Karnataka High Court
Gopala vs State By Chikkamagalur Town Police on 1 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:8915
CRL.RP No. 58 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 58 OF 2020
BETWEEN:
1. GOPALA
S/O LATE KRISHNAPPA
AGED ABOUT 55 YEARS
RESIDENT OF BELUR ROAD, FORT,
CHIKKAMAGALUR-577101
...PETITIONER
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
1. STATE BY CHIKKAMAGALUR TOWN POLICE,
CHIKKAMAGALUR
REPRESENTED BY STATE PUBLIC PROSECUTOR
Digitally signed HIGH COURT BUILDING
by SHARANYA T BANGALORE-560001.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
PRAYING TO SET ASIDE THE ORDER DATED 02.11.2019
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU IN CRL.A.NO.12/2018 BY
DISMISSING THE APPEAL BY CONFIRMING THE ORDER DATED
22.12.2017 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND C.J.M., CHIKKAMAGALURU IN C.C.NO.1447/2016 AND THE
PETITIONER IS LIABLE TO BE ACQUITTED FOR THE OFFENCE
P/U/S 32 AND 34 OF KARNATAKA EXCISE ACT ALLEGED
AGAINST HIM.
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NC: 2024:KHC:8915
CRL.RP No. 58 of 2020
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The factual matrix of the case of the prosecution that on 22.08.2016 at about 5.15 a.m., CW1 - PSI i.e., PW6 has received the credible information that the accused No.1 is selling liquors illegally infront of his house by the side of Belur road in Kote extention of Chikkamagaluru town. Then CW1 conducted raid along with his staff members and panchas and seized 25 packets of Amruth silver cup brandy, 57 pouches of Bangalore Malt Whiskey and cash of Rs.460/- from the possession of the accused No.1. The Mahazar was drawn and photograph was taken in the spot. At that time, the accused No.1 has revealed that the accused No.2 sold all these liquors to him by promising that he will pay 5% of commission. Then CW1 brought the accused No.1 and seized materials to the police station and filed complaint to the Station House Office. Station House Officer has received the complaint -3- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 and registered the case in Cr.No.240/2016 and sent the FIR to the Court. Thereafter, CW11 conducted the investigation and filed the charge sheet against the accused for the offences punishable under Sections 32 and 34 of Karnataka Excise Act. The accused persons have secured and they have not pleaded guilty and the trial has been conducted by the Trial Court. The prosecution mainly relies upon the evidence of PW1 to PW6 and also the document Ex.P1 to Ex.P12 and material objects MO.1 to MO.4.
2. The Trial Court having considered both oral and documentary evidence available on record, convicted the accused No.1 for the offence punishable under Sections 34 of Karnataka Excise Act sentenced to undergo simple imprisonment for a period of one year and fine of Rs.10,000/-. In default of payment of fine amount, the accused No.1 shall further undergo simple imprisonment for a period of two months. MO.2 cash of Rs.460/- is also confiscated to State and MO.1, 3 and 4 shall be returned -4- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 to the Excise Department for disposal in accordance with law.
3. Being aggrieved by the judgment of conviction and sentence, the appeal is filed in appeal number Crl.A.No.12/2018. The Appellate Court on re-appreciation of both oral and documentary evidence available on record particularly considering the evidence of PW1 to PW6 comes to the conclusion that the Trial Court has not committed any error and confirmed the judgment of the Trial Court.
4. Being aggrieved by the judgment of conviction and sentence of the Trial Court and confirmation of appellate Court, the present criminal revision petition is filed before this Court. The counsel appearing for the revision petitioner would vehemently contend that both the Courts have committed an error in not applying judicious mind and only relied upon the chief evidence of the prosecution witnesses that too PW3 to PW6 who are the official witnesses. Inspite of answers elicited in the -5- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 cross-examination of PW3 to PW6 regarding seizure and identification of seized articles is concerned and even an amount of Rs.460/- is alleged recovered from the accused No.1 and no such details of denominations of note of Rs.460/- is mentioned, the same is also elicited from the mouth of witnesses. Inspite of it, the Trial Court and also the appellate Court comes to the conclusion that the revision petitioner has committed an offence punishable under Section 34 of Karnataka Excise Act. The material objects were not been seized in accordance with law and compliance of Section 53 and 54 of Excise Act. The alleged incident of seizure was at 5.15 a.m., and story of the prosecution is that at that time, there were customers, they were ran away from the spot and they have seized empty pouches and also the pouches in which liquor was there. No details of number of pouches were also mentioned in the mahazar and discrepancy has not been taken note of by the Courts, this Court has to exercise its revisional jurisdiction and Court has to look into the judgment of the Trial Court and also the appellate Court, -6- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 whether the same suffers from its legality and correctness. Hence, the revision petitioner prays for acquittal.
