Karnataka High Court
Sri. Shivarudra S/O. Sangappa Hunnur vs The State Of Karnataka on 10 January, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.101144/2018
BETWEEN:
1. SRI SHIVARUDRA
S/O; SANGAPPA HUNNUR
AGED ABOUT: 19 YEARS,
OCC: AGRICULTURE,
2. SRI GIRIMALLA
S/O: BHIMAPPA BIRADAR
AGED ABOUT: 24 YEARS,
OCC: AGRICULTURE,
BOTH R/AT: SHURPALLI,
TQ: JAMKHANDI, DIST: BAGALKOT.
...PETITIONERS
(BY SRI. MRUTYANJAY TATA BANGI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY ITS ASST. POLICE SUB-INSPECTOR
AIGALI TOWN POLICE STATION
AIGALI, DIST: BELAGAVI.
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
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THIS PETITION IS FILED UNDER SECTION UNDER
SECTION 482 OF CR.P.C., SEEKING TO QUASH THE
PROCEEDINGS INIITATED AGAINST THE PETITIONERS FOR THE
OFFENCE UNDER SECTION 328 OF IPC IN S.C.NO.163/2018 ON
THE FILE OF VII ADDL. DISTRICT AND SESSIONS JUDGE,
SITTING AT CHIKKODI AT BELAGAVI.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
I have heard the learned counsel appearing for the petitioners and the learned Addl. SPP for the respondent-state.
2. The factual matrix of the case is that Inspector of Police Aigali police station in Athani Taluka, Dist:
Belavagi, lodged a complaint before the Station House in Athani Taluka of Belagavi District, alleging that on 20.03.2016 at about 17.00 hours received a credible information that two persons are transporting toddy on a motorcycle and when intercepted the vehicle at about 17.45 hours with regard to residential address of the persons on the motor cycle and when no proper reply was received and on enquiry, the two riders introduced themselves as the petitioners and further enquiry as to 3 the transportation of the toddy, it was informed by the riders that they were transporting Toddy to their village and on enquiry as to whether the petitioners had any license or permit to transport the liquor, the petitioners replied as having no license and the same was seized 100 ml sample was sealed in a separate pouch. Hence, Section 328 of IPC and Sections 32 and 34 of Indian Excise Act, was invoked against the petitioners.
3. The petitioners in this petition has contended that there is no any prima facie material to invoke Section 328 of IPC. which contemplated of an offence of causing hurt by means of poison with an intent to commit an offence by using poison or any intoxicating or unwholesome drug or other thing with intent to cause hurt to such person and in the absence of any such material the police have invoked Section 328 of IPC and the substance alleged to have been seized toddy also contains only 8% alcohol content which is far below the consumable liquor marketed by the Government itself 4 and hence alleging an offence under Section under Section 328 of IPC is branding the same to be poisonous amounts to abuse of process of law. Hence, this Court to invoke Section 482 of Cr.P.C. to quash the proceedings insofar as invoking Section 328 of IPC in S.C.No.163/2018 on the file of the VII Addl. District and Sessions Judge, sitting at Chikkodi at Belagavi.
4. Learned counsel for the petitioners in his arguments has reiterated the grounds urged in the petition and further contended that there are no materials to invoke Section 328 of IPC and proceedings against the petitioner for the offence under Section 328 of IPC is contrary to law and nothing but abuse of process.
5. Per contra, learned Addl. SPP appearing for the respondent state in his arguments contends that the quantity of toddy was seized 20 litres and sample was collected and subjected to Laboratory examination and 5 the same found 8% of alcohol and there are no grounds to entertain the petition.
6. Having heard the arguments of the learned counsel for the petitioner and learned Addl. SPP for respondent, the point that arises whether this Court can exercise the powers under Section 482 Cr.P.C.
7. On considering the factual matrix of the case is that the accused persons were carrying toddy and allegation is that it was 20 litres and case has been registered for the offence under Section 328 of IPC and Sections 32 and 34 of Excise Act. It is rightly pointed out by the learned counsel that there must be a poisonous substance causing hurt with an intent to commit an offence and toddy is not poisonous substance on reading of Section 328 of IPC. It is clear that whoever administers or causes to be taken by any person by using poison or any intoxicating or unwholesome drug or other thing with intent to cause 6 hurt to such person or with intent to commit an offence to cause hurt or to facilitate the commission of an offence are going to be likely that he will thereby cause hurt shall be punished with imprisonment of description for a term which may extend to 10 years and shall also be liable to be quashed.
8. For having considered penal provision of Section 328 of IPC and also substance which was seized by the police, i.e., toddy and in order to invoke Section 328 of IPC there is no any such allegation of administering of poisonous substance of any person and in the case on hand the accused persons were allegedly carrying 20 litres of toddy and when such being the case, it is nothing but an abuse of process for invoking Section 328 of IPC against the petitioners and there are no material to constitute an offence under Section 328 of IPC.
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9. Under the circumstance, there is a force in the contention of the learned counsel for the petitioners that no material to invoke Section 328 of IPC against the petitioners is nothing but abuse of process which amounts to miscarriage of justice and the petitioners' counsel fairly submits that invoking of Sections 32 and 34, he has no any grouse.
10. In view of the discussions made above, I proceed to pass the following:
ORDER The petition is allowed.
The proceedings initiated against the petitioners for the offence under section 328 of IPC is hereby quashed.
Sd/-
JUDGE msr