Bangalore District Court
V.Nagaraj vs State Of Karnataka By Kengeri Police on 10 February, 2015
IN THE COURT OF THE ADDL. SESSIONS JUDGE , FTC-X AT
BANGALORE.
Dated This The 20th Day Of February, 2014
P R E S E N T:-
Sri. PATIL MOHAMMADGOUSE MOHIDDIN
B.Com, LL.B (Spl.).,
PRESIDING OFFICER,
FTC-X, BANGALORE CITY.
CRIMINAL APPEAL No.662/2012
APPELLANT/S V.Nagaraj,
COMPLAINANT/S Aged about 46 years,
S/o. Venkateshappa,
R/o. # 594, BHEL Layout,
Pattanagere, Bangalore.
(Accused No.1)
Now in judicial custody.
(By Sri. Rajanna V., Advocate)
Vs.
RESPONDENT/S State of Karnataka by Kengeri Police,
Bangalore.
(Represented by Public prosecutor)
JUDG MENT
This is a criminal appeal preferred by the appellant
against the respondent U/Sec.374(3) of Cr.P.C., being aggrieved
by the judgment of conviction and sentence passed by the
learned III ACMM., Bangalore in C.C.No.18943/2005, dated
19.10.2012.
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2. For the sake of convenience, the appellant and
respondent of the present case will be referred with their original
status as referred in the Trial Court. The appellant is the accused
and respondent is the complainant before the trial court.
3. The grounds of the appeal memo are under:
The appellant himself registered suo-motto case after
conducting raid without obtaining prior permission from the
jurisdictional magistrate contemplating U/s. 53 of Karnataka
Excise Act is illegal. Before conducting raid over the house
No.594 (herein after called as house) without preparing record of
reasons contemplating U/s. 54 of Karnataka Excise Act in the
spot before entering the house No.594 in presence of the
panchas is also fatal and illegal. Soon after seizing Excise
concealed contraband articles and Maruthi Omni Van bearing
regn.No.KA-05-M-7765 not produced physically before the excise
superintendent contemplating U/s. 43 of the K.E.Act is also illegal
and perverse to law. The non-compliance of the mandatory
provisions the whole conviction sentence is vitiates. The
material witnesses are not examined. The learned trial judge has
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not considered the evidence of the panchas, police officials and
Investigating Officer which leads to miscarriage a justice.
Without appreciating the evidence properly the learned trial
judge has convicted and sentenced accused No.1 is totally illegal
and perverse to law. Hence, the accused is entitled for acquittal.
Hence prays to allow the appeal and set aside the judgment of
conviction and sentence passed against the accused No.1 in
C.C.No.18943/2005 dated 19.10.2012.
4. It is the case of the prosecution that, the
complainant police inspector of Kengeri Police Station on
5.2.2004 received a credible information that, some persons are
illegally preparing liquor and contraband articles in house
No.594 situated at Pattanagere, BHEL layout. Accordingly, the
complainant along with his officials, by collecting two panchas
inspected the spot and got confirmed that some persons are
preparing and filling duplicate liquor and contraband articles
and was raided on the said house. The accused persons with
other persons were indulged in cheating the government as well
as other alcohol companies without obtaining any permission or
any sanction from the government. Thereafter, the complainant
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in presence of the panchas and other officials seized the
contraband articles i.e. liquor bottles in the name of Amruth
Distilleries Shashi Distilleries, John Distilleries and Karnataka
Breweries and Distillers Private Ltd., popularly known as old Monx
XXX Rum, Old Tavern Whisky, McDowell Whisky, Bag piper
whiskey, original choice whisky and Mcdowell brandy. The
accused persons have forging the signature and seal of Excise
commissioner along with the duplicate stickers and labels
pertaining to the different companies and thereby committed an
offence punishable U/s.468,420,484 R/w. Section 34 of IPC., and
Section 11,12, 32,34 of Karnataka Excise Act.
5. After filing the charge sheet, accused persons
appeared before the trial court and got release them on bail.
Thereafter, the charge has been framed against the accused
persons for the offences punishable U/Sec.468,420,484 R/w.
Section 34 of IPC., and Section 11,12, 32,34 of Karnataka Excise
Act, to which the accused pleaded not guilty and claimed to be
tried by the court.
6. The prosecution, in order to prove its case examined
P.W.1 to P.W.7 and got marked Ex.P.1 to P.34 and material
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objects as M.O.1 to M.O.23. After closure of the evidence of the
prosecution, the statement of the accused as required U/Sec.313
of Cr.P.C., has been recorded by the trial court.
