL
2. SRI M YOGESH
S/O SRI. K MUNIRAMU
AGED ABOUT 29 YEARS
BUSINESS,
BOTH ARE R/AT NO.47,
ANJANEYA TEMPLE STREET
BALAJI LAY OUT
THALAGHATTAPURA POST
BANGALORE -560 062.
...PETITIONERS
Digitally (BY SRI. SUBRAMANYA T., ADVOCATE)
signed by
SHAKAMBARI
Location:
HIGH COURT
AND:
OF
KARNATAKA
1. STATE OF KARNATAKA
BY EXCISE INSPECTOR
BANASHANKARI REGION
BANGALORE CITY.
REP. BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE
...RESPONDENT
(BY SRI.K.S.ABHIJIT., (HCGP))
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NC: 2023:KHC:25693
CRL.RP No. 809 of 2015
THIS CRL.RP FILED U/S.397 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND SENTENCE PASSED IN C.C.NO.123/2014
WHICH IS ON THE FILE OF THE LEARNED THE C.J.M.,
BANGALORE, DATED 27.11.2014 AND FURTHER, PRAYED TO
SET ASIDE THE IMPUGNED JUDGMENT IN CRIMINAL APPEAL
NO.90/2014 WHICH IS ON THE FILE OF THE PRINCIPAL S.J.,
BENGALURU RURAL DISTRUCT, BENGALURU DATED
20.06.2015 AND MOST RESPECTIFULY PRAYED TO ACQUIT
THESE APPELLANTS 1 AND 2 FROM THE CHARGES LEVELD
AGAINST THEM , IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioners/accused Nos.1 and 2 in C.C. No. 123/2014 being aggrieved and dissatisfied with the judgment of conviction and sentence passed by the Chief Judicial Magistrate, Bangalore Rural District by judgment dated 27.11.2014 confirmed by the Principal Sessions Judge, Bengaluru Rural District, Bengaluru, in Crl. A. No. 90/2014 dated 20.06.2015, have preferred this revision petition.
2. Parties to this revision are referred to as per their rank before the trial Court for the purpose of convenience.
3. Brief relevant facts as set out in the FIR are as under:
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 On receipt of the credible telephonic information on 03.08.2013 at 12.25 p.m. with regard to illegal storage of illicit liquor in the house of accused Nos.1 and 2 situated at No.47, Balaji Layout, Anjaneya Temple Road, Thalaghattapura, Bangalore-560 062, the Inspector of Excise, Banashankari Range, Bengaluru, alongwith host of officers went to the said house and conducted raid with regard to storage of liquor bottles. Due to urgency in conducting the raid, he prepared search warrant. In the said place he noticed the storage of 33 liquor bottles, in all, 42.250 litres with different brand names i.e., 22 bottles of 750 ml of the brand Blader Sped whisky, 5 bottles of 100-Pipers whisky bottles of 750 ml, 3 bottles of antiquity blue whisky of 750 ml, 4 bottles of Royal Challenge whisky of 750 ml, 9 bottles of Mansion House Brandy of 750 ml. They also found two mobiles i.e., the Nokia and Samsung mobiles phones. At the spot itself, he prepared panchanama as per Ex.P.1 and arrested accused Nos.1 and 2. Thereafter, prepared F.I.R and submitted the same to the Chief Judicial Magistrate, Bengaluru Rural District.
4. The records of this case do reveal that, during investigation itself accused Nos.1 and 2 were released on bail.-4-
NC: 2023:KHC:25693 CRL.RP No. 809 of 2015
5. The Investigation Officer, after completion of formalities of investigation filed the charge sheet against the accused.
6. To prove the guilt of the accused persons, the prosecution in all examined four witnesses namely P.Ws.1 to 4. Got marked Exs.P.1 to P.7 with respective signatures thereon and also M.O. Nos. 1 to 7 sample bottles, M.O.8 a bag and M.O. Nos.9 and 10 mobile phones.
