Allowed

M B Mahesh v. State of Karnataka

Karnataka HC21 Feb 2023CRL.RP/451/2014

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition challenging convictions under the Karnataka Excise Act and IPC. The court set aside the conviction, quashed proceedings due to procedural lapses in search warrants and non-examination of the complainant.

What did the court decide?

Criminal Revision Petition allowed; impugned judgments set aside; petitioners acquitted of the charged offences.

M B Mahesh Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2023)

¶1

¶2

CRL.RP No. 451 of 2014

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF FEBRUARY, 2023 BEFORE

¶4

THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRL.R.P. NO. 451 OF 2014

¶5

BETWEEN:

¶6

M.B. MAHESH S/O LATE BASAPPA AGED ABOUT 35 YEARS.

¶7

M.N. PRASANNA KUMAR S/O M.A. NAGARAJ AGED ABOUT 43 YEARS.

¶8

M.M. SWAMY S/O VIJAYAKUMAR AGED ABOUT 29 YEARS.

¶9

Digitally signed by B A KRISHNA KUMAR Location: High Court of Karnataka

¶10

M.N. BASAVANNA S/O M.G. SHIVAPPA GOWDA AGED ABOUT 52 YEARS.

¶11

M.C. ASHOK S/O M.B. CHANDRAPPA GOWDA AGED ABOUT 31 YEARS.

¶12

ALL ARE RESIDING AT MAVINAHALLI VILAGE SAKALESHPURA TALUK HASSAN DISTRICT PIN - 573 134.

¶13

…PETITIONERS

¶14

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

¶15

AND:

¶16

STATE OF KARNATAKA BY SAKALESHPURA POLICE STATION HASSAN DISTRICT PIN - 573 134.

¶17

…RESPONDENT

¶18

(BY SRI MAHESH SHETTY, HCGP)

¶19

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT CONVICTION AND ENHANCING SENTENCE DATED 12.4.2014 PASSED BY THE ADDL. S.J., HASSAN

¶20

¶21

CRL.RP No. 451 of 2014

¶22

IN CRL.A.NO.41/2009 C/W CRL.A.NO.77/2009 CONVICTING THE PETRS. HEREIN U/S 272,273 OF IPC AND SEC.34 OF KARNATAKA EXCISE ACT BY CONFIRMING THE JUDGMENT CONVICTION AND SENTENCE DATED 4.4.2009 PASSED BY THE J.M.F.C., SAKLESHPURA IN C.C.NO.939/2006 FOR THE OFFENCE P/U/S 272,273 OF IPC AND MODIFY THE SENTENCE U/S 34 OF KARNATAKA EXCISE ACT AND ALLOW THE REVISION PETITION AND ACQUIT THE PETRS. HEREIN.

¶23

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

¶24

ORDER

¶25

This Criminal Revision Petition under Section 397 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the accused challenging the judgment and order of conviction and sentence passed by the Court of Civil Judge & JMFC, Sakaleshpura (for short the 'Trial Court) in C.C.No.939/2006 dated 04.04.2009 and the judgment and order passed by the Additional Sessions Judge, Hassan (for short the 'Appellate Court') in Crl.A.No.41/2009 & Crl.A.No.77/2009 dated 12.04.2014.

¶26

Heard the learned counsel for the petitioners and learned High Court Government Pleader for respondent - State.

¶27

Brief facts as revealed from the records necessary for the purpose of disposal of this revision petition are, on 28.10.2005, at about 6.00 a.m, the complainant –CW1 had received a credible information with regard to illegal

¶28

3 - CRL.RP No. 451 of 2014

¶29

manufacture and possession of illicit arrack, and immediately on receipt of such information, he secured the presence of his staff and panchas and at about 7.30. a.m, he along with his staff and panchas went near the wetland of Venkatappa situated by the side of Hemavathi River, Mavinahalli Village and noticed that the accused persons were illegally manufacturing illicit arrack. Seeing the riding squad accused persons ran away from the spot. The complainant and his staff on inspection of the spot found a oven and an aluminum vessel containing illicit arrack, 300 liters capacity of 4 Tin drums, 3 small drums, 4 plastic vessels, three aluminum Vessels, molasses which was used to manufacture illicit arrack, 20 liters of illicit arrack in 3 plastic can and seized all these articles under a mahazar in the presence of panchas and destroyed the illicit arrack, which were in aluminum vessel and seized the illicit arrack which was found in the plastic can for chemical examination. Thereafter, complainant returned to the station and lodged a complaint, based on which FIR was registered against the petitioners herein for the offences punishable under Section 32 and 34 of Karnataka Excise Act, 1965 (for short, the 'Act') and Section 272 and 273 of I.P.C. During the course of investigation, the petitioners were arrested and after completion of investigation,

