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Karnataka High Court

Sri Guru Prasad M R vs State By Excise Police on 24 February, 2023

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                                                  CRL.RP No. 246 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 24TH DAY OF FEBRUARY, 2023

                                       BEFORE
                       THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 246 OF 2019
            BETWEEN:
            SRI. GURU PRASAD M.R
            S/O RAMACHANDRA K.R,
            AGED ABOUT 28 YEARS,
            RESIDING AT MOODALAKOPPALU,
            KATTAYA HOBLI, HASSAN TALUK,
            HASSAN DISTRICT - 573 201.

                                                             ...PETITIONER
            (BY SRI. SUDHARSHAN L, ADVOCATE)

            AND:
            STATE BY EXCISE POLICE,
            HASSAN,
            REPRESENTED BY SPP, HIGH COURT,
            BENGALURU - 560 001.

                                                           ...RESPONDENT
Digitally
signed by   (BY SRI. KRISHNAKUMAR K.K, HCGP)
SUMA
Location:
HIGH               THIS CRL.RP IS FILED UNDER SECTION 397 R/W SECTION 401
COURT OF
KARNATAKA   CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
            AND SENTENCE PASSED IN C.C.NO.5014/2016, DATED 07.09.2018
            ON THE FILE OF THE LEARNED VI ADDITIONAL CIVIL JUDGE AND
            JMFC AT HASSAN AND IN CRL.A.NO.246/2018, DATED 28.01.2019,
            ON THE FILE OF THE HON'BLE V ADDITIONAL DISTRICT AND
            SESSIONS COURT AT HASSAN.

                   THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
            COURT MADE THE FOLLOWING:
                                  -2-
                                         CRL.RP No. 246 of 2019




                                ORDER

This revision petition is filed challenging the judgment of conviction dated 07.09.2018 passed by the 6th Additional Civil Judge and JMFC, Hassan (hereinafter referred to as 'trial Court' for short) in C.C.No.5014/2016, by which, the petitioner was convicted for the offence punishable under Section 32(1) Karnataka Excise Act, 1965 (hereinafter referred to as 'the Act, 1965' for short) and sentenced to pay a fine of Rs.10,000/-. The petitioner has also challenged the judgment dated 28.01.2019 passed by the 5th Additional District and Sessions Court at Hassan in Crl.A.No.246/2018 (hereinafter referred to as 'Appellate Court' for short), by which the judgment and order of sentence of the trial Court was upheld.

2. The parties shall henceforth be referred to as they were arraigned before the trial Court.

3. The case of the prosecution was that a code of conduct was in force in view of the election to Zilla Panchayats and Taluk Panchayats for the year 2016. It was claimed that on 17.02.2016, CW.5 and staff along with election officials were on duty. When they were patrolling at Shettihalli Cross of Kattaya -3- CRL.RP No. 246 of 2019 Village on Hassan-Arakalgud Main Road at about 08.30 pm, they stopped a vehicle and the driver on seeing CW.5 and her staff, ran away and though, the staff of CW.5 tried to catch him, he escaped. They claimed that since it was late in the night and there were no independent witness and as obtaining a search warrant was time consuming and was risky, as the incriminating goods had to be left unattended, CW.5 along with her staff, prepared a search warrant under Section 54 of the Act, 1965 and seized the car as well as three corrugated boxes containing 120 tetra packs of 180 ml of Mc.Dowell select grapes brandy, under a mahazar. She drew up a mahazar of the spot in the presence of the witnesses between 08.30 to 09.50 pm. Later, she visited her office and prepared a First Information Report for the offences punishable under Sections 11, 13 and 32 of the Act, 1965. CW.5 sent 13 tetra packs of 180 ml of Mc.Dowell select grapes brandy through CW.4 for chemical examination under a mahazar. Thereafter, CW.5 transferred the file to CW.6. CW.6 is stated to have secured the 'B' extract of the vehicle in question. The accused had obtained anticipatory bail and he appeared before CW.6. After obtaining the 'B' extract and the report of the chemical examiner, a -4- CRL.RP No. 246 of 2019 charge sheet was filed for the offences punishable under Sections 11, 13 and 32 of the Act, 1965. The plea of the accused was recorded and he pleaded not guilty and claimed to be tried. The prosecution examined CW.5 as PW.1, CW.6 as PW.2, CW.3 as PW.3 and CW.2 as PW.4 and marked Exs.P1 to P8. Amongst the exhibits marked, Ex.P1 was the spot mahazar, Ex.P2 was the specimen seal, Ex.P3 was the FIR, Ex.P4 was the seizure memo, Ex.P5 was the request to conduct a chemical examination, Ex.P6 was the report of the chemical examiner, Ex.P7 was the 'B' extract of the vehicle, Ex.P8 was the search warrant under Section 54 of the Act, 1965.

