Karnataka High Court
Sanju S/O Nagappa Kattimani vs The State Of Karnataka on 28 February, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28th DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION NO.2510 OF 2011
BETWEEN:
Sanju S/o Nagappa Kattimani,
Age: 21 Years, Occ: Agriculture,
R/o: Dharmapur Village,
Taluk and District Gulbarga. .. PETTIONER
(By Ashok.B.Mulage., Advocate)
AND:
The State of Karnataka through,
Special Excise and Lottery
Gulbarga. .. RESPONDENT
(By Shri S.S.Aspalli, Government Pleader)
This Criminal Revision Petition is filed under Section
397 read with Section 401 of the Code of Criminal Procedure,
1973, by the advocate for the petitioner praying to set aside the
judgment and order of sentence passed by the Principal JMFC.,
Court Gulbarga in C.C.No.1834/2010 dated 30.7.2010 and
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confirming the same by The I Additional Sessions Judge at
Gulbarga in Criminal Appeal No.55/2010 dated 2.12.2010 and
acquit the revision petitioner for the charges against him.
This petition coming on for hearing, this day, the court
made the following :-
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader.
2. The petitioner was the accused before the court below. It was the case of the prosecution that on 4.4.2010, at about 11.45 a.m., the petitioner was intercepted near Shahabad Cross, Gulbarga, within the limits of the said Police Station and he was found in illegal possession of 90 bottles of whisky of 180 m.l. quantity and 20 cans of Knockout strong beer and that he was transporting it on his two wheeler, without any licence. It is the case of the prosecution that on enquiry, he revealed that he had purchased the same from Sapna Bar and Restaurant and Wine Shop, Gulbarga. The complainant along with his staff and panchas visited the spot, and confirmed the above mentioned purchase but when the petitioner was asked to 3 produce the licence for such a quantity of liquor, he failed to do so. Therefore, he was arrested and a spot panchanama was conducted and materials were seized in the presence of panch witnesses and other witnesses accompanying the said Inspector of Police. Thereafter, the Head Constable had registered the case and prepared the First Information Report and sent the accused before the court. Thereafter, it transpires that the Police Sub-Inspector CW-1 had recorded the statement of the witnesses and received the opinion of the chemical examiner and thereafter filed the charge-sheet against the accused. The charges were framed against the accused, who pleaded not guilty and claimed to be tried. The prosecution examined five witnesses PWs 1 to 5 and marked four documents Exhibits P1 to P4 and also MOs 1 and 2. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.' for brevity), and after hearing the arguments of both the sides, on 4 the basis of the evidence, the court below had recorded the following points for consideration:
"1) Whether prosecution proves that on 4-4-
2010 at about 12-15 p.m. near Shahabad Cross, accused was found illegal possession of 90 bottles of U.S. whisky containing 180 m.l. each and 20 tins of Knockout strong tin beer without having any license and thereby accused has committed an offence punishable under Section 32 of Karnataka Excise Act?
2. Whether prosecution further proves that on the above said date, time and place, accused was found in illegal possession of the above mentioned liquor without holding any valid license in order to sell the same and it was transporting in two wheeler and thereby committed an offence punishable under Section 34 of Karnataka Excise Act?
3. Whether prosecution further proves that on the above said date, time and place, accused, knowing fully well that it is a noxious drink and 5 thereby committed an offence punishable under Section 273 of Indian Penal Code?
4. What Order?"
The Trial Court had held Points 1 and 2 in the affirmative and Point No.3 in the negative and convicted the accused to rigorous imprisonment for a term of one year for the offence punishable under Section 32 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the Excise Act' for brevity) and imposed a fine of Rs.10,000/- and also imposed simple imprisonment for a term of one year for the offence punishable under Section 34 of the Excise Act and to pay a fine of Rs.10,000/-. The same was challenged in appeal. The Appellate Court had affirmed the judgment of the Trial Court and dismissed the appeal. It is that which is under challenge in the present petition.6
3. The learned counsel for the petitioner has raised three points of law for consideration:
1) Whether PW-1 who was the complainant, could also investigate the case and tender evidence in support of the complaint?
