Karnataka High Court
Muttappa S/O. Yellappa Pol vs The State Of Karnataka on 15 July, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15 t h DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2892/2012
BETWEEN:
MUTTAPPA , S/ O YELLAPPA POL
AGED 46 YRS ., OCC: COOLIE
R/O BASAV ESWAR PLOT , KULA LI
TQ. MUDHOL, DIS T. BA GALAKOT .
... APPELLANT
(BY SRI. ANIL KA LE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CPI MUDHOL,
REPTD. BY SPP D HARAWAD.
... RES POND ENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKI NG TO SET ASID E
THE JUD GMENT A ND CONVICTI ON DATED 29.09.2012
PASSED BY THE F AST TRACK COURT, JAMKHANDI IN
S.C. NO.35/ 2012 F OR THE OFF ENCES P/U/S 32 AND 34
OF THE KARNATAK A EXCIS E ACT .
THIS CRIMINAL A PPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been filed challenging the judgment of conviction and order of sentence dated 29.09.2012 passed by the learned Presiding Officer, Fast Track Court, Jamakhandi, in S.C. No.35/2012 whereunder the appellant/accused has been convicted for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (hereinafter referred to as the 'KE Act', for brevity) and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period for three months for the offence punishable under Section 32 of the KE Act. Further, the appellant accused has been sentenced to undergo imprisonment for a period of one year for the offence punishable under Section 34 of the KE Act and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo further imprisonment for a period of three months. The appellant-accused has been acquitted of the offence punishable under Sections 273 and 328 of the 3 Indian Penal Code (hereinafter referred to the 'IPC', for brevity).
2. The factual matrix of the case are that the PSI, Mudhol Police Station, filed a complaint against the appellant-accused alleging that on 31.08.2011, he received a credible information that a person is illegally transporting illicit country made liquor packets in a plastic manure bag. Thereafter, the complainant along with his constables- CWs.4 to 6 and panchas went to Kulali village in a police jeep and waited on Kulali road after passing Nirina's sugar factory near the nala. At that time, a person came on a Hero Honda Motor cycle carrying plastic manure bag kept on the petrol tank of the motor cycle. The complainant and his staff stopped the said person and opened the plastic bag and found 100 packets of illicit liquor containing 180 ml each. The police have taken the accused into custody and took him to the police station and out of 100 packets, one packet was sent for chemical analysis to RFSL, Belgaum. After investigation, charge sheet was filed 4 against the appellant for the offences punishable under Sections 32 and 34 of the KE Act and Sections 273 and 328 of IPC.
3. In proof of its case, the prosecution in all examined 4 witnesses as PWs.1 to 4 and got marked documents as per Exs.P-1 to P-5 and one material object as M.O.1. On the side of the defence, neither any witnesses were examined nor documents were produced.
4. After considering the material 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 KE Act and acquitted the accused of the offence punishable under Sections 273 and 328 of IPC.
5. Being aggrieved by the judgment and order of conviction and sentence, the appellant/accused is before this Court on the grounds as mentioned in the appeal memorandum.
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6. Heard the arguments of the learned counsel for the appellant-accused and also the learned High Court Government Pleader for the respondent-State.
7. Learned counsel for the appellant submitted that the prosecution has not complied with the provisions of Sections 53 and 54 of the KE Act. He would further submit that sample has been taken out from only one packet out of 100 packets; that there is delay in sending the sample to FSL for chemical examination. The learned counsel has placed reliance on the following judgments:
a) K.L. Subbayya v. State of Karnataka1
b) Crl.A.2805/2009 between Koobya v. The State of Karnataka, disposed off on 07.07.2017
c) Crl.R.P.777/2011 between C.P. Kumar v. State by Mudigere Excise disposed off on 13.12.2018 and submitted that the mandatory requirement under Sections 53 and 54 of the KE Act are not complied and 1 1979 AIR 711 6 therefore, the trial and conviction vitiates. He would further submit that there is no investigation with regard to who is the RC owner of the seized vehicle bearing registration No.KA-37/H 2908. He would further submit that PW-1- pancha is a stock witness of the concerned police station and therefore, no reliance can be placed on his evidence. Hence, he prayed to allow the appeal by setting aside the impugned judgment of conviction and sentence.
