Karnataka High Court
Mr.Babu Naika vs The State Of Karnataka on 9 March, 2020
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO.52 OF 2014
Between:
1. Mr. Babu Naika
S/o Annu Naika
Aged about 33 years
R/at Kalpane House
Kodiyala Village
Sullia Taluk D.K. - 574201.
2. Mr. Praveena
S/o Subbayya Gowda
Aged about 33 years
R/at Nidyala House
Punacha Village
Bantwala Taluk
D.K. - 574217.
3. Mr. Manoj Poojary
S/o Late Narayana Poojary
Aged about 34 years
R/at Nelyadka House
Aryapu Village, Post Sampya
Puttur Taluk D.K.-574201.
4. Mr. Krishna Naika
S/o Ithu Naika
Aged about 34 years
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R/at Bellur, Kinninowehar Village
Via Mulleriya
Kasargod Taluk and
District - 600218.
... Petitioners
(By Smt. Haleema Ameen - Advocate for
Sri Vishwajith Shetty .S - Advocate)
And:
The State of Karnataka
Represented by State Public Prosecutor
High Court Buildings
Bangalore - 560 001.
... Respondent
(By Smt. Yashodha .K.P. - HCGP)
******
This Criminal Revision Petition is filed under
Section 397 of the Code of Criminal Procedure, praying
to, set aside the judgment and order of conviction dated
23.10.2010 passed by the Addl. C.J., and J.M.F.C.,
Puttur, D.K., in C.C.No.488/2007 and the Judgment
and order dated 19.10.2013 passed by the V Addl.,
District and Sessions Judge, D.K., Mangalore sitting at
Puttur, D.K., in Crl.A.158/2010 and acquit them of the
offences with which they were convicted.
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This Criminal Revision Petition coming on for
Hearing, this day, the Court made the following:
ORDER
This petition is filed by the petitioners / accused seeking for a direction to set aside the order dated 19.10.2013 passed by the V Additional Civil Judge & JMFC, Puttur, D.K. in Crl.A.No.105/2013 dismissing the appeal and thereby confirming the judgment of conviction and order of sentence dated 23.10.2010 passed by the Addl. Civil Judge & JMFC, Puttur, D.K. in C.C.No.488/2007. By the said judgment, the Trial Court has convicted the appellants under Sections 32 and 34 of the Karnataka Excise Act and has sentenced them to undergo rigorous imprisonment of one year and to pay a fine of Rs.1,000/- each for the offence punishable under Section 32 of the Karnataka Excise Act and has further sentenced them to undergo simple imprisonment of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 34 4 of the Karnataka Excise Act, which has been confirmed by the Appellate Court.
2. Heard the learned counsel Smt. Haleema Ameen for the petitioners / accused and Smt. Yashodha K.P., learned HCGP for the State and perused the records.
3. It is the case of the prosecution that when the respondent - police were on patrol duty, on 30.10.2005 at about 8.00 a.m. at Arlapadavu of Panaje village, Puttur Taluk, they found petitioner no.1 in possession of 1 polythene bag containing 305 arrack sachets of 100 ml. each in his scooter bearing Regn.No.KA-21/J-386. Further, they found petitioner nos.2 to 4 in possession of 16 polythene bags containing 4,280 arrack sachets of 100 ml. each in a jeep bearing Regn.No.KA-14/B-7506. Any of the petitioners were not having any licence or permit to transport the said liquor. Hence, the entire 5 liquor found in possession of Petitioner Nos.1 to 4 as well as their vehicles were seized by the police and further they had also apprehended petitioners 1 to 3. However, petitioner no.4 had escaped from the spot. Out of the seized sachets, 5 arrack sachets were sent for chemical examination.