2) Whether the panch witness who is said to be a stock panch witness, be cited in support of the panchanama that was drawn up in his presence?
3) Whether the purchase and transport of liquor by the petitioner even assuming that the prosecution had established its case, would amount to an offence?
4. Insofar as the first point is concerned, the learned counsel would submit that there are a line of cases holding that the complainant if has also investigated the case, it would be in violation of the principles of natural justice and the proceedings would stand vitiated.
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Further, the Special Police Station which was established of which PW-5 was the Police Sub-Inspector was newly established and therefore, it was the case of the petitioner that, PW-5 in order to satisfy his superiors of the effective functioning of the Police Station, wanted statistical support of the disposal of cases addressed and therefore, had concocted the case against the petitioner only for the purpose of the statistical record. This aspect of the matter has been suggested to PW-5 in his cross-examination and it is borne out by the conduct of PW-5 and therefore, the conduct of PW-5 is in violation of principles of natural justice, which would vitiate the proceedings. He would point out that in the present case on hand, there is no dispute that PW-5 was the complainant and he has also investigated the case and has tendered evidence before the court below and therefore, was keen to ensure that the complaint was sustained on the basis of his evidence, which would run counter to the settled legal position and therefore, 8 would submit that the proceedings would have to be set at naught on this ground alone.
He would then point out that insofar as the panch witness is concerned, one of the panch witness was one Dasharath. It has been elicited in cross-examination that he owned a tea stall next to the Police Station and that he regularly supplied tea to the Police Station. It is also elicited that he has acted as a panch witness in several cases. He was a stock witness employed by the police in most cases for their convenience. This is in violation of the law and certainly in support of the case of the petitioner that the entire prosecution is concocted. In this regard, he would point out that Section 100 sub-section (4) of the Cr.P.C. would lay down as follows:
"4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is 9 available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
This read with Section 165 of the Cr.P.C which provides for search by a police officer as in the present case on hand, as alleged by the police that the petitioner having been searched, he was found in possession of a large quantity of liquor, etc. Section 165(4) of the Cr.P.C. would make the provisions of Section 100 applicable to the said search and therefore, it is evident, that at the spot at which the petitioner was searched and the alleged liquor seized, was far away from the Police Station. The panch witness being present at the spot was at the instance of the police and he had been employed only to frame the petitioner in a concocted case and that it was not actually a search conducted at the spot where the witness from the locality had witnessed the search, as the place where the petitioner was allegedly intercepted and searched was a busy locality and it was at 11.45 a.m. Therefore, there were adequate number of 10 persons available in the vicinity who could have been called upon to act as the panch witness. Hence, this is the second ground on which the proceedings would stand vitiated, on the face of it.
Thirdly, the learned counsel would submit that the allegations against the petitioner are sought to be made as being offences punishable under Sections 32 and 34 of the Excise Act. From a reading of Section 32 or Section 34, the mere purchase or transport of liquor by the petitioner, would not constitute an offence under either of those sections. In the absence of any provision which renders the same illegal, the mere fact that he has purchased several bottles of whisky and several cans of beer, by itself would not be the commission of any offence for being prosecuted for an offence punishable under Sections 32 and 34, when the tenor of the sections would not apply with the alleged commission of the crime. It is these three points of law on which the learned counsel for the petitioner would rest his case. While incidentally seeking to 11 address the record to point out other infirmities which according to him may not be relevant if the petition should be allowed on the above three points of law.