7. On the basis of the said evidence, the trial court has
convicted the accused No.1/appellant is sentenced to under go
rigorous imprisonment for a period of 3 years 6 months and
sentenced to pay fine of Rs.10,000/- in default of payment of
fine, he has to undergo simple imprisonment for a period of one
year for the offence punishable U/s.32 of K.E.Act., and sentenced
to under go rigorous imprisonment for a period of 2 years and
sentenced to pay fine of Rs.10,000/- in default of payment of
fine, he has to undergo simple imprisonment for a period of six
months for the offence punishable U/s.34 of K.E.Act and
sentenced to under go rigorous imprisonment for a period of one
year and sentenced to pay fine of Rs.1,000/- in default of
payment of fine, he has to undergo simple imprisonment for a
period of 3 moths for the offence punishable U/s.468 of I.P.C.,
and sentenced to under go rigorous imprisonment for a period of
one year and sentenced to pay fine of Rs.1,000/- in default of
payment of fine, he has to undergo simple imprisonment for a
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period of 3 moths for the offence punishable U/s.484 of I.P.C.,
and sentenced to under go rigorous imprisonment for a period of
2 years and sentenced to pay fine of Rs.1,000/- in default of
payment of fine, he has to undergo simple imprisonment for a
period of 6 moths for the offence punishable U/s.420 of I.P.C.
8. The said judgment of conviction and sentence is
challenged by the appellant/accused in this appeal.
9. Thereafter the appellant/accused No.1 got released
on bail before this court.
10. I have secured the trial court records. Perused the
same and impugned judgment passed by the trial court.
11. Heard the arguments of the learned counsel for the
appellant and learned P.P. for the respondent.
12. The following points that have arisen for my
consideration:-
1) Whether the appellant/accused has made out
any grounds warranting, interference with the
judgment of conviction and sentence passed by
III- ACMM., Bangalore in C.C.No.18943/2005
dated 19.10.2012 in this appeal?
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2) What order ?
13. My findings on the aforesaid points are as under :
Point No.1 :- In the Affirmative
Point No.2 :- As per final order below,
for the following :
REASONS
14. POINT NO. 1 :-
I have gone through the judgment of conviction and
sentence passed in C.C.No.18943/2005 dated 19.10.2012 and
evidence of Pw.1 to P.W.7, Ex.P.1 to Ex.P.34 and M.O.No.1 to
M.O.No.23.
15. It is argument of the advocate for appellant that, the
learned trial judge has not considered the fact that, the
Investigating Officer/complainant has not obtained the prior
sanction of the jurisdictional magistrate before raid conducted on
the house of accused No.1 nor shown any reasons for urgency to
raid without obtaining prior sanction of the jurisdictional
magistrate as required U/s. 53 and 54 of Karnataka Excise Act. As
such the raid itself is illegal. The accused No.1 is entitled for
acquittal. Further, it is argument of the learned advocate for the
appellant that, the learned trial judge has not considered the
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evidence of Pw.3 and Pw.4 panchas whose evidence is not
reliable one and is not of trustworthy and wrongfully convicted
the accused on the basis of the evidence of Pw.3 and Pw.4
panchas. Hence, conviction of the accused No.1 alone by
acquitting the accused No.2 to 4 itself is illegal and perverse
against the law and liable to be set aside.
16. The learned Public Prosecutor justified the judgment
of conviction and sentence passed by the trial court.
Section 53 and 54 of the Karnataka Excise Act 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 likely to be, committed,
he may issue a warrant,
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.
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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 opportunity of escape or of concealing
evidence of the offence, he may after recording the
grounds of his belief.-
(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.
On going through the provisions embodied U/s. 53 and 54
of the Karnataka Excise Act, it shows that, the inspector has to
obtain the warrant from jurisdictional magistrate if he wants to
raid a particular place, and according to the section 54, it shows
that, the Inspector need not require to obtain the warrant from
the jurisdictional magistrate if the matter is urgent and the
inspector who conducted the raid has to made any grounds on
the basis of which he has a reason of belief that, the offence
under act was being committed before proceeding to search the
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place. The permission of the jurisdictional magistrate cannot be
secured without providing an opportunity to the accused to
escape.
17. From conjoint reading of section 53 and 54 of
Karnataka Excise Act, it clearly indicates that, the inspector to
raid or search the place under Excise Act, if not obtained any
prior sanction as required U/s. 53 of Karnataka Excise Act he has
to assign the reasons of urgency.
18. Pw.4 the complainant/Investigating Officer i.e.P.S.I.
Kengeri police station in his evidence has specifically stated that,
on 5.2.2004 receiving credible information that along with his
officials and panchas visited to the house of accused No.1 and
got confirmed that, the accused persons were indulged in
preparing contraband articles and liquor and raided and caught
hold the accused persons and seized M.O.1 to M.O.23 and
thereafter registered a case in Cr.No.48/04 against the accused
persons for the offences punishable U/s. 473, 474, 484, 420 R/w.
