Allowed

Sri. Arun Kumar S/O Late Basegowda v. State of Karnataka by

Karnataka HC30 Nov 2020CRL.RP/927/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed this criminal revision petition, setting aside convictions for illicit liquor possession. The court held that the presumption under Section 40 did not arise because the prosecution failed to prove the scene of offence belonged to the accused, citing Supreme Court precedents requiring proof of ownership when seizure occurs on premises other than the accused perso

What did the court decide?

The impugned orders of conviction and sentence are set aside; the petitioner is acquitted of the charge under Section 32 of the Karnataka Excise Act, 1965.

Sri. Arun Kumar S/O Late Basegowda Vs State of… — Landlord and Tenant | Karnataka HC (2020)

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Crl.R.P.No.927/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.927/2011

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BETWEEN :

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SRI ARUN KUMAR S/O LATE BASEGOWDA, AGED ABOUT 43 YEARS, OCC: AGRICULTURIST, R/AT BETTADA MANE VILLAGE, GONIBEEDU HOBLI, MUDIGERE TALUK, CHICKMAGALUR DISTRICT. … PETITIONER

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(BY SRI.H. P. LEELADHAR, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY SUB-INSPECTOR, MUDIGERE EXCISE, MUDIGERE, CHICKMAGALUR DISTRICT. … RESPONDENT (BY SRI.H.R.SHOWRI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 24.05.10 PASSED BY THE ADDL. JMFC, MUDIGERE IN C.C.NO.744/09 AND ORDER DATED 3.8.11 PASSED BY THE PRL.S.J., CHIKMAGALUR IN CRL.A.NO.133/2010.

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Crl.R.P.No.927/2011

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the impugned order of conviction and sentence passed against the petitioner/accused for the offence punishable under Section 32 of the Karnataka Excise Act, 1965 (‘the Act’ for short) is sustainable?’’ is a question involved in this case.

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The petitioner was tried in

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C.C.No.744/2009 on the file of the Additional Civil Judge and JMFC, Mudigere for the offence punishable under Section 32 of the Act and Section 273 of IPC on the basis of the final report filed by the Sub-Inspector, Mudigere Excise Office, Mudigere in Excise Case No.14/2008-09.

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The case of the prosecution in brief was

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as follows:

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That on 15.06.2009 at 4.00 p.m. when PW.3 – the Excise Sub-Inspector and his staff were on patrol

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Crl.R.P.No.927/2011

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duty at Jannapura Village, they received credible information that the accused was selling illicit liquor in Bettadamane Village. Therefore, they visited the said Village and found accused in his house and enquired him. They conducted search in the house of the accused situated in the Coffee plantation. In the backyard of the house, they found blue plastic can of 10 ltrs. capacity and that contained 8 ltrs. of illicit liquor. The same was seized under the Mahazar Ex.P.1 in the presence of PWs.1 and 2 – the panchas. Then PW.3 arrested the accused, registered the FIR as per Ex.P.3 and handed over further investigation to PW.4. PW.4 sent the seized articles to FSL and received the FSL report as per Ex.P.4 and recorded the statement of witnesses and filed the charge sheet.

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Learned Magistrate took cognizance of the offence, summoned the petitioner and tried him. On hearing the parties the Magistrate convicted the petitioner for the offence punishable under Section

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Crl.R.P.No.927/2011

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32 of the Act and acquitted him of the charge for the offence under Section 273 of IPC. Further, the Trial Court sentenced the petitioner to Rigorous Imprisonment of one year and fine of Rs.10,000/- for the offence punishable under Section 32 of the Act with default sentence clause.

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The petitioner challenged the said order of conviction and sentence before the Principal Sessions Judge, Chikmagaluru in Crl.A.No.133/2010. The learned Sessions Judge by the impugned judgment and order dismissed the appeal and confirmed the order of conviction and sentence passed by the Trial Court.