5. Insofar as the contention that the complainant could not also act as the Investigating Officer, in State of U.P.vs. Mohammad Nooh (AIR 1958 SC 86), in the backdrop of the fact that the case against the respondent therein was that there was a letter which was alleged to have been forged and had been typed by one Shariful Hasan who was the typist attached to the office of the Superintendent of Police, Fatehpur and therefore, it was essential for the department to establish that the respondent was in friendly relations with Shariful Hasan who was said to have typed the letter. At a preliminary enquiry and in the presence of one B.N. Bhalla, one Mohammad Khalil, the Head Constable had spoken about Sariful Hasan being very friendly with the respondent. But while giving his evidence at the departmental trial the said Mohammad Khalil denied having 12 made any such statement. In the circumstances, it became necessary to contradict him by the testimony of Shri B.N. Bhalla in whose presence that witness had, on the previous occasion, stated that Shariful Hasan was very friendly with the respondent. Accordingly, Shri B.N. Bhalla had his testimony recorded by a Deputy Superintendent of Police. This was done at two stages, namely once before the charges were framed and again after the framing of the charges. The respondent's grievance is that Shri B.N. Bhalla, who had thus become a witness in the case, ought not to have further continued to act as the presiding officer and that his continuing to do so vitiated the trial and his order was a nullity. That Shri B.N. Bhalla had his own testimony recorded in the case is not denied. Indeed the appellant had filed an affidavit affirming that Shri B.N. Bhalla had acted in this fashion.
The Apex Court held that the salient facts being admitted, there was no escape from the conclusion that B.N. Bhalla should not have presided over the Trial any longer. The 13 point in issue was whether Shariful Hasan was in friendly relationship with the respondent. Mohammad Khalil had in his evidence at the trial denied having made any statement to this effect. Shri B.N. Bhalla gave evidence that Mohammad Khalil had in his presence admitted this friendship of Shariful Hasan with the respondent. Which of the two witnesses, Mohammad Khalil and Shri B.N. Bhalla, was to be believed was the duty of the person presiding over the trial to determine. Shri B.N. Bhalla was obviously most ill suited to undertake that task. Having pitted his evidence against that of Mohammad Khalil Shri B.N. Bhalla vacated the Judge's seat and entered the arena as a witness. The two roles could not obviously be played by one and the same person. Indeed Shri B.N. Bhalla himself realised it and accordingly had his own evidence recorded on both the occasions by other high officers. It is futile to expect that he could, in the circumstances, hold the scale even. It is suggested that there might have been other evidence establishing the friendship between Shariful Hasan and the 14 respondent and that the evidence of Shri B.N. Bhalla might not have been relied on or might not have been the deciding factor. There was nothing on the record to support that suggestion. But assuming that Shri B.N. Bhalla did not rely on his own evidence in preference to that of Mohammad Khalil - a fact which is hard to believe, especially in the face of his own affidavit filed in this regard. It would indubitably evidence a state of mind which clearly discloses considerable bias against the respondent. If it shocks the notions of judicial propriety and fair play, as indeed it did, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. Therefore, the Apex Court was in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri B.N. Bhalla continuing to preside over the trial. It was held that decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding. 15
In the case of Bhagwan Singh vs. The State of Rajasthan (AIR 1976 SC 985), the appellant had been prosecuted for violation of the provisions of the Rajasthan Foodgrains (Restrictions on Border Movements) Order, 1959. It was the case of the prosecution that one Head Constable and four other Police Constables when on patrol duty, they had noticed a buffalo cart being driven and it was loaded with six bags of gram and the appellant was sitting in the cart on the bags of gram. The Head Constable and his companions stopped the cart and checked it and found that it carried six bags of gram. The Head Constable asked the appellant to produce the permit for transport, but the appellant could not produce any such permit and hence, the appellant offered to pay him bribe. The Head Constable refused to accept the bribe whereupon he took out Rs.510/- currency notes and offered the same to the Head Constable. He declined to accept the bribe and seized the currency notes under the seizure memo, in the presence of other 16 four police constables. He also seized six bags of gram found on the cart. He then prepared a report and sent it to the Police Station. The bags were taken to the Police Station under a seizure memo and the Head Constable thereafter lodged a First Information Report in which he showed himself as the informant or complainant and the appellant, and thereafter he investigated the case. But, after some time, it came to his notice that he was not authorised to