Fayaz S/O Noushu @ Noushad vs State Of Karnataka By on 9 December, 2010

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Karnataka High Court

Fayaz S/O Noushu @ Noushad vs State Of Karnataka By on 9 December, 2010

Bench: C.R.Kumaraswamy

IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 9'1" DAY OF DECEMBER 20

BEFORE

THE HONBLE MR. JUSTICE  C'   A 

cm4.P.N0.5529/201?) j;  'C "I I

BETWEEN

FAYAZ . 
S/O NOUSHU @ NOUSHAD 5

AGED ABOUT 30 YEARS" '  *

R/O KATTIGENAHALLI '-
JAD1GENAHALL.1"i=.:QBL1"" "

HOSKOTE TA1;UiE*'S;'.S.T-'  1   A ' 
BANGALORE RURAL DIS'_1_"R1.C'F.-.5'  V

 PETITIONER
{BY SR1  K. ADV.,]

STATE OF  KA. "
I3Y..M£ﬁ15R POLICE STATION.

I V'  1. KOIAR DISTRICT

»   BANGALORE)

'  RESPONDENT

(13§f'OsR;.13;Ii_m}AsUBRAHMANYA BHAT, HCGP 1
I ..T"H1s' CRLP. IS FILED U/s. 482 CR.P.C. PRAYING TO

 QUASII._.T}-IE FURTHER PROCEEDINGS IN CR.NO.164/O8
 {C.C',.NO.420/O8] OF MALUR P.S._. KOLAR DISTRICT, FOR
I --,,TIi_EA'EOFFENCE P/U/S 11. I2, 32, 34, 35, 38~A AND 39 OF

i§ARNATAI{A EXCISE ACT AND SECTIONS 272. 273, 304



|'\.')

R/W 149 OF IPC, NOW PENDING ON THE FILE OF___THE
JMFC AT MALUR.  

THIS cRL.P COMING ON FOR ADMISSION  V.

THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed under:"=.Sec_t1O'n 482 praying to quash the further._V:prOceeAding's an * it end to cr.No.i64/20.98 (cc.lNo.4:;O/aoosgc Maiur Police Station for under Sections 11., __12j,;: 33, inifnataka Excise Act and of 1130 pending On the ﬁle' l{O'1ar' bistrict.

2.ll learned counsel for the petit_iOne.r as learned counsel for the respondent. it contention Of the learned counsel for that the petitioner is accused No.8 and Whis case? has been split up. Trial was conducted in of accused NOs.i to 4.

4. The gist Of the prosecution case is that on 18.5.2008 in Kattigenahalli village, Hoskote Taluk, A1 Q/' in order to prepare illicit arrack purchased methanol spirit from A6 through A2 to A5 and prepared adulterated arrack so as to make it such drink intending to sell it as liquor. The persons prepared adulterated ar?ifac}+;.ifor"'--sal.e the same to Al through A2.'to«._{\5 and to one Jayaram. After consumitngp the 'same, {Siayaram died while he was under:ltreatnéipenttfj _

5. This'««p:._;case:,_ afterk c'oimI:iittal proceedings, charge was .fra.me'd.. 'agairist; tl":.:e'* accused, trial was condudctecl.' The'proispelciitiori,-l in support of its case got examined'e}?VVVs.Vl; Exs.P1 to P12 and MOs.1 p_ ahv_d5i2iWere got '-mvar_1;ed. The defence did not examined ' anywitnesspp nor marked any documents. 6; ' 1, 2, 6, have all turned hostile. PW4--T he doctor speaks about how the death has caused and the 1.0. speaks about the investigation and arresting of the accused.

Q2' The complainant -- PW'? has stated that deceased Jayararn was his uncle. PW? has turned hostile denying the contents of Ex.P1 as well as EXPB.

PW--10 Wife of the deceased that for the sake of roadwofk hadV_come".th'efe 'aoout " V two years ago. Ir); eve1<.2'i_};1§,"-»c.herhusband had consumed liquor and pain and died next day_.qS'he V'f1ﬂ31h whom he had purchased' 1ic_ii;1o'i*"fo »dr1j:1k";"'Er1"._:the cr0ss--eXamir1ation, she has c1enieEi.'*i-1f1Va*:.T due=----to Stomach ache he died and has stated ._that VI*1e."11ad.:'oorisumed liquor. V" P'V*J¢was efiffusted with the duty of securing the On 21.5.2008, at about 9.30 pan.