Thereafter, PW-1 PSI of Puttur Rural Police registered a case in Cr.No.123/2005 for offences under Sections 32 and 34 of the Karnataka Excise Act. The major part of the investigation has been done by PW-1. Subsequent to registration of the crime, seizure mahazar was conducted as per Exhibit P2 in the presence of PW-4 and PW-5 and subsequently the case was transferred to the Excise Department, Puttur. Thereafter, the Sub-Inspector of Excise, Puttur /PW7 being the Investigating Officer after completion of investigation filed the charge-sheet against the accused / petitioners herein for offences punishable under Sections 32 and 34 of the Karnataka Excise Act. The 6 same was registered in C.C.No.488/2007 on the file of the Addl. Civil Judge & JMFC, Puttur. Charges were framed against the accused wherein the accused pleaded not guilty and claimed to be tried. Thereafter the prosecution proceeded to examine the witnesses cited in the charge-sheet. Accordingly, seven witnesses were examined as PW-1 to PW-7 and documents at Exhibits P1 to P8 and material objections at MO-1 to MO-17 were got marked. Subsequently, the incriminating statements in the evidence of the prosecution were examined as contemplated under Section 313 Cr.P.C., whereby the accused has denied the truth of the prosecution evidence adduced so far. Subsequently, accused did not come forward to adduce any defence evidence and also did not get marked any documents on their part. Subsequently, the Trial Court in C.C.No.488/2007 heard the arguments advanced by the prosecution and so also the counsel for the defence and convicted the accused under Sections 32 and 34 of 7 the Karnataka Excise Act and sentenced them as aforesaid.
The said judgment in C.C.No.488/2007 was taken up in appeal before the First Appellate Court in Crl.A.No.158/2010, which came to be dismissed as on 19.10.2013 thus confirming the judgment passed by the Trial Court. It is these judgments which are under challenge in this revision petition seeking to allow the petition and thereby set aside the orders of the Trial Court as well as the First Appellate Court.
4. Learned counsel Smt. Haleema Ameen appearing for the petitioners / accused contends that the courts below have failed to properly appreciate the evidence on record and the entire approach of the courts below into the matter in dispute is erroneous in law and they have gravely erred in convicting the 8 petitioners for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act.
5. The primary contention advanced by the learned counsel is that the police have not followed the mandatory provisions under Sections 53 and 54 of the Karnataka Excise Act, 1965. In that, it is contended that the respondent - police have no jurisdiction to search any vehicle and seize any article from the vehicle without a warrant from the Magistrate. PW-1 has not stated the reason as to why he could not take the warrant as contemplated under Section 53 of Excise Act. The charge sheet papers disclose that the police officer has intercepted the vehicles and seized the sachets and vehicles, but there is no material forthcoming to state that he has made all efforts to secure the necessary warrant but he was unable to secure the warrant, and therefore, by exercising the powers under Section 54 of Excise Act he has searched 9 the vehicle. In the absence of the same, it cannot be said that the search and seizure is legal and valid. In support of her contention, she has relied on a judgment of the Apex Court in the case of K.L. SUBHAYYA vs. STATE OF KARNATAKA (AIR 1979 SC 711).
It is her further contention that the seizure of arrack sachets from the possession of the petitioners has not been established by the prosecution, since the mahazar witnesses PW-4 / Ravindra Rai and PW-5 / Babu P have turned hostile and have not supported the case of the prosecution. In that, it is contended that PW4 and PW5 who were the panch witnesses in whose presence Exhibit P1 Seizure mahazar was conducted, did not support the case of the prosecution in respect of the fulcrum of Exhibit P1 seizure Mahazar.
It is the further contention of the learned counsel that the prosecution has not examined the Chemical Examiner who examined the contents of the sachets 10 and issued the chemical analysis report as per Exhibit P6. Hence, she contents that non-examination of the analyst is fatal to the case of the prosecution.
It is nextly contended that though PWs 4 and 5 were cited as eye-witnesses to the seizure mahazar, both of them have turned hostile and have not supported the case of the prosecution. Hence, the Trial Court has convicted the petitioners only based on the evidence of witnesses PWs 1 to 3 and 7. Further, the place of seizure having shops and houses, it is contended that the presence of local witnesses is imminent and hence, without examining any of the local witnesses, the prosecution has proceeded to examine PWs 1 to 3 and 7, official witnesses, who are all interested witnesses. All of them being interested witnesses to the case of the prosecution, the Trial Court should not have placed much credence on the evidence of the said witnesses.
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PW-1 being the complainant is an interested witness and his evidence ought not to be believed unless the same is corroborated by the evidence of the eye-witnesses. But however, when the other eye- witnesses have not supported the case of the prosecution, the conviction held by the Trial Court is bad in law. Hence, it is contended that the prosecution has failed to place cogent, reliable and acceptable evidence before the courts. The evidence of the prosecution witnesses being full of contradictions, omissions and improvements, the Trial Court as well as the Appellate Court ought to have acquitted the petitioners of the alleged offences.