5. Per Contra, the counsel appearing for the State would submits that the Trial Court in detail discussed the evidence of PW6, though they are the official witnesses and they are from the particular department and merely because they are the official witnesses and their evidence cannot be discredited and the material collected during the course of the investigation is also spoken by PW3 to PW6 and nothing is elicited in the cross-examination of PW3 to PW6, the same has been observed by the Trial Court while considering the evidence of PW3 to PW6. The counsel also would submits that in the appeal before the appellate Court in paragraph No.14, the appellate Court after re- considering the material available on record, comes to the conclusion that the Trial Court has not committed any error and contention by the appellant's counsel before the appellate Court cannot be accepted. The PW1 though turned hostile, taken note of Ex.P2 and MO.1 - photograph -7- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 and also taken note of the evidence of PW3 and PW6 and their evidence is consistent apart from the evidence of PW4 and PW5 and their evidence also corroborates the evidence of PW3 and PW6. The PW3 and PW6 have categorically testified regarding the raid conducted by them along with CW1 and CW2. Hence, it does not require interference.
6. Having heard the revision petitioner's counsel and the counsel appearing for the State and also considering the grounds which have been urged in the revision petition, the point that would arise for the consideration of this Court are:
1) Whether the judgment of conviction and sentence and also the confirmation made by the appellate Court suffers from its legality and correctness?
2) What Order?-8-
NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 POINT Nos.1 and 2:
7. Having heard the revision petitioner's counsel and also the counsel appearing for the respondent and also considering the material available on record, the case of the prosecution is that on 22.08.2016 at about 5.15 a.m., on receiving credible information, the PW1 conducted raid and seized 25 packet of Amruth Silver cup brandy, 57 pouches of Bangalore Malt Whiskey and cash of Rs.460/- from possession of accused No.1 and mahazar was drawn and investigation is completed and the I.O has filed the charge sheet. The Trial Court having considered both oral and documentary evidence available on record, acquitted accused No.2 and convicted and sentenced the accused No.1 who is the revision petitioner before this Court. Now, looking into the evidence available on record, no doubt the PW1 and PW2 have not supported the case of the prosecution according to the prosecution, they went along with PW1 and PW2 to the spot. Both of them not supported the case of the prosecution and they says that -9- NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 police brought the accused No.1 and they took the signature and also taken photograph. The photo was not taken at the spot. No doubt the photo -Ex.P3 discloses that the accused is found in the photograph and with regard to the seizure is concerned, PW1 and PW2 have not supported the case of the prosecution and only the evidence of PW3 to P6 remains since PW1 says he cannot say what has been seized at the spot. The PW2 also says that he cannot say what has been seized at the spot. Now, the Court has to consider the evidence of PW3 to PW6, the PW3 is Head constable, he also says that when they went to the spot, public who were consuming the liquor, they ran away from the spot. The accused No.1 apprehended at the spot and also seized an amount of Rs.460/- at the spot. In the cross-examination, PW3 says that regarding his part of the raid and seizure, he categorically admits that he has not given any such statement before the investigating officer, though he claims that he himself and one Kumar apprehended the accused No.1 and in this regard also he has not stated specifically about the
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 apprehension of accused No.1 and also he categorically admits that he did not secure any panch witnesses at the spot. He cannot tell number of pouches seized at the spot. He also not able to give any details of serial number. The liquor which was found in the cardboard box, the same is also not produced before the Court. He categorically admits that statement of accused No.1 was not taken at the spot. But, it is the case of the prosecution that the accused No.1 only revealed that accused No.2 has supplied the same and assured him to give 5% of commission.
8. Having perused the discussion made by the Trial Court, nothing is discussed except the chief evidence of PW3, he only says that nothing is elicited in the cross- examination, not only in respect of this witness, in respect of all the witnesses. The PW4, PW5 and PW6 are also the witnesses who conducted the raid. The PW4 also says that he cannot give any details of the denomination of notes which was seized and also in the P.F, pouch batch number,
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 serial number and denomination of notes are also not mentioned, the same is also not discussed by the Trial Court.