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6. Both the Trial Court and First Appellate

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Court held that the possession of illicit liquor and the seizure of the same from the custody of the petitioner was proved by the evidence of PWs.2 to 4. The Trial Court and the First Appellate Court further held that once the possession is proved, the presumption

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under Section 40 of the Act to the effect that the accused has committed the offence punishable under Section 32 of the Act arises and the accused did not satisfactorily explain the possession.

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Sri H. P. Leeladhar, learned counsel for the petitioner seeks to assail the impugned orders of conviction and sentence on the following grounds;

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(i) There are materials contradiction in the seizure Mahazar-Ex.P.1 and the evidence of PWs.2 and 3. PW.1 did not support the seizure.

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(ii) PW.2 was apparently under the influence of PW.3 and his evidence was totally unacceptable.

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(iii) To draw the presumption under Section 40 of the Act, the basic fact that the accused were in possession of illicit liquor has to be proved.

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(iv) The prosecution tried to impute the possession to the accused on the ground that the place from which liquor was seized belongs to him. But they failed to prove the said basic fact, since the

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Investigating Officer did not collect any records to show that the scene of offence belongs to the accused and examine the owner of the said site.

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(v) The Investigation was unfair which

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prejudiced the defence of the petitioner and led to miscarriage of justice. In support of his arguments,

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he relies upon the following judgment;

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1. STATE OF PUNJAB vs BALKAR SINGH AND ANOTHER¹ .

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2. STATE OF PUNJAB vs. MALKIAT SINGH² .

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Per contra, Sri. H.R.Showri, learned

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HCGP seek to justify the impugned orders of conviction and sentence on the following grounds;

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i) Merely because PWs.2 to 4 are the official witnesses, they cannot be called as interested witnesses.

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ii) In the cross-examination of PWs.2 to 4, the accused did not dispute that the scene of

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1 (2004) 3 SCC 582

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2 (2009) 12 SCC 303

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offence belongs to him. Therefore, Investigating Officer not collecting records to show that the scene of offence belongs to the accused is inconsequential.

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(iii) Once the possession was proved, the

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Court below rightly drew the presumption under Section 40 of the Act which was not explained by the accused.

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(iv) Since there are concurrent findings

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of the Courts below on the question of fact, this Court cannot interfere in such concurrent findings. In support of his arguments, he relies upon the following judgment:

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KHALEK SHAIK vs. STATE OF WEST BENGAL³

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This Court is conscious of the fact that

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when there are concurrent findings of the Courts below on appreciation of the evidence, this Court cannot interfere with such matters, unless it is

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3 2006 (7) SCC 439

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Crl.R.P.No.927/2011

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shown that the impugned orders suffer perversity, illegality or impropriety. However, if perversity, illegality or impropriety are shown, the liberty of the petitioner cannot be jeopardized only on the ground that there are concurrent findings of the fact.

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To substantiate the charge brought

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against the petitioner, the prosecution was expected to prove the following basic facts:

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(i) That on 15.06.2009 at 4.00 p.m., the petitioner was found in possession of 8 ltrs. of illicit liquor.

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(ii) PW.3 conducted the search in the place where the accused possessed such illicit liquor and seized the same under Mahazar-Ex.P.1.

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(iii) The accused/petitioner failed to account satisfactorily his possession of such liquor as required under Section 40 of the Act.

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Section 40 of the Act reads as follows;

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“Presumption as to commission of offence in certain cases.In prosecutions under Section 32 and Section 34, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that Section in respect of –

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a) any intoxicant; or b) ---------------------c) ---------------------

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For the possession of which he is unable to account satisfactorily.

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To raise the presumption under Section

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40 of the Act, the prosecution has to prove the basic fact that the accused possessed the illicit liquor at the scene of offence. Admittedly in this case, the liquor was not seized from the person of the petitioner.

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According to the prosecution, the petitioner was found in front of house in Bettadamane Village and on enquiry, he said that the house and the surrounding place belongs to him. Members of raiding squad allegedly searched in the

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backyard of the said house and found illicit liquor in a can between the coffee plants and produced them before PW.3 and he seized them in the presence of PWs.1 and 2 under the Mahazar Ex.P.1. Therefore, basically the prosecution was expected to prove that the scene of offence belongs to the petitioner.