34 of IPC., and Section 32 and 34 of Karnataka Excise Act on the
basis of his own complaint. No where Pw.1 in his evidence has
stated that, there was any urgency to raid on the house of
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accused without obtaining the prior permission of the
jurisdictional magistrate nor produced any documents to show
that, there was any urgency made out by him to raid without
obtaining the prior sanction of the jurisdictional magistrate before
raiding the house of accused No.1 without providing an
opportunity to the accused to escape. On going through the
complaint at Ex.P.5 nothing is elicited to show that there was any
urgency to raid without obtaining the prior sanction of the
jurisdictional magistrate nor any thing mentioned in the same
that, there was no possibility for obtaining the prior sanction of
the jurisdictional magistrate without providing an opportunity to
the accused to escape. No materials are produced to show that,
there was any urgency to raid without obtaining the prior section
of the jurisdictional magistrate. Therefore, it clearly evident that,
the Investigating Officer/complainant Pw.4 has not complied the
mandatory requirements embodied U/s. 53 and 54 of Karnataka
Excise Act, which vitiates the entire investigation as well as
proceedings.
19. The principles laid down in a decision reported in
KLJ. 1979(1) page 410 (SC) in a case of Subbayya Vs.
State of Karnataka, reported in 2005 CRI.L.J. 377
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(Karnataka) (DB) page 377 in a case of State of Karnataka
Vs/. Sheshadri Shetty and others are followed.
20. Therefore, the entire investigation is vitiated even
though no motive or negligence attributed to Investigating
Officer.
21. The spot panch Pw.3, in his chief examination has
stated that, Pw.4 along other officials raided the house of
accused No.1 and seized the contraband articles in his presence.
During the course of cross examination he has not identified the
same at Ex.P.27 to P.34 photographs. Further he has stated
that, he do not know the contents of the bottles which were kept
in the said house. It is not possible for him to say the contents
of the mahazar. The said version of Pw.3 in his cross
examination clearly indicates that, he was not present at the time
of alleged raid by the Pw.4/complainant. Further, Pw.3 in his
evidence has stated that, on the alleged date of raid he was an
elected corporater of CMC., and he used to visit the police station
oftenly. The said version of Pw.3 clearly discloses that, at the
instigation of Pw.4 complainant Pw.3 signed to the mahazar in
the police station without accompanied the Pw.4 as alleged.
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Therefore, the version of the Pw.3 that the Pw.4 raid the house
of the accused No.1 in his presence and seized the illegal liquor
bottles is not reliable one and is not of trustworthy.
22. The another panch Pw.7 though in his chief
examination has stated that, in the year 2004 Kengeri police took
him for preparing mahazar in a house near to his house and
seized empty bottles, spirit, sealing machine, labels, cocks,
packing boxes. During the course of cross examination he has
stated that, he has signed to the mahazar at about 6.30 p.m. The
photos were not taken or snap in his presence, while the
complainant Pw.4 in his evidence has specifically stated that after
raiding on 5.2.2004 at house of accused No.1 at about 10.00
a.m., he completed the mahazar at about 4.30 p.m., thereafter,
returned to the police station and got registered a case against
the accused persons on the basis of his own complaint at about
5.00 p.m. Thus, it clearly indicates that, Pw.7 signed to the
recovery panchanama at about 6.30 p.m. at police station. Thus
it clearly indicates that, Pw.7 was not present on the alleged
date, time and place of raid and seizure of the contraband
articles. Thus, the version of the Pw.7 spot panch is not reliable
one and is not of trustworthy.
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23. Therefore, I have no hesitation whatsoever to come
to the conclusion that, the prosecution has failed to establish
that, the article at M.O.1 to M.O.23 are seized from the house of
the accused and his Maruthi Car. Other witnesses examined on
behalf of the prosecution i.e. Pw.1, ASI, High Court police station,
Bangalore. Pw.5 Ravi Kumar PC- 5266 City Market Police
station, Pw.6 HC- 380 Mohan Badigar, Byatarayanapura Traffic
Police, Bangalore are working under the complainant Pw.4.
