Karnataka High Court
Umakant @ Ramakant Nagesh Gouda vs The State By Special Police Station on 18 September, 2020
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2619/2012
BETWEEN:
1. UMAKANT @ RAMAKANT NAGESH GOUDA
R/O SIDDANBAVI, NEAR GUDIGAR GALLI
COMPLEX, TAL: KUMTA
2. ISHWAR NARAYAN NAIK,
R/O GUNVANTE, TALUK: HONAVAR
3. DEVAIAH DURGAPPA NAIK
R/O SARPANKATTE, BHATKAL
4. RAGHU NAIK
R/O SASHIHITLUE, KUMTA
5. PRAKASH GANAPATI SHETTY
R/O SIDDANABAVI, KUMTA
6. MANJUNATH PATGAR
R/O NEAR VARADA HOTEL, KUMTA
7. RAMADAS BHANDARI
R/O NEAR VARADA HOTEL, KUMTA
8. GOPU BASAVA NAIK
R/O MALLANKERI, HEGDE, KUMTA
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9. LAXMAN DEVU NAIK
R/O VALGALLI, KUMTA
10. CHANDRASHEKAR @ DESNYAR JATTIO GOUDA
R/O VALGATTI, KUMTA
11. KAMALAKAR KESHAV HARMALKAR
R/O KUMTA ... APPELLANTS
(BY SRI.MURTHY D NAIK AND SRI. M L VANTI, ADVS)
AND
THE STATE BY SPECIAL POLICE STATION,
EXCISE & LOTTERY PROHIBITION SQUAD,
KARWAR. ... RESPONDENT
(BY SRI.VINAYAK KULKANRI, AGA FOR RESPONDENT)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONVICTION AND SENTENCE DATED 14.03.2012
PASSED BY THE DIST. & SESSIONS JUDGE, UTTARA
KANNADA, KARWAR, IN S.C.NO.7/2011, FOR THE
OFFENCES P/U/S 34 OF K.E. ACT.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 18.09.2020,
COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT PASSED
THE FOLLOWING:-
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JUDGMENT
The appellants-accused 1 to 11 have preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 14.03.2012 passed in S.C.No.7/2011 on the file of the learned District and Session Judge, Uttarka Kannada, Karwar (for short referred to as 'the trial Court') convicting the accused for the offence punishable under Sections 34 of The Karnataka Excise Act (for short referred to as 'the Act'), while acquitting him for the offences punishable under Section 378 of IPC and under Sections 11 and 32 of the Act.
2. Heard the learned counsel Sri.M.L.Vanti for the appellants and the learned AGA-Sri.Vinayak Kulkarni for respondent-State.
3. It is the contention of the prosecution in brief is that, on 22.10.2009 at 10.00 pm accused 1 to 12 found to have stocked liquor worth Rs.41,600/- and 4 were transporting the same without any licence or permit and the said liquor was containing the substance which was harmful to the human life and thereby committed the offences punishable under Section 328 of IPC and under Sections 11,32,31 and 42 (A) of the Act.
4. It is contended that PW.5 was working as Circle Inspector, received credible information that a group of persons are transporting illicit liquor without any licence or permit, near Kumata Railway Station. Immediately he along with his staff held a raid and could apprehend accused Nos.1 to 3, while transporting such liquor, but the other accused who were at the spot, managed to ran away from the spot. On inquiry, accused Nos.1 to 3 have revealed the names of the other accused. The illicit liquor which was being transported was seized under the Mahazar Ex.P.1. A report in this regard was submitted and the first information report was registered against 12 accused, for the offences 5 punishable under Sections 11, 32, 34, and 43(A) of the Act. After investigation a charge sheet was filed for the said offences.
5. When the matter was pending before the jurisdictional magistrate, it was found that the accused have committed the offence punishable under Section 328 of IPC and the accused were committed to the Special Court/trial Court. The trial Court summoned the accused and the charges were framed. Accused have denied the charges and pleaded not guilty. They claimed to be tried. The prosecution examined 5 witnesses and got marked 4 documents and identified 9 material objects, in support of its contention. Accused have denied all the incriminating materials available on record but have not chosen to lead any evidence in support of their defense.
