Karnataka High Court
Kashinath S/O Lingappa vs The State Of Karnataka on 15 June, 2018
1 Crl.A.No.3704/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3704/2011
BETWEEN:
Kashinath S/o Lingappa,
Now Aged : 55 Years,
Occ : Coolie,
R/o Janata Housing Colony,
Humnabad, Tq.Humnabad,
Dist. Bidar.
... Appellant
(By Sri Anil Kumar Navadagi, Advocate)
AND:
The State of Karnataka,
Through the Police Excise Enforcement
And Lottery Prohibition Wing, Bidar.
... Respondent
(By Sri P. S. Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to allow the appeal and set aside the
judgment of conviction and order of sentence dated
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29.10.2011 of Prl. District and Sessions Judge, Bidar in
S.C.No.107/2011 and acquit the appellant herein for the
charges for which he was convicted.
This appeal is coming on for hearing this day, the
Court delivered the following:
JUDGMENT
This appeal arises out of judgment and order of conviction and sentence dated 29.10.2011 passed by the District and Sessions Judge, Bidar in Sessions Case No.107/2011. By the impugned judgment and order, the trial Court has acquitted the appellant of the charges for the offences punishable under Section 32 of the Karnataka Excise Act (for short 'the K. E. Act' ) and Section 328 IPC and convicted him for the charge for the offence punishable under Section 34 of the K. E. Act. Further the trial Court has sentenced him for simple imprisonment of one year and fine of Rs.10,000/- for the offence punishable under Section 34 of the K. E. Act.
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2. The case of the prosecution is as follows :-
That on 09.11.2010 on the basis of the credible information of sale of illicit arrack by the accused, PW-3 Police Inspector of Excise Enforcement and Lottery Prohibition Wing, Bidar secured panchas PW-1 Narsing and CW-2 Sangshetty along with his staff PW-2 and others, conducted raid at the public road, Janata Housing Colony, Humnabad. The accused was found in illegal possession of 20 liters of illicit arrack in a plastic can. PW-3 seized the same under the mahazar Ex.P-1 in the presence of PW-1 and CW-2. Then he returned to the police station with the accused and seized material objects and reported before PW-4. On the basis of Ex.P-1 submitted by PW-3, PW-4 registered the FIR Ex.P-4 in Crime No.58/2010 for the offences punishable under Section 328 IPC and Sections 32 and 34 of the K. E. Act and recorded 4 Crl.A.No.3704/2011 the statements of the witnesses. Thereafter PW-3 took up the further investigation, sent the seized sample arrack to FSL and the remaining arrack was deposited with Excise Department. Then he received the FSL report and filed the charge sheet.
3. The case of the prosecution depends upon the evidence of
i) Mahazar witness PW-1;
ii) PW-2, the Police Constable who was a member of the raiding squad;
iii) PW-3, the raid conducting officer cum Investigating Officer and
iv) PW-4, who registered the FIR and filed charge sheet.
4. The prosecution in addition to examining the aforesaid witnesses, got marked MO-1 the sample arrack allegedly seized under mahazar Ex.P-2 and 5 Crl.A.No.3704/2011 Exs.P-1 to P-4. Ex.P-1 is the seizure panchanama, Ex.P-2 is the requisition letter dated 03.12.2010 allegedly issued by PW-3 to the Excise Sub-Inspector, Humnabad for depositing the arrack allegedly seized, Ex.P-3 is the FSL report and Ex.P-4 is the FIR.
5. The trial Court after hearing the parties by the impugned judgment and order convicted the appellant for the offence punishable under Section 34 of the K. E. Act holding that the said charge is proved by the oral evidence of PWs-1 to 4. So far as the charge under Section 328 IPC, the trial Court holds that the prosecution has failed to prove Ex.P-3 the FSL report by examining the authority issuing the same, therefore, the contention that the arrack was spurious, cannot be accepted. So far as Section 32 of the K.E. Act, the trial Court holds that Section 32 of the K.E. Act applies to a case where the illicit arrack was being transported and not for the possession.
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6. The State has not filed any appeal questioning the acquittal of the accused for the offences punishable under Section 32 of the K.E.Act and Section 328 IPC. Therefore those findings became final against the State.
