Karnataka High Court
Krishnappa S/O Poorappa Rathod, vs The State Of Karnataka, on 25 July, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL No.2588/2011
BETWEEN:
KRISHNAPPA S/O. POORAPPA RATHOD
AGE: 40 YEARS, OCC: AGRICULTURE
R/O: GAAJENDRAGA, TQ: RON,
DIST : GADAG, NOW AT SANKANUR.
...APPELLANT
(BY SRI.SOURAB A. SONDUR, ADV. FOR
SRI. K.L. PATIL, ADV.)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY EXCISE ENFORCEMENT
AND LOTTERY PROHIBITION WING,
KOPPAL, STATE PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
10.12.2010, ON THE FILE OF FAST TRACT COURT - I,
KOPPAL THERE BY CONVICTING THE APPELLANT FOR
THE OFFENCES P/U/S 34 OF KARNATAKA EXCISE, ACT
2
AND ACQUIT THE APPELLANT FROM ALL CHARGES
ALLEGED AGAINST HIM.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the accused against the judgment and order of conviction and sentence passed by the Presiding Officer, Fast Track Court - I, Koppal, in Sessions Case No.3/2010 by order dated 10.12.2010. Wherein, the accused was found guilty for the offence punishable under Section 34 of Karnataka Excise Act, and acquitted for the offence punishable under Section 32 of the K.E. Act, Section 273, 284 and 308 of IPC.
2. The brief facts leading to the filing of charge sheet are as under :
The Inspector of Excise Enforcement and Lottery Prohibition Wing, Koppal had 3 received credible information that the accused in this case was illegally possessing and selling illicit alcoholic liquor without having any permission from Government. Therefore, said Inspector of Excise and Lottery Prohibition Wing, Koppal has gone near the house of the accused on 13.02.2009 by 7.30 p.m. along with his staff members and two panchas. In the street light, he found the accused possessing 60 packets of illegal alcoholic liquor and the accused found selling it to the public and on seeing the complainant and his men the accused attempted to ran away. But, the accused was apprehended by the complainant with staff. He seized 60 packets of the liquor from the possession of the accused. Mahazar was drawn in presence of the witnesses. A sample packet 4 also taken out of the seizure article. He returned back to the Yelburga Police Station and filed complaint before SHO of Yelburga Police Station. A crime came to be registered. FIR was registered and sent to the jurisdictional court. 2 sample packets of alcoholic liquor were sent to the chemical examination. The Statement of witnesses who have assisted in this case was recorded. Report from the Chemical Analyst was received. After completing investigation, the Investigating Officer came to the conclusion that the accused found committed the offences punishable under Section 32 and 34 of the K.E. Act and Section 273, 284, 308 of IPC. Therefore, the charge sheet came to be filed for the aforesaid offences.5
3. The accused who was arrested during the trial and enlarged on bail. The learned JMFC took the cognizance and registered the case in C.C. No.84/2009 for the aforesaid offences. After securing the presence of the accused, the learned Magistrate committed the case to the Sessions court for trial. Hence, thereafter the learned Sessions Judge registered the case in S.C.No.3/2010 against the accused.
4. After hearing both the sides, the learned Sessions Judge framed the charge against the accused for the offence punishable under Section 32 and 34 of the K.E. Act and Section 273, 284, 308 of IPC. The trial was conducted. The statement of accused was recorded. After hearing both the sides, learned Sessions Judge found guilt of the accused for the offences punishable under Section 34 of 6 Karnataka Excise Act and acquitted the accused from the other offences alleged against him. The judgment and conviction has been challenged by the appellant-accused on following grounds :
1. The impugned judgment and order of conviction and sentence passed by the learned Principal Fast Track Judge, is contrary to law, facts and materials placed on record.
2. The Fast Track Judge has failed to appreciate the inconsistencies in the prosecution evidence and there are good number of materials, omissions, and contradictions in the evidence of prosecution witnesses.
3. Panch witness have turned hostile. There are contradicting statements deposed by another panch witness i.e. PW4.7
4. The trial Judge ought to have consider that there are sufficient inconsistencies in the statements of PW2, 3, 4 and 6 which ought to have been considered and acquitted the accused.
5. The Trial Court ought to have considered the evidence of PW5 i.e., Chemical Experts, he has specifically deposed that the liquid in MO1 and MO2 packets was not containing any poison.