¶30

¶31

CRL.RP No. 451 of 2014

¶32

the police have filed a charge sheet against the petitioners herein for the aforesaid offences.

¶33

The petitioners claimed to be tried before the Trial Court and therefore to prove its case, the prosecution had examined in all 11 witnesses as PW.P1 to P11 and also got marked 7 documents as Ex.P.1 to P7. The articles which were seized from the spot were produced and marked before the Trial Court as M.O.1 to M.O.33. The petitioners during the course of their Section 313 of Cr.P.C., statement had denied the incriminating evidence which was available on record. However, they did not choose to lead any defence evidence nor did they produce any document in support of their defence.

¶34

The Trial Court thereafter heard the arguments addressed on both the sides and by its judgment and order dated 04.04.2009 convicted the petitioners for the offences punishable under Section 32 and 34 of Karnataka Excise Act, 1965 (for short, the 'Act') and Section 272 and 273 of I.P.C and sentenced them to undergo Simple Imprisonment for 3 months each and to pay fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for 1 month each for the offences punishable under Section 272 of IPC and for the offences

¶35

5 - CRL.RP No. 451 of 2014

¶36

punishable under Section 273 of IPC the petitioners were sentenced to undergo Simple Imprisonment for 6 months and to pay fine of Rs.1,000/- each, in default to pay fine undergo Simple Imprisonment for further period of one month. For the offences punishable under Section 34 of the Act the petitioners were sentenced to undergo Simple Imprisonment for a period of 3 months each and to pay fine of Rs.4,000/- in default to undergo Simple Imprisonment for one month each. Being aggrieved by the said judgment and order of conviction, the petitioners had filed Crl.A.No.41/2009. The State had filed appeal in Crl.A.No.77/2009 seeking enhancement of sentence imposed by the Trial Court for the offence punishable under Section 34 of the Act. The Appellate Court by its judgment and order dated 12.04.2014 had dismissed the appeal filed by the petitioners and had allowed the appeal filed by the respondent - State and sentenced the petitioners to undergo Simple Imprisonment for a period of 1 year and to pay fine of Rs.10,000/- each in default to undergo Simple Imprisonment for a period of 3 months for the offences punishable under Section 34 of the Act. Being aggrieved by the said judgment and order passed by the Appellate Court, the petitioners are before this Court in this revision petition.

¶37

¶38

CRL.RP No. 451 of 2014

¶39

Learned counsel for the petitioner submits that the

¶40

Courts below have erred in convicting the petitioner for the alleged offence. He submits that the requirement of Section 53 and 54 of the Act, 1965 has been complied in the present case and therefore, the Trial Court was not justified in convicting the petitioners for the alleged offences. He submits that CW-1 - complainant was the person who had received the credible information and he is the person who had lodged complaint mentioning the name of the accused persons and the said witness was not examined before the Court and the same is fatal to the case of the prosecution. He also submits that independent panch witness have not supported the case of the prosecution. therefore, seizure of illicit liquor was not proved by the prosecution. He further submits that the author of Ex.P6 has not been examined before the Trial Court and therefore, it cannot be said that the liquor seized by the prosecution was not fit for consumption. Accordingly, he prays to dismiss the revision petition.

¶41

Per contra , learned HCGP appearing for respondent

¶42

State submits that the witnesses who have been examined before the Trial Court have supported the case of prosecution

¶43

¶44

CRL.RP No. 451 of 2014

¶45

except PW3, who is panch witness. He submits that other officials of the department who were members of riding party have been examined before the Trial Court and therefore, nonexamination of CW1 would be immaterial. He submits that reason for not complying Section 53 of the Act has been explained in the complaint lodged by CW.1 and therefore, there is no merit in the contentions urged on behalf of the petitioner. He submits that the Courts below have recorded concurrent findings of guilt against the accused - petitioners. There are no good grounds to interfere with such a concurrent finding recorded by the Courts below. Accordingly, he prays to dismiss the revision petition.

