Karnataka High Court
Chandrappa vs State Of Karnataka on 13 March, 2024
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NC: 2024:KHC-D:5217
CRL.RP No. 100109 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100109 OF 2016 (397)
BETWEEN:
CHANDRAPPA S/O SANKAPPA KOPPAD,
AGE: 54 YEARS, OCC: PETTY BUSINESS,
R/O. KURUBAGERI, RANEBENNUR,
DIST: HAVERI.
- PETITIONER
(BY SRI A.M.GUNDAWADE, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD
THROUGH RANEBENNUR TOWN P.S.
- RESPONDENT
(BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SEC.401 OF CR.P.C. SEEKING TO SET ASIDE JUDGMENT OF
SAROJA CONVCTION AND ORDER OF SENTENCE DATED 07.02.2012 PASSED
HANGARAKI
IN C.C.NO. 5/2008 BY ADDL. CIVIL JUDGE & 2ND ADDL. JMFC,
Digitally signed by SAROJA
HANGARAKI
Location: HIGH COURT OF
COURT, RANEBENNUR AND JUDGMENT OF CONFIRMATION OF
KARNATAKA, DHARWAD
BENCH
Date: 2024.03.15 13:30:44 CONVICTION DATED 28.04.2016 PASSED BY THE II ADDL. DISTRICT
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AND SESSIONS JUDGE HAVERI, (SITTING AT RANEBENNUR), IN
CRIMINAL APPEAL NO. 8/2012 AND TO ACQUIT THE PETITIONER /
ACCUSED FROM CHRGES U/SECTIONS 3 AND 7 OF ESSENTIAL
COMMODITIES ACT, 1955 & ETC.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:5217
CRL.RP No. 100109 of 2016
ORDER
Revision petitioner/ accused feeling aggrieved by the judgment of first appellate Court on the file of II Addl. District and Sessions Judge at Haveri (sitting at Ranebennur) in Crl. Appeal No. 8/2012 dated 28.04.2016 in confirming the judgment of conviction and order of sentence passed by the trial court on the file of Addl. Civil Judge & 2nd Addl. JMFC, Ranebennur in C.C. No. 5/2008 dated 07.02.2012, preferred this revision petition.
2. Parties to the revision petition are referred with their ranks as assigned in the trial Court, for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing arguments of both sides and on perusal of the trial court records, so also the impugned judgment under revision petition, the following points arise for consideration.
i) Whether the judgment of the first appellate Court in confirming the judgment of conviction and order of sentence passed by the trial Court for the offences punishable U/s 3 and 7 of Essential Commodities -3- NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 Act, 1955, is perverse, capracious and legally not sustainable?
ii) Whether interference of this Court is required?
5. The factual matrix leading to the case of the prosecution can be stated in the nutshell to the effect that on 24.08.2007 in Kurubageri, Kudri Lane, credible information was received by the complainant that accused has illegally stored blue kerosene oil meant for public distribution to the ration card holders. In pursuance of such information, along with the Police and panch witnesses went to the house of accused and on search of the house, it was found that 8 tin barrels in all containing 1340 litres of blue kerosene was found which was exclusively meant for distributing to the public holding ration cards. The samples of blue kerosene oil was taken in separate 8 bottles and the remaining barrels containing blue kerosene oil came to be seized under the panchanama. On these allegations made in the complaint, the case was registered against the accused for the offences punishable U/s 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'E.C. Act' for brevity). The investigating officer on completion of investigation filed the charge sheet.
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6. The prosecution in order to prove the allegations made against the accused, relied on the oral testimony of PWs.1 to 7 and documents as per Exs.P.1 to P.5, so also got identified M.Os.1 to 8. The trial Court after having heard the arguments of both sides and on appreciation of oral and documentary evidence placed before it, convicted the accused for the offences punishable U/s 3 and 7 of the E.C. Act and imposed sentence as per order of sentence.
7. The accused challenged the said judgment of conviction and order of sentence before the first appellate Court. The first appellate Court on reappreciation of the material evidence placed on record, has dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the trial Court.
8. The accused is challenging concurrent finding of both the Courts below in the present revision petition contending that seized sample under M.Os.1 to 8 were not subjected to FSL examination, further the Tahasildar who has issued the certificate-Ex.P.5 has not been examined in this case. Therefore, there is no any concrete evidence on record to hold -5- NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 that the sample bottles, M.Os.1 to 8 contained blue kerosene said to have been seized under the panchanama from 8 barrels in possession of the accused. The identity of the house of accused from where blue kerosene oil alleged to have been seized, has not been established by the prosecution out of the evidence placed on record. The search and seizure effected by the complainant with the Police is not in accordance with law, since no any search warrant has been obtained by the Magistrate. The Courts below without considering these legal requirements, erroneously proceeded to convict the accused for the offences alleged against him and the same needs to be interfered by this Court.