6. Learned Trial Judge has hand picked tit bits from the evidence of witness and has wrongly under mind that part of evidence, which augment the case of the accused.
7. The bare perusal of entire record and evidence strongly reveals that the alleged provisions of Karnataka Excise, Act and ingredients of the alleged section are not at all attracted.8
8. The impugned judgment and order of conviction and sentence is even otherwise erroneous and unsustainable in the eyes of Law.
5. Therefore, on the above said grounds, the learned counsel for the appellant-accused prayed to allow the appeal and to acquit the accused from the charges alleged against him.
6. Heard the arguments of Sri. Saurab A. Sondur, learned Counsel for the appellant- accused and the Sri. Raja Raghavendra Naik, learned HCGP at length.
7. On the above facts and circumstances of the case, the following points would arise for consideration :
1. Whether the prosecution has proved the guilt of accused beyond any reasonable doubt with regard to search and seizure of 9 illicit liquor and even intoxicant in possession of accused ?
2. Whether the appellant proved the judgment of the trial is perverse, capricious against to the evidence on record and liable to be set aside ?
3. What order ?
8. Initially heard the arguments on the point as to whether search and seizure conducted by the Excise Officer without following the mandatory provisions of Section 54 of Karnataka Excise Act would vitiate the entire search and seizure and whether the accused is entitled for acquittal. Thereafter, heard the arguments with regard to evidence available on record to find out whether the accused was found in possession of any illicit liquor at the time, place and date alleged in the charge sheet. 10
9. Up course, the second finding on the above said fact would depend on the appreciation on oral and documentary evidence available on record. Therefore, I proceed to examine search and seizure conducted by the Excise Officer, had vitiated the proceedings.
10. The learned counsel for the appellant- accused has relied on the judgment of Hon'ble Apex Court in the case of K.L. Subbayya V/s. State of Karnataka, reported in (1979) 2 SCC
115. It is held in the said case that even in the event of not following of Section 54 of Karnataka State Excise Act, non compliance of Section 54 of Karnataka Excise Act based on search and seizure would be illegal.
11. It has to be borne in mind as to whether there was any possibility of accused running away from the place of incident. 11 Particularly, whenever a search and seizure is conducted in respect of a vehicle or this should also to show that the reasons failure to record reasons as to why warrant could not be obtained is a requirement stipulated in Section 54 to prevent malafied searches and unnecessarily harassment to the innocent public.
12. Now, it is also brought to my notice that including the judgment of Division Bench of this Court and as well as the Apex Court referred by Division Bench, wherein, the law that emerges, would be that in all cases non compliances of Section 54 would not render a search or seizure illegal, unless it is shown that the accused was put to prejudice by search omission on the part of the Excise Officers. In addition to that the position of law that emerged from the decision relied on by both the sides 12 would lead a conclusion that non compliance of provisions of Section 54 cannot be blindly believed without finding whether any prejudice is caused to the accused on account of such search and seizure.
13. The learned counsel for the appellant has relied upon decision of this Single Bench in criminal appeal No.3697/2011 in the case of Mallappa @ Malla V/s. State of Karnataka, By Spl Police Station, Excise Enforcement and Lottery Prohibition Cell, Yadgir. In the said case also the above said question of law was dealt by the bench. Therefore, the position of law that emerges on the aforesaid authorities would be :
".........failure to record reasons must not affect the validity of the search, unless the accused demonstrates that 13 he has by reasons of any such violation suffered any prejudice.
Otherwise it is only procedural irregularity."
14. The learned counsel for the respondent relied on by the ruling in the case of The Customs and Central Excise Department by the Assistant Collector, Belgaum V/s. M/s. Veerabhadreshwar Weaving Factory by its Partners reported in Indian Law Reports (Karnataka) Series [XXXIII]
15. The learned counsel for the respondent also relied on by the ruling of the Single Bench of this Court in the case of Somanath Kerebail V/s. The State of Karnataka, Through Deputy Commissioner of Excise, Belgaum District, 14 reported in ILR 2004 KAR 527, has held as under :
"In the case of a search of a
vessel, raf t vehicle or animal, the
off ender will undoubtedly have the
opportunity to escape if the off icer
proposing to conduct the search were to approach a Magistrate to obtain a search warr ant bef ore actually conducting the search. That is so particularly when illicit tr ansport of excisable goods more of ten than not takes place at odd hours of the day and night to avoid detection such off enders are nabbed in the course of routine checks or on the basis of source inf ormation received by the excise authorities. To say that a search of a vehicle, vessel, raf t or animal can be conducted only af ter obtaining a warrant may theref ore be unrealistic and may potentially def eat the very object underlying the excise legislation. That is because in the case of excisable 15 goods that are in a state of motion or capable of being put in a state of motion, any delay which is implicit in an attempt to get a search warrant will give the off ender the opportunity to escape or destroy the evidence regarding the offence.