6. Accused No.12 died during trial and the case against him was abated. Trial Court after taking into consideration all these material on records came to the 6 conclusion that the prosecution is successful in proving the guilt of accused No.1 to 11 for the offence punishable under Section 34 of the Act and convicted them with imprisonment and fine, while acquitting them for the offences punishable under Section 328 of IPC and Sections 11 and 32 of the Act. Aggrieved by the impugned judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 to 11 have preferred this appeal on various grounds.
7. Learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence passed by the trial Court is perverse and without any basis. There is absolutely no material placed before the Court to prove the commission of the offence under Section 34 of the Act. The trial Court has ignored the fact that the mandatory requirements of law were not followed by the Investigating Officer which has vitiated the seizer of the contraband. Learned counsel submitted that PW.5 even 7 though stated that he had received credible information about commission of the offence, he has not registered the first information as required under Section 154 of Cr.P.C. He also submitted that there is no compliance of Section 54 of the Act. PW.5 never recorded regarding the credible information received by him in the Station House Dairy nor he has recorded the grounds for not obtaining the warrant from the Magistrate. Therefore entire investigation is vitiated and conviction of the accused by the trial Court is bad in law.
8. Learned counsel further submitted that the seizure panachanama/EX.P.1 is not proved by the prosecution. PWs.1 and 2 being the mahazar witnesses have not supported the case of the prosecution. Therefore, reliance cannot be placed on the said document. He further submitted that PW.5 who held the ride has completed the investigation himself which is also bad in law. The contraband was seized from the open place and there is nothing on record to connect 8 the same to accused Nos.1 to 3 or to any other accused. Learned counsel submitted that even though it is the contention of the prosecution that accused were carrying hundreds of bottles and sachets, all these seized items were not sent for chemical examination nor it is proved that they contain liquor. Under such circumstance, it cannot be concluded that the substance seized was contraband liquor. This has also vitiated the entire investigation.
9. Learned counsel stated that there are serious discrepancies in the evidence of PWs. 3 and 5 and the trial Court has ignored the material contradictions while convicting the accused. The trial Court while rightly acquitting the accused for the offence punishable under Section 328 of IPC and under Sections 11 and 32 of the Act, committed an error in convicting the accused for the offence punishable under Section 34 of the Act, without there being any proof much less legal proof to convict the accused. Therefore, 9 he prays for setting aside the impugned judgment of conviction and order of sentence in the interest of justice.
10. Per contra, Sri.Vinayak Kulkanri, the learned AGA supporting the impugned judgment of conviction and order of sentence submitted that the trial Court has properly appreciated the oral and documentary evidence and convicted the accused. There are no illegality or perversity in the impugned judgment of conviction and sentence. Therefore, he prays for dismissal of the appeal as devoid of merits.
11. During the pendency of this appeal accused Nos.5 and 11 were reported to be dead and appeal preferred by them stands abated.
12. I have perused the materials including the trial Court records. EX.P.1-the Panchanama was drawn on the intervening night 22/23.10.2009 at 1.30 and as per this document PW.5 being the police inspector 10 received credible information regarding illegal transportation of liquor from Goa towards Kumata. Accordingly, he summoned PWs.1 and 2 as panchas and was waiting near Kumara Railway Station. He noticed a group of persons who were holding bags and were waiting for a vehicle to transport the liquor. When the police surrounded them, accused Nos.1 to 3 were caught red handed and the others managed to ran away from the spot, throwing the bags there itself. There were in all six bags, including three hand bags held by accused Nos.1 to 3, and it was found that they were carrying liquor without any licence or permit. On enquiry, accused Nos.1 to 3 informed the names of accused Nos.4 to 12, as the persons who have ran away from the scene of occurrence. Their mobile hand sets were also seized. The Panchanama further states that accused Nos.1 and 2 were carrying 180 bottles of Doctor Brandi each, valued at Rs.50/- per bottle, in the bags held by them and accused No.3 was carrying 300 plastic 11 sachets of Honey Guide Brandi valued at Rs.25/- per sachets. 3 other bags were also seized from the spot which were said to have been carried by other accused. In one such bag, 36 plastic bottles of Nadan Malt Whisky, in the other 2 bags 250 plastic sachets of Honey Guide Brandi were found. From the seized contraband, 4 plastic bottles and 8 sachets from each bag were separately seized as samples.