9. Learned counsel for the accused has argued that identity of the accused from where blue kerosene oil came to be seized has not been established by the prosecution. The Tahsildar who has issued certificate-Ex.P.5 has not been examined and much less he is not a competent witness to give opinion regarding the sample bottles containing blue kerosene oil. The inconsistent evidence of official witness is not safe to be relied. The search and seizure is not in accordance with law. -6-
NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016
10. Per contra, learned HCGP has argued that the evidence of PWs.1, 2 and 4 to 7 is sufficient to prove that accused was found in possession of blue kerosene oil seized in this case. The sample bottles, M.Os.1 to 8 was taken from the seized barrels containing blue kerosene oil and the same is certified by the Tahasildar, Ex.P.5. The Courts below have rightly appreciated the evidence on record and the same does not warrant interference by this Court.
11. PW3-Noorahammad Byadagi, independent panch witness to seizure panchanama-Ex.P.2 has not supported the case of the prosecution and another panch witness Peersab Karimsad Doddamani has not been examined by the prosecution. PW5- G.K.Mallur, PW6-K.D.Puttayya and PW7-V.H. Vaddar, are the investigating officers of the case and their evidence does not directly speak anything against the accused regarding the search and seizure of alleged blue kerosene oil from the possession of the accused. The only material witness to prove search and seizure are PW1-Govindaraja, PW2-M.S. Patil, PSI of Ranebennur Police Station and PW4-Y.S. Abbigeri, Police Constable who has accompanied the PSI for the purpose of effecting raid.
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12. PW1-Govindaraja has deposed to the effect that on 24.08.2007 at 7.00 p.m. he received a phone call from M.S.Patil, PSI of Town Police Station, Ranebennur, that there is credible information that in the house of one Koppad, unauthorized kerosene oil is being stored for sale and asked him to accompany him. PW1 went to the Police Station and thereafter on securing the panch witnesses, proceeded to Kudri lane of Kurubageri. On calling owner of house, a person by name Chandrappa Koppad came out of the house, on informing him about the information received by them, search of the house was conducted. It was found that in 8 tin barrels blue kerosene oil was being stored, each containing 80 litres of blue kerosene oil totally amounting to 1,340 litres of blue kerosene oil. On demand, the said person did not produce any documents for storing blue kerosene oil. The sample of 750 ml. from each of the kerosene barrel was taken in separate bottles. The sample bottles of the blue kerosene in the tin barrels were seized under the panchanama. On coming to the Police station along with the seized articles and the accused, filed complaint- Ex.P.1.
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13. PW2-M.S. Patil, PSI and PW4-Y.S.Abbigeri, Police Constable, have also deposed on the same line as deposed by PW1 regarding the accused being found in possession of 8 tin barrels containing blue kerosene oil and the seizure of sample bottles, M.Os.1 to 8, from each of the barrel under the panchanama.
14. On careful perusal of the above referred evidence of PW1- Govindaraja, PW2-M.S. Patil and PW4-Y.S. Abbigeri, it would go to show that the information regarding cognizable offence was received by PW2-M.S. Patil, thereafter he has secured Food Inspector, PW1-Govindaraja, to the Police Station and then proceeded to the spot. PW2-M.S. Patil though claims in his cross examination that he has entered the information received by him in the C.D. maintained in the Police Station, however the said C.D. record is not produced in this case. Therefore, from the said evidence on record, it is evident that PW2- M.S.Patil without producing any record regarding the CD entry being made in the records of the Police Station regarding the information received by him, has proceeded to the spot. The case was registered only after alleged search and seizure and on filing complaint by PW1-Govindaraja, Food Inspector, -9- NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 Ex.P.1. The Police Officer, PW2-M.S. Patil, who is stated to have received the information of cognizable offence has to record the information received by him in the C.D. maintained in the Police Station and on the basis of which he has to proceed to the spot. In the absence of such evidence on record, the search and seizure of the blue kerosene oil out of the possession of the accused creates doubt.
15. The prosecution has to establish the identity of house where the blue kerosene oil barrels were found is belonged to the accused. PW1-Govindaraja claims in his cross examination that according to him there was no need to collect any documents to show that accused was either owner of the house or was residing in the house as a tenant. The evidence of PW2- M.S. Patil, is also silent regarding the identity of the house from where the search was conducted. Similarly, evidence of PW4- Y.S.Abbigeri, is also silent regarding the identity of the house from where the search was alleged to have been effected. This is the another circumstance to doubt the case of the prosecution regarding the search and seizure of blue kerosene oil from the possession of the accused.