7. The learned Judicial Magistrate, on hearing the arguments of both the side and on perusal of the records, passed the judgement of conviction and sentence against accused nos. 1 and 2 as under:
DzÉñÀ DgÉÆæ 1, 2 CªÀgÀÄ C¨sÀPÁj PÁAiÉÄÝ PÁ£ÀÆ£ÀÄ PÀ®A.32 gÀrAiÀÄ°è JgÀqÄÀ ªÀµÀð PÀpt ¸ÀeÉ «¢ü¸À¯ÁVzÉ ªÀÄvÀÄÛ vÀ¯Á 11 ¸Á«gÀ zÀAqsÀ «¢ü¸À¯ÁVzÉ. zÀAqÀ PÀlÖ®Ä vÀ¦àzÝÀ °è ¸ÀzÀj DgÉÆævÀgÀÄ vÀ¯Á 6 wAUÀ¼À ¸ÁÀzÁ ¸ÀeÉAiÀÄ£ÀÄß C£ÀĨsÀ«¸ÀvÀPÀÌzÀÄÝ CAvÁ DzÉò¸À¯ÁVzÉ.
DgÉÆævÀgÀÄ §gÉzÄÀ PÉÆvÀÛAvÀºÀ eÁ«ÄãÀÄ ªÀÄÄZÀѽPÉ ¥Àvæª À À£ÄÀ ß gÀzÀÄÝ¥Àr¸À¯ÁVzÉ.
JA.N. 1 jAzÀ 7 ¨ÁmɯïUÀ¼ÄÀ , JA.N.8 ¨ÁåUï, JA.N.9 ªÀÄvÀÄÛ 10 ªÉƨÉå¯ï ¥ÉÆãïUÀ¼ÄÀ ªÉÄîä£À« CªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ £Á±À¥Àr¸À®Ä DzÉñÀ ªÀiÁqÀ¯ÁVzÉ.-5-
NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 DgÉÆævÀjUÉ wæð£À GavÀ ¥ÀæwAiÀÄ£ÀÄß ¤ÃqÀ®Ä DzÉò¸À¯ÁVzÉ.
8. This judgement of conviction and sentence was challenged by the accused persons by preferring an appeal before the Principal District & Sessions Judge, Bengaluru Rural District, Bengaluru, in Crl.A. No.90/2014. The learned Principal Sessions Judge, Bengaluru Rural District, Bengaluru, after hearing arguments passed the judgement dated 20.06.2015 confirming the said judgement of conviction and sentence passed by the trial Court. Challenging the said judgments, accused nos. 1 and 2 are before this Court by filing this revision petition.
9. When this case was posted for final hearing, the learned counsel for the petitioners on 14.07.2023 filed a memo along with death extract of accused No.1/Revision Petitioner on 19.06.2018. Learned SPP also submits that revision petitioner No.1 has expired. In view of the death of Revision Petitioner No.1/accused No.1, case of petitioner No.1 stood abated. Now, the petitioner No.2 being accused No.2 is prosecuting this revision.
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015
10. During the course of the arguments, in addition to the grounds urged in the revision petition, the learned counsel for the accused submits that, the provisions of Section 54 of Karnataka Excise Act mandates obtaining of the search warrant by the Investigating Officer i.e., Excise Officer. He further submits that though the I.O. had sufficient time to get the permission of the jurisdictional Magistrate, but, he has not done so. The I.O. was aware of the address which was very much available with him. The house of accused persons was coming under the jurisdiction of Thalaghattapura Police Station limits whereas, the Investigation Officer is from Banashankari Police Station. When the I.O. knew about the exact address of the accused persons, there was no difficulty for him to get the permission from the Magistrate to issue search warrant.