13. As per Ex.P.2-the Chemical examiner's report, the samples were containing the liquor and only some items were having sedative substance.
14. PWs.1 and 2 are the mahzar witnesses who have not support the case of the prosecution. PW.3 is the Police Constable who had accompanied PW.5 and he identified accused Nos.1 to 5. Witness stated that all the accused were in Railway Station, waiting for an Auto- rikshwa. He denied the suggestion that the accused 12 were not carrying the liquor or the same were not seized under EX.P.1.
15. PW.4 is the head constable, who conducted further investigation in the matter and he denied the suggestion that a false charge sheet was filed. PW.5 is the Police Inspector who held the ride and seized the contraband. Witness stated about accused Nos.1 to 12 found in the Railway Station at Kumata and apprehending accused Nos.1 to 3 and the other accused running away from the spot after throwing the bags which they were carrying. He also stated that each of the bags were verified and details of its contents were noted in the seizure mahazar. Witness identified MOs. 1 to 6 as the sample bottles and sachets seized separately and 7 to 9 as the mobile hand sets seized from accused Nos.1 to 3. During cross examination he has stated that all the contraband seized from the custody of the accused were not sent for chemical examination. He 13 stated that railway tickets were not found with any of the accused. He denied the suggestion that accused were not carrying any contraband and they were falsely implicated in the matter without any basis.
16. To constitute an offence under Section 34 of the Act, the prosecution is required to prove that the accused were in possession of any intoxicant, knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing that the prescribed duty has not been paid.
17. In order to prove that the seized contraband are covered under Section 34 of the Act, the Investigating Officer is required to send all such seized articles for examination or evidence should have been led that the other bottles or sachets which were not sent for examination were also containing the same substance which were contained in the bottles/sachets, sent as sample to the chemical examiner. There is 14 nothing on record to prove this fact and even PW.5 has not stated anything in this regard.
18. In Mahapursha Durga V/s. State of Karnataka1 and again in M.R.Manjunath V/s. The Authorized Officer And Deputy Commissioner of Excise, Chickmangalur, Dsitrict Chickmagalur and another2 this Court consistently held that when there is no legal evidence to show that each of the bottles contained arrack as alleged, which were not sent for chemical examination, the offence under the Act cannot be constituted in the absence of the evidence to show that the other bottles which were not sent for examination also contained Brandi or other intoxicants, and the accused cannot be convicted for the offence punishable under Section 34 of the Act.
19. In the present case, the prosecution witnesses stated that the substance which were in the 1 1977 (2) Kar.L.J 463 2 2012 (6) Kar.L.J 375 15 possession of the accused were purchased from Goa, but no evidence was led that those substances were unlawfully manufactured or transported.
20. PW.5 specifically stated that on receiving the credible information he proceeded to the spot along with his staff. He does not refer to recording of the information in the Station House Dairy or registration of the FIR. He also does not state the reason as to why he could not obtain the warrant as required under Section 54 of the Act. It is not the contention of the prosecution that the delay might have afforded the offender an opportunity to escape or conceal the evidence of committing the offences. Registration of the FIR or obtaining the warrant from the jurisdictional Magistrate as required under Section 53 of the Act is mandatory. When no such warrant was obtained, the officer in question has to record the reasons as to why such procedure is followed. Unless such procedures are not 16 followed, there cannot be compliance of Section 54 of the Act and it will render such seizure without jurisdiction and vitiates the search and seizure. The Hon'ble Apex Court in K.L Subbayya Vs. State of Karnataka3, made this position clear and held that non compliance with the provisions of Section 54 of the Act vitiates the search and seizure and it will be of without jurisdiction.
