Karnataka High Court
Mallappa @ Malla S/O Shankreappa Jammor vs State Of Karnataka on 21 June, 2018
1 CRL.A.NO.3697/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3697/2011
BETWEEN:
Mallappa @ Malla
S/o Shankrappa Jammor
Age: 22 years, Occ: Agriculture
R/o Hendagar Agasi
Tq: & Dist: Yadgir
... Appellant
(By Sri. Shivakumar Kalloor, Advocate)
AND:
State of Karnataka
By Spl. Police Station
Exicse Enforcement and Lottery
Prohibition Cell, Yadgir, by its
Addl. State Public Prosecutor
High Court of Karnataka
Circuit Bench, Gulbarga
... Respondent
(By Sri. P.S.Patil, HCGP)
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to allow the appeal and set aside the
impugned judgment order, and sentence dated 28.10.2011
in Sessions Case No.3/2011 passed by District & Sessions
Judge, Yadgiri and acquit the appellant in ends of justice.
2 CRL.A.NO.3697/2011
This appeal is coming on for Final Hearing this day,
the Court delivered the following:
JUDGMENT
Heard.
2. Aggrieved by the judgment and the order of conviction and sentence dated 28.10.2011 passed by the District and Sessions Judge, Yadgir in S.C. No.3/2011, the accused has preferred the above appeal.
3. By the impugned judgment and order, the Trial Court has convicted the appellant for the offences punishable under Sections 273, 284, 328 IPC and Sections 32 and 34 of the Karnataka Excise Act, 1965 (for short 'Excise Act') and sentenced him to various terms of imprisonment and fine, the maximum one being imprisonment of four years for the offence punishable under Section 328 IPC and maximum fine of Rs.10,000/- for the offences punishable under Sections 32 and 34 of the Excise Act.
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4. For the purpose of convenience, the parties will be referred to with their ranks before the Trial Court.
5. PW.1 the then Inspector of Special Police Station, Excise Enforcement and Lottery Prohibition Cell, Yadgir on 12.07.2010 at 2.00 p.m. said to have received credible information of illicit possession and sale of arrack by the accused at Hendagara Agasi, Yadgir. It is alleged that PW.1 along with his staff PWs.3 and 4 and panchas PW.2 and CW.3 visited the said spot and found the accused selling arrack near the house of one Hanamanth Hattikuni under a neem tree. He allegedly conducted the search at that spot and found the accused in possession of MO Nos.3 to 5 the blue coloured plastic barrel, yellow coloured plastic pot and green coloured plastic, MO Nos.7 and 8 the plastic bags containing arrack and MO.6 - Chlorohydrate Powder. It is further alleged that on measuring the barrel found containing 150 liters of arrack, two plastic 4 CRL.A.NO.3697/2011 pots each containing 30 liters of arrack and two big plastic bags each containing 50 liters of arrack and also a plastic bag containing 9 kg. Chlorohydrate Powder. PW.1 claims to have seized the same after drawing the samples MOs.1 and 2 in the presence of panchas under
Mahazar Ex.P1. Then he said to have submitted Ex.P.1 along with his report Ex.P.2 to PW.5 the then SHO of the said Police Station. On the basis of the same, PW.5 said to have registered the FIR - Ex.P.4 in Crime No.40/2010 and handed over further investigation to PW.4. PW.4 said to have recorded the statements of the witnesses and sent the samples to the FSL for examination and filed the charge sheet.
6. On receipt of the charge sheet, the Magistrate committed the matter to the Sessions Court. The Sessions Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 273, 284 and 328 IPC and Sections 32 and 34 of the Excise Act. The accused denied the 5 CRL.A.NO.3697/2011 charges and claimed trial. To substantiate the charges, the prosecution examined PWs.1 to 6 and got marked Exs.P.1 to P.4 and Mos.1 to 8. The accused was examined with reference to the incriminating materials.
7. The Trial Court on hearing both side convicted and sentenced the accused as aforesaid holding that the charges are proved by the evidence of PW.1 - Raid Conducting Officer, PW.2 - Panch Witness, PWs.3 and 4 - Members of Raiding Squad, PW.5 - SHO who registered the FIR, PW-4 the Investigating Officer and PW.6 - Chemical Examiner of RFSL, Kalaburgi.
8. Sri Shivakumar Kalloor learned counsel for the appellant seeks to assail the impugned judgment and order on the following grounds :-
i) The alleged search and seizure is in violation of Section 54 of the Excise Act, 1965;
ii) The evidence of PWs.1 to 5 with regard to the raid and seizure are not cogent and consistent;6 CRL.A.NO.3697/2011
iii) None of the residents of the locality are examined to prove the alleged search and seizure;
iv) There is delay in sending the alleged sample for chemical examination;
v) Section 328 IPC does not attract since none of the persons who allegedly consumed the said spurious arrack are examined and
vi) The evidence of the prosecution is surrounded with the suspicion.