Failure to record in black and white wh at is obvious may not theref ore by itself constitute an
illegality so as to render the search or the subsequent proceedings based on the same illegal. Such f ailure may be only procedural irregularity not aff ecting the validity of the search.
The seizure of the goods while the same were in motion or were capable of being put into motion should suff iciently satisf y the conscience of the law that no prejudice on account of non recording of the reasons for not obtaining warrant has been caused." 16
16. Therefore, keeping in mind the above said position of law I proceed to examine the evidence available on record to find out whether the prosecution had proved before the trial court beyond any reasonable doubt that the accused was found in possession of 60 packets of intoxicant.
17. So far as the acquittal of the accused for the offence punishable under Section 32 of IPC is concerned, the prosecution has not preferred any appeal. All the witnesses consistently said in this case the accused was in possession of "Kallabatti Sarai". Whereas, the chemical report produced by the prosecution at Ex.P2 and the evidence of chemical analyst PW5 only disclose that the sample packet sent for examination. Ex.P2 contained 17.59% alcohol. To attract offences punishable under Section 32 17 and 34 of the Act the following ingredients are to be proved.:
"14. Section 32(1) of Excise Act makes import, export, transportation and manuf acture of any intoxicant in contravention of the Act punishable.
15. Section 32(2) of Excise Act makes manuf acture, possession and sale of any intoxicant or any such material, utensils, apparatus or implement f or the purpose of manuf acturing such intoxicant in contravention of the Act, Rule or Notif ication punishable.
16. Section 34 of Excise Act makes illegal possession of intoxicant or possession of such intoxicant with the knowledge that prescribed duty is not paid on the same punishable.18
18. Therefore, it has to be seen that whether there is cogent or consistant evidence in support of the seizure panchanama at Ex.P1 purported to be have been drawn at the house of the accused in Sankanur Village.
19. The very first witness PW1 the panch has not supported the case of prosecution. According to him no panchanama was conducted in his presence. The accused was not present. He is also not aware about another panch witness. When he had gone to Yelburga Police Station about one month back he signed the document. In the cross examination he has specifically denied that he was called for investigation for conducting search and seizure panchanama on the ground that the accused was manufacturing illicit liquor or he is in 19 possession of illicit liquor packet has not at all made out by the prosecution.
20. PW2 is the Excise police constable. According to him, the Police Inspector called him for raiding to Sankanur Village. He along with the staff members went near the house of the accused and apprehended him when he was selling the illicit liquor. He deposed that the accused tried to run away but caught hold by the Police. They found 30 packets of illicit liquor. According to PW2 there were 30 numbers of liquor packets collected from one basket bag and 30 numbers of liquor packets from hand bag, whereas, it is the specific case of the prosecution that there were 60 liquor packets.
21. The another panch witness to search and seizure is PW4 who has deposed about that 20 five or six months back he was taken in Police jeep to Sankanur Village. Another person one Mr. Nagesh was also there in the jeep when the accused found to be selling illicit liquor packets on Sankanur road. On seeing the Police the accused tried to ran away. The accused apprehended by the Police and 60 such packets were seized from him. Panchanama was drawn and he has sent the same. The packets are identified as MO1 and MO2. It is interested to note that he does not to say the time at which he was called by the Police and taken inside the jeep. He has not deposed that he had gone along with raiding party in the Sankanur Village at the house of the accused. It is interested to note that he has admitted in the cross examination that he has not at all gone to the Police Station. He was picked up at about 4.00 to 5.00 p.m. and there was enough light. He did 21 not know what is written in Ex.P1, he signed the documents as the Police asked him. He denied that he is the stock witness of the Police department.
