Karnataka High Court
Koobya vs The State Of Karnataka on 7 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 7th day of July 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Appeal No.2805/2009
Between:
Koobya,
S/o Babu Chavan,
Age: 20 years, Occ: Coolie,
R/o Muchakhandi Tanda,
Tq: Bagalkot. ...Appellant
(By Sri P.N.Hosamane, Advocate)
And:
The State of Karnataka,
The PSI Navanagar PS,
Bagalkot,
Rep. by SPP, Circuit Bench,
Dharwad. ...Respondent
(By Sri Raja Raghavendra Naik, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. by the advocate for the appellant praying that
this Hon'ble Court may be pleased to set aside the
judgment and order of sentence passed by the Sessions
Judge, Bagalkot in S.C. No.73/2009 dated 02.11.2009
and acquit the appellant for the offence punishable
under Sections 32 and 34 of the Karnataka Excise Act.
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This Criminal Appeal coming on for Hearing this
day, the Court, delivered the following:
JUDGMENT
This appeal is preferred by the appellant/accused being aggrieved by the judgment and order of conviction dated 2nd day of November 2009 passed by the learned Sessions Judge, Bagalkot, in Sessions Case No.73/2009.
2. Brief facts of the prosecution case, as per the complaint averments are that on 29.04.2009, at about 11.30 a.m., when P.W.4/C.W.1, the Police Sub- Inspector, Excise Enforcement and Lottery Prohibition Squad, Bagalkot District, was in his office, he received an information that, one person by name Koobya, S/o Babu Chavan, a resident of Muchakhandi, was in possession of and transporting the illicit liquor for its sale from Muchakhandi tanda towards Vidyagiri on a :3: motorcycle. Immediately, he summoned two panchas and also the Police Sub-Inspector of the complainant police station to his office and together with his staff, at about 12.00 noon on the same day, went to RTO cross at Navanagar, Bagalkot. When these people were watching the movements in that area, at about 12.30 p.m., they saw a person coming on Suzuki motorcycle with a gunny bag tied to the motorcycle. While this Police Inspector and the people to whom he had taken with him, were trying to apprehend the accused, he left his motor cycle with the bag there itself and ran away from that place. By enquiry by the Police Inspector in that area, they came to know that the rider of the motorcycle was one Koobya, S/o Babu Chavan. The said Inspector in the presence of panchas and Police Sub- Inspector, when inspected the gunny bag tied to the motor cycle, noticed 400 country made illicit liquor sachets, each containing about 200 ml. He seized the gunny bag, the motor cycle bearing Reg. No.KA-29/H- :4: 4770 under the seizure panchanama in the presence of the panch witnesses. From out of the sachets, he collected the contents of one sachet as a sample for chemical examination. After returning to his office at about 2.00 p.m., he prepared a complaint and lodged with the respondent/police and produced the seized articles before the complainant/police. The complaint was registered in Cr. No.41/2009 for the offences under Sections 32 and 34 of the Karnataka Excise Act and also under Section 328 of the Indian Penal Code.
3. The Investigating Officer, after conducting the investigation, filed chargesheet against the accused person for the said offences.
4. In proof of its case, the prosecution, in all, examined five witnesses as P.Ws.1 to 5, got marked the documents Exs.P.1 to P.5 and the material objects M.Os.1 and 2. On the side of the defence, no witness was examined nor any document was produced. :5:
5. After considering the materials placed on record, both oral and documentary, the learned Sessions Judge convicted the appellant/accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act and acquitted the accused of the alleged offence under Section 328 of the Indian Penal Code.
6. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment and order of conviction, the appellant/accused is before this Court on the grounds as mentioned in the appeal memorandum.
7. Heard the arguments of the learned counsel appearing for the appellant/accused and so also the learned High Court Government Pleader for the respondent-State.