Hence, they are interested witnesses. Pw.1 in his evidence has
specifically stated that, when they visited to the house of the
accused No.1 they found that, four persons i.e. against whom
charge sheet is filed were preparing the illegal liquor and
contraband intoxication articles, while Pw.1, Pw.5, Pw.6 who are
accompanied the complainant Pw.4 in their evidence have
specifically stated that, only the accused No.1 was present and
accused No.2 to 4 were not present at the house of accused No.1
while they raided. Therefore, there is a material contradiction in
between the version of the Pw.4 with the version of Pw.1, Pw.5
and Pw.6. Therefore, it clearly indicates that, Pw.1, Pw.5 and
Pw.6 being working under the complainant Pw.4 by hearing to
say of their superior officer Pw.4 have deposed before the court
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that, they accompanied Pw.4 on the alleged date and time and
place of raid. The version of Pw.4 complainant, Pw.1, Pw.5 and
Pw.6 is not supported by any independent witnesses as the
version of independent witnesses Pw.3 and Pw.7 is not reliable
one and is not of trust worthy. Therefore, I have no hesitation
whatsoever to come to the conclusion that, the prosecution has
failed to prove the guilt of the accused beyond all reasonable
doubt that, on 5.2.2004 at about 10.00 a.m., the accused No.1
along with accused No.2 to 4 in the house bearing No.594
situated at Pattanagere were indulged in preparing and
manufacturing alcohol and liquor and complainant seized the
articles at M.O.1 to M.O.23 from the possession of the accused
persons and were cheating the Excise Commissioner and other
government officials by using fake seal and labels and thereby
committed an offence punishable U/s.468,420,484 R/w. Section
34 of IPC., and Section 11,12, 32,34 of Karnataka Excise Act.
Therefore, the accused No.1 is also entitled for acquittal for the
offences leveled against him.
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24. I have gone through the judgment of conviction and
sentence against the accused No.1 passed by the learned III
ACMM., Bangalore in C.C.No.18943/200, dated 19.10.2012.
25. The learned trial judge while dealing with the offence
punishable U/s. 11, 12, 32, 34 of Karnataka Excise Act has not
considered whether the Investigating Officer has complied the
mandatory requirements as required U/s. 53 and 54 of Karnataka
Excise Act. Further, the learned trial judge has not properly
appreciated evidence of Pw.3 and Pw.4 spot panchas about their
versions in their cross examination and unnecessarily relied on
their evidence without considering the material contradictions
with regards to their presence on the alleged date, time and
place of raid and is also not considered the fact that, Pw.7 has
signed to the spot panchanama at Ex.P.5 at about 6.30 p.m., and
case is registered at about 5.00 p.m., by the Pw.4. Further, the
learned trial judge has not considered the evidence of Pw.3 who
in his evidence has stated that, it is not possible for him to
identify the seized articles and he was elected member of
C.M.C. on the date of raid and he frequently used to visit the
police station which leads to miscarriage of justice. Therefore, I
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have no hesitation whatsoever to come to the conclusion that,
the learned trial judge without considering the provisions
embodied U/s. 53 and 54 of Karnataka Excise Act and without
appreciating the evidence on record has illegally convicted and
sentenced the accused No.1. Hence, the same is liable to be set
aside.
26. Therefore, I am of the view that, the
appellant/accused No.1 has made out sufficient grounds to
warranting to interfere with the judgment of conviction and
sentence passed against him by the learned III ACMM.,
Bangalore in C.C.No.18943/2005, dated 19.10.2012. Accordingly,
I answer this point in the affirmative.
27. POINT NO.2 :- In view of my finding on the above
point, I proceed to pass the following:
ORDER
The Criminal Appeal filed by the appellant U/Sec.374 of Cr.P.C., is hereby allowed.
The judgment of conviction and sentence passed against the accused No.1 by the learned III ACMM., Bangalore in C.C.No.18943/2005, dated 19.10.2012 is hereby set aside.
18Crl.A.No.662/2012 The accused No.1 is hereby acquitted for the offence punishable U/s.468, 420, 484 R/w. Section 34 of IPC., and under Section 11,12, 32,34 of Karnataka Excise Act.
His bail bond and surety bonds shall stand canceled. Send back the L.C.R. forthwith.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 20th day of February, 2014.) (PATIL MOHAMMADGOUSE MOHIDDIN) PRESIDING OFFICER, F.T.C -X, BANGALORE CITY.
Ck/-
19Crl.A.No.662/2012 The operative portion of the Judgment pronounced in the open court as under
(vide separate judgment) O R D ER The Criminal Appeal filed by the appellant U/Sec.374 of Cr.P.C., is hereby allowed.
The judgment of conviction and sentence passed against the accused No.1 by the learned III ACMM., Bangalore in C.C.No.18943/2005, dated 19.10.2012 is hereby set aside.
The accused No.1 is hereby acquitted for the offence punishable U/s.468, 420, 484 R/w. Section 34 of IPC., and under Section 11,12, 32,34 of Karnataka Excise Act.
His bail bond and surety bonds shall stand canceled.
Send back the L.C.R. forthwith.
PRESIDING OFFICER, F.T.C -X, BANGALORE CITY. 20 Crl.A.No.662/2012