8. On the contra, learned High Court Government Pleader submitted that the evidence of PW-1 pancha and PW-3 and PW-4, the police officers, is sufficient to convict the appellant-accused for the offences charged against him and the learned Sessions Judge has rightly appreciated the evidence on record and has convicted the appellant/accused. He has supported the reasoning assigned by the learned Sessions Judge and prayed for dismissal of the appeal.
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9. I have perused the grounds urged in the appeal memo, the evidence of PWs.1 to 4, the documents produced as per Exs.P-1 to P-5 and so also the judgment and order of conviction and sentence passed by the learned Sessions Judge and the decision of the Hon'ble Apex Court in the K.L. Subbayya (supra) and the judgment of this Court in the case of C.P. Kumar (Supra) and Koobya (supra) relied on by the learned counsel appearing for the appellant and also considered the oral submission made by the learned counsel on both sides.
10. Looking to the offences alleged under the provisions of the KE Act, they are cognizable offences. Therefore, before proceeding to arrest the accused and conducting search, the police ought to have followed the procedures as contemplated under Section 54 of the KE Act. The Hon'ble Apex Court in the case of K.L. Subbayya (supra) has observed 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 to 8 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, 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 research 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."9
11. Looking to the other decisions relied on by the learned counsel for the appellant, in the case of C.P. Kumar (supra), at para 7, this Court has observed as under:
" 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 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."
12. Looking to the decision in the case of Koobya (supra), this Court at para 12 of its judgment has observed as under:
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" 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 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. In the instant case, PW-4, PSI, who is a raiding party, when he was in the police station, received the 11 credible information on 31.08.2011 at about 3.30 pm that a person is illegally transporting the illicit country made liquor packets on his motor cycle from Mudhol to Kulali village. He secured panchas and left the police station at 3.45 pm along with his staff and panchas. There was enough time for PW-4 to record the grounds of belief as required under Section 54 of the KE Act. The said requirement under Sections 53 and 54 of the KE Act is mandatory and the said mandatory requirement has not been followed in this case.
14. So far as the recovery aspect is concerned, admittedly, only one panch witness has been examined, who is PW-1. He has stated in the cross-examination that, "he is a stock panch of the Mudhol Police Station". Therefore, his evidence cannot be relied on. When it is the admitted case of the prosecution that as per PWs.1, 2 and 4 that the place where 100 sachets of illicit liquor are alleged to have been seized, is a public place and number of people will be walking and vehicles will be moving at the 12 place, the police officers ought to have secured an independent person to act as a panch witness or could have recorded the statement as an independent witness in support of its case, which has not been done in this case. The vehicle which is seized in the incident, to whom it belonged or its owner, is also not traced. When this is so and when it is the consistent case of the prosecution that the accused was carrying sachets of illicit liquor in the said vehicle, they have to show that whether the vehicle belongs to the accused person or that 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. Not only that, it is the case of the prosecution that the appellant was carrying 100 sachets each containing 180 ml of country liquor and they have taken out the liquor containing from one sachet for the purpose of sending it for chemical examination and the remaining 99 sachets were said to have been handed over 13 to the Excise Department. Admittedly, these 99 sachets are not produced before the Court during the course of trial or any document is produced for having handed over the said 99 sachets to the department. M.O.1 has been seized on 31.08.2011. The said M.O.1-sachet has been sent to RFSL, Belgaum, by letter bearing No.162/11 dated 16.09.2011 as mentioned in Ex.P-5-RFSL report. There is delay in sending the sample seized for chemical examination0. The said aspect creates doubt about the case of the prosecution with respect to seizure of the M.O.1 on 31.08.2011. All these aspects of the matter were not appreciated by the learned Sessions Judge and the learned Sessions Judge wrongly proceeded to convict the accused.
15. In view of the material placed on record, both oral and documentary, the judgment and order of conviction and sentence passed by the learned Sessions Judge is not sustainable in law. Hence, the appeal is allowed. The judgment of conviction and order of 14 sentence dated 29.09.2012 passed by the learned Presiding Officer, Fast Track Court, Jamakhandi, in S.C. No.35/2012 is hereby set aside. The appellant-accused is acquitted of the offences for which he has been convicted. Bail bond executed by the appellant and the surety stands cancelled.
Fine amount, if any, paid be refunded to the appellant/accused Sd/-
JUDGE kmv