11. It is further submitted that, to confirm whether all the sample bottles so seized contain alcohol or not, though the raid was conducted on 03.08.2003, but subsequently, after lapse of one month, the said sample bottles were sent for chemical analysis. He submits that, it is not made clear where exactly the said sample bottles were stored by the IO. It is submitted that, when such raid was conducted, there must -7- NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 have been some resistances, but no such resistance was noticed. He submits that, sample bottles do not bear the signature of the witnesses who were alleged to be present at the time of conducting the raid and panchanama. Scientific examination of sample bottle is not done by the prosecution. Further, he submits that, no independent witnesses such as, neighbours have been secured by the IO. Though there were names of three persons in the notice, but the allegation is only against accused no.1. There are no allegations against accused no.2. Further, he submits that, the trial Court as well as the 1st Appellate Court simply believed the evidence of IO. If the search warrant was obtained from the Judicial Magistrate and the material witnesses were examined, it would have clearly thrown light on case of the prosecution. The reasons assigned by the trial Court and appellate Court are without any basis. Hence, it is prayed to allow this revision petition.
12. As against this submission, the Learned SPP submits that, the trial Court and 1st Appellate Court have rightly evaluated the evidence of the prosecution and have rightly come to the conclusion that the accused have committed the offence under Section 32 of the Karnataka -8- NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 Excise Act. As there was apprehension in the mind of the Investigation Officer that accused may run away or misplace or destroy the evidence of said storage of illicit liquor, a raid was conducted. She supported the reasons assigned by the trial Court and 1st Appellate Court and prays to dismiss the petition.
13. I have given my anxious consideration to the arguments of both parties. On perusal of the records and on hearing the arguments of both the side, the points that arise for consideration are:
"1. Whether the judgments of the Trial Court and first appellate Court suffer from perversity, illegality and requires interference by this Court?
2. What order?"
ANALYSIS
14. As could be seen from the records of this case, it is the specific case of the prosecution that, on 03.08.2013 PW.1 K.Mohan, Inspector of Excise, Banashankari Range, Bengaluru, on receipt of the telephonic information that, in the house of the accused persons situated at Balaji Layout, Anjaneya Temple -9- NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 Road, Thalaghattapura, Bengaluru, within the limits of Banashankari Range about storage of illicit liquor, PW1 along with a host of the officers of the Excise Department, went to the house of the accused persons. As the accused were likely to abscond, misplace or destroy the evidence, he himself prepared a search warrant. He proceeded directly with the staff to the spot and conducted raid and noticed the presence of varieties of liquor meant for the use of defence personnel. He conducted panchanama and registered a case against accused persons.
15. It is the defence of the accused persons that, when the Excise Inspector got the knowledge about the storage of illicit liquor at a particular place, he has to follow the proper procedures as contemplated under the provisions of the Karnataka Excise Act. If there is non-compliance of provisions of the Excise Act, it would be a serious lapse on the part of the Investigation Officer in conducting raid. It is relevant to refer to the provisions of Karnataka Exercise Act. Section 52 of the Act reads as under:
"52. Power to arrest without warrant, to seize articles liable for confiscation and to make searches- (1) Any Officer of the State Government (employed in the Excise
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 Department, or any Officer of the Police or Revenue Department empowered by the State Government in this behalf) subject to such restrictions as may be prescribed may;
(a) arrest without warrant any person found committing an offence punishable, under Section 32, Section 33, Section 34, Section 36 or Section 37;
(b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force, relating to excise revenue; and
(c) detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be.
53. Power of Magistrate to issue a warrant- If a Magistrate, upon information and after such enquiry (if any) as he thinks necessary, has reason to believe that an offence under Section32, Section 33, Section 34, Section 36, or Section 37 has been, is being, or is likely to be, committed, he may issue a warrant -
(a) for the search of any place in which he has reason to believe that any intoxicant, still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed; and
(b) for the arrest of any person whom he has reason to believe to have been, to be,
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 or to be likely to be, engaged in the commission of any such offence."