do so and he thereupon forwarded the papers to the Deputy Superintendent of Police, who in turn reinvestigated the case and ultimately filed a charge-sheet against the appellant. The common defence was that a permit was produced, but the Head Constable ignored it holding that it had no value, and asked the appellant to settle his 'Hisab Kitab', namely to pay bribe, whereupon the appellant had refused to do so, at which point of time, he was arrested and the bundle of notes carried by him were snatched from him. This incident was witnessed by two persons. The prosecution had examined the Head Constable Ram Singh and the four 17 police constables. No independent witness was examined on behalf of the prosecution. The Trial Court accepted the evidence led on behalf of the prosecution and the appellant was convicted. An appeal was preferred against the same to the High Court, and the High Court dismissed the appeal and hence, the appellant was before the Apex Court. The Apex Court found that several important circumstances had been overlooked, both by the Trial Court and the High Court and referred to what it found was a disturbing feature that Head Constable Ram Singh was a person to whom a bribe was alleged to have been made and he was the complainant who lodged the First Information Report. Therefore, the Apex Court wondered in those circumstances, the Head Constable could undertake investigation. He was an officer below the rank of a Deputy Superintendent of Police and he was not authorised to investigate the case and then again, not attached much importance to that fact. The infirmity which the Apex Court sought to point out was infirmity arising from investigation by a 18 Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information Report as informant or complainant. This is an infirmity which was bound to reflect on the credibility of the prosecution, especially since the entire case of the prosecution rested solely on the case of the Head Constable and the other constables and that there was no single independent witness and ultimately, acquitted the accused while finding other infirmities in the case as well.
In the case of Megha Singh vs. State of Haryana (1995 (4) Crl.LJ 3988) which was also a case where a Head Constable one Siri Chand had arrested the accused and on a search being conducted by him, a pistol and cartridges were recovered from the accused. It was on his complaint that a formal First Information Report was lodged. He being the complainant, the Apex Court had held, he could not have proceeded with the investigation of the case. But, it was seen that he was not only the complainant in the case, but he carried on with the 19 investigation and examined witnesses under Section 161 of the Cr.P.C. The Apex Court held that such practice should not be resorted to, so that there may not be occasion to suspect fair and impartial investigation and accordingly, allowed the appeal and set-aside the conviction.
However, in the case of State, Represented by Inspector of Police, Vigilance & Anti-Corruption, Tiruchirapalli, T.N. vs. V. Jayapaul ((2004) 5 SCC 223), a word of caution was sounded insofar as holding that the moment the competent police officer makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it would not be proper to lay down a broad and unqualified proposition in the manner and that whenever a Police Officer proceeds to investigate after registering the F.I.R. on his own, the investigation would 20 necessarily be unfair or biased. This was laid down while referring to Bhagwan Singh (supra) and Megha Singh (supra) and has commented upon the correctness of those decisions.
In the case of Bhaskar Ramappa Madar and Others vs. State of Karnataka ((2009) ACR 542)), again while referring to Bhagwan Singh and Mehha Singh, the Apex Court has held that the decisions insofar as the desirability of the complainant undertaking investigation is concerned, it was held that there was no legal bar and the ratio laid down in the above cases would have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation that it would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on a case to case basis without any universal generalization. This has been reiterated in subsequent decisions of this Court as well.
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6. While the learned Government Pleader would vehemently oppose the petition and would submit that there are concurrent findings of fact against the petitioner, both by the Trial Court and the Appellate Court, there is limited scope for addressing the findings of the courts below. Insofar as the purported questions of law raised by the petitioner are concerned, the proposition put forward that a complainant cannot act as the Investigating Officer and that it would violate the principles of natural justice, is not a rigid rule as laid down by the Apex Court in the case of Bhaskar Ramappa Madar vs. State of Karnataka ((2009) ACR 542)). There cannot be a generalised rule that there is no legal bar and the decision in Bhagwan Singh vs. The State of Rajasthan (AIR 1976 SC 985) and 1996 (1) SCC 709 would have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same make the prosecution 22 version vulnerable and that the matter has to be decided on case to case basis, without any universal generalisation.
