Allowed

Smt. Parvathamma v. the State of Karnataka

Karnataka HC4 Dec 2023CRL.RP/297/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal revision petition challenging conviction and sentence for liquor offenses. The court set aside the judgments due to failure to comply with mandatory search procedures under the Karnataka Excise Act and procedural lapses, acquitting the petitioner.

What did the court decide?

Impugned judgments of conviction and sentence set aside; petitioner acquitted; fine amount, if any, to be returned.

Smt. Parvathamma Vs the State of… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO. 297 OF 2017

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BETWEEN:

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SMT. PARVATHAMMA @ BETTADAMMA, W/O LATE RAMEGOWDA, AGED ABOUT 51 YEARS, R/AT HETHURU VILLAGE, SAKALESHPURA TALUK, HASSAN DISTRICT - 571 334.

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…PETITIONER

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(BY SRI. PRATHEEP K.C, ADVOCATE)

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AND:

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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THE STATE OF KARNATAKA, REPRESENTED BY POLICE INSPECTOR, SPECIAL POLICE STATION, EXCISE ENFORCEMENT & LOTTERY PROHIBITION WING, HASSAN DISTRICT, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 01.

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…RESPONDENT (BY SRI. VINAY MAHADEVAIAH, HCGP) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT DATED 14.11.2016 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HASSAN IN CRL.A.NO.109/2016 AND IN C.C.NO.419/2011 DATED 05.04.2016 PASSED BY CIVIL JUDGE AND JMFC AT SAKALESHPURA AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 32(1) OF KARNATAKA EXCISE ACT AND SECTIONS 272, 273 OF IPC.

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NC: 2023:KHC:43661 CRL.RP No. 297 of 2017

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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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Heard Sri.Pratheep K.C., learned counsel for the petitioner and Sri.Vinay Mahadevaiah, learned HCGP for the respondent-State.

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The petitioner, who is the sole accused, has preferred this criminal revision petition under Section 397 read with 401 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for short), challenging the judgment of conviction and order of sentence passed by the Civil Judge and JMFC, Sakaleshpura, Hassan District, in C.C.No.419/2011 dated 05.04.2016 and the judgment passed by the V Additional District and Sessions Judge, Hassan District in Crl.A.No.109/2016 dated 14.11.2016, wherein both Courts passed concurrent findings in respect of offence under Section 32 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the Act' for short) and Sections 272 and 273 of IPC.

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioner is the accused and the respondent-State is the complainant before the trial Court.

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It is the case of the prosecution that on 08.02.2011 at about 4.00 p.m. at Hethuru village, Olala Dinne Road, PW-1 was on patrol duty and he received credible information that the accused was in illegal possession of intoxicant liquor and fermentation of jaggery near her house. Therefore, he along with three panchas and sub-staff came to the house of accused and conducted a raid and seized 5 liters of intoxicant liquor and 300 liters of fermentation of jaggery kept in 6 mud pots behind the house of accused and conducted seizure panchanama as per Ex.P1, which led to registration of FIR and investigation.

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Based on the complaint, a case was registered and after investigation, the Investigation Officer filed the charge sheet. After receipt of charge sheet, the learned

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Magistrate took cognizance under Section 109(1)(b) of Cr.P.C. and trial Court framed charges for the aforesaid offences against the accused and read over to accused. She pleaded not guilty and claimed to be tried.

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The prosecution in all examined 8 witnesses as PWs.1 to 8 and got marked 9 documents as per Exs.P1 to P9 and material object as per M.O.1. After completion of the evidence, the statement of accused under Section 313 of Cr.P.C. was recorded, where she had denied all the incriminating circumstances, but she did not enter the witness box to lead defence evidence.

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After hearing both sides, the learned trial Judge convicted the accused for the offence punishable under Section 32 of the Act and Sections 272 and 273 of IPC and sentenced her to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 372 of the Act. So far as Sections 272 and 273 of IPC, the

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accused was liable to pay fine of Rs.2,000/- each and sentenced her to undergo simple imprisonment of 60 days each.

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Being aggrieved by the same, the accused preferred an appeal before the First Appellate Court and the First Appellate Court confirmed the judgment of conviction and order of sentence passed by the trial Court. Aggrieved by the judgment of conviction and order of sentence passed by the trial Court as well as First Appellate Court, the accused has preferred this petition.