4. Based on the oral and documentary evidence, the trial Court held that the liquor packets were seized from the vehicle belonging to the accused and that the accused denied that he was the driver of the vehicle at the time of seizure. He also did also disclose in his statement under Section 313 Cr.P.C., as to who was driving the car at the time of crime. The trial Court held that all the eyewitnesses had identified the accused and the evidence of official witnesses was credible, in view of the seizure which corroborated the evidence of the official witnesses and therefore, convicted the accused for the -5- CRL.RP No. 246 of 2019 offence punishable under Section 32(1) of the Act, 1965 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-.

5. Being aggrieved by the said judgment of conviction, the accused filed Crl.A.No.246/2018. The Appellate Court held that though the witnesses who supported the prosecution were all official witnesses, the same could not be discarded, as the accused did not demonstrate that the Investigating Officer had any animosity against him. It also held that the search warrant under Section 54 of the Act, 1965 was justified in view of the fact that the vehicle was intercepted at 08.30 pm and it was impossible to obtain a search warrant at that time, that too by leaving the vehicle and liquor packets unattended. It therefore held that the Investigating Officer had complied the mandatory requirement of Section 54 of the Act, 1965. It also perused the judgment of the trial Court, where, though the accused was charged for the offences punishable under Sections 11 and 13 of the Act, 1965, the accused was punished for the offence punishable under Sections 32(1) of the said Act, 1965. The Appellate Court held that though the trial Court could have -6- CRL.RP No. 246 of 2019 mentioned in its judgment that the accused was convicted for violating Sections 11 and 13 of the Act, 1965, it had convicted him for the offence under Section 32(1) of the Act, 1965, which did not prejudice the accused in any manner. Thus, the Appellate Court dismissed the appeal and confirmed the judgment of conviction passed by the trial Court.

6. Being aggrieved by the judgment of both the Courts, the present revision petition is filed.

7. Learned counsel for the petitioner/accused submitted that none of the prosecution witnesses had identified the accused. However, the trial Court as well as the Appellate Court blindly held that the prosecution witnesses had identified the accused. He submits that the accused was not arrested but the charge sheet was filed based on the presumption that the accused had obtained anticipatory bail and therefore, he was the accused. He submits that the accused was arrayed in the case based on the 'B' extract received which indicated that the accused was the owner of the vehicle in question. He submits that the prosecution had utterly failed to establish that the accused was involved in the offence. He submitted that the trial -7- CRL.RP No. 246 of 2019 Court held that the accused did not explain the circumstance against him in his statement in defence. He submits that the accused was entitled to remain silent and it was for the prosecution to establish the guilt of the accused beyond doubt. He submits that except the 'B' extract, there was no material placed on record by the prosecution to establish that it was the accused who had committed the offence. Further, he submits that the accused had not committed an offence under Sections 12 or 13 of the Act, 1965 and therefore, it was not punishable under Section 32(1) of the Act, 1965. He further submitted that the Investigating Officer failed to consider whether the liquor seized had suffered excise duty or not and who was the vendor and purchaser of the liquor.

8. Per contra, learned High Court Government Pleader submitted that the seizure of the vehicle in question as well as the liquor is not in dispute since the same is proved by PW.1, PW.3 and PW.4. He submits that the Investigating Officer had prepared the search warrant in the presence of the official witnesses as she could not have at that point in time, secured independent witnesses. He submitted that the search warrant itself was marked as an exhibit before the trial Court and -8- CRL.RP No. 246 of 2019 therefore, there was no reason to disbelieve the evidence of the witnesses on the mere ground that they were officials from the department. He submitted that the evidence of the official witnesses cannot be discarded, if there are enough materials to corroborate the evidence. He submits that the seizure of the vehicle as well as the liquor, corroborated the evidence of the official witnesses. He further submits that the accused had obtained anticipatory bail, thereby, probabalizing that it was the accused who was involved in the offence. Further, he submits that the 'B' extract disclose that the accused was the owner of the vehicle in question and since the accused did not explain in his statement under Section 313 of Cr.P.C. that he was not the one who was driving the vehicle at the time of the incident, the trial Court and the Appellate Court were justified in holding that the accused was guilty of the offence punishable under Section 32(1) of the Act, 1965.

9. I have considered the submissions made by the learned counsel for the accused as well as the learned High Court Government Pleader. I have also perused the records of the trial Court, its judgment as well as the judgment of the Appellate Court.

CRL.RP No. 246 of 2019

10. It is not in dispute that when the vehicle in question was intercepted, the driver of the vehicle ran away and CW.6 and her staff could not apprehend him. It is doubtful whether any of the prosecution witnesses had identified the accused. As a matter of fact, PW.1 deposed as follows:

"¸ÀzÀj ªÁºÀ£ÀzÀ°ègÄÀ ªÀ ªÀåQÛAiÀÄÄ Nr ºÉÆÃzÁUÀ DvÀ£À ºÉ¸ÀgÄÀ , «¼Á¸À w½¢gÀĪÀÅ¢®è. Nr ºÉÆÃzÀ ªÀåQÛAiÀÄÄ ZÁ®PÀ£ÉÆà CxÀªÁ ªÀiÁ°ÃPÀ£ÉAzÀÄ £ÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®è."