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As per the Mahazar itself, the scene of offence was in coffee plantation within which the house was built. To show that the scene of offence belonged to the accused, the Investigating Officer did not collect any revenue records. In his crossexamination, he said that his enquiry revealed that the said property belongs to one Gowramma and the said Gowramma was the mother of the accused. To proves her relationship with petitioner and her ownership, neither he examined the said Gowramma nor cited her as charge sheet witness. He did not produce any material to show that the said property belonged to Gowramma. Therefore, the basic fact that

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the scene of offence belongs to the accused or it was under his control, was not established.

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Coming to the proof of search and seizure,

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PWs.1 and 2 were said to be the Mahazar witnesses. Out of them, PW.1 did not support the prosecution case. PW.2 though in his chief examination supported the prosecution version, in his crossexamination, he admitted that he was working as daily wage worker in Excise Office, Mudigere since six years. He further admitted that prior to that he was working with Excise Contractor. In the charge sheet he was not shown as the person working in the Excise Establishment which amounts to suppression of material fact. PW.3 in his chief examination deposes as PWs.1 and 2 were independent witnesses and secured them as panchas.

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PW.2 though in the chief examination supported the version of the prosecution regarding

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the scene of offence, in his cross-examination states that he cannot say the boundaries of the scene of offence and he cannot say where the Excise Officer conducted search.

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PW.3 –the Officer who led the search, in his cross-examination states that because the accused said that scene of offence belongs to him, he has written so in the Mahazar. He said that liquor was seized by the side of the coffee plant but he cannot say the said coffee plant belonged to which breed. To the suggestion that the Mahazar was not drawn at the place of seizure, he said that because the scene of offence was a compound, he collected the contraband articles from backyard and brought them to the front yard and drew the Mahazar there. The said recital is not found in the Mahazar-Ex.P.1.

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Under such circumstances, the statement of the trial Court and the First Appellate Court that the evidence with regard to search and seizure at the

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scene of offence and that belongs to the accused was contrary to the evidence on record and suffers perversity.

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The seizure was not from the person of the accused. Once the prosecution fails to prove that the scene of offence namely the place from which the property was seized was in the possession of the accused, the presumption under Section 40 of the Act does not arise.

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In Balker Singh’s case referred to supra, the Hon’ble Supreme Court while deciding the case under NDPS Act which contained similar statutory presumption held that in fairness, the Police should have conducted further investigation to prove the accused were in possession of articles and to show that the ownership of the poppy husk. It was further held that the failure of the accused to give any satisfactory explanation for being present at the place itself does not prove that they were in possession of incriminating articles.

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In Malkiat Sing’s case referred to supra, the Hon’ble Supreme Court in the similar circumstances held that when prosecution claimed that the room from which the narcotics were seized was leased to the accused, on the failure of the Investigating Officer to examine the landlord or to collect the copy of the lease deed and to prove the possession of room by the accused, the prosecution version regarding possession was vulnerable and was not acceptable.

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Having regard to the aforesaid judgments

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of the Hon’ble Supreme Court and the failure of Investigating Officer to collect the records with regard to ownership of the scene of offence by the accused and non-examination of the owner of the property, the Courts below acted contrary to the aforesaid judgments in raising the presumption under Section 40 of the Act. Similarly, the approach of the Courts below in appreciating the evidence was also contrary

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to the basic principle of burden of proof under Sections 101 and 102 of the Indian Evidence Act, 1872.

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Therefore the petition is allowed. The impugned orders of conviction and sentence passed by the Trial Court and confirmed by the First Appellate Court are hereby set aside.

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The petitioner/accused is acquitted of the charge for the offence punishable under Section 32 of the Karnataka Excise Act, 1965.

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Sd/JUDGE

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HA/-

Sri. Arun Kumar S/O Late Basegowda v. State of Karnataka by

Case brief

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Sri. Arun Kumar S/O Late Basegowda v. State of Karnataka by

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