Therefore, the learned Government Pleader would submit that if the present case on hand is decided on the principle of whether or not there was bias, the evidence of the complainant if perused dispassionately, it is evident that he has spoken of events as evident from material on record and which have been established by cogent corroboration of other material produced before the court. Therefore, it cannot be said that there is any prejudice caused on account of the complainant himself having investigated the case.
Insofar as the second contention that the panch witness Dasharath was a stock panch witness and the veracity of the said witness cannot be accepted, is again a suggestion which is not tenable. From a reading of sub-section (4) of Section 100, it is evident that generally the inhabitant of a locality in which the search is carried out should be called upon to witness the search. But however, it is also provided therein that if no such 23 inhabitant of the said locality is available or is willing to be a witness to the search, the officer may order such person to attend and witness the search. Since at 11.45 a.m., the chance of people not being ready to act as a panch witness was more and this leading to delay was a circumstance which had to be taken into account in carrying out the raid and interception of the petitioner and as a matter of abundant caution, the said panch witness having accompanied the police party to the spot, cannot be said to be illegal or impermissible. The said witness was admittedly running a tea stall next to the Police Station and was a reliable independent witness who has in more than one case, acted as a panch witness. That again is not prohibited in law, as long as the veracity of the said witness would stand the test of scrutiny by the Court.
It is also pointed out that the schedule prescribes a maximum quantity of liquor that can be carried without a licence and as per the schedule, the petitioner was found to be 24 carrying a large quantity, beyond the prescribed limit and therefore, required a licence.
In the present case on hand, the said witness has been cross-examined at length and he has withstood the test of cross- examination and the court has been satisfied of his veracity. Hence, the said ground would also not be available to the petitioner. Thirdly, insofar as the contention that there is no offence committed by the petitioner as he had purchased liquor as it would be evident that if he purchased and he was transporting liquor, there is no law prohibiting the same, is incorrect. Firstly, it is contended that the charges were in respect of offences punishable under Sections 32 and 34 of the Excise Act. This has been upheld by the courts below. Therefore, the question of considering whether there was any other evidence for which the petitioner was punishable, is irrelevant. In any event, the suggestion that the purchase and transport of liquor is not illegal, is incorrect. The State has prescribed by notification, the quantity of liquor that can be 25 purchased and the quantity of liquor that can be transported in terms of Section 11 and in terms of Section 14 of the Excise Act. If it is found that a person has purchased and is transporting liquor beyond a prescribed limit without a valid licence, he was liable for punishment. Therefore, the petitioner is incorrect in his submission that there is no law against purchase of large quantity of liquor and transporting of the same. Hence, he would submit that the so-called points raised are not tenable and the petition ought to be dismissed.
7. Given the facts and circumstances of the case, the question whether the informant - complainant also acting as the Investigating Officer in the present case on hand, would be independently viewed to ascertain whether there was bias caused to the petitioner in the case having been brought against him and the petitioner being required to defend himself. The complainant has, in the complaint, as well as in his evidence as PW-5, indicated that he received credible information that a 26 person was carrying a large quantity of liquor purchased from Sapna Bar and Restaurant and Wine Shop. If this was the only information that he received, it is not known as to how he could have been intercepted at the place where he was said to have been intercepted without knowing the direction which he was taking, when he could have taken any route anywhere. It was apparently a coincidence that he was intercepted not at the place he was said to have purchased the liquor, but at a place away from the said Bar and Restaurant and of the several people who would be moving on the road the petitioner having been identified and having been stopped for being searched, is a coincidence which straightaway strikes one as not being the natural sequence of any such information being received and the police promptly moving in to intercept an unknown person without knowing the direction that he may be moving and to pick up such a person from the volume of traffic that may be flowing at that point of time. That is one circumstance. The second circumstance that though it is claimed that 90 bottles of 27 180 m.l. quantity of whisky were found in the possession of the petitioner apart from 20 cans of beer, what is seized and what is produced at the trial is one bottle of whisky and one can of beer. The prosecution has not thought it fit to seize the entire quantity which was being carried by one man in one bag. There was no difficulty in the entire quantity having been seized and marked as the material objects. This is the other striking feature. There is no explanation as to what happened to the rest of the material that was seized.