Similarly, she deposed as follows:

"£Á£ÀÄ ZÁ®£É ªÀiÁqÀĪÀÅzÀ£ÀÄß £ÉÆÃrgÀÄvÉÛãÉ. £Á£ÀÄ £ÉÆÃqÀĪÁUÀ ªÁºÀ£ÀªÀÅ ºÁ¸À£ÀzÀ PÀqɬÄAzÀ UÉÆgÀÆgÀÄ PÀqÉUÉ ºÉÆÃUÀÄwÛvÄÀ Û.

¸ÀzÀj ªÁºÀ£ÀªÅÀ £ÀªÄÀ ä ªÁºÀ£ÀzÀ »A¨sÁUÀ¢AzÀ §gÀÄwÛvÄÀ Û."

Therefore, PW.1 did not see the accused driving the vehicle in question. PW.2 was not the one who intercepted the vehicle nor was he part of the search team. Therefore, his evidence is not helpful to the case of the prosecution in so far as identifying the accused is concerned. PW.3 deposed as follows:

"DgÉÆæAiÀÄÄ £ÀªÄÀ £ÀÄß ¸ÀªÄÀ ªÀ¸ÛçÀ zÀ°è £ÉÆÃr, ªÁºÀ£ÀªÀ£ÀÄß ¸ÀܼÀzÀ°è ©lÄÖ NrºÉÆÃUÀ®Ä ¥ÀæAiÀÄwß¹gÀÄvÁÛ£É. DvÀ£À£ÄÀ ß £ÀªÄÀ ä ¹§âA¢AiÀÄÄ »rAiÀÄ®Ä ¥ÀæAiÀÄwß¹gÀÄvÁÛgÉ. DzÀgÉ DvÀ£ÄÀ Nr ºÉÆÃVgÀÄvÁÛ£É."

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This witness also did not identify the accused. PW.3 further stated in his cross-examination as follows:

"Nr ºÉÆÃzÀ ªÀåQÛ AiÀiÁgÉAzÀÄ £ÀªÄÀ UÉ UÉÆwÛ®è JAzÀgÉ ¸Àj. ¸ÀzÀj ªÀåQÛAiÀÄ ºÉ¸ÀgÀÄ, «¼Á¸À £ÀªÄÀ UÉ UÉÆwÛ®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgÉzÀÄ, £ÁªÀÅ CªÀ£À£ÄÀ ß £ÉÆÃrgÀÄvÉÛÃªÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DvÀ£ÀÄ ©½ ±Àlð ªÀÄvÀÄÛ PÀ¥ÄÀ à ¥ÁåAmï ºÁQgÀÄvÁÛ£É."

PW.4 deposed as follows:

"DgÉÆæAiÀÄÄ £ÀªÄÀ £ÀÄß ¸ÀªÄÀ ªÀ¸ÛçÀ zÀ°è £ÉÆÃr, ªÁºÀ£ÀªÀ£ÀÄß ¸ÀܼÀzÀ°è ©lÄÖ NrºÉÆÃUÀ®Ä ¥ÀæAiÀÄwß¹gÀÄvÁÛ£É. DvÀ£À£ÄÀ ß £ÀªÄÀ ä ¹§âA¢AiÀÄÄ »rAiÀÄ®Ä ¥ÀæAiÀÄwß¹gÀÄvÁÛgÉ. DzÀgÉ DvÀ£ÀÄ Nr ºÉÆÃVgÀÄvÁÛ£É."

This witness too did not identify the accused. Admittedly, the election officials were present at the time of intercepting the vehicle in question. No effort is made to examine any of the election officials as witnesses. The Investigating Officer has not tried to ascertain whether the liquor seized had suffered duty or not and whether the accused was transporting liquor that had suffered duty without a permit to attract an offence under Section 12 of the Act, 1965. The prosecution also failed to identify the shop from where the liquor was procured and the particulars of the person who procured the liquor. The prosecution also failed to examine the chemical examiner but

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merely placed reliance on the report. The Investigating Officer could not have marked the report of chemical examiner on his own and thereby, the accused was deprived of an opportunity to discredit the evidence of the chemical examiner.

11. Be that as it may, since none of the prosecution witnesses had identified the accused and since there was no effort made by the Investigating Officer to ascertain that the accused had committed an offence under Sections 12 and 13 of the Act, 1965, the prosecution failed in its duty to establish the commission of the offences by the accused. The only offence that could have been committed was possessing liquor more than the quantity allowed, which incidentally was not the charge and therefore, the offence under Section 32 of the Act, 1965 cannot be held to have been committed by the accused.

12. In that view of the matter, this revision petition is allowed and the impugned judgment of conviction dated 07.09.2018 passed by the 6th Additional Civil Judge and JMFC, Hassan in C.C.No.5014/2016 for the offence punishable under Section 32(1) Karnataka Excise Act, 1965 is set aside. Consequently, the judgment dated 28.01.2019 passed by the

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5th Additional District and Sessions Court at Hassan in Crl.A.No.246/2018 is also set aside.

The accused is acquitted of the offence and is set free.

Sd/-

JUDGE NR/-