Karnataka High Court
Hampawwa W/O Ramachandrappa vs The State Of Karnataka on 16 July, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16 T H DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2541/2013
BETWEEN:
HAMPAWWA W/O. RAMACHANDRAPPA ,
AGE 36 YEARS , OCC:
R/O. MUDDATAGI TANDA,
TQ. KUSTAGI , DIS T. KOPPAL.
... APPELLANT
(BY SRI. RAJASHEKAR GUNJA LLI , AD VOCATE)
AND:
THE STATE OF KARNATAKA,
BY SPECIAL POLICE STATION , KOPPA L,
DIST. KOPPAL,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
CIRCUIT BENCH, A T DHARWAD.
... RES PONDENT
(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 JUDGMENT AND ORDER OF SENTENCE DATED
04.01.2013 PASS ED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, KOPPA L IN S.C.NO.5/ 2012
CONVICTING THE APPELLANT/ACCUSED F OR THE
OFFENCES PUNISHABLE UNDER S ECT IONS 273, 284 OF
IPC AND SECTIONS 32 AND 34 OF K.E.ACT , BY
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ALLOWING THIS APPEAL AND ACQUIT THE
APPELLANT/ACCUS ED FROM ALL CHA RGES.
THIS CRIMINAL A PPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been filed challenging the Judgment of conviction and order of sentence dated 04.01.2013 passed by the learned Principal Sessions Judge, Koppal in S.C.No.5/2012 where under the appellant/accused has been convicted for the offences punishable under Sections 273 and 284 of IPC and Sections 32 & 34 of Karnataka Excise Act, 1965. The appellant/accused has been acquitted for the offences punishable under Section 328 of IPC.
2. The factual matrix of the case are that, on 10.10.2011 at 10:30 a.m., after completion of raiding of Holageri Tanda, the Inspector, Special Police Station, Koppal along with Police Constables of Hanumasagar Police Station and panchas from Koppal raided the 3 houses of Muddatagi Tanda in Kustagi taluk. In the said exercise, the police have raided the house of the accused and seized four liters of illicit liquor, mud cap, plastic pipes, Navasara powder, Aluminium pot, three plastic pots containing Jaggary wash and prepared raid mahazar as per Ex.P.1 and came back to Police Station and P.W.1 filed complaint as per Ex.P.2 at 4:00 p.m. for the offences punishable under Sections 273, 284, 328 of IPC and Sections 32 and 34 of Karnataka Excise Act. P.W.6 has registered the complaint as per Ex.P.2 in Crime No.48/2011 and submitted Ex.P.4 - FIR. After the investigation, P.W.7 has filed charge sheet against the appellant/accused for the aforesaid offences. The case has been committed to the Sessions Court. The Sessions Court framed charges for the aforesaid offences. The prosecution in all examined 7 witnesses and marked 6 documents and 5 material objects. The Trial Court after hearing the learned counsels on record, has formulated the points for consideration and passed 4 the impugned Judgment and order of sentence and convicted the appellant/accused for the offences punishable under Sections 273 and 284 of IPC and Sections 32 and 34 of Karnataka Excise Act.
3. 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 memorandum of appeal.
4. Heard the arguments of the learned counsel for the appellant/accused and also the learned High Court Government Pleader for the respondent-State.
5. The learned counsel for the appellant submitted that, the prosecution has not complied with the provisions of Sections 53 and 54 of Karnataka Excise Act and therefore, the investigation and conviction vitiates. He placed reliance on the following Judgments:
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(i) K.L.Subbayya Vs. State of Karnataka, reported in (1979) 2 SCC 115.
(ii) Criminal Revision Petition No.777/2011
between C.P.Kumar Vs. State by
Mudigere Excise, disposed off
on13.12.2018.
(iii) Criminal Appeal No.2877/2010 between Mudakappa Vs. State of Karnataka, disposed off on 28.03.2019.
6. He would further submit that, the panchas to the raid panchanama where under M.Os.1 to 5 are seized, have not supported the case of the prosecution and therefore the seizure of M.Os. 1 to 5 is not proved. He would further submit that, there is a delay in sending the samples to FSL for chemical examination. Hence, he prayed to allow the appeal by setting aside the impugned Judgment of conviction and sentence.
7. Per contra, the learned High Court Government Pleader submits that, the evidence of P.Ws.1, 4 & 5 i.e. Police Officers is sufficient to convict 6 the appellant/accused for the offences charged against him and the learned Sessions Judge has rightly appreciated the evidence on record and has rightly convicted the accused/appellant. He has supported the reasons assigned by the learned Sessions Judge and prayed for dismissal of the appeal.
