Allowed

Poojar H. Giriyappa S/O Durugappa v. the Sub Inspector of Police

Karnataka HC19 Nov 2018CRL.RP/2007/2011

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court acquitted the petitioner of offenses under the Karnataka Excise Act, ruling that the prosecution failed to prove ownership of the house where liquor was stored to the satisfaction of the court beyond reasonable doubt.

What did the court decide?

Criminal Revision Petition allowed; Impugned judgments set aside; Petitioner acquitted of offenses under Sections 32 and 34 of the Karnataka Excise Act.

Poojar H. Giriyappa S/O Durugappa Vs the Sub Inspector of Police — Karnataka HC (2018) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL. R. P. NO. 2007 OF 2011

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BETWEEN:

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POOJAR H. GIRIYAPPA S/O DURUGAPPA AGE: 33 YEARS, OCC: COOLIE, R/O DEVAGONDANA HALLI, TQ. HADAGALI, DIST. BELLARY

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... PETITIONER

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(BY SRI MANJUNATHA G. PATIL, ADVOCATE)

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AND :

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THE SUB INSPECTOR OF POLICE, HADAGALI POLICE STATION, HADAGALI, DIST. BELLARY, REP. BY SPP HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI A. R. RODRIGUES, A.G.A.)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND SENTENCE PASSED BY THE FAST TRACK COURT-III, HOSPET, IN DISMISSING THE CRL.A.NO.33/2010 DATED 23.10.2010, THEREBY CONFIRMING THE JUDGEMENT OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE (JR.DN.) & JMFC, HADAGALI IN C.C.NO.06/2009 DATED 11.03.2010, THEREBY THE PETITIONER WAS CONVICTED AND SENTENCED FOR THE OFFENCES PUNISHABLE U/S 32 AND 34

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OF KARNATAKA EXERCISE ACT FOR PERIOD OF SIX MONTHS EACH OF THE OFFENCES.

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THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The accused/petitioner has preferred this revision petition seeking to set aside the judgment and order of conviction and sentence passed by the Court of Civil Judge (Jr.Dn.) & J.M.F.C., at Hadagali, in C.C. No.6/2009 dated 11.03.2010, which is confirmed in Crl. A. No.33/2010 dated 23.10.2010 by the Fast Track Court – III, at Hospet.

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Brief facts of the prosecution case is that on 23.04.2008 at about 9.30 p.m. on receiving a credible information, the complainant along with the staff and panch witnesses raided a newly constructed house in Harijankeri at Devagondanhalli and having enquired and found that the said house belong to the accused, raided

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the said house in the presence of the accused and found that the accused had illegally stored 265 boxes each containing 48 whisky bottles of 180ml. valued at Rs.3,81,600/-. It is the case of the prosecution that the accused in view of assembly election had unauthorisedly and without any permit stored the said liquor in his newly constructed house and thereby committed offences punishable under Sections 32 and 34 of the Karnataka Excise Act. The said liquor bottles were seized under a mahazar and samples were taken. Report of the sample was obtained. After completing the investigation, charge sheet was filed.

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The trial Court considering the oral and documentary evidence convicted the accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act and sentenced him to

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undergo imprisonment for a period of six months each.

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Aggrieved by the aforesaid judgment and order of conviction and sentence, accused preferred Crl. A. No.33/2010 on the file of Fast Track Court – III, Hospet. The learned Sessions Judge confirmed the judgment and order of conviction and sentence passed by the trial Court and dismissed the appeal.

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I have heard the learned counsel for the petitioner and the learned counsel for the respondent – State.

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It is the contention of the learned counsel

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for the petitioner that the prosecution has utterly failed to prove that the house from where the liquor bottles were seized belong to accused. He submits that both the panch witnesses, namely

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P.Ws.5 and 9 have turned hostile, and therefore,

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the prosecution has not proved the seizure of liquor bottles from the possession of the accused. He would further contend that the Courts below by relying on the interested testimony of police witnesses i.e., P.Ws.1 to 4 and 6 to 8 have erroneously passed the orders convicting the accused. He submits that there are no sufficient material on record to pass the impugned judgment and order of conviction and sentence and without appreciating the contention raised by the accused, the Courts below have passed the judgment which has resulted in mis-carriage of justice and accordingly he seeks to set aside the impugned judgment of the trial Court.