9. In support of his arguments he seeks to rely on the judgment of this court in Shantabai Gurunath Jadhav vs. State - 2017 (1) AKR 365.
10. Per contra, Sri P.S.Patil, learned High Court Government Pleader seeks to support the impugned judgment on the following grounds :
i) Non compliance of Section 54 of Excise Act is only a procedural irregularity and it does not affect the validity of the search;7 CRL.A.NO.3697/2011
ii) The panch witness PW.2 has supported the prosecution case regarding search and seizure;
iii) The official witnesses PWs.1 and 3 to 5 have no animosity against the accused to falsely implicate him and there is no reason to disbelieve their evidence and
iv) The evidence of PW.6 the FSL expert and Ex.P.3 the FSL report show that the arrack seized was spurious. Therefore, conviction is justified.
11. In support of his arguments he relies upon the judgment of Division Bench of this court in Sri Somanath Kerebail vs. The State of Karnataka, through Deputy Commissioner of Excise, Belgaum District - ILR 2004 KAR 927.
12. Having regard to the rival contentions the point that arises for consideration is "Whether the prosecution proved the charges brought against the accused beyond reasonable doubt and whether the impugned judgment and order of 8 CRL.A.NO.3697/2011 conviction and sentence warrants interference of this court?"
13. The charge brought against the accused is for the offences punishable under Sections 32 and 34 of Excise Act and Sections 273, 284 and 328 IPC.
14. Section 32(1) of Excise Act makes import, export, transportation and manufacture of any intoxicant in contravention of the Act punishable.
15. Section 32(2) of Excise Act makes manufacture, possession and sale of any intoxicant or any such material, utensils, apparatus or implement for the purpose of manufacturing such intoxicant in contravention of the Act, Rule or Notification 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.
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17. Section 273 IPC makes sale of noxious food or drink punishable. Section 284 IPC makes negligent conduct with respect to poisonous substance punishable. Section 328 IPC makes causing hurt by means of poison etc., with intent to commit an offence punishable.
18. It is true that the accused does not claim that he had any licence to possess or sell any intoxicant. His case is total denial. He denies the alleged raid or seizure of the properties or drawing up of the mahazar Ex.P.2 at the spot by PW.2 or PWs.2 to 4 being the witnesses to the alleged sale.
19. Therefore, the court has to see whether there is cogent and consistent evidence in support of the proceedings recorded under Ex.P.1 the alleged seizure mahazar. Ex.P.1 purports to be drawn in a public place near the house of one Hanumanth Hattikuni between 2.30 p.m. to 3.30 p.m. Ex.P.1 states that the raiding 10 CRL.A.NO.3697/2011 squad found the accused possessing illicit arrack and chloro-hydrate powder and equipments containing the same, the arrack was measured and the powder was weighed and thereafter the samples M.O.Nos.1 and 2 were drawn from that.
20. Ex.P.1 further states that on each of the articles seized the chits containing signatures of the panchas were affixed and from the accused cash of Rs.120/- was seized. Ex.P.1 the mahazar or Ex.P.2 the report which followed that do not state that the raiding squad found some customers purchasing arrack from the accused. They only say that accused was found selling the arrack. Though PWs.3 & 4 were said to be members of the raiding squad and in addition to them other police were said to be members of the raiding squad, their signatures are not found on the mahazar Ex.P.1. Further though PW.1 and 4 claim that PW.4 is the scribe of Ex.P.1, there is no endorsement to that effect in Ex.P.1 nor same is stated in Ex.P.2. 11 CRL.A.NO.3697/2011
21. Coming to the question whether evidence of PW.1 to 5 is cogent, consistent and acceptable, first of all even though in Exs.P.1 and 2 there is no whisper about any customers purchasing the arrack. PW.2 states that 2 to 3 persons were consuming arrack at the spot and on seeing them, they escaped with serving glass. PW.2 says that when they conducted the raid, four persons were consuming arrack and accused was serving arrack by Jug into the glasses. He further stated that on seeing the raiding squad they escaped.
22. PW.3 stated that there were 3 to 4 customers and accused was serving them in the glass. On seeing raiding squad, those customers ran away with glass and Jug.
23. PW.4 says that there were 3 to 4 persons, but members of raiding squad did not enquire their names and addresses and did not record their statements.
12 CRL.A.NO.3697/2011
24. Ex.P.1 shows that there were seven police persons in the raiding squad, two panchas and driver of their vehicle. It goes hard to believe that such group was not able to apprehend those 2 to 3 customers.