16. So far as Section 54 of Karnataka Excise Act is concerned, the Act speaks of the power to search without warrant. As per this provision, whenever there is urgency or if there is likelihood of escape by the accused persons or destruction of the evidence by them, IO has to satisfy himself, after recording the grounds of his belief, he can search without warrant. As per this provision for search without warrant, the condition precedent is to follow the provisions of Sections 52 and 53 of Karnataka Exercise Act. For exercise of the power by the competent Authority, the Competent Authority has to satisfy itself and that if an opportunity is given, the offender would escape or conceal the evidence. Thus, the concerned Authority has to form an opinion based on these facts that if the offence is committed, the offender would not escape or run away or destroy the evidence, then without search warrant, raid can be conducted.
17. Now let us examine whether the Excise Inspector has followed the provisions of Sections 52 and 54 of the Karnataka Excise Act.
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18. Ex.P.1 is the panchanama prepared as per the case of prosecution when the raid was conducted. Under this Ex.P1, illicit liquor bottles were seized from the house of accused. It is written on Ex.P.1 that, on receipt of information with regard to storage of illicit liquor in the house of accused No.1 situated at No. 47, Balaji Layout, Anjaneya Temple Road, Talaghattapura, Bengaluru, he along with his staff went to the said house. It is stated that there was a possibility of concealing the evidence or destruction of the said illicit liquor. Therefore, he has prepared search warrant by himself and conducted raid. The information was received at 11:25 a.m. and the raid was conducted at 12:25 p.m. So he had sufficient time to get the permission of the Magistrate to conduct the raid. Simply, it is written in the panchanama that there was a possibility of concealing or destroying illicit liquor kept in the house of the accused. Therefore, IO has not followed the provisions of the Excise Act strictly. There is no proper reason assigned for not following the procedure as stated under the Karnataka Excise Act. Throughout the panchanama it is stated that in the house stated above, accused No.1-K.Muniramu was present. IO explained the purpose of the raid. It is stated that, there was a
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 request made by the Investigation Officer i.e., Excise Inspector to the neighbours to act as panchas but they did not agree for the same. Thereafter, he secured two persons who were moving on Anjaneya Temple Road and they acted as Panchas. Accordingly, he took the signatures of the Panchas on the seized articles, took out 7 bottles as sample bottles, for the purpose of sending the same for chemical analysis and arrested accused nos. 1 and 2.
19. Throughout the panchanama, no single word is uttered by the Investigation Officer with regard to the involvement of accused No.2 in the crime.
20. So far as for the oral evidence stated by the PW1 is concerned, though he corroborates the contents of the Panchanama about the role being played by him with regard to conducting the raid, etc., he conducted raid by preparing search warrant for himself. Further, he has stated that he issued notice to the Panchas requesting them to act as Panchas. But, Panchas remained absent. No other steps have been taken by the prosecution to secure the presence of the panchas. Ultimately, as per order dated 06.01.2014, the
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 learned trial Court has dropped CW2 and CW3. Even after passing such an order of dropping CW2 and 3, the learned Senior APP then appearing before the trial Court has not taken any steps to recall that order and summon CW2 and 3, who would have been the best witnesses about their presence of the time of preparing panchanama.
21. It is stated by PW1 during the course of his evidence that, accused nos. 1 and 2 were present in the said house. He enquired with them that, the said bottles were brought by them for the purpose of sale. If really such an answer was given by the accused no.1, the Investigation Officer would have examined the neighbours as rightly submitted by the counsel for the accused to prove that whether really accused persons were engaged in the sale of illicit liquor from their house. Atleast, one neighbour would have been the best witness who had purchased the said liquor from the house of accused persons.
22. It is his evidence that, on enquiry of the accused, it revealed that one person from Vivek Nagar near bus stand used to supply the sample. The accused have furnished the mobile
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 number of the said person. But, no attempt was made by the IO to secure the presence of the said person who really alleged to have supplied the said liquor to the accused persons. This PW.1 have been thoroughly cross examined by the defence. It is elicited that the accused were not knowing about conducting of the raid in the house of accused no.1. When accused no.1 was not having any knowledge, as rightly pointed out by the counsel for the accused, there was no difficulty for the Excise Inspector to get the search warrant from the jurisdictional Magistrate. But he has not done so. He states, on imagination he has come to the conclusion that, the accused may shift the liquor bottles. He deposed that when the raid was conducted, no person came to the house of accused nos.1 and 2 to purchase liquor. According to him, on that day, accused nos.1 and 2 were in their house. Basing this evidence, the learned counsel for the accused nos. 1 and 2 submits that, if really accused nos. 1 and 2 have stored the illicit liquor, there would have been reistance while conducting the raid. Therfore, he submits that a false case has been registered against accused nos. 1 and 2.