The other circumstance was that there was no denial of the fact that the Police Station in question had been established newly and there was a strong possibility of eagerness of the concerned Police Sub-Inspector to record a high turnout of cases and this in fact was a suggestion made to the witness in his cross-examination though he has denied the same. The manner in which the case has been registered and prosecuted, where the complainant himself is the Investigating Officer and 28 the manner in which he claims to have intercepted the petitioner and seized the liquor, would indicate that there was a certain element of bias where the complainant was certainly eager to have to the credit of the Police Station, a case that was successfully prosecuted and the petitioner being brought to book. This possibility cannot be entirely ruled out. Therefore, viewed in that light, the question whether there was bias involved, would have to be answered in the affirmative, as it was certainly in the interest of PW-5, the complainant to ensure a successful rate of conviction brought about by registration and prosecution of offenders.
Insofar as the second point that is raised for consideration is that the search conducted of the petitioner and the seizure panchanama drawn up in the presence of PW-2 Dasharath when admittedly, PW-2 had accompanied the Police Sub-Inspector and his squad from the Police Station, would indicate that PW- 5, the Police Sub-Inspector was acting with pre-meditation and not in anticipation of apprehending the petitioner. The 29 contention that he was a stock panch witness in the veracity of the said witness, ought to be viewed with circumspection, is also significant in the light of the tenor of Section 100 and Section 165 of the Cr.P.C. which required that the presence of a panch witness is expected to be spontaneous and such a witness must be from the inhabitants of the locality, as laid down in order to ensure the impartiality of the search and investigation that is carried on. The panch witness accompanying the police party beforehand, therefore, cannot be treated as the usual course which cannot be expected of the manner in which a search is carried out and made when the police are embarking on the basis of information received which may or may not be found to be true and accurate. The interpretation sought to be placed on the scope of Section 165 by the learned Government Pleader that it is not impermissible for a witness to be drawn from some other locality, ought not to be understood as enabling the police to routinely utilise the service of a stock panch witness who is conveniently available to the police and 30 who has an interest in ensuring that he has continued business from the Police Station, as in the instant case, the said panch witness was the owner of a tea stall and had his place of business next to the Police Station and was supplying tea to the Police Station. This is yet another circumstance which fortifies the bias that is apparent in the case having been registered against the petitioner and the possibility of a false case having been instituted.
Insofar as the third point for consideration is concerned, on the face of which such a contention is not tenable. Sections 32 and 34 prescribes punishment for violation of any of the provisions of the Act, Rule, Regulation or notification and if the petitioner was found to be in possession of liquor beyond the prescribed limit which is again brought to the attention of the court by the learned Government Pleader as having been notified and appended as a schedule to the Act and if the same was being transported without a licence, the same would be an offence punishable under Sections 32 and 34, is not a 31 proposition that can be advanced. In any event, it would not be relevant insofar as this Court is of the opinion that the trial was vitiated on account of the complainant also having investigated the case and the manner in which the same has been conducted and the evidence that is sought to be tendered in support of the said allegations. The trial is also vitiated insofar as the seizure that is said to have been made, would also be vitiated on account of the role played by PW-2 and the admitted circumstance that he was a stock panch witness.
In the light of the above reasoning, the courts below were not justified in holding that the prosecution had established its case against the petitioner, beyond all reasonable doubt. Consequently, the petition is allowed and the judgments of the court below are set-aside and the petitioner is acquitted. The fine amount paid if any, shall be refunded to the petitioner.
Sd/-
JUDGE KS