Karnataka High Court
Takarappa @ Takappa Pujar, vs Special Police For Excise Enforcement, on 16 February, 2012
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
TH
16
DATED THIS THE DAY OF FEBRUARY, 2012
BEFORE
THE HON'BLE MRJUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No, 11587 OF 2011
BETWEEN:
Takarappa © Takappa Pujar,
SI Lachappa Pujar,
Age: Major, 0cc: Coolie,
Rio. Ballotagi Tanda,
Yalgurga Taluk, Koppal District.
PETITIONER
(By Sri. Neelendra D. Gunde, Advocate)
AND:
Special Police for Excise Enforcement and
Lottery Prohibition Division, Koppal,
Represented by State Public Prosecutor,
High Court Circuit Bench Building,
Dharwad 580 009.
--
RESPONDENT (By Sri. Vinayak S. Kulkarni, HCGP ) This Criminal Petition is filed under Section 482 Cr.P.C., seeking to quash the order dated 17.11.2011 rejecting the application filed by the petitioner under Section 227 to discharge the petitioner for the offence punishable under Section 328 of IPC passed by the Sessions Judge, Koppal, in 33/2011 2 This Criminal Petition coming on for Admission this day, the Court made the following:
Petitioner is the sole accused in S.C. No.33/2011 on the file of the learned Sessions Judge, Koppal. He is chargesheeted by the Special Police for Excise Enforcement and Lottery Prohibition Division, for the offences punishable under Sections 273, 284 & 328 of IPC and under Sections 32, 34, 43-A of Karnataka Excise Act.
2) On committal of the case to the Court of Sessions, since the offence under Section 328 of IPC is exciusively triable by the Court of Sessions, the petitioner appeared before the learned Sessions Judge and filed appilcation under Section 227 of Cr.P.C. seeking to discharge him of the offence punishabie under Section 328 of IPC, on the ground that the materiais produced along with the charge sheet does not make-out the offence under Section 328 of IPC. The application was opposed by the prosecution.
.3
3) The learned Sessions Judge by the order impugned in this petition rejected the said application and has held that there are sufficient materials to frame charge against the petitioner even for the offence under Section 328 of IPC.
4) I have heard both sides. Perused the petition and other materials produced.
5) It is the contention of the learned counsel for the petitioner that, even if the entire case of the prosecution is accepted at its face value without being controverted in the cross-examination, it would not attract the ingredients of Section 328 of IPC and this factor has not been properly appreciated by the learned Sessions Judge and this has resulted in an erroneous order rejecting the application filed for discharge. It is his further submission that the report of the chemical examiner, who said to have examined the samples, does not show that the samples sent to him for examination was either poisonous material or stupefying, intoxicating or unwholesum product as mentioned in Section 328 of IPC 4 and on the other hand, it would merely indicate that the presence of alcohol was detected in the samples and that the contents of alcohol was to an extent of % 5 .
7l 9 V/V. It is his submission that, in the absence of any opinion from the chemical examiner that the substance said to have been recovered from the possession of the petitioner was either the poisonous substance or stupefying, intoxicating or unwholesum product, no charge for the offence under Section 328 of IPC could be framed against the petitioner, as such, the learned Sessions Judge ought to have discharged the petitioner from the accusation for the offence under Section 328 of IPC and thereafter in exercise of power under Section 228 of Cr.P.C., he ought to have transmitted the case to the Chief Judicial Magistrate by framing charges for the other offences. On the other hand, learned HCGP sought to justify the order impugned in the petition.
6) Having heard the learned counsel for the petitioner and having perused the records made available, I am convinced that there are no reasonable grounds to frame charge for the offence punishable under Section 328 of IPC against the petitioner, as the materials produced along with the charge sheet does not make-out any of the ingredients of the offence under Section 328 of IPC. In order to attract the offence under Section 328 of IPC, the offender must have administered any poison or any stupefying or intoxicating or unwholesum drug to any person or he must have caused some other person to take any poison or any stupefying, intoxicating or unwholesum drug or any other thing, and he must have committed such act with intent to cause hurt to such person or with an intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt. In the case on hand, according to the case of the prosecution, on credible information, the police party along with panchas were waiting at a place, where the petitioner came on a two wheeler-Bajaj M-80 carrying a rubber tube and when he was intercepted, he ran away from the place and on verification, the said rubber tube was found containing some substance and on verification, it was found to be illicit liquor mixed with chemicals. So, 6 the said substance was seized, the sample was drawn and the sample was sent to the chemical examiner for examination and report. Thus, even according to the case of the prosecution, the alleged substance carrIed by the petitioner was intercepted on the way. Therefore, from thIs it is clear that the petitioner had not administered the said substance to any one nor he has caused any person to consume or take the said substance. In this view of the matter, question of the petitioner doing any such act with an Intention to cause hurt to any person would not arise. Thus, the ingredient of offence under Section 328 of IPC Is not made-out. In addition to this, perusal of the copy of the chemical examiner's report indicates that the sample sent to him was examined and the examination revealed presence of aicohoi and the content of alcohol in the said substance was to an extent of 17.59% V/V. The certificate issued by the chemical examiner does not state as to whether the sample sent for examination was either poisonous or stupefying, intoxicating or unwholesum drug, as stated in Section 328 of IPC. Unless it is shown that the substance recovered from the possession of the petitioner • •• • I 7 was either a poisonous substance or any stupefying, intoxicating or unwholesum drug, the offence under Section 328 of IPC does not get attracted. Even if the entire evidence collected during Investigation and produced before the Court along with the charge sheet are accepted at Its face value without being controverted in the cross-examination, in my opinion, in the light of the above discussions, would not attract any of the ingredients of Section 328 of IPC and therefore, the petitioner cannot be charged for the said offence. The learned Sessions Judge has completely omitted to consider this aspect of the matter and has merely proceeded to hold that there are sufficient grounds to frame charge even for the offence under Section 328 of IPC. The learned Sessions Judge has not made any endeavor to find-out as to whether even If the materials produced before him at its face value are accepted without being controverted, would attract any of the ingredients of the offence under Section 328 of IPC. Therefore, the order passed by the learned Sessions Judge dismissing the application is highly perverse and Is contrary to the evidence on record. The impugned order is 8 the result of non-consideration of the materials placed on record, Therefore, the impugned order in the petition cannot be sustained.
7) In the light of the above discussions, the petitioner is entitled for discharge of the offence under Section 328 of IPC
8) In the light of the fact that the learned Sessions Judge has held that there are materials to frame charges against the petitioner for other offences and since those offences are not exclusively triable by the Court of Sessions, the learned Sessions Judge has to resort to the provisions of Section 228 of IPC. and to proceed further.
9) In the light of the above, the petition is allowed. The order dated 17J1.2011 passed by the learned Sessions Judge, Koppal, dismissing the application filed under Section 227 Cr.P.C. is set aside. The said application is allowed. The petitioner is discharged of the accusation made against him for the offence punishable under Section 328 of IPC. The learned Sessions Judge shall 9 proceed to act in accordance with the provisions of Section 228 of IPC.
Registry to send a copy of this order to the Sessions Court at Koppal.
Sd! JUDGK KGR*