Karnataka High Court
Kumara vs The State Of Karnataka on 19 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:7963
CRL.RP No. 61 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 61 OF 2021
BETWEEN:
1. KUMARA
S/O DODDASWAMYGOWDA
AGED ABOUT 39 YEARS,
R/AT MUDALAKOPPALU VILLAGE
KASABA HOBLI,
HUNSUR TALUK
MYSURU DISTRICT-571105
...PETITIONER
(BY SRI. DINESHKUMAR RAO K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed
BY EXCISE SUB-INSPECTOR
by DEVIKA M HUNSUR RANGE
Location: HIGH HUNSUR-571 105
COURT OF
KARNATAKA REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560001.
...RESPONDENT
(BY SMT. PUSHPALATHA B., ADDL. SPP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 28.12.2015 AND
01.01.2016 PASSED BY THE CIVIL JUDGE AND JMFC, HUNSUR
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NC: 2025:KHC:7963
CRL.RP No. 61 of 2021
IN C.C.NO.503/2013 CONFIRMED BY THE JUDGMENT AND
ORDER DATED 23.10.2020 PASSED BY THE VIII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MYSURU SITTING AT
HUNSUR IN CRLA..NO.11/2016 (CONVICTING THE PETITIONER
FOR THE OFFENCE PUNISHABLE UNDER SECTION 32 OF
KARNATAKA EXCISE ACT 1965) AND ACQUIT THE PETITIONER
OF THE CHARGES LEVELED AGAINST HIM.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
1. Heard the learned counsel for revision petitioner and also learned counsel for respondent.
2. This revision petition is filed against the order of conviction and sentence by the Trial Court in C.C.No.503/2013 dated 28.12.2015and confirmation order by the First Appellate Court in Crl.A.No.11/2016 dated 23.10.2020 for the offence punishable under Section 32 of Karnataka Excise Act, 1965.The Trial Court convicted the accused for one year and imposed sentence of Rs.10,000/- and the same is confirmed in the criminal appeal. -3-
NC: 2025:KHC:7963 CRL.RP No. 61 of 2021
3. The factual matrix of case of prosecution before the Trial Court that during the month of February and March-2013, general elections to local bodies was declared and therefore, excise Commissioner of Mysuru in order to check irregularities and malpractices in the said elections, directed all his subordinate official to perform night patrolling duties within the jurisdiction of each excise inspectors and sub-inspectors. In view of the same, on 21.02.2013, received credible information from controlling room of Excise Department that in Moodalakoppalu village, accused being the owner of one petty shop, indulged with sale of liquor without valid licence and permit. Therefore, Excise sub-inspector of Hunsur Range, become alert and intended to conduct raid. In the process, he secured the presence of his sub-ordinate officials and went near the shop of accused situated in Moodalakoppalu village and he confirmed that, accused being petty shop-keeper indulged with illegal possession and sale of liquor without valid permit and license. Therefore, he prepared a search warrant as required under Section 54 of Karnataka Excise -4- NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 Act and conducted raid in the presence of panch witnesses. He seized 32 bottle, each containing 180 ml of liquor, 10 tetra packets each containing 90 ml of Mackdowell brandy whiskey, 10 Nackout tins, containing each 330 ml of Bear, total 6.660 Ltr Bhatham and 3.300 Ltr Bear, 24 bottles each containing 180 ml of Windosor Deluxe Whiskey, 4 tetra packets containing each 90 ml of Macdowell brandy whiskey and 4 Nackout bears containing each 330 ml and seized the same by drawing the mahazar and accused was apprehended and produced before the Magistrate. The case was registered in Cr.No.6/2012-13 and investigated the matter and invoked the offences under Karnataka Excise Act and charge sheet was filed under Section 32 of Karnataka Excise Act. The Magistrate took the cognizance and secured the accused and he did not plead guilty and hence the trial was conducted. The prosecution mainly examined PW1 to PW5 and got marked the Ex.P1 to Ex.P9. The accused was also subjected to 313 statement and he did not choose to lead any defense evidence.