21. The Division Bench of this Court in Sri Somanath Kerebail Vs. The State of Karnataka, Through Deputy Commissioner of Excise, Belgaum District 4 while considering the reference made by the learned Single Judge to the question as to whether grounds of belief that an offence has been committed or being committed is sufficient compliance with Section 54 of the Act or in addition to it the seizing authority also has to mention his reasons for not obtaining search 3 1979 (2) SCC 115 4 ILR 2004 KAR 527 17 warrant before conducting search or seizure, held that the requirement of recording grounds of his belief serve duel purpose, i.e. an offence has been, is being or is likely to be committed and that obtaining warrant is not possible without affording to the offender the opportunity to escape or conceal evidence that is because the words 'has been to believe' appearing in Section 54 of the Act qualify not only the commission of the offence but also obtaining of search warrant without affording the offender the opportunity to escape or concealing the evidence. The use of the word 'and' in Section 54 of the Act leaves no manner of doubt that the grounds of the belief required to be recorded related to both the aspects indicated above.
22. This Court while referring to the decision in K.L.Subbayya (supra) held that the authoritative declaration by the Hon'ble Apex Court that violation of the statutory requirement of recording the reasons of 18 belief regarding the commission of the offence will be fatal to the case of the prosecution. The Court held that Sections 53 ad 54 contain valuable safeguards for the liberty of the citizens in order to protect them from ill- founded and frivolous prosecution or harassment.
23. This Court specifically observed that the data furnished by the learned SPP about the success rate of the prosecution shocks the conscience of the Court for it shows that hundreds of prosecutions have failed only because of the flaw in the matter of recording grounds of belief under Section 54 of the Act. It is also observed that while Section 54 of the Act provides certain safeguards against malafide searches and consequent harassment of the innocent citizens, the unscrupulous engaged in violation of law should not escape on account of the inefficiency, indifference or neglect of the officers who are charged with the duty of conducting searches. Failure of the officers to correct 19 the harassment being committed repeatedly may even give raise to the inference that the officers concerned are not keen to prevent such illegal activities and are possibly a privy to the rampant violation of law.
24. Even though the above observation was made way back in the year 2004, the situation has not improved till today. In the present case, it is not the contention of the prosecution that the credible information was received regarding the contraband that is being transported in a vehicle but on the other hand, PW.5, who is a responsible officer received credible information while he was in the office and after receiving the credible information he secured the presence of pancha witnesses and proceeded to the spot along with his staff. But unfortunately he has not thought it fit either to obtain the warrant or at least to record the reasons for not obtaining the warrant, as required under law. Thereby legal requirements under Sections 20 53 and 54 of the Act were not at all complied with and there is no explanation for such non-compliance of the requirement.
25. It is pertinent to note that Rule 21 of The Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 (for short referred to as the 'Rules') refers to the cases where permit or license is not required to possess or transport certain quantities of liquors. Sl.No.5 in the table refers to the brandy or whiskey etc., manufactured in the State of Karnataka or manufactured in other places in India and imported to Karnataka State and the maximum quantity that could be possessed by a person without permit or licence as 4.6 litres. If a person is desirous of possessing the brandy or whiskey in excess of 4.6 litres, he has to get necessary permit or licence. In the present case, as per the case made out by the prosecution, several bottles and sachets containing liquors were seized by 21 the investigating officer as sample and these items were sent to the chemical examiner to know its contents and the total quantity of such seized bottles and sachets was only 3.69 litres. According to the case made out, accused Nos.1 to 12 were in possession of these contraband. The mahazar-Ex.P1 discloses that item No.1 seized as a sample was carried by one Shekhar alias Shaniyar Jettygouda, who is not an accused before the trial Court. Sample at item No.2 was said to have been in the possession of accused No.2, similarly item No.3 was in possession of accused Nos.3 and 6. Item No.4 with accused No.7, item No.5 with accused No.11 and item No.6 of the sample was carried by accused No.l2. Except these samples, the so called bulk contraband said to have been seized from the custody of these accused were never sent to FSL for examination as discussed above nor any attempt is made to prove that those bulk substance said to have been seized were also containing same or similar substance. What was 22 produced before the trial Court is only 3.690 litres which was sent to FSL for chemical examination and confirmed that the said bottles and sachets were containing liquor. The prosecution has not made it clear as to how the possession of 3.690 litres of whiskey or brandy constitute an offence in the light of Rule 21 of the Rules referred to above. To contend that these accused were in possession of bulk quantity of the contraband, the prosecution has not placed any material for verification by this Court. The investigating officer was so casual in his approach and proceeded to investigate the matter and filed the charge sheet without taking into consideration the requirement of law to be proved, to constitute an offence by the accused.