25. Further in Exs.P.1 and 2 nothing is stated about measuring the alleged intoxicant and chlorohydrate powder or securing measuring scales or any equipment for the said purpose. The witnesses say that CW.7 Gundappa secured the measuring scale from nearby shop of locality. Neither Gundappa nor the shop owner who allegedly lent the equipment for measuring are examined.
26. Ex.P.1 shows that house of Hanamant Hattikuni was at the distance of 15 feet from the scene of occurrence. It further shows that house of Mashappa was at the distance of 25 feet. All the witnesses stated that it was public place surrounded by residential houses. As per the evidence of witnesses about 13 CRL.A.NO.3697/2011 25 people had gathered at the scene of occurrence. But none of them are cited as witness in proof of the raid. The Investigation Officer does not examine any of the residents of locality in proof of raid, search or seizure.
27. There is unexplained delay of ten days in sending the samples to FSL. There is no consistency in the evidence of witnesses regarding alleged seizure of properties, pasting chits containing signatures of panchas on them. PW.1 admits in the cross- examination that except samples there are no other articles containing chits bearing signature of panchas. The person who carried the sample to the FSL is not examined, to state that there were signatures of panchas on those samples nor PW.6 speaks to the same. By admission of PW.1 himself it becomes clear that there was no evidence to show that MO Nos.1 to 8 were seized in the presence of panchas or PWs.3 and 4. 14 CRL.A.NO.3697/2011
28. So far as disposal of seized arrack and chlorohydrate powder other than sample, the evidence is unsatisfactory. PW.1 says that he returned to Police Station and handed over the seized material along with Exs.P.1 and 2 to S.H.O. The recitals in Ex.P.2 are also to the same effect. PW.5 who registered the FIR and PW.4 did not whisper about any disposal of those seized bulk quantity of chlorohydrate powder.
29. PW.1 in examination-in-chief stated that on 31.07.2010 he sent the seized M.Os. except sample to the Excise Inspector, Yadgiri. In fact on submitting the same to the S.H.O, PW.4 takes over the further investigation. Then how PW.1 comes in possession of those articles again is not explained. All these facts and circumstances make search and seizure highly doubtful. The trial Court without noticing these doubtful aspects in the evidence held that whatever PW.1 to 5 spoke is truth.
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30. Section 54 of Karnataka Excise Act, 1965 reads as follows :-
" 54. Power to search without warrant - 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 Section 32, Section 33, Section 34, Section 36 or Section 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-
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and 16 CRL.A.NO.3697/2011
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
31. The learned counsel for the appellant relied upon the Single Bench judgment of this Court in Shantabai Gurunath Jadhav /vs/ State - 2017 (1) AKR 365, contends that, there cannot be any search and seizure without raiding officer recording grounds of his belief. It is no doubt true that in the said judgment it is held that non recording of such ground invalidates the entire search.
32. But in Somanath Kerebail /vs/ The State of Karnataka, Through Deputy Commissioner of Excise, Belgam District - ILR 2004 KAR 527 the Division Bench of this Court held that failure to record reasons must not affect the validity of the search, unless the accused demonstrates that he has by 17 CRL.A.NO.3697/2011 reasons of any such violation suffered any prejudice. Otherwise it is only procedural irregularity. Since, judgment in Shantabai's case does not refer to the Division Bench judgment in Somanath's case, that cannot be followed.
33. However, next question is whether the accused demonstrates that procedural lapse has caused prejudice to him. As already pointed that there are many contradictions and inconsistencies in the evidence regarding the alleged search and seizure under Ex.P.2 Mahazar. Had the grounds of his belief were recorded in their official record with date and time, that could have clarified whether the evidence of PWs.1 to 5 regarding the alleged proceedings under Ex.P.2 or helped the accused to demonstrate the truthfulness or otherwise of the raid.
34. Having regard to shaky evidence regarding Ex.P.2, absence of recording of such belief of PW.1 in 18 CRL.A.NO.3697/2011 compliance of Section 54 of the Act has certainly caused prejudice to the defence of accused in this case. Under such circumstances, appreciation of evidence by the Trial Court and its approach to the oral and documentary evidence and law is erroneous.
35. When case of search and seizure fail, the charges for the offences punishable under Sections 273, 284 and 328 IPC do not sustain. Therefore, conviction of appellant is unsustainable. In the result appeal is allowed.
36. The impugned judgment and order of conviction and sentence dated 28.10.2011 passed by the District and Sessions Judge, Yadgiri in Sessions Case No.3/2011 for the offence punishable under Sections 273, 284, 32 IPC and Sections 32 and 34 of Karnataka Excise Act, is hereby set-aside. The appellant is acquitted of the charges brought against him. 19 CRL.A.NO.3697/2011
37. 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 Srt/sn/KJJ