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Learned counsel for the petitioner submits that the prosecution has failed to prove its case beyond reasonable doubt against the petitioner. In the instant case, the independent pancha witnesses have turned hostile to the case of the prosecution, the material object seized on the day of alleged incident, has not been produced before the Court and the seized intoxicant and the contents of 6 mud pots were not sent to chemical examination, the other local independent panch witnesses

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have not been cited as witnesses; the Investigating Officer has not complied the requirement of Sections 53 and 54 of the Act; though PW.1 received information of cognizance offence, he did not enter the same in station house diary and before conducting search, the Investigation Officer did not obtain any search warrant from the Court or any Competent Authority under the Act. Hence, the trial Court as well as First Appellate Court have failed to appreciate these factual and legal aspects of the matter and erred in convicting the petitioner. Hence, he prays to allow the petition.

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Per contra, the learned High Court Government Pleader for the respondent-State submits that the judgment of conviction and order of sentence passed by both the Courts are in accordance with law on the basis of the materials available on record. Further, the official witnesses have supported the case of the prosecution. There is no animosity between the accused and the official witnesses. Hence, based on the oral testimony of the

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official witnesses, conviction can be sustained. Hence, he prays to dismiss the petition.

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Having heard the arguments of learned counsel

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for revision petitioner and learned High Court Government Pleader for the respondent-State, the following points would arise for consideration:

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1. Whether the petitioner has made out sufficient grounds to exercise power of revision and call for interference by the impugned order?

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2. What order?

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Point No.1: It is the case of prosecution that,

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on 08.02.2011 at about 4.00 p.m. at Hethuru village, Olala

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dinne road, accused was in illegal possession of 5 liters of intoxicant liquor and 300 liters of fermentation of jaggery

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kept in 6 mud pots behind her house, knowing fully that the said intoxicant was adulterated and not fit for human consumption. Therefore, PW.1 and his staff conducted the ride and seized 5 liters of intoxicant liquor under damaged

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six mud pots kept behind the house of the accused, conducted seizure panchanama and lodged the complaint.

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On perusal of the materials available on record, PW.1-Ganesh, an independent witness to the prosecution case under seizure mahazar witness-Ex.P1, who turned hostile to the case of the prosecution.

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PW.2-Dinesh and PW.3-Kushala, who are also independent witnesses under seizure mahazar witnessesEx.P1, they too turned hostile to the case of the prosecution and in the cross-examination, they have completely denied the case of the prosecution. Therefore, the evidence of independent witnesses does not come to the help of prosecution.

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PW.4 - Akashigowda, PW.5-Rangaswamy G.M., Head Constable, PW.6-Dharmappa H., Head Constable and PW.7-Thopegowda K.H., Police Constable, who are all the members of the riding party have deposed that on receipt of information they visited the house of the accused and conducted raid and seized 5 liters of intoxicant liquor and

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300 liters of fermentation of jaggery kept in 6 mud pots behind the accused house and thereby conducted seizer panchanama as per Ex.P1 and also seized 180 ml intoxicant in a bottle as per M.O.1.

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PW.8 is the Investigation Officer, who registered the case and sent FIR to Jurisdictional Court and his Higher Authority and filed charge sheet before the Court.

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Undisputedly, the search and seizure have been carried out in an open place and the alleged intoxicants were seized within a distance of 20 feet from the house of the accused and not from the possession of the accused.

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Section 53 of the Act provides for securing the search warrant from the Jurisdictional Magistrate for the purpose of holding search of any place, if the Competent Authority has got reasons to believe that the intoxicant articles are kept or concealed in the said place or for arrest of any person whom he has reason to believe had committed the offence mentioned in the said Section.

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Section 54 of the Act provides for power to search without warrant.

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From the reading of Section 54 of the Act, it is clear that in the event, if the Competent Authority has reason to believe that offence punishable under the said Section is likely to be committed or is being committed and that a search warrant cannot be obtained without giving an opportunity to the offender to escape, he may after recording the grounds for his belief, proceed to search a place and also arrest the accused found in the said place, who he has reason to believe to be guilty of such offence as mentioned in such Section.

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In the present case, admittedly, the requirement of Section 53 of the Act has not been complied with by PW-4 before carrying out search and seizure in the intended place and arrest of the accused. Ex.P.1-seizure panchanama is the document which is said

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to be prepared by PW-4 in compliance of requirement of Section 54 of the Act. But, during the course of cross-

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examination, PW-4 has not stated anything about preparing Ex.P.1 prior to the conduct of search and seizure of the accused and her belongings. Therefore, requirement of compliance of Section 54 of the Act is not established by the prosecution.

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The compliance of Sections 53 and 54 of the Act are mandatory in nature. The Hon'ble Supreme Court in the case of K.L.SUBBAYYA v/s STATE OF KARNATAKA reported in AIR 1979 SCC 711 has held that, compliance of Sections 53 and 54 of the Act is mandatory and noncompliance of the same would vitiate the conviction order passed against the accused.

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Undisputedly, none of the prosecution witnesses have supported the case of prosecution and during the course of search and seizure, the prosecution has not complied with the statutory requirements of Sections 53 and 54 of the Act.

