Karnataka High Court
Shrinivas S/O Late G D Krishnappa vs State Of Karnataka on 28 October, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
®
BANGALORE
DATED THIS THE 28TH DAY OF OCTOBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.358 OF 2013
BETWEEN:
Shrinivas,
Son of Late G.D.Krishnappa,
Aged about 50 years,
Resident of near Neheru Park,
Gundlupet Town
Pin Code - 571 111.
(now in judicial custody)
...PETITIONER
(By Shri. Somashekar Kashimath, Advocate)
AND:
State of Karnataka
Through Gundlupet Police,
District Chamarajanagar
Pin code - 571 313.
...RESPONDENT
(By Shri. B. Visweswaraiah, Government Pleader)
*****
This Criminal Revision Petition is filed under Section
397 read with 401 of the Code of Criminal Procedure, 1973, by
the advocate for the petitioner praying to set aside the order
2
dated 1.2.2013 passed by the District and Sessions Judge,
Chamarajanagara in Criminal Appeal No.9/2012 and Order
dated 7.2.2012 passed by the Civil Judge and Judicial
Magistrate First Class, Gundlupet in C.C.No.276/2007.
This petition coming on for Admission this day, the court
made the following:
ORDER
The petition coming on for admission, is considered for final disposal, given the facts and circumstances of the case.
2. It is the case of the prosecution that on 5.6.2005 at about 11.45 p.m., the present petitioner was found in illegal possession of 24 bottles of whisky of Green Label brand of 180 ml., 96 other bottles of whisky of Royal Lancer brand of 180 ml quantity, 25 bottles of Mc Dowels whisky of 60 ml. and 48 bottles of Original Choice brand of 180 ml in four carton boxes and was in possession of the same without a licence or a permit. It is on this basis that a case has been registered against him for offences punishable under Section 32 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the Excise Act', for brevity), before the Court of the JMFC, Gundlupet in Case 3 No.C.C.276/2007. After further investigation, the plea of the accused having been recorded for the offence aforesaid and he having pleaded not guilty and claiming to be tried, the prosecution had tendered evidence and it is significant to notice that out of the several bottles of liquor that were seized, five bottles in all were produced and marked in evidence of the petitioner having committed the offence. However, the Trial Court had accepted the evidence of the prosecution and convicted the petitioner and sentenced him to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.10,000/-. The appeal having been filed by the present petitioner, the Appellate Court in turn has dismissed the appeal and has confirmed the sentence imposed by the Trial Court. It is this which is under challenge in the present case on hand.
3. There is a glaring defect in the case of the prosecution as is found with reference to the provisions of the law. The offence committed by the petitioner apparently is having 4 violated the provision which requires a licence for a person to carry liquor beyond a particular quantity. The liquor that was said to have been found in the possession of the petitioner was a large quantity as already stated. Under Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, no permit or licence would be required for the possession or transport of the following quantities of liquor:
Liquor Quantity Toddy, in such areas of the State where 2.5 litres the sale of toddy to public is allowed under sub-rule (4) of Rule 3 of the Karnataka Excise (Tapping of Trees) Rules, 1991 Molasses Arrack 750 millilitres Molasses Arrack in Coorg District 0.8 litres Country Beer 18.2 litres Brandy, Whisky, Gin, Rum, Milk-Punch 4.6 litres and such other liquors manufactured in Karnataka State or manufactured in other places in India and imported to Karnataka State, excluding Foreign liquors (imported) 5 Foreign liquors (Imported) 9.1 litres Denatured Spirit 750 millilitres Hence, it has specified the quantity of particular kind of liquor that can be carried without a licence. Insofar as the liquor that was being carried by the petitioner is concerned was said to be whisky and the maximum that could be carried was 4.6 litres. It is evident that the large quantity of whisky that the petitioner was carrying, was beyond the permissible limit. This is the primary allegation that would be required to be established by the prosecution. It is therefore not clear as to how the quantity of liquor that was carried by the petitioner has been said to have been established by the production of five bottles of whisky out of the total quantity of liquor that was seized. No doubt, there is a Forensic Science Laboratory report to indicate that the material objects that were produced, namely 5 bottles of whisky, did contain liquor. However, it was necessary for the prosecution to have established that the entire quantity of liquor 6 that was seized was in fact liquor and not any other substance. This was possible if the prosecution had produced a certificate as specified under Section 59-A of the Excise Act, which prescribes that any document purporting to be a certificate under the hand of an Inspector of Excise who has undergone the prescribed training in the examination and analysis of intoxicants and materials and who is authorised by the State Government in this behalf, in respect of any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated in such certificate, in any proceedings under this Act. Therefore, it was possible for the prosecution to have established a case against the accused by merely producing a certificate issued under Section 59-A of the Excise Act. For otherwise, merely on the production of five bottles of whisky out of the total extent that was said to have been seized, could not establish the case of the prosecution. The court below has overlooked this primary ingredient of the offence which was required to be established by the 7 prosecution. It is to be pointed out that Section 59-A of the Excise Act apparently reduces the burden of the prosecution in having to produce the material evidence at every date of hearing and to establish the same. Such a procedure is made for the convenience of the prosecution. That has been lost sight of both by the prosecution and the courts below. Therefore, merely on the production of the material objects 1 to 5, the case could not have been established against the accused.
On this limited ground, the petition is summarily allowed and the judgments of the courts below are set-aside. The accused is acquitted. The fine amount if any paid is directed to the refunded to the petitioner. The bail bond stands cancelled.
Sd/-
JUDGE KS