26. Ex.P2 is the report by the Regional Assistant Chemical Examiner, Government of Karnataka, Dharwad Region, who examined the above said six samples and submitted his report. As per this report, 23 the bottles and sachets in the sample were containing liquor to some extent as mentioned in the report which range from 28.63% to 43.15% v/v and only item Nos. 1 to 8 in sample No.1 was said to contain sedatives. Under such circumstances, the prosecution should have proved how the possession of the substance in question could be said to be illegal. When the chemical examiner has given a report stating that the substance was having alcohol to certain extent and only some items were having sedative substance, it cannot be held that the accused have committed the offence punishable under Section 34 of the Act. There is absolutely no explanation about these facts to be proved against the accused. This Court wayback in the year 1975 in Malayali Saroj Vs.State of Karnataka 5 held as under:
"6. The prosecution did not seek to establish that the liquid (alleged to be liquor) said to be found in 5 ILR 1975 (2) 1793 24 the possession of the Petitioner-accused was liquor-
manufactured in the Karnataka State or manufactured in other places in India and imported into the Karnataka State. Without any rational basis or foundation, a charge-sheet has been laid describing the liquid, possibly out of force of habit as 'I.D.Liqour'.
7. Under item 5 just mentioned above, the liquor that can be possessed without a permit or licence is 2.3 litres. In the instant case, each of the three bottles seized from the petitioner-accused contained, according to the prosecution itself 750 m.litres., totaling 2.25 litres, and falls short by 2.3 litres. The correctness of this calculation has been confirmed at the Bar.
8. On the two above points, which go to the very root of the case, the petitioner-accused is bound to succeed. The revision petition is allowed. Both the decisions of the Courts below regarding the sentence of imprisonment and fine are set aside. The fine paid, if any, by the petitioner- accused shall be refunded to her."
27. Again this Court in Sadanand Vs.State through Brahmpur P.S. in Criminal Appeal No.3610/2010 decided on 27.012015 reiterated the 25 position of law and the requirements to be proved to convict the accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act.
28. When the position of law is very well settled, and when there is no proof of compliance of such requirements of law, it has to be concluded that the investigation in the present case as well was conducted in a shabby manner and mechanically the charge sheet was came to be filed against the accused without placing required materials to constitute the offence and to convict the accused.
29. Even though it is the contention of the prosecution that accused Nos.1 to 12 have committed the offences, it is only accused Nos.1 to 3 who were apprehended at the spot and the names of the other accused were included subsequently on the basis of the information said to have been given by accused Nos.1 to
3. No test identification parade was held nor any 26 witness identified those accused Nos.4 to 12. Moreover, the independent panchas-PWs.1 and 2 have not supported the case of the prosecution for the reasons best know to them. Under such circumstances, it cannot be held that the prosecution is successful in proving the guilt of the accused beyond the reasonable doubt. The benefit of doubt always is to be given to the accused. Hence, the accused are entitled to the benefit of doubt and are to be acquitted.
30. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has proceeded to convict the accused only on the basis of the evidence deposed by PWs.3 and 5 and ignored the fact that the mandatory requirements as discussed above were not followed and there is no identification of accused other than accused Nos.1 to 3. Therefore, I am of the opinion that the impugned 27 judgment of conviction and order of sentence is liable to be set aside.
Hence, I proceed to pass the following:
ORDER Appeal is allowed.
The impugned judgment of conviction and order of sentence dated 14.03.2012 passed in S.C.No.7/2011 on the file of the learned District and Session Judge, Uttarka Kannada, Karwar convicting accused Nos.1 to 4 and 6 to 10 for the offence punishable under Section 34 of the Act, is set aside and these accused are acquitted for the offence punishable under Section 34 of the Excise Act.
The bail bounds executed by the accused and that of the sureties stand cancelled.
Fine amount if any deposited by the accused is ordered to be refunded, on due identification.28
Send back the trial Court records with copy of the judgment.
Sd/-
JUDGE Vb/-