7. Sri Anil Kumar Navadagi learned counsel for the appellant seeks to assail the impugned judgment & order of conviction & sentence on the following grounds:
i) The evidence of PW.1 clearly shows that he is stock witness of the respondent police and the trial court committed error in accepting his evidence. There are material inconsistencies in the evidence of PWs.1 to 4;
ii) There was unexplained delay of one month in sending the sample M.O.No.1 to FSL for examination and also in depositing the arrack allegedly seized under the mahzar Ex.P.1, that creates doubt about the credibility of the evidence of PWs.2 & 3; and 7 Crl.A.No.3704/2011
iii) PW.4 says that he registered the FIR and dispatched the same on 09.11.2010 at 10.30 p.m. whereas the endorsement at Ex.P.4 shows that it was received by the Magistrate on that day at 10.10 p.m.
8. Per contra, Sri P.S.Patil leaned High Court Government Pleader submits that the role of PW.1 as mahazar witness in many cases itself does not impeach his evidence; PWs.2 to 4 are the official witnesses; they have no personal interest to falsely implicate the accused. He submits that there is no reason to disbelieve the proceedings under the mahazar Ex.P.1.
9. The only independent witness to the alleged seizure proceedings under the mahzar Ex.P.1 is PW.1. Ex.P.1 states that when the raiding squad reached the scene of occurrence, the accused was found selling illicit arrack and on seeing the raiding squad, the customers ran away; thereafter the search of the accused was conducted and 20 liters of illicit arrack was found with 8 Crl.A.No.3704/2011 him. It further states that out of that 180 ml arrack was drawn as sample and then the sample & arrack were seized and those proceedings were conducted between 7.00 and 8.00 p.m. in the light of the street lamp. The mahazar itself shows that scene of offence was a public road in the town.
10. PW.1 states that when they reached the spot the accused was alone with a can, then the seizure proceedings were conducted. In the cross-examination he states that he is running a laundry shop near the police station and the other panch witness CW.2 comes to his shop and spends time reading newspapers. He states that he keeps on receiving the summons in excise cases and gives evidence and in the trial court itself he has given evidence twice prior to that case. He says he has given evidence in two more courts in the same town, he attends to the requisition of the police whenever called for.
9 Crl.A.No.3704/2011
11. When PW-1 was confronted with the recital in Ex.P.1 that on seeing the raiding squad people assembled there ran away, he says he did not sight anybody when he reached there. For the question that as per the mahazar the place of occurrence was a public place, he states that he does not know which place was that. To crown all these, he admits that he does not know what all police have done in the case, but they had taken him and he only knows about they checking him.
12. He admits that PW.3 is his customer and that is how he knows him. He says except PW3 he does not know anybody in the raiding squad. Further, he admits that whenever police call him he goes and he has subscribed his signature in the police station, but he does not know in how many cases he has subscribed 10 Crl.A.No.3704/2011 signature. He further states that in this case also he has subscribed his signature in the similar fashion.
13. Thus, the evidence of PW.1 is contrary to the recitals in Ex.P.1. This being the quality of the evidence of this witness, the trial court very strangely in Para No.16.2 of the judgment states that this witness may be a stock witness but he has not supported the prosecution case in all other cases, but he supports in this case, therefore it takes judicial notice of the fact that he not supporting the prosecution version in all other cases and thus believes him. Thereby the trial court has used the legal term of taking 'judicial notice' contrary to Section 57 of the Evidence Act.
14. When PW1 states about his acquaintance with PW3 and PW3 using his laundry services and he running laundry shop near the police station, PW.3 in his cross-examination denies all those statements. PWs.2 & 3 state that when they reached the spot the 11 Crl.A.No.3704/2011 accused was selling illicit arrack and on seeing them the customers ran away. Apparently the said testification is to bring the oral evidence in conformity with the recitals in Ex.P.1.
15. As per PWs.3 and 4 there were seven persons in the raiding squad. Despite that, they have not apprehended any single person amongst those customers. As rightly elicited by the defence counsel in the cross-examination of PWs.2 and 3, PW.3 has not seized any proceeds of the alleged sale from the accused. Further, none of the residents of the locality where the scene of occurrence situates are cited as charge-sheet witnesses.
16. When PWs.2 and 3 themselves do not state that the people in the locality did not co-operate for raid or did not come forward to act as mahazar witnesses, the trial court states generally people do not co-operate to the police, therefore, the Investigating Officer was 12 Crl.A.No.3704/2011 bound to take the witnesses available to him as panchas. These are all the assumptions, presumptions and surmises of the trial court.