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8. Learned counsel for the appellant submitted that there is no proof of recovery of the alleged liquor from the possession of the appellant. He made the submission that out of the two panch witnesses, one panch witness was not at all examined before the Court and another panch witness, who has been examined, has turned hostile and not supported the case of the prosecution. He also made the submission that the appellant was not at all apprehended at the spot on the date of the incident, but he was apprehended 14 days after the date of the incident. He submitted that the police were not at all knowing the identity of the appellant and they were not even knowing the name of the appellant. Learned counsel also submitted that there is no compliance of Section 54 of the Karnataka Excise Act. It is also his submission that the Investigating Officer, who has been examined as P.W.3, though he has recorded the statement of some of the witnesses, according to the prosecution case, during the :7: course of his evidence, he deposed that except receiving the complaint and registering the case, he has not done anything in the matter. The learned counsel submitted that though the place of the alleged offence is a place where there will always be crowded people, which is also admitted by the prosecution witness, no independent witness from the said place was taken for the purpose of seizure of the alleged liquor and no statement of any such witness is recorded in the case. Hence, he submitted that the Trial Court, without considering all these aspects of the matter, has wrongly convicted the accused for the alleged offence under Sections 32 and 34 of the Karnataka Excise Act. Hence, he submitted to allow the appeal and set aside the judgment and order of conviction passed by the Trial Court.
9. Per contra, learned High Court Government Pleader submitted that even if the panch witnesses turned hostile, P.W.2 and 4 both have consistently :8: deposed about conducting the search, seizing 400 sachets of illicit liquor each containing 200 ml of illicit liquor. He also made the submission that as per Ex.P.5, the expert's report, goes to show that it is a country liquor; it is harmful to health of the human beings. He submitted that even if the panch witnesses have not supported the seizure panchanama, there is no bar to rely upon the evidence of the police witness. Hence, he submitted that the learned Sessions Judge has rightly relied upon the evidence of P.W.2 and P.W.4 and also other prosecution witnesses and rightly convicted the appellant/accused. Hence, he submitted that there is no illegality committed, there is no merit in the appeal and therefore, the appeal may be dismissed.
10. I have perused the grounds urged in the appeal memo, oral evidence of P.Ws.1 to 5, the documents produced by the prosecution as per Exs.P.1 to P.5. So also, I have perused the judgment and order :9: of conviction passed by the learned Sessions Judge. I have also perused the decision of the Hon'ble Apex Court decided on January 24, 1979 rendered in the case of K.L.Subbayya vs. State of Karnataka reported in AIR 1979 SC 711 and a decision of this Court in the case of L.Srinivas Vs. Authorised Officer and Superintendent of Excise reported in ILR 1999 KAR 2872, which are relied upon by the counsel appearing for the appellant. I have also considered the oral submissions made by the learned counsel on both sides at the Bar.
11. Looking to the offences alleged under the provisions of the Karnataka Excise Act, they are cognizable offences. Before proceeding to arrest the accused person and conducting search, the police ought to have followed the procedure contemplated under Section 54 of the Karnataka Excise Act. In the decision : 10 : of K.L.Subbayya supra, it is observed by their Lordships of Hon'ble Apex Court, as under:
"In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with.
This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, : 11 : suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non- compliance of the provisions of section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him. Appeal allowed."
Looking to the other decision relied upon by the learned counsel for the petitioner i.e., in the case of L.Srinivas supra, in para 3 of the said judgment, this Court has observed as under:
" 3. The learned Counsel for the petitioner at the very outset submitted that the prosecution has not taken prior permission from the Magistrate to search and seize the vehicle. There is no reason mentioned by the prosecution to seize the vehicle without the prior permission : 12 : of the magistrate. Therefore, he submitted on that ground itself, the seizure of the vehicle is invalid. To substantiate his argument, he has drawn my attention to the decision rendered by their Lordships of the Supreme Court in K.L. Subbayya v State of Karnataka, 1979(1) Kar. LJ 410, wherein their Lordships have held:
'The Inspector of Excise who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act was being committed, before proceeding to search the car and thus the provisions of Section 54 were not complied with.
Held, this rendered the entire search without jurisdiction and vitiated the conviction. Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecutions or harassment.