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021
4. The Trial Court having considered the material on record, particularly PW1 and PW2 have turned hostile and PW3 and PW5 are the raiding parties and PW4 is the person who carried the seized articles to the FSL and having considered the evidence of PW3 and PW5 comes to the conclusion that prosecution has proved the case and convicted and sentenced, the same has been challenged before the First Appellate Court in Crl.A.No.11/2016 and First Appellate Court also on re-appreciation of both oral and documentary evidence, accepted the evidence of PW3 and PW5 who have conducted the raid and also conducted the major portion of the investigation of accused No.5 and comes to the conclusion that evidence ofPW3 and PW5 is credible and nothing is there to disbelieve the evidence of PW3 and PW5 and confirmed the same. Being aggrieved by the said judgment of conviction and sentence, the present revision petition is filed.
5. The main contention urged in the revision petition that even though PW1 and PW2 who are -6- NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 independent witnesses have not supported the case of the prosecution and turned hostile and though not accepted the evidence of PW1 and PW2 and committed an error in accepting the evidence of PW3 and PW5 and their evidence is inconsistence and suffers from legal infirmities. The evidence of PW3 does not corroborate with evidence of PW5. It is also contended that PW5 is the investigating officer as he clearly admitted that he has not made his higher officer or other officer as witnesses to the charge sheet and also categorically admits that he does not have personal knowledge as to the credible information received by the instructor which is contrary to the chief examination. When such admission is given with regard to not having any credible information, the very conducting of raid itself is doubtful. The counsel also would vehemently contend that the very finding of Trial Court and also the First Appellate Court that evidence of PW3 and PW5 is credible is erroneous and fails to take note of both of them are interested witnesses since they have conducted the raid and they are the raiding parties. The -7- NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 counsel also would vehemently contend that when the they are the raiding parties, Court has to examine into the medical aspects and the same has not done. The counsel also would vehemently contend that revision petitioner is physically handicap and the same is also emerged in the evidence. The Court has to take note of the fact and also extend the benefit of doubt in favour of the petitioner in view of no independent witnesses.
6. Per Contra, the counsel appearing for the respondent-State-Addl. SPP would contend thatprosecution main case is also that when the raid was conducted apprehended with the liquor and the same is seized by drawing the mahazar even though independent witnesses have turned hostile and Court has to consider the evidence of PW3 and PW5 and both the Courts also taken note of evidence and their evidence is credible and hence rightly accepted the evidence of PW3 and PW5 and it does not requires any interference.
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7. Having heard the learned counsel for revision petitioner and also counsel for respondent-State and also considering the grounds urged in the revision petition, the point that would arise for consideration of this Court are:
1) Whether both the Courts have committed an error in convicting and sentencing and confirming the order of the Trial Court and whether it requires interference of this Court by exercising the revisional jurisdiction and whether the order suffers from legality and correctness?
2) What Order?
8. Having heard the respective counsel and also the counsel appearing for the State and also looking into the material on record, it is the specific case of the prosecution that raid was conducted on 21.02.2013 based on the credible information received from controlling room of excise department that accused being owner of petty shop indulged with sale of liquor without valid license and permit and accordingly when the raid was conducted, -9- NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 found the liquor in the said shop and the same was seized by drawing the mahazar. In order to prove the case of the prosecution, mainly relies upon the evidence of PW1 to PW5. Admittedly, PW1 and PW2 are the mahazar witnesses that both of them have not supported the case of the prosecution but they says signature was taken in the Excise office. Both the Courts also comes to the conclusion that evidence of PW1 and PW2 is not credible evidence. However, comes to the conclusion that evidence of PW3 and PW5 consistent and no question of hostility. No doubt PW3 and PW5 are the raiding parties, law is also settled that even if they are the raiding parties, the Court cannot discard their evidence, only Court has to look into whether their evidence is credible or not.