17. There is controversy even regarding the deposit of the alleged arrack with the Excise Department. PW.3 in his evidence states that immediately on return to the police station on the day of the raid i.e., on 09.11.2010 he produced the mahzar and the seized articles before PW.4, thereafter he took- up further investigation of the case on 13.12.2010, sent sample arrack to Forensic Science Laboratory and on the same day sent the remaining arrack to the Excise Department. But his requisition Ex.P.2 is dated 03.12.2010. In Ex.P.2 it is endorsed that the article sent that was received on 22.12.2010. Thus, there is material inconsistency in the evidence regarding sending the seized arrack to the Excise Department. 13 Crl.A.No.3704/2011 Nobody is examined to prove the receipt of the arrack on 22.12.2010 under Ex.P.2.
18. Ex.P.3 the FSL report indicates that the sample was sent to the FSL on 13.12.2010. During the gap of this period from 09.11.2010 to 13.12.2010 about more than one month where the seized arrack and the sample were kept is not explained. PW.3 in his cross- examination states that they do not have any separate property room in the police station. He further states that they keep on accessing the place where properties are deposited for depositing other seized property and taking them out.
19. PW.4 though states that he received the properties along with Ex.P.1 for the purpose of registering the FIR, does not state while handing over the further investigation he handed over the properties also. He handed over the further investigation to PW.3 on 13.12.2010. During this period where the properties 14 Crl.A.No.3704/2011 had gone is not known. It is the contention of the accused that to dispose of the unclaimed properties of their police station the accused is fixed into the case.
20. Even the receipt of FIR in the case is surrounded with doubts. When PW.4 in his cross- examination states that he dispatched the FIR at 22.30 hours i.e., 10.30 p.m. and that is the endorsement on Ex.P.4, the endorsement of the Magistrate on Ex.P.4 states that it was received by him at 10.10 p.m. There is absolutely no explanation about this.
21. When PW.4 states that he has recorded the statement of PW.1 and P.W.2, PW.2 states that his statement was recorded by PW.3. PW.2 the alleged member of the raiding squad in his cross-examination to the suggestion that PW.1 and CW.2 are the stock panch witness of the police station, states he cannot tell that and his officer has to tell that. He further states 15 Crl.A.No.3704/2011 that because PW.3 is his higher officer and he has to work under him, he deposes as per his instructions.
22. The evidence of PWs.1 to 4 regarding the proceedings under Ex.P.4 is not cogent and consisting and does not inspire the confidence of the court. It raises reasonable doubt about the proceedings under Ex.P.1.
23. Another strong circumstance in the case is that the trial court on the very same evidence convicts for offence under Section 34 of Karnataka Excise Act and acquits the accused for the offences punishable under Section 32 of the K. E. Act and Section 328 IPC. Relevant portion of Sections 32 and 34 of the K.E.Act read as follows:
"Section 32 - Penalty for illegal import, etc ;-
(1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, 16 Crl.A.No.3704/2011 manufactures, collects or possesses any intoxicant, shall, on conviction, be punished for each offence with rigorous imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.
Section 34 - Penalty for illegal possession Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon shall on conviction, be punished with imprisonment for a term which may extend to four years and with fine which may extend to fifty thousand rupees. "
(Emphasis Supplied)
24. So far as Section 32 of the K. E. Act, the trial court says that it applies only to the cases involving transportation of illicit arrack and Section 34 of the K.E. Act applies to the conscious possession of intoxicant without lawful authority.
17 Crl.A.No.3704/2011
25. In fact, Sections 32 and 34 of the K. E. Act are the same except for the fact that Section 32 of the K.E. Act deals with the possession simplicitor and Section 34 of the K. E. Act deals with conscious possession of unlawfully imported, transported, manufactured, cultivated intoxicant. Section 32 of the K.E. Act deals with the possession, manufacture, transportation, collection etc., of the intoxicant in contravention of the Act or the rights.
26. The conviction for Section 34 of K.E.Act and acquittal for Section 32 of K.E. Act, the same evidence shows non-application of mind of the trial court. Therefore the impugned judgment and order of conviction is not based on the proper appreciation of the evidence and the law and thus unsustainable.
27. Consequently, the appeal is allowed. The impugned judgment and order of conviction and 18 Crl.A.No.3704/2011 sentence dated 29.10.2011 passed by the Principal District and Sessions Judge, Bidar in Sessions Case No.107/2011 for the offence punishable under Section 34 of the K. E. Act, 1965 is hereby set-aside.
The appellant is acquitted of the charge for the offence punishable under Section 34 of the Karnataka Excise Act.
The bail bonds of the appellant and his surety shall stand discharged. The fine amount deposited if any shall be refunded to the appellant.
Sd/-
JUDGE RSP/sn