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23. PW. 2 D.Vasanth, is a person who accompanied PW. 1 the Excise Inspector, He too corroborates the evidence of PW.1. According to him, one Muniyappa received a call from P.W.1 and he went with P.W.1 to the spot. He personally did not enquire any neighbour.
24. If the evidence of PW.1 is compared with evidence of PW.2, it discloses that no proper procedure is followed by the IO. There were 42 bottles and 7 bottles were taken for sample to send them for chemical analysis. PW.3 took them and reached the said bottles for chemical analysis. He too says that, he has also not requested any neighbours to come and act as Panchas.
25. P.W.4 Srinivasan was the Investigation Officer in this case, who after collecting samples has fetched the report from the Chemical Analyst as per Ex.P.5.
26. In all criminal cases, Panchas are authors of the panchanama, and Investigating Officer are the supervisors of the investigation. In the absence of corroborative
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 evidence from the independent witnesses, the evidence of Investigating Officer become formal in nature.
27. As submitted by the Learned Counsel for the petitioner-accused that, CWs.2 and 3 panchas are the material witness. They have not been examined in this case. When panchas are not examined in this case, only based on the evidence of Investigation Officers, it cannot be stated that, the accused have really committed the offence in the manner alleged by the prosecution.
28. The learned Trial Court has not properly appreciated the evidence placed on record by the prosecution. The first Appellate Court has not considered all these aspects and simply based upon the evidence of the I.O.s have confirmed the trial Court judgment. First of all, in this case, there is no proper procedure followed by the Excise Inspector by adhering the provisions of Sec.52, 53, 54 of the Karnataka Exercise Act. Material witnesses have not been examined. It is not explained as to why there delay in sending the sample bottles for the purpose of chemical analysis. With regard to this, the learned 1st Appellate Court has given reason
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NC: 2023:KHC:25693 CRL.RP No. 809 of 2015 that Chemical Analysis Report is a public document as per provisions of Sec. 293 of Cr.P.C,, and it has evidentiary value. It is in dispute that there was a delay in sending the sample bottles to chemical analysis. To know the correctness of the chemical analysis report, the prosecution has to examine the chemical analyst. No steps have been taken to secure his presence to prove his report as the report itself is disputed by the defence. In the absence of evidence of independent witnesses, the evidence of I.O.'s cannot be accepted. It is submitted that, for statistical purpose, the case must have been registered. In view of the facts and circumstances of the case, this possibility cannot be ruled out. .
29. It is submitted by the learned counsel submitted that, there is no evidence against accused No.2 about his involvement in the commission of the crime. No witness has stated any incriminating evidence against accused No.2. When there is no incriminating evidence against accused no.2, prosecution has failed to prove the guilt against accused no.2 to the hilt.
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30. In view of above facts, the revision petition succeeds and it deserves to be allowed in respect of accused no.2 since accused no.1 is no more. Resultantly, the above points are answered in favour of the revision petitioners. Consequently, the following:
ORDER Revision Petition filed by the petitioners under Section 397 Cr.P.C., is allowed.
The accused No.2/petitioner No.2 is acquitted of the charges under Section 34 of Karnataka Excise Act. His bail bonds stand cancelled. He is set at liberty.
The trial Court is directed to refund the fine amount digitally to accused No.2 on furnishing necessary ID documents.
With regard to disposal of the property, the order of trial court is maintained.
SD/-
JUDGE PSJ/Sk/-