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On the other hand, the learned AGA appearing for the respondent – State contended that the evidence of P.Ws.1 to 4 and 6 to 8 are sufficient to bring home the guilt of the accused.

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Though the said witnesses are police officials, there is no enmity for them to falsely implicate the accused in this case. He contended that large quantity of liquor bottles have been seized from the newly constructed house of the accused and the panch witnesses have admitted their signature in the Panchanama at Ex.P-1 and on the sample bottles. He would further submit that the trial Court has imposed a sentence of six months each for the offences under Sections 32 and 34 of the Karnataka Excise Act, though the minimum sentence prescribed is one year and fine of not less than Rs.10,000/- for the aforesaid offences. Hence, he seeks to dismiss the Revision Petition.

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It is the case of the prosecution that on receiving a credible information, P.W.1 and his staff along with panch witnesses, namely P.Ws.5 and 9 went to the spot i.e., newly constructed house belonging to the accused and on enquiry

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they came to know that the said house belong to the accused and they called the accused who was residing in the adjacent house and asked the accused to open the lock of the said newly constructed house, wherein, they found huge quantity of liquor bottles stored without any permit or lawful authority.

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To establish the guilt of the accused, the prosecution in all examined nine witnesses as P.Ws.1 to 9 and got marked Exs.P-1 to P-4 and M.Os.1 to 28, the sample bottles.

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It is the further case of the prosecution that seizure of the liquor bottles was conducted in the presence of the panch witnesses PW5 and PW9. Both the panch witnesses have turned hostile to the case of the prosecution. The sum and substance of the evidence of PW1 to 4 and 6 to 8 is that after visiting the spot they enquired and came to know that newly constructed house belong

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to the accused, the said newly constructed house was locked and they got opened the lock with the help of the accused by using the key. Though it is the case of the prosecution that on enquiry they came to know that it is the house of the accused however, it is relevant to note here that there is nothing on record placed by the prosecution to establish that the said newly constructed house belong to the accused. None of the independent witnesses have been examined to prove that the house belong to the accused or to prove that the said information was received from any of the villagers. It is noticed from the evidence of PW3 that when they reached the spot at about 9.30 p.m., there were several other persons near the spot. The said persons have not been examined. The key used to open the lock of the house is also not seized. The accused has categorically denied the suggestions that the house from where the contraband articles were seized belong to him.

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The prosecution has failed to establish that the said house where the liquor bottles were seized belonged to the accused. In that view of the matter, it cannot be said that the prosecution has established the case against the accused beyond all reasonable doubt. Both the Courts below have failed to appreciate this aspect of the matter and passed the impugned judgment on the basis of the evidence of PWs 1 to 4, 6 to 8.

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In the facts and circumstances of the case and for the aforesaid reasons, the evidence of PWs1 to 4, 6 to 8 are not sufficient to prove that the accused is guilty of the offence punishable under Sections 32 and 34 of the Karnataka Excise Act. Accordingly, I proceed to pass the following:

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ORDER

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i) Criminal Revision Petition is allowed.

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ii) The judgment and order of conviction and sentence dated 11.03.2010 passed by the learned Civil Judge (Jr.Dn.) and JMFC, Hadagali in CC No.6/2009 confirmed by the judgment and order dated 23.10.2010 in Crl.A. No.33/2010 on the file of the Fast Track Court-III, Hospet, are hereby set-aside.

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iii) The petitioner-accused is acquitted of the offences punishable under Sections 32 and 34 of the Karnataka Excise Act.

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Sd/JUDGE

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hnm/JTR

Poojar H. Giriyappa S/O Durugappa v. the Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Poojar H. Giriyappa S/O Durugappa v. the Sub Inspector of Police

Case brief

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What did the court decide?

What the court decided

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