Karnataka High Court
Sri M S Sandesh @ Raju vs State By Excise Inspector on 24 February, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.RP No. 925 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 925 OF 2013
BETWEEN:
1. SRI M S SANDESH @ RAJU
S/O M S SIDDEGOWDA,
AGED ABOUT 30 YEARS,
R/AT RAMANDIRA BEEDHI,
MAHADEVAPURA VILLAGE,
Digitally signed by ARAKERE HOBLI,
KESHAVAMURTHY
SRINIVASA SRIRANGAPATNA TALUK,
MURTHY
Location: High ...PETITIONER
Court of Karnataka
(BY SRI. MOHAN BHAT, ADVOCATE)
AND:
1. STATE BY EXCISE INSPECTOR
SRIRANGAPATNNA TALUK
...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)
THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
DATED 13.07.2012 PASSED BY THE ADDL. C.J. (JR. DN.)
AND J.M.F.C., SRIRANGAPATNA IN C.C.NO.187/2008 AND
JUDGMENT DATED 07.08.2013 PASSED BY THE III ADDL.
DIST. AND S.J., MANDYA SITTING AT SRIRANGAPATNA IN
CRL.A.NO.76/2012 AND ACQUIT THE PETR. HEREIN.
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CRL.RP No. 925 of 2013
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 of Cr.P.C. is filed challenging the judgment and order of conviction and sentence passed by the Court of learned Additional Civil Judge (Jr. Dn) & JMFC at Srirangapatna in C.C.No.187/2008 dated 13.07.2012 which has been upheld by the Court of III Additional District and Sessions Judge, Mandya (sitting at Srirangapatna) in Criminal Appeal No.76/2012 by judgment and order dated 07.08.2013.
2. Heard the learned counsel for the petitioner and learned High Court Government Pleader appearing for the respondent.
3. It is the case of the prosecution that on 29.04.2006 at about 6.00 p.m., when the complainant PW.1 along with his staff was on patrolling duty at Bannur- Srirangapatna, he received a credible information that in -3- CRL.RP No. 925 of 2013 the Bakery belonging to the petitioner at Mahadevapura Village he had stored liquor illegally and was selling the same. Immediately he along with the staff and two panchas rushed to the Bakery and found the petitioner inside the Bakery and upon enquiry he informed his name as Sandesh. PW.1 and his staff searched the Bakery and found 43 180ml original choice whisky bottles and 14, 180 ml old monk and 40, 180 ml Mack Dowel Brandy, 24 330 ml bottles UB Export beer bottles and all these articles were seized under panchanama by PW.1. He there afterwards lodged the complaint before the jurisdictional police, based on which a case was registered against the petitioner for offences punishable under Section 32, 38(a) and 43, 11 and 14 of the Karnataka Excise Act. After investigation charge-sheet was filed by the police against the petitioner for the aforesaid offences. The petitioner had claimed to be tried before the Court of learned Magistrate and therefore the prosecution to substantiate its case totally examined 5 witnesses as PW.1 to PW.5 and got marked 5 documents as Ex.P1 to Ex.P5. The -4- CRL.RP No. 925 of 2013 petitioner/accused had denied the incriminating circumstances against him during his statement recorded under Section 313 Cr.P.C. However he did not chose to lead any defence evidence nor did he get any documents marked in support of his defence. The trial Court thereafter heard the arguments addressed on both sides and by judgment and order dated 13.07.2012 convicted the petitioner for offence punishable under Section 11 and 14 read with 32, 38(a) and 43 of the Karnataka Excise Act and sentenced him to undergo simple imprisonment for a period of one year and pay fine of Rs.5,000/- and in default of payment of fine he was directed to undergo simple imprisonment for a period of three months. The appeal filed by the petitioner against the said judgment and order of conviction and sentence in Criminal Appeal No.76/2012 was dismissed by the appellate Court on 07.08.2013. It is under these circumstances, the petitioner is before this Court.