6. Therefore, on all these grounds, the learned counsel prays that this criminal revision petition be allowed and the order passed by the Trial Court convicting the appellants for the offences under Sections 32 and 34 of the Karnataka Excise Act and 12 sentencing them as aforesaid, as well as the order passed by the Appellate Court confirming the judgment of conviction and sentence be set aside and consequently the petitioners / accused be acquitted of the alleged offences.
7. Per contra, learned HCGP for the State contends that only on receipt of credible information that the accused were transporting liquor illegally, the search was conducted wherein it was found that petitioner no.1 was in possession of 305 arrack sachets of 100 ml. each in a two-wheeler and petitioner nos.2 to 4 were in possession of 4,280 arrack sachets of 100 ml. each in a jeep. On sending the sample of the sachets for chemical examination, it was found that the sachets contained alcohol. Any of the petitioners did not possess licence or permit to transport the said liquor. 13
It is her further contention that the evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence requires that the evidence of the police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated and mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. In support of the said contention, she has placed reliance on a judgment of the Apex Court in the case of BALDEV SINGH vs. STATE OF HARYANA (2015 AIR SCW 6174).
Hence, learned HCGP contends that the Trial Court, on a proper appreciation of the evidence as well as the material on record, has rightly convicted the accused / petitioners herein, which judgment has also been affirmed by the Appellate Court and hence both 14 the judgments of the Trial court as well as the Appellate Court do no call for interference in this revision petition. Hence she prays for dismissal of the petition and thereby to confirm the conviction and sentence rendered by the Trial Court which has been confirmed by the Appellate Court.
8. On a careful consideration of the contentions advanced by the learned counsel for the petitioner and the learned HCGP for the State and having regard to the material on record, I find it necessary to extract Sections 53 and 54 of the Karnataka Excise Act, which reads as under:
"53. Power of magistrate to issue a warrant.- If a Magistrate, upon information and after such enquiry (if any) as he thinks necessary, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, he may issue a warrant,-15
(a) for the search of any place in which he has reason to believe that any intoxicant, still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed; and
(b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be, engaged in the commission of any such offence.
54. Power to search without warrant.-
Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an officer-in-charge of a Police Station or any Excise Officer not below such rank as may be prescribed, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief.-
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(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."
While Section 53 relates to a contingency where the Statute enjoins that any Inspector before searching a place must obtain a warrant from a Magistrate, Section 54 is a special provision which arises in urgent cases where it may not be possible for the office to obtain a warrant from the Magistrate. When such is the situation, in the present case on hand though the search warrant which is mandatory was not obtained in accordance with Section 53 of the Excise Act, the Officer concerned should have recorded the grounds of his belief in writing and should have proceeded to conduct the raid as per the provisions of Section 54 of the Excise 17 Act. The judgment of the Apex Court relied by the learned counsel for the petitioner in K.L. Subhayya (supra) is thus squarely applicable to the facts of this case.
The further circumstance that goes against the case of the prosecution is that the eye witnesses to the seizure mahazar PW-4 / Ravindra Rai and PW-5 / Babu P have turned hostile and have not supported the case of the prosecution. Hence, the reliability of Exhibit P1 Seizure mahazar has become shaky. Thus, the Trial Court has proceeded to convict the petitioners based on the evidence of PWs 1 to 3 and 7, official witnesses, who are all interested witnesses. All of them being interested witnesses to the case of the prosecution, the Trial Court has erred in convicting the petitioners based on their evidence.
The prosecution has failed to examine the Chemical Examiner who examined the contents of the 18 sachets and issued the chemical analysis report as per Exhibit P6 and hence the non-examination of the analyst has also rendered fatal to the case of the prosecution. In view of all these reasons, I am of the opinion that the judgment of conviction and order of sentence rendered by the Trial Court which has further been affirmed by the Appellate Court, requires to be set aside.
Accordingly, I proceed to pass the following:
ORDER The revision petition filed by the petitioners / accused under Section 397 Cr.P.C. is hereby allowed.
The judgment of conviction and order of sentence passed by the Trial Court in C.C.No.488/2007 dated 23.10.2010 and confirmed by the Appellate Court in Crl.A.No.158/2010 dated 19.10.2013 are hereby set-
aside. Consequently, the accused nos.1 to 4 - petitioners herein are acquitted of the offences under Sections 32 and 34 of the Karnataka Excise Act. 19
Bail bonds if any executed by them shall stand cancelled.
If any fine amount has been deposited by any of the accused / petitioners, the same shall be refunded to the respective accused / petitioners, on proper identification.
Sd/-
JUDGE KS