Po'§i._ce ,.__~'cdo;i'i~s*{ab1e Venkoba Rao produced A1 from DVasa.ge--:':e and recorded his voluntary statement and day went to Sampangere check post, conducted ' " ~='seizure mahazar EXP4 and seized one Nokia mobile phone. Tata Sumo Vehicle and the vacant can. So also. Rf/.

'J1 secured A2 and recorded his voluntary statement ._ and produced him with remand application to the Cou'rt:;-«fie also sent his viscera to FSL Lab and ~ production of A3 and A4 by the police

7. The case of the .4_prosecii.tion AV deceased Jayaram died due liquor and the contention of police. ..i;ii.ai.he got the liquor from A1. it

8. i'Ex_c'ept"'3F'thesje._ ""testirn;oni'es on record, no material ispil.aced1:'fVbcfore" the Court. Petitioner herein is accused*VN'o.6.' .VV.'i'hel'easei~*'was spilt up against him. Subsequent"ly,:l herwas «secured by the police and was .l"'arrested'iarid_he islunder judicial custody. A Government pleader submits that thereare several other offences against the petitioner A '~l_" However, the prosecution has failed to establish l that he is a habitual offender. Since no judgment of conviction has been produced before the trial Court rior before this Court. to show that the accused is a habitual 4-' if offender, in that Vi€W of the matter, exercise of power under Section 482 of Cr.P.C is improper and accepted.

10. The learned counsei forgietitioisierreliedigioiadvd' the rating of this Court in tlaeiiicase ILIAS Vs. STATE 03 KA':{N2{\fI'.5;Kga re§'oi'ted in 2001(4) CRIMES 14?, ia%31e:?'e-i§i:"t1j.§;s-- has held as foilows: V A V V d Code, 1973- SectiQri"'--i$8'2;d'1-e;::_}?e'titiori to -.quvash proceedings -- pé:titioner'v.'w.a_s".0I1<:f_A€sf__the accused in a case under" He was shown . a_-bscoﬂ'd.ings'1--1dA'--case was split up and other acciised_____wcre charge sheeted. Trial A acquittal as prosecution witnesses V hestiie. Subsequent arrest of cetitioriefn and continuation of prosecution agetiifist him. In second round of trial} against " : j;?:'1''e'V''''petit.is'1*ier, evicieitice to be produced could it -riot be different from one that was produced - in eariier tria}. Proceedings against petitioner were liable to be quashed." 2/ In the case of DEEPAK RAJAK vs. STATE OF WEST BENGAL reported in 2007(3) 95 (SC), the I-Ior1'bie Supreme Court follows:

"Criminal Jurisprudence ¥.~_i'n . acquittal it sirn;i'ia.jr1.yVVV placed cowaccused sameitszeth-of facts and the benefit can be;_exterided':t_o:"another c o -- ac c u so d a ftder' r'1=efn_d e r i sU1.\_fiL KUMAR vs. STATE reported" in' 73, the Hon'b1e Delhi held as follows:

"5»'f;riV'tnQina1iVviiiiﬁrocedure Code, 1973 -

-- Petition to quash order charge under Sections IPC -- Petitioner was . 'proclaimed offender and was proceeded under Section 299. Cr.P.C. when other accused were tried and were acquitted by Trial Court -- Petitioner surrendered before if Court and prayed for discharge ---~ Other accused were acquitted ground of insufficiency of evidence":{--l"-:"j'._l7. Evidence adduced in the ll"

inseparable and iridivisi_b'l'ev---Eff:93: * Petitioner could not; i differently on basis ofAls_ati'd_z V W Charge framedlli2ifa..s ii.ab__le. t'~o quashed."

11. Since accused have been acquitted on §tl'1e{__ljasis_ of eriidencle-recorded by the trial Court and to be recorded are unable to 'be stated earlier, there is no evidence on re,coi'dlto iiold that accused bios} to 4 were guilty ofthe offer1ce_.____. In View of the evidence on record, »iiiiny view;e.it"'is_ not necessary to proceed further and in li.:i;'»l5l§...«-tgrielxlixlr matter, CC.C.No.4i20/08 deserves to be quasllieduarid accordingly I pass the following order:

ORDER i. Criminal petition is allowed. 5/ TL.

ii.

CC N0420/2008 pending on the file Qt7___the Pr}. Civil Judge (Jr.Dr1) and JMF C Kolar District is hereby quashed

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