8. I have perused the grounds urged in the memorandum of appeal, the evidence of P.Ws.1 to 7, the documents marked as Ex.Ps.1 to 6 and so also the Judgment of conviction and order of sentence passed by the learned Sessions Judge, and the decision of the Hon'ble Apex Court in K.L.Subbayya's case (supra), the Judgments of this Court in C.P.Kumar's case (supra) and Mudakappa's case (supra) relied on by the learned counsel appearing for the appellant, and also considered the oral submissions made by the learned counsels on both sides.
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9. Looking to the offences alleged under the provisions of Karnataka Excise Act, the same are cognizable offences. Therefore, before proceeding to arrest the accused and conducting search, the Police ought to have followed the procedure contemplated under Section 54 of the Karnataka Excise Act. The Hon'ble Apex Court in the case of K.L.Subbayya (supra) at paragraph Nos.3 and 4, has observed thus:
"3. 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.
4. This, therefore, renders the entire search without jurisdiction and, as a logical corrolary; 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 8 harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyze the effect of the provisions of Sections 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 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."
10. Looking to the other decision relied on by the learned counsel for the appellant in the case of 9 C.P.Kumar (supra), at paragraph No.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."
11. Looking to the decision in the case of Mudakappa (supra), this Court at paragraph Nos.11 & 12 of the Judgment has observed as under: 10
"11. The investigation under the special Act for special offences, duty is casted on investigation agency to do the investigation within the parameter of the Act. The seized articles should be proved that it was contra band. The search and seizer should be proved beyond any reasonable doubt. Further, there should not be violation of any law governing the investigation.
12. The Hon'ble Apex Court in the case of K.L.Subbayya Vs. State of Karnataka, 1979 LAWS (SC) 14 has held that the violations of Sections 53 and 54 of the Karnataka Excise Act, 1965 vitiates the entire investigation."
12. In the instant case, P.W.1 the Police Inspector, Excise and Lottery Prohibition Establishment, Koppal, had received the credible information on 10.10.2011 at 4:00 a.m. He reached Mudatagi Tanda at 11:00 a.m. The same is mentioned in Ex.P.3 i.e. search memo. He secured the Panchas and left Koppal to go to Mudatagi Tanda along with his staff, colleagues and panchas. There was enough time to P.W.1 to record the grounds as required under Section 11 54 of the Karnataka Excise Act. Ex.P.3 the Search Memo has been prepared after conducting the search and seizure. The said Ex.P.3 cannot be said to be in compliance of the provisions contained under Section 54 of the Karnataka Excise Act, as it is made subsequent to the search and seizure. Therefore, the mandatory requirements of Sections 53 and 54 are not followed in this case.
13. As far as the recovery aspect is concerned, 2 panchas i.e. P.Ws.2 & 3 have been examined and they have not supported the prosecution case and turned hostile and even during the course of cross-examination by the Public Prosecutor nothing is elicited from their mouth to believe the story of the prosecution that in his presence only the M.Os.1 to 5 i.e. illicit liquor and other material objects have been seized and in his presence only the samples were taken out from the seized materials. When it is admitted case of the prosecution, 12 as per the case even P.Ws.4 and 5, there are houses situated near the house of the accused/appellant and people were present at that time. When that is so, even according to the prosecution the Police/Excise Officers ought to have secured an independent person to act as a Panch witness as an independent witness in support of the prosecution case which is not done in this case.
14. M.Os.1 to 5 have been seized on 10.10.2011. The said M.Os.1 to 5 have been sent to Regional Assistant Chemical Examiner, Raichur on 19.10.2011 as per the evidence of P.W.5 who carried the articles. There is delay in sending the samples seized for chemical examination. The said aspect creates doubt about the case of the prosecution with respect to the seizure of M.Os.1 to 5 on 10.10.2011. All these aspects of the matter were not appreciated by the learned Sessions Judge and learned Sessions Judge has wrongly proceeded to convict the accused. 13
15. In view of the materials placed on record both oral and documentary, the Judgment of conviction and order of sentence passed by the learned Sessions Judge Court is not sustainable in law. Hence, I pass the following :
ORDER The appeal is allowed.
The Judgment of conviction and order of sentence dated 04.01.2013 passed by the learned Principal Sessions Judge, Koppal in S.C.No.5/2012 is hereby set aside. The appellant/accused is acquitted of the offences for which she has been convicted.
The bail bond executed by the appellant and the surety stands cancelled.
The fine amount if any paid, shall be refunded to the appellant.
Sd/-
JUDGE *Svh/-