22. On perusal of the evidence stated by this witness, the suggestion is found to be having force in it. Because, his evidence would contradict the raiding party particularly PW1. According to them, they have raided the house of the accused at about 8.30 p.m. It is said that they went near the house of the accused sitting on the katta in front of the house and he was selling liquor packets. They saw it with him in street light. This totally contradicted by evidence of PW5. PW5 has not supported the case of the prosecution in toto. I find that the interested testimony PW2 excise constable and PW3 excise ASI cannot be believed. 22
23. PW3 by further contradicts by stating that they left the Police Station at about 7.00 p.m. According to him, they picked up the panchas at Kittur Chennamma circle. He has further admitted that only Police Inspector and his staff were there in the jeep. They had parked the jeep 50 feet away from the accused, so that in a place where there is not visible to the accused. Within 10 feet of running distance they have apprehended the accused. Though a customer was there near the house of the accused, he has not been examined. He did not know boundaries of the said house. The property extract of the said house is not collected by the Investigating Officer.
24. According to PW6 the CPI he went to Sankanur village along with staff and reached about 8.30 p.m. He found the accused in the 23 street light. He also found that the accused was kept packets in a basket and he was selling the liquor packets. The customers run away on seeing the excise people. The accused was also tried to run away but, was apprehended. According to him, in the plastic basket bag there were about 30 liquor packets, each containing 250 ml and also 30 packets in hand bag containing 200 ml. According to him he has not gone to the Police Station but he has summoned his staff of Yelburga Police Station to Kittur Chennamma circle. Though the mahazar said to have been written by one constable by name Subhash. But, he has not attested the same. Though he gives the boundaries of the house of the accused but property extract of the house of the accused has not been produced. The evidence of this witness is contradicted by the aforesaid witnesses.
24
25. Then PW7-CW13 is the Investigating Officer (ASI) who has conducted further investigation on the complaint filed by PW6. According to him, the two liquor packets were sent for chemical examination. He was told that there was illicit liquor in the packet in MO1 and MO2.
26. The chemical examiner PW5 admits that he has not noted time at which MO1 and 2 received. He has not affixed the official seal to the report given by him. According to him, he had sent sealed arrack packets which contained 17.59% alcohol. That means there was no illicit liquor either manufactured or imported by the accused.
27. According to PW5 he has received the sample packet on 06.04.2009. The search and taking out sample of the illicit liquor packet on 25 13.02.2009. Therefore, there appears to be inordinate delay in sending the sample to the chemical examiner. No explanation or reasons are assigned by the Investigating Officer as to why there is delay in sending MO 1 and 2 for chemical analysis. Further, as on the date of marking the said samples i.e., MO.1 and 2 they did not contain liquor at all.
28. On these material on record, I find the prosecution cannot to be said to have proved the guilt of the accused for the alleged offences beyond any reasonable doubt. Therefore, I am of the opinion that in this case non compliance of Section 54 of Karnataka Excise Act vitiates the search and seizure made by the raiding party. Having regard to the contradiction appearing in the evidence of panch witnesses and the excise officials and officials regarding the number of 26 packets seized and doubt regarding place where exactly search and seizure was conducted, would go to show that that it is to cover such lacunas, the Investigating Officer might not have chosen to follow the mandatory provisions of Section 54 of Karnataka Excise Act. On re- appreciation of the evidence on record, I find that the prosecution has not proved the guilt of accused beyond any reasonable doubt with regard to search and seizure of illicit liquor and even intoxicant in possession of accused. Therefore, having regard to the facts and circumstances and the evidence available on record, and for the above said reasons I find that the appellant -accused has proved the judgment of the trial is perverse, capricious against the evidence on record and therefore, it is liable to the set aside.
27
29. The appeal filed by the appellant- accused against the judgment of conviction and sentence dated, 10.12.2010 passed by the Presiding Officer, Fast Track Court-I, Koppal in Sessions Case No.3/2010 for the offence punishable under Section 34 of Karnataka Excise Act is allowed. The conviction and sentence imposed for the above offences is hereby set aside.
30. The accused is acquitted of all the offences alleged against him. Bail bond and surety executed by the accused shall enforce for the period of six months or till the expiry of the appeal period, whichever is later.
Fine amount deposited by the accused, if any, shall be refunded to him.
28
Office to send back the records along with a copy of the judgment of this Court for further needful action.
Sd/-
JUDGE MNS/