Karnataka High Court
Arun S/O Basappa Surve vs The State Of Karnataka on 1 December, 2022
-1-
CRL.RP No. 100051 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 100051 OF 2017
BETWEEN:
1. ARUN S/O BASAPPA SURVE,
AGE: 25 YEARS, OCC: NIL,
R/O: AREMALLAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI.
2. RAVIKUMAR S/O MALLESHAPPA
R/O: AREMALLAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI.
...PETITIONERS
(BY SRI K. M. SHIRALLI, ADVOCATE)
Digitally
signed by
SUJATA
SUBHASH
PAMMAR AND:
THE STATE OF KARNATAKA
BY PSI, OF EXCISE RANEBENNUR DIVISION
TQ: RANEBENNUR,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
-2-
CRL.RP No. 100051 of 2017
...RESPONDENT
(BY SRI V. M. BANAKAR, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SEC.401 OF CR.P.C., PRAYING TO CALL FOR
RECORDS IN C.C. NO.666/2008 ON THE FILE OF THE HON'BLE
PRINCIPAL CIVIL JUDGE AND I ADDL. JMFC COURT
RANEBENNUR AND RECORDS IN CRIMINAL APPEAL
NO.58/2011, FROM THE FILE OF THE HON'BLE II ADDL.
DISTRICT AND SESSIONS JUDGE, HAVERI SITTING AT
RANEBENNUR AND SET-ASIDE THE JUDGMENT DATED
15/10/2011 PASSED IN C.C. NO.666/2008 BY THE HON'BLE
PRINCIPAL CIVIL JUDGE AND I ADDL. JMFC COURT
RANEBENNUR, CONVICTING AND SENTENCING THE
PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 11, 14, 32, 33 OF KARNATAKA EXCISE ACT AND
SET-ASIDE THE JUDGMENT AND ORDER DATED 11/07/2016
PASSED IN CRIMINAL APPEAL NO.58/2011 BY THE HON'BLE II
ADDL. DISTRICT AND SESSIONS JUDGE HAVERI SITTING AT
RANEBENNUR, CONFIRMING THE JUDGMENT OF CONVICTION
OF THE TRIAL COURT AND ACQUIT, THE PETITIONERS FOR
THE OFFENCES WITH WHICH THEY HAVE BEEN CONVICTED
AND SENTENCED BY THE TRIAL COURT.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
-3-
CRL.RP No. 100051 of 2017
ORDER
This Criminal Revision Petition is filed under Section 397 R/w 401 of Cr.P.C. to set aside the judgment passed by the II Additional District and Sessions Judge, Haveri sitting at Ranebennur and set aside the judgment dated 15.10.2011 passed in CC No.666/2008 by Principal Civil Judge and I Additional JMFC., Ranebennur, convicting and sentencing the petitioners for the offences punishable under Sections 11 & 14, under Sections 32, 33 of Karnataka Excise Act and acquitted the accused.
2. The parties are referred to as per their rank before the Trial Court.
3. Heard Sri K. M. Shiralli, learned counsel for the petitioners and Sri V. M. Banakar, Additional SPP for respondent.
4. The case of the prosecution is that on 10.05.2008 at about 10.00 a.m. when the Excise Sub- Inspector, Taluka Tahashildar, Election Inspector, the staff -4- CRL.RP No. 100051 of 2017 and panchas under the supervision of Excise Sub- Inspection raided the field of Ramachandrappa Basappa Pawar at Aremallapura Village, all the three accused were found in possession of 10 plastic cans of 35 Ltr capacity containing a total of 350 Ltrs spirit, one 180 ml bottle essence, 6 bags containing 200 empty bottles each of 180 ml totaling to 1200 empty bottles. The accused have not satisfactorily accounted for the above said articles. Thus the accused have committed the offences punishable under Sections 11 & 14 punishable under Sections 32, 33 of Karnataka Excise Act.
5. After taking cognizance, the case was registered against the petitioners-accused for the commission of offences punishable under Sections 11 & 14 and under Sections 32 & 33 of Karnataka Excise Act in C.C. No.666/2008. In pursuance of the summons, the accused was present before the Court and charges were framed against the accused for the alleged commission of offences. The substance of plea is recorded under Section -5- CRL.RP No. 100051 of 2017 251 of Cr.P.C., having understood the same, the accused has pleaded not guilty and claimed to be tried.
6. To prove the case of the prosecution, only 3 witnesses have been examined as PW1 to PW3, 6 documents were got marked as Ex.P1 to Ex.P6 and sample bottles marked as MO.1. On closer of prosecution side evidence, the above statement under Section 313 of the Cr.P.C. was recorded, accused has totally denied the evidence of prosecution witnesses and claimed to be tried, but they have not chosen to lead any defense evidence on their behalf.
7. On hearing the arguments, the Trial Court has convicted the accused for the alleged commission of offences punishable under Sections 11 and 14 punishable under Sections 32 and 33 of Karnataka Excise Act and passed the sentence.
