Allowed

Dattaram S/O. Narayan Bhadargali v. the State of Karnataka

Karnataka HC12 Dec 2022CRL.RP/100162/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal revision petition, setting aside a conviction for selling adulterated liquor. The Court held that the police raid to seize the illicit liquor violated mandatory statutory provisions requiring a magistrate's warrant or recording specific grounds for dispensing with it, rendering the seizure illegal.

What did the court decide?

Petitioner acquitted; conviction and sentence set aside; bail bond cancelled.

Dattaram S/O. Narayan Bhadargali Vs… — Constitutional and Fundamental Rights | Karnataka HC (2022)

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CRL.RP No.100162/2014

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 12^th DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH

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CRIMINAL REVISION PETITION NO.100162/2014

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BETWEEN

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DATTARAM S/O. NARAYAN BHADARGALI AGE: 35 YEARS, OCC: COOLIE R/O. GODHOLI, TQ: KHANAPUR DIST: BELGAUM

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.....PETITIONER

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(BY SRI RAMACHANDRA MALI., ADVOCATE)

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AND

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Digitally signed by ANNAPURNA ANNAPURNACHINNAPPADANDAGAL CHINNAPPADANDAGALLocation:HIGH COURT OF KARNATAKA DHARWAD

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THE STATE OF KARNATAKA THROUGH NANDGAD P S DIST : BELGAUM NOW R/BY SPP HIGH COURT OF KARNATAKA DHARWAD

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(BY SRI. RAMESH CHIGARI, HCGP)

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…..RESPONDENT

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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 JUDGMENT/ORDER OF CONVICTION AND SENTENCE DATED 21.01.2010 IN C.C.NO.702/2009 PASSED BY THE LEARNED ADDL. CIVIL JUDGE (JR.DN.) & JMFC COURT, KHANAPUR CONVICTING AND SENTENCING THE PETITIONER FOR THE OFFENCES P/U/S 273 OF IPC & SEC. 34 OF KARNTAKA EXCISE ACT AND AS CONFIRMED BY THE JUDGMENT/ ORDER OF CONVICTION DATED 03.07.2014 IN CRL.A.NO.29/2010 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I AND ADDL. DIST. & SESSIONS JUDGE, BELGAUM, SITTING AT KHANAPUR.

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

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CRL.RP No.100162/2014

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ORDER

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This criminal revision petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 21.01.2010 in C.C.No.702/2009 passed by learned Addl. Civil Judge (Jr.Dn.) & JMFC, Khanapur (for short, ‘Trial Court’) and its confirmation order dated 03.07.2014 in Crl.A.No.29/2010 passed by learned Presiding Officer, Fast Track Court -I and Additional District and Session Judge, Belgaum, sitting at Khanapur, (for short, ‘Appellate Court’).

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For the sake of convenience, the rankings of the

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parties would be henceforth referred to as per their rankings before the trial Court.

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Brief facts of the case are as under:

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It is the case of the prosecution that, on 29.06.2009, at about 10.30 p.m., it is alleged that, the accused was selling adulterated / obnoxious liquor in front of his house. On receiving the information, the respondent / Police have conducted raid and found that 40 bottles of liquor and a can containing illicit arrack was found in possession of the accused. Accused was arrested, the items were seized and a case was registered against the accused for the offences punishable under section 34 of the Karnataka Excise Act, 1965 (for short

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CRL.RP No.100162/2014

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“the Act”) r/w. section 273 of IPC. The police have conducted investigation and submitted the charge sheet.

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To prove the case, the prosecution has examined PW.1 to PW.5 and got marked Ex.P1 to Ex.P4 and also identified MO.1 to MO.3.

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The Trial Court after appreciating the oral and documentary evidence, convicted the accused and sentenced him to undergo three months’ simple imprisonment and fine of Rs.500/- for the offence punishable under section 273 of IPC, in default of payment of fine, he shall undergo simple imprisonment for one month. Similarly, the accused was sentenced to simple imprisonment for two years and to pay fine of Rs.10,000/- for the offence punishable under section 34 of the Act. In default of payment of fine, he shall undergo simple imprisonment for three months.

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Being aggrieved by the judgment and order of conviction passed by the Trial Court, the accused preferred an appeal before the Appellate Court. The Appellate Court dismissed the appeal and confirmed the said order of Trial Court. Hence, this revision petition.

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CRL.RP No.100162/2014

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Heard Sri Ramachandra Mali, learned counsel for petitioner and Sri Ramesh Chigari, learned HCGP for respondent.

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Sri Ramachandra Mali, learned counsel for petitioner submits that, the judgment and order of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court are contrary to the facts and law. Hence, the concurrent findings of the subordinate Courts are liable to be set aside.

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It is further submitted that, the respondent / Police

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did not obtain permission from the competent / jurisdictional Magistrate before conducting raid which is mandatory under the Act. Unless the respondent / Police complied the mandatory requirement and conducted raid, the same is unsustainable and liable to be set aside. It is further submitted that, all the witnesses the prosecution examined before the Trial Court are official witnesses and their evidence in respect of seizure and also the fact that the accused was selling the liquor cannot be looked into as these witnesses are interested witnesses. Making such submission, learned counsel for the petitioner prays to allow the revision petition.