9. The PW3 is the Excise guard and he deposed before the Court that on credible information only conducted the raid. On perusal of evidence of PW3, particularly in the cross examination, he says credible information is received by the Inspector but he is not
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 having any information at what time he has received the credible information and also he admits in the cross examination that the witness to Ex.P1 one Mr.Ravi who is the testator of Yashodarappa, but he categorically admits that PW1 is now working as driver of the Department but earlier he was not there. Hence, it is clear that the PW1 is the Driver of the Excise Department and the fact that he is not the resident. It is also important to note that he was not able to give details of the location and claims that at the time of conducting the raid, there was a darkness and also he does not know about the description of the seizure place.
10. The other witness is PW5 who is also a Inspector of Excise Department and he re-iterates with regard to the conducting of the raid, but in the cross examination he says that when the credible information was received, he cannot say who was there in the duty and also cannot say who has done the work on that day, but he claims that in the witness list he has mentioned,
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 but the same is not mentioned and the same is also not placed before the Court.
11. Having perused this cross examination of PW3 and PW5, it is very clear that they are not having any time and information for the said credible information, but also nothing is mentioned with regard to the credible information is concerned and it is important to note that he claims that totally 8 persons went to the raid and also categorically admits that the raiding parties have not signed the Mahazar, but PW3 claims that totally 5 persons were sent including the raiding parties and the evidence of PW3 and PW5 is contrary to very mahazar itself. The PW5 also claims that senior officers also part of the raid and they were there at the spot, but they left the place immediately and the same is not mentioned in the mahazar also and with regard to the very raid is concerned also that there were 8 persons and seniors were also left the place after the raid and nothing is mentioned in the mahazar also in view of admission of
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 PW5 and even the same is also not spoken by the PW3 and evidence of PW3 and PW5 is contrary to each other.
12. It is important to note that he is having a shop for running the shop also no material is collected, though contend that they have collected the document of Ex.P9 and with regard to existence of shop and house nothing is mentioned in the Ex.P9 and regarding very existence of shop and house also nothing is placed on record and PW5 also not able to give details of the mahazar and description of the mahazar and when such contradictions are available before the Court nothing is mentioned with regard to senior officers were also there at the time of conducting the raid and the same is also not mentioned in the mahazar when such contra evidence available before the Court and it cannot be turned that the evidence of PW3 and PW5 is credible. This Court already made it clear that if the evidence of PW3 and PW5 is credible, the Court cannot discard the same, but the evidence of PW3 and PW5 with regard to the raid and also
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 the location and also document Ex.P9 does not discloses anything about the existence of shop and residence in Ex.P9 and in the absence of independent witnesses evidence and only based on the official witnesses who are all the part of the raid, same is not credible, inspite of no credible evidence, the Trial Court and First Appellate Court committed an error in accepting the evidence of PW3 and PW5 and those witnesses evidence also contrary to each other and discrepancies are also not considered by the Trial Court. Hence, the Trial Court committed an error in convicting and sentencing the petitioner for the offences punishable under Section 32 of Karnataka Excise Act, 1965. The First Appellate Court also lost sight of material on record and accepted the reasoning of the Trial Court without looking into the specific evidence of PW3 and PW5 and their evidence is not credible and when such being the case and when there is a perversity in the finding of the Trial Court as well as when there is no legal evidence with regard to the conducting of raid and seizure is concerned when the independent witnesses have
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 turned hostile. Apart from that in the cross examination of PW1 it is elicited that he being the driver of the excise department, though he was not the driver at the time of conducting the raid, he is also a interested person and though he has not supported, but there is no any credible evidence before the Court and hence, the finding of the Trial Court as well as the First Appellate Court suffers from legality and correctness and hence, this Court can exercise the revisional jurisdiction and set-aside the order. Hence, I answer the point as 'Affirmative'.
13. In view of the discussions made above, I pass the following:
ORDER
i) The Revision Petition is allowed.
ii) The order passed by the Trial Court and
First Appellate Court convicting the
accused for the offence punishable under Section 32 of Karnataka Excise Act, 1965 is hereby set-aside. Consequently, if any fine amount is deposited by the revision
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NC: 2025:KHC:7963 CRL.RP No. 61 of 2021 petitioner is ordered to be refunded on proper identification. The bail bond executed by the revision petitioner is cancelled.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 55