8. Being aggrieved by this judgment of conviction and order of sentence passed by the Trial Court, the -6- CRL.RP No. 100051 of 2017 accused have preferred an appeal before the II Additional District and Sessions Judge, at Haveri (setting at Ranebennur) in Crl.A.No.58/2011, same came to be dismissed on 11.07.2016. Being aggrieved and dissatisfied by the impugned judgment passed by the Courts below, this revision petition is filed.
9. Sri K. M. Shiralli, learned counsel for the petitioners has submitted his argument that, Courts below have committed an error in accepting the evidence of official witnesses in respect of the offences punishable under Sections 33 and 34 of the Karnataka Excise Act. The investigation officer has not complied with the mandatory provisions of Sections 53 and 54 of the Karnataka Excise Act. The investigating officer has not submitted the report of seizure to the concerned authorities. PW.2-Vithoba Tulajappa Pawar said to be the attestor to the spot mahazar has not supported to the case of the prosecution. PW1 and PW3 are the Excise officials. The evidences of PW1 and PW2 have not been substantiated with the -7- CRL.RP No. 100051 of 2017 independent witnesses. Courts below have failed to appreciate the evidence on record in accordance with law and facts and on all these grounds, sought to allow this revision petition.
10. As against this, Sri V. M. Banakar, learned Additional SPP has submitted his argument that, both Courts below have properly appreciated the evidence on record and passed the impugned judgments, there are no grounds to interfere with the impugned judgments and on all these grounds, sought for dismissal of this revision petition.
11. It is well settled by the Hon'ble Apex Court in various judgments that, the concurrent findings of both the Courts below shall not be interfered with normally, unless injustice is caused to the parties and an error committed by the Appellate Court can be rectified in revision under provision of Section 397 of Cr.P.C. -8- CRL.RP No. 100051 of 2017
12. By keeping aforesaid law in mind, coming to the case of the prosecution, it reveals that on receipt of the credible information, PW1 and PW3 and other staffs with panchas went to the field of Ramachandrappa Basappa Pawar of Mallapura, on seeing them, the accused started running, they were chased and caught and found 10 plastic cans which contains 35 liters of liquor on each can. On enquiry, the accused have failed to produce valid license for having possession of the same. Then they have conducted the mahazar as per Ex.P1 and seized the 10 cans with bottles and also they have taken 180ml liquor of each bottle for chemical examination in presence of panchas. The chemical examination report is marked as Ex.P5 .
13. A careful scrutiny of the evidence placed before this Court, it is crystal clear that the investigation officer has not complied the mandatory provisions of Section 53 and 54 of Karnataka Excise Act.
-9-CRL.RP No. 100051 of 2017
14. In this regard, I have relied on the judgment of the Hon'ble Apex Court reported in the case of K.L. Subbayya Vs. State of Karnataka reported in 1979 (2) SCC 115. The Hon'ble Apex Court has observed in the said case as under:
" 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 to 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.
This, therefore, renders the entire search without jurisdiction and as a logical corollary, 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 harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of section 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 research completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the
- 10 -CRL.RP No. 100051 of 2017
appellant is set aside and he is acquitted of the charges framed against him."
15. According to the case of the prosecution the investigating officer has seized 10 cans of liquor containing 30 litters each and also the 1200 empty bottles 6 manure bags. But, the same is not produced before the Jurisdictional Magistrate for necessary orders for retaining or disposal of the property as required under Section 102 of Cr.P.C. The investigating officer has also not submitted the seizure report to the concerned Excise Authorities as required under Section 43A of the Karnataka Excise Act, 1965. The Investigating Officer has not offered any explanation as to non-compliance of aforesaid offences.
16. Apart from this the Investigating Officer has not produced any documents to show that they have seized these properties in the land of accused Ramachandrappa Basappa Pawar. The accused has specifically denied the same. Even the Investigating Officer has not disclosed the survey number of this land. The RTO extract of this land is
- 11 -
CRL.RP No. 100051 of 2017 also not produced. The evidence of PW1 and PW3 has not been substantiated by any independent witnesses. One of the panch witnesses PW2 has not supported the case of the prosecution. Though the instigating officer has not complied with the aforesaid relevant mandatory provisions of the Karnataka Excise Act and Rules and also Code of Criminal Procedure and the decision of the Hon'ble Apex Court, the Courts below have convicted the accused for the alleged commission of offences which are not sustainable under law.
17. Accordingly, I am of the considered opinion that the impugned judgments requires to be set aside. Hence, I proceed to pass the following:
ORDER
a) The Criminal Revision Petition is allowed.
b) The judgment of conviction and order of sentence passed by the Trial Court under Sections 11 & 14 punishable under Sections 32, 33 of Karnataka Excise Act in CC
- 12 -CRL.RP No. 100051 of 2017
No.666/2008 dated 15.10.2011 which is upheld by the Appellate Court in Crl.A.No.58/2011 dated 11.06.2016 are set aside. The revision petitioners are acquitted from the alleged commission of offences punishable under Sections 11 & 14 punishable under Sections 32, 33 of Karnataka Excise Act. The bail bond of the accused shall stand cancelled.
d) The fine amount, if any, deposited by the petitioners is ordered to be refunded to them after due identification.
e) Send back the Trial Court Records along with a copy of this order to the Trial Court.
Sd/-
JUDGE SSP List No.: 1 Sl No.: 20