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CRL.RP No.100162/2014

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Per contra , Sri Ramesh Chigari, learned HCGP for respondent justifying the concurrent findings for conviction recorded by both the Courts, submitted that, there is an exception under the Act in obtaining the permission from the jurisdictional Magistrate. It is further submitted that, at the time of conducting the raid, the respondent / Police may not get sufficient time to obtain such permission. Therefore, there is an exception stipulated under the Act in not obtaining the permission under section 54 of the Act. As such, the respondent / Police neither committed illegality nor arrested the accused for any vengeance. Therefore, the contention of the learned counsel for the petitioner regarding not obtaining the mandatory permission from the Magistrate before conducting the raid cannot be accepted. It is further submitted that the Hon’ble Supreme Court time and again reiterated that, the evidence of official witnesses cannot be brushed aside considering them as interested witnesses. Therefore, the respondent / Police justified their case by adducing cogent and proper evidence before the Trial Court and the Trial Court after appreciating the oral and documentary evidence and also raised the presumption available under section 40 of the Act, convicted the accused authoritatively. Therefore, the order of

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CRL.RP No.100162/2014

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conviction by the Trial Court and its confirmation by the Appellate Court are sustainable and the revision petition has to be dismissed.

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After having heard the learned counsel for the

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parties and also perused the documents on record, the points which arise for my consideration in the present case are,

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(i) Whether the jurisdictional Police have conducted raid contrary to the provisions of the Act?

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(ii) If so, whether the material seized during such raid is sustainable or can be looked into?

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To answer the above points, it is necessary to refer

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the provisions of sections 53 and 54 of the Karnataka Excise Act (for short “the Act”) which reads thus:

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“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, section34, section 36 or section 37 has been, is being, or is likely to be, committed, he may issue a warrant,-

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CRL.RP No.100162/2014

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(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

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(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 search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief,-

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(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

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(b) detain and search and, if he thinks proper,

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CRL.RP No.100162/2014

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arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”

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The prosecution has mainly relied on the evidence of PW.1 to PW.3 who are considered as material witnesses to the case. PW.1 Sri Suresh M.Bhavimani was working as PSI (Probationary) in Nandagad P.S. He has stated that, on receiving information on 26.09.2009, he went to the spot along with panch witnesses CWs.2 and 3 and his sub-ordinate officials namely CWs.5 to 8. He has reached to the spot where the alleged incident was being carried out and conducted raid along with sub-ordinates and also panch witnesses and seized the items which are considered as illicit liquor / arrack. According to him, after seizing the arrack, he has taken two bottles and sealed separately for chemical analysis and he has identified it as MOs.1 to 3.

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Similarly, PW.2 – Maruti Bhojappa Kotabagi, who accompanied PW.1 has deposed in consonance with the evidence of PW.1 and supported the case of the prosecution.

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PW.3 – Balarama Singh Davalath Singh Rajapooth, is another panch witness stated to have accompanied PW.1 and deposed that, he was called to the police station on 29.06.2009 to be a panch witness, accordingly, he went along with PW.1.

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He supported the case of the prosecution. Though the question

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was put to him by considering him as stock witness during cross-examination, he denied the same.

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PW.4- Anand Mahaveera Onakundri, is the another PSI who continued investigation, stated to have received chemical analysis report from Belagavi division and produced the same as per Ex.P3.

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PW.5- Abdulkhadar Abbusabha Zende, is another SHO, who has stated that he has received the seized items handed over to him by PW.1. He has stated to have assisted in the investigation conducted.

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Be that as it may, on reading of entire evidence of all these witnesses it appears that, the Police have not obtained permission from the jurisdictional Magistrate to conduct search and seizure which is required in a case where the provisions of sections 32, 33, 34, 36 or 37 of the Act are invoked.

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It is to be noted here that, in the Karnataka Excise Act, stipulated provisions of section 54, it is stated that the jurisdictional Police may conduct search without warrant, provided that, if there are reasons to believe that, the accused

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CRL.RP No.100162/2014

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may escape or conceal evidence of offence, in such cases, the Police Officers may conduct search without warrant. The condition precedent to exercise such power is that, the said police officer who conducted raid has to record the reason for not having obtained the warrant.

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It is evident from the facts of the case that, PW.1 has conducted raid on the house of the accused where the alleged sale of illicit liquor was being sold. It can be believed that, the jurisdictional police need not necessarily obtain permission from the jurisdictional Magistrate, if the accused was carrying alleged illicit liquor or carrying / transporting it and suddenly it has to be seized. But, in this case, allegedly it was sold in the house there was no impediment to PW1, to obtain permission.

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The evidence of all the witnesses makes it clear that the alleged raid stated to have been conducted in contravention of sections 53 and 54 of the Act, therefore, the said seizure is considered as illegal. Having said thus, the Trial Court and the Appellate Court failed to consider sections 53 and 54 of the Act. Hence, judgment of conviction and order of sentence are required to be set aside.

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CRL.RP No.100162/2014

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In light of the observations made above, the points

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which arose for my consideration are answered:

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Point No.(i) in the “Affirmative”

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Point No.(ii) in the “Negative”

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Hence, I proceed to pass the following;

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ORDER

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a) The Criminal Revision Petition filed by the petitioner is allowed.

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b) The judgment of conviction and order of sentence dated 21.01.2010 passed by the learned Additional Civil Judge (Jr.Dn) & JMFC, at Khanapur, in C.C.No.702/2009 and its confirmation order dated 03.07.2014 passed by the learned Presiding Officer, FTC-1 and I Additional District and Sessions Judge, Belgaum, sitting at Khanapur in Crl.A.No.29/2010 are set aside.

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c) The accused is acquitted for the offences punishable under Section 273 of IPC and Section 34 of Karnataka Excise Act, 1965.

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d) Bail bond executed, if any, stands cancelled.

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JUDGE

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Sd/-

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Bss

Dattaram S/O. Narayan Bhadargali v. the State of Karnataka

Case brief

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Dattaram S/O. Narayan Bhadargali v. the State of Karnataka

Case brief

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