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16. In the present case, seized sample bottles, M.Os.1 to 8 have not been subjected to FSL examination. The prosecution has relied on the certificate issued by the Tahasildar, Ex.P.5. The said Tahasildar who has issued certificate-Ex.P.5 has not been examined in this case. The Tahasildar, Ranebennur, is not an expert to give opinion on examining the seized bottles containing blue kerosene oil stated to have been seized from the possession of accused in his house. Therefore, without there being any expert opinion regarding the seized sample bottles, M.Os.1 to 8 containing samples taken out of the tin barrels containing blue kerosene oil, it cannot be conclusively held that the accused was found in possession of blue kerosene oil.
17. Learned counsel for the petitioner relied on the Co- ordinate bench judgment of this Court in Shambhunath son of late Siddaiah I.M. v/s State of Karnataka & Another (Criminal Petition No. 100562/2022 dated 28.03.2022) wherein it has been observed and held at paragraph No. 7 as under:
"7. Section 100 of Cr.P.C. specifies that a person in charge of a closed place, on production of search warrant by a Officer
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NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 or other person executing the warrant, shall allow him ingress thereto and afford all reasonable facilities for a search therein. Section 100 of Cr.P.C. further specifies that the search shall be made only after obtaining search warrant from the jurisdictional Magistrate under Section 93 of Cr.P.C. In the present case, the Food Inspector, without obtaining search warrant as specified under Section 100 Cr.P.C., has broke open the lock of the godown and conducted search and further seized the food grains meant for distribution under the public distribution system which is alleged to have been stacked by the petitioner in the godown and the same is one without authority of law."
(Emphasis supplied) In the present case also, the search and seizure effected by PW1-Govindaraja, PW2-M.S. Patil, is admittedly without obtaining any search warrant. Therefore, in view of the principles enunciated in the aforementioned judgment of this Court, the search and seizure without obtaining warrant from the Magistrate, is one without authority of law.
18. Learned counsel for petitioner also relied on the latest judgment of the Hon'ble Apex Court in Suresh & Ors. Vs. State of Madhya Pradesh (Criminal Appeal No. 3512/2023 dated 24.11.2023) wherein it has been observed and held at para no. 8 as under:
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NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 "8) Though FIR was registered on 14th October 2021 and the charge sheet was filed on 11th February 2022, even as of today, the expert's report on the nature of the liquid found in the seized tanker has not been produced. The entire foundation of the charge sheet is that there was a hydrocarbon mixture in the seized tanker, which looks precisely like petrol and diesel and smells like petrol and diesel. Along with the charge sheet, the respondent did not produce an expert's report regarding the precise nature of the liquid in the tanker.
An expert's opinion showing that the liquid was neither petrol nor diesel, but the hydrocarbon mixture has not been placed on record. As stated earlier, samples were sent more than two years back for testing, and a report has not yet been received. In the absence of the report, taking the charge sheet as it is, no material is placed on record to show that the liquid in the tanker was neither diesel nor petrol but a mixture of hydrocarbons."
(emphasis supplied) In the present case also no any expert opinion is sought by sending the seized samples, M.Os.1 to 8 to the FSL examination. Therefore, in view of the principles enunciated in the aforementioned judgment of the Hon'ble Apex Court, without expert opinion, it cannot be conclusively held that the seized sample bottles containing blue kerosene oil said to have been seized from 8 tin barrels said to be in possession of the accused was in fact containing blue kerosene oil meant for public distribution to the ration card holders.
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19. The Courts below by merely reproducing the evidence of PW1-Govindaraja, PW2-M.S. Patil and PW4-Y.S.Abbigeri with other evidence placed on record proceeded to hold that the charges leveled against the accused is proved without properly appreciating the legal requirement to prove the offences U/s 3 and 7 of the E.C. Act. The findings recorded by both the Courts below on the issue of search and seizure, absence of expert opinion, non examination of the Tahasildar who is said to have been issued Ex.P.5 and his competency to issue such certificate are against the evidence on record and the same cannot be legally sustained. Therefore, interference of this Court is required. Consequently, proceed to pass the following order.
ORDER Revision petition filed by the accused is hereby allowed. Judgment of first appellate Court on the file of II Addl. District and Sessions Judge at Haveri (sitting at Ranebennur) in Crl. A. No. 8/2012 dated 28.04.2016 in confirming the judgment of conviction and order of sentence passed by the trial court on the file of Addl. Civil Judge & 2nd Addl. JMFC, Ranebennur in C.C. No. 5/2008 dated 07.02.2012, is hereby set aside.
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NC: 2024:KHC-D:5217 CRL.RP No. 100109 of 2016 Accused is acquitted of the offences punishable U/s 3 and 7 of the Essential Commodities Act, 1955.
The bail bond of accused and that of his surety shall stand discharged.
The fine amount deposited by the accused is ordered to be refunded.
Registry is directed to transmit the records of the trial court with a copy of this order.
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JUDGE BVV CT:GSM List No.: 1 Sl No.: 35