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In a case where the statutory requirements which is mandatory in nature, is not complied with by the

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prosecution and where the prosecution has failed to give proper reasons for non-examination of independent witnesses, it would be highly difficult to place reliance on the prosecution witnesses, who are official witnesses for convicting the accused.

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Learned counsel for the petitioner contended that though PW.1 received credible information as to submission of cognizance offence, he failed to enter the same in station house dairy. Therefore, it would amounts to violation of the ratio as laid down in the case of LALITHA KUMARI v/s STATE OF UP reported in 2014 (2) SCC 1 .

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In this regard, learned counsel relied on the decision in the case of PRADEEP MENDON AND OTHERS v/s STATE OF KARNATAKA in Crl.P.No.5689/2018 dated 03.04.2019, wherein the Co-ordinate Bench of this Court at paragraphs 6 and 7 held as under:-

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"6. Having heard the learned Advocates appearing for parties and on perusal of records it would clearly disclose that FIR registered against

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petitioners was for the offences punishable under Sections 120B, 399, 402 and 511 of IPC which are cognizable offences, for which no preliminary enquiry is required to be held. Thus, on receipt of credible information the informant who is the police inspector in the instant case, ought to have taken steps immediately to register the FIR mandatorily as prescribed under Section 154 Cr.P.C particularly when the credible information disclosed cognizable offence.

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7. In fact Sri. Nishith Kumar Shetty, learned Advocate appearing for petitioners is correct in submitting that jurisdictional police had all time at their disposal not only to receive credible information but also had time to secure panchas by issuing notices to them and yet they did not register the FIR. In fact, entry found in the general diary even according to the entries made in the FIR discloses that it was around 7.15 a.m, on 16.2.2018 information had been received and incident is said to have occurred at 3.30 p.m. Thus, the procedure adopted by the jurisdictional police registering the FIR in respect of cognizable offence without entering the gist of the credible information in the General Diary/Station House Diary, yet, proceeding to the scene of occurrence and apprehending the alleged accused is contrary to Section 154 Cr.P.C. Hence,

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procedure adopted by the respondent – police being contrary to Section 154 Cr.P.C., continuation of proceedings against petitioners would definitely be onerous and waste of precious judicial time."

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Further, learned counsel for the petitioner relied on the decision reported in Crl.P.No.2451/2022 dated 03.08.2023, wherein the Co-ordinate Bench of this Court at paragraphs 4, 5 and 10 held as under:-

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"4. Learned counsel for the petitioners submit that, the credible information was received at 6.00 p.m. and the Police Officer without registering the FIR at the first instance has conducted a raid which is impermissible as held by the Hon'ble Supreme Court in the case of Lalitha Kumari -Vs- State of UP, reported in 2014 (2) SCC 1. He further submits that, the credible information was received at 6.00 p.m., and the FIR was registered at 9.00 p.m. and there is no entry in the Station House Dairy with regard to the credible information so received, hence, conducting of investigation is contrary to Section 154 Cr.P.C. In support, he places reliance on the decision of the Co-ordinate Bench of this Court in Crl.P.No.5689/2018.

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5. Learned High Court Government Pleader for the respondent-State would submit that, it is

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not necessary to register the FIR, when the Police Officer receives credible information and to prevent the commission of the crime, the Police Officer without registering the FIR can conduct investigation. In support, she places reliance on the decision of the Co-ordinate Bench of this Court in Crl. Revision Petition No.538/2014 disposed of on 22.03.2022.

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10. In the instant case, the Police Officer without making entry in the Station House Dairy with regard to the Commission of the cognizable offence has conducted the investigation, and the same is contrary to Section 154 of Cr.P.C. Hence, the conducting of the investigation without complying with Section 154 of Cr.P.C., culminating in submitting the charge sheet stands vitiated."

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In view of the facts and circumstances on the ratio laid down supra , in the case where the statutory requirement which is mandatory in nature and is not complied by the prosecution and where the prosecution has failed to give proper reasons for non-examination of independent witnesses and non-seizure of intoxicant, the trial Court as well as the first Appellate Court have failed

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to convict the accused for the offences for which she was charged. Under these circumstances, the impugned judgment of conviction and order of sentence which are questioned by the accused in this revision petition cannot be sustained and hence, point No.1 raised above is answered in the affirmative. Accordingly, the following:-

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ORDER

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i. The criminal revision petition is allowed ;

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ii. The judgment of conviction and order of sentence dated 05.04.2016 passed by the Civil Judge and JMFC, Sakaleshpura, Hassan

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District, in C.C.No.419/2011 and the judgment dated 14.11.2016 passed by the V Additional District and Sessions Judge, Hassan District in Crl.A.No.109/2016, are here by set aside.

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