9. The other witness PW5 is also the retired P.S.I, he has sent the seized articles to the FSL. In his cross- examination also, he did not mention the pouch having liquor and empty pouches and the same is not mentioned. In Ex.P10, he has not mentioned the batch number of the said pouches. This evidence also not discussed by the Trial Court.
10. The witness PW6 who conducted the raid also says that on credible information, he has secured the panch witnesses and conducted the raid. In the cross- examination, this witness also submit that he did not mention anything about the information he has received in his report as well as in the mahazar. He also admits that no one showed the place to him and only he says that the person who gave the information has given the details, the same is not mentioned in his report. He admits that the
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 cardboard box in which the liquor was found is also not produced before the Court. He did not mention the denomination of note which was seized at the spot in the panchanama and also in his report. He did not mention anything in the panchanama with regard to the empty pouches and also the pouches in which the liquor was found. An attempt is made before the Court while deposing that the number was found and hence did not mention the same. He categorically admits that either in his report or in his mahazar, he has not mentioned the number of said pouches. He did not obtain any signature of the panch witnesses.
11. Having considered his evidence and I have also pointed out that the Trial Court except extracting the chief evidence of these witnesses of PW3 to PW6, not discussed anything about the cross-examination and the Trial Court only given the reasons that the witnesses are subjected to cross-examination and nothing is elicited and no discussion made at all by the Trial Court. The Trial Court
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 convicted the accused No.1 by invoking offence punishable under Section 34 of Karanataka Excise Act. It is also unfortunate that the appellate Court also while re- considering the evidence available on record, even not gone through the answers elicited from the mouth of PW3 to PW6 and instead of that in paragraph No.14 comes to the conclusion that contention of the appellant's counsel cannot be accepted, simply because PW1 and PW2 being mahazar witnesses have not fully turned hostile, only relies upon the evidence of PW1 and PW2 on the ground that they have identified their signatures on Ex.P2 and also on MO.1. Their evidence is very clear that the accused No.1 was brought and his signature was taken. Both PW1 and PW2 have stated that they have not aware of what they have seized at the spot and they have not been to the spot. When such being the case, merely found the signature on Ex.P2 and MO.1 cannot be a basis to convict the accused. However, the Court comes to the conclusion that there is a corroboration of PW3 and PW6 and the evidence of PW4 and PW5. The appellate Court also fails to
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 take note of the answers elicited from the mouth of witnesses with regard to the seizure of notes as well as mentioning of the details in the report as well as in the panchanama and comes to the conclusion that there is a presumption under Section 114(e) of Indian Evidence Act that the official acts have been duly performed. The very approach of the appellate Court is also erroneous. No doubt the evidence of official witnesses cannot be discarded, but the evidence of official witnesses should be credible to accept their evidence and answers elicited from mouth of PW3 to PW6 with regard to the very seizure is concerned and also according to the prosecution, the alleged raid was conducted at 5.15 a.m., and at that time also the customers were their at the spot and they were ran away from the spot cannot be believed. This theory of 5.15 a.m., consuming the liquor in the early morning also not been substantiated and also the seizure of cash to the tune of Rs.460/- from the possession of the accused No.1 and all the witnesses who are the part of the raid also not given any details. The details of denomination of notes
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 was also not mentioned in the panchanama as well as nothing is mentioned in the report with regard to the credible information, the same is admitted by the PW6 who has received the information and conducted the raid and also he categorically admits that he was not aware of the spot and nobody shown the place in which he was selling the liquor, but he made an attempt to convince the Court that the information given to him was revealed the place in which the liquor was selling and then he went to that spot.
12. Having taken note of no discussion was made by the Trial Court with regard to the evidentiary value of PW3 to PW6 except mentioning that nothing is elicited in the cross-examination and the appellate Court has also blindly believed the evidence of PW3 to PW6 and fails to take note of answers elicited from the mouth of these witnesses particularly the panch witnesses. Based on the official witnesses convicted the accused No.1/revision petitioner and the appellate Court confirmed the accused
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NC: 2024:KHC:8915 CRL.RP No. 58 of 2020 No.1/revision petitioner. The very case of prosecution has not been proved by leading any credible evidence before the Court. Hence, I answered the point No.1 as affirmative.
13. In view of discussions made above, I pass the following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The impugned judgment of conviction and
sentence dated 22.12.2017 passed in
C.C.No.1447/2016 is set-aside. The very fine amount which is deposited is ordered to be refunded in favour of the revision petitioner on proper identification.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 30