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4. Learned counsel for the petitioner submits that the Courts below have erred in convicting the petitioner for alleged offences. He submits that the seizure of contraband article was not proved by the prosecution as the panchas to the seizure mahazar had not supported the case of prosecution. He submits that the raid was conducted in the Bakery belonging to the petitioner and therefore compliance of Sections 53 and 54 of the Karnataka Excise Act was mandatory which has not been done in the present case. He also submits that no independent witnesses have been examined on behalf of the prosecution which is fatal to the case of prosecution.
5. Per contra, learned High Court Government Pleader has argued in support of the impugned judgment and order of conviction and sentence and submits that the Courts below have recorded a concurrent finding of guilt against the petitioner after appreciating the oral and documentary evidence available on record. He submits -6- CRL.RP No. 925 of 2013 that merely for the reason that the prosecution witnesses are official witnesses their evidence cannot be discarded and accordingly, he prays to dismiss the petition.
6. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
7. The prosecution in order to prove its charge against the petitioner has in all examined 5 witnesses. PW.1 is the star witness of the prosecution, who is the complainant and also the person who conducted the raid after receipt of credible information. He has deposed before the Court that on 29.04.2006 at about 6.00. p.m. he had received a credible information regarding illegal storage of liquor in the Bakery belonging to the petitioner herein and immediately he along with staff and panchas rushed to the spot and after searching the Bakery had found the contraband articles inside the Bakery and -7- CRL.RP No. 925 of 2013 accordingly he has seized the articles under a mahazar, and thereafter lodged the complaint before the jurisdictional police and produced the contraband articles seized along with the petitioner. He has stated that since he had reasonable grounds to believe that the accused was likely to escape, he could not secure a search warrant as required under Section 53 of the Act and therefore he had recorded reason in compliance of Section 54 of the Act for not securing search warrant from the jurisdictional Magistrate. Though he has stated that such reason has been recorded by him, he has not produced any document before the Court to demonstrate that requirement of Section 54 was complied by him before he conducted a raid on the Bakery belonging to the petitioner. The Hon'ble Supreme Court in the case of K L SUBBAYYA vs. STATE OF KARNATAKA - AIR 1979 SCC 711 has stated that compliance of Section 53 and 54 of the Karnataka Excise Act is mandatory and non compliance of the mandatory provisions would vitiate the conviction. Similar view has been expressed by the Co-ordinate Bench of this -8- CRL.RP No. 925 of 2013 Court in the case of SHANTA BAI vs THE STATE THROUGH POLICE EXCISE ENFORCEMENT CELL, BHALKI, BIDAR DISTRICT - 2017(3) KCCR 2172.
8. The seizure mahazar which was prepared by PW.1 inside the Bakery was signed by two independent panchas. However, one of the panchas out of the two was examined before the trial Court as PW.5. PW.5 has not supported the case of the prosecution and therefore it cannot be said that the prosecution has proved the seizure in accordance with law. It is trite law that in a case where the officials have not complied with the statutory requirements while conducting the raid or during the course of search, seizure and investigation of the case, it would be highly unsafe to rely upon the evidence of the official witnesses in order to record a finding of guilt against the accused person in the absence of their evidence being corroborated by independent witnesses. -9- CRL.RP No. 925 of 2013
9. In the case on hand the prosecution has examined only official witnesses and they have not examined any independent witnesses in support of their case. The raid has been conducted in a public place and therefore it cannot be said that the prosecution was not in a position to secure any independent witnesses. Under the circumstances, I am of the considered view that the Courts below were not justified in recording the finding of the guilt against the petitioner and convicting him for the alleged offences. The judgment and order of conviction and sentence passed by the Courts below therefore cannot be sustained. Accordingly, the following ORDER Criminal Revision Petition is allowed.
The judgment and order of conviction and sentence passed by the Court of learned Additional Civil Judge (Jr. Dn) & JMFC at Srirangapatna dated 13.07.2012 in C.C.No.187/2008, and confirmed by the Court of III Additional District and Sessions Judge, Mandya (sitting at
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CRL.RP No. 925 of 2013Srirangapatna) dated 0708.2013 in Criminal Appeal No.76/2012 is hereby set aside.
The petitioner is acquitted of the alleged offences.
SD/-
JUDGE HB List No.: 1 Sl No.: 13