The definition of the word 'place' under the Act included vehicles which could include a car'. In this case, from the perusal of the seizure mahazar or other records, there is 'nothing to indicate that the Investigating Officer has : 13 : mentioned any reasons to search and seize the vehicle without prior permission of the Magistrate. Admittedly, there is no prior permission of the Magistrate to search and seize the vehicle. Under the circumstances of the case, the decision rendered by their Lordships referred to above is squarely applicable to the facts of this case."
12. Perusing Section 54 of the Karnataka Excise Act, it is mentioned that whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an Officer-in-charge of a Police Station or any Excise Officer not below such rank as may be prescribed, has reason to believe that an offence under Sections 32, 33, 34, 36 or 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. So, the requirement of Section 54 is, before proceeding to conduct search without : 14 : warrant, the concerned Officer has to record his grounds of belief in the matter, which is a condition precedent. But, in this case on hand, no such material has been placed by the prosecution that the police officer, who received the alleged credible information, has recorded any such reasons of his belief that the accused may escape and without warrant they proceeded to conduct the search. Therefore, the learned counsel appearing for the appellant herein is justified in making the submission, by relying upon the two decisions, that mandatory requirements of Section 54 of the Karnataka Excise Act is not at all followed in this case.
13. Sofar as the recovery aspect is concerned, admittedly, only one panch witness has been examined as P.W.1 and he has not supported the prosecution case and turned hostile, and even during the course of cross- examination by the Assistant Public Prosecutor, nothing : 15 : is elicited from his mouth to believe the story of the prosecution that in his presence only, 400 sachets containing the liquor were seized and in his presence only, sample was taken out from one sachet and the mahazar was drawn at the said place. When it is the admitted case of the prosecution as per the case of even P.Ws.4 and 5, the police officers, that the place, where the 400 sachets of illicit liquor are alleged to have been seized, is a public place and number of people will be walking, vehicles will be moving at the said place. When that is so, even according to the prosecution, the Police Officers ought to have secured an independent person to act as panch witness or recorded their statement as an independent witness in support of prosecution case, which is not done in this case.
14. The vehicle, which is seized in the incident, to whom it belongs, the owner is not traced. Even according to the prosecution case, as per the evidence of : 16 : P.W.5 and the accused was, admittedly, not apprehended at the spot. When that is so, and when it is the consistent case of the prosecution that accused was carrying the sachets in the said vehicle they have to show that whether the vehicle belongs to the accused person or they have to place the material to show that the owner of the vehicle had given the vehicle to the accused person. About these aspects of the matter, absolutely, there is no material placed by the prosecution to connect the appellant/accused with the said vehicle.
15. Not only that, though it is the case of the prosecution that he was carrying 400 sachets each containing 200 ml of country liquor and they have taken out the liquor containing in one sachets for the purpose of sending it for examination and remaining 399 sachets were said to have been handed over to the Excise Department. So, admittedly, these 399 sachets are not : 17 : produced before the Court during the course of trial and sofar as one sachet, which is said to have contained the country liquor and from out of which a sample is said to have sent for examination, at least that cover/sachet could have been produced before the Court for the purpose of identification, but the same has not been done in this case. Therefore, when the said material is not produced, only on the basis of the evidence of P.Ws.2, 4 and 5, it is difficult for the Court to accept the contention of the prosecution that one sachet was taken out and the liquor in the said sachet which was sent for sample examination. All these aspects were not appreciated by the learned Sessions Judge and the learned Sessions Judge wrongly proceeded to convict the accused persons. In view of the material placed on record, both oral and documentary, the judgment and order of conviction passed by the learned Sessions Judge is not sustainable in law. Hence, the appeal is allowed, the judgment and order of conviction passed by : 18 : the learned Sessions Judge is hereby set aside and the appellant/accused is acquitted of the offence for which he has been convicted, and the bail bonds executed by the appellant stands cancelled.
The fine amount deposited, if any, be refunded to the appellant/accused herein.
Sd/-
JUDGE Kms