¶46

I have carefully considered the arguments

¶47

addressed on both the sides and also perused the material available on record.

¶48

The law has been set in motion in the present case on the basis of complaint that was lodged by CW1 - Shaliendra Kumar who was jurisdictional Circle Inspector of Police. It is the case of the prosecution that on 28.10.2005 at about 6.00 a.m,

¶49

CW.1 had received credible information of illegal manufacture and possession of illicit arrack. Immediately he had secured the

¶50

¶51

CRL.RP No. 451 of 2014

¶52

presence of his staff and independent panchas and raided the spot at about 11.30 a.m, and also had seized the material object produced before the Court under a mahzar. The accused persons had ran away from the spot after seeing the riding squad.

¶53

CW.1 is the person who had received credible information and upon receipt of such information if he had reason to believe that accused were suspected to have committed the aforesaid offence, he was required to obtain a search warrant as provided under Section 53 or comply requirement of Section 54 of the Act. In the present case, the requirement of Section 53 of the Act was not complied with by CW.1. In case, CW1 was not in a position to comply with the requirement of Section 53 of the Act at least he should have complied the requirement of Section 54 of the Act by recording reasons for having not obtained necessary search warrant from the jurisdictional Magistrate before proceeding to spot. The law in this regard is well settled in the case of K L SUBBAYYA vs.

¶54

STATE OF KARNATAKA - AIR 1979 SCC 711 wherein it has

¶55

held that non-compliance of the aforesaid mandatory provisions of law renders the entire search without jurisdiction and as a

¶56

¶57

CRL.RP No. 451 of 2014

¶58

logical corollary vitiates the conviction under Section 34 of the

¶59

Act. In the case of SHANTA BAI vs THE STATE THROUGH POLICE EXCISE ENFORCEMENT CELL, BHALKI, BIDAR

¶60

DISTRICT - 2017(3) KCCR 2172, a co-ordinate bench of this Court at paragraph nos.13 & 14 has observed as follows:

¶61

"13. On going through the submissions of the learned Counsel for the appellant the provisions of law and the ratio laid down in the above cited case, it is clear that the duty is cast on the Investigating Officer to obtain the warrant from the jurisdictional Magistrate before making the search of a place and if it is not possible for him to get such search warrant, then, he has to record the grounds on the basis of which he had a reasonable belief that an offence under the Act is committed before proceeding to search the said place. The only documents which are available before the trial Court were Ex. P1-panchanama, Ex. P2-FIR, Ex. P3-FSL Report and Ex. P4, the letter of Excise Sub-Inspector, Bidar and the statement of Abdul Samad. In the said documents, nowhere it is mentioned specifically by PW.5-Investigating Officer the contingency under which he has not obtained the search warrant and immediately rushed to the place of seizure. Even during the course of his evidence also, PW.5-Investigating Officer has not deposed anything to overcome the said provisions of law. In the absence of any such material before the trial Court it can be inferred that the provisions of Section 54 of the Act having not been complied with by the Investigating Officer and when that being the case, the said search amounts to without jurisdiction and when

¶62

10 -

¶63

CRL.RP No. 451 of 2014

¶64

there is no jurisdiction, the conclusion arrived at by the trial Court in this behalf vitiates.

¶65

14. As per the provisions of Section 54 of the Act, it is not only mandatory on the part of the Investigating Officer but the hidden object of Section 54 of the Act is to safeguard and value the liberty of the citizens and to protect them from ill-founded or frivolous prosecution or harassment. On going through the records, it appears that there is non-compliance of the provisions of Section 54 of the Act and when there is no compliance of the said provision, it renders that the entire search is without jurisdiction and when there is no jurisdiction, the case of the prosecution has to fail. In that view of the matter and for the reasons stated above, I am of the considered opinion that the order of the trial court is not sustainable in law and is liable to be set aside and accused is entitled to be acquitted."

¶66

11. In the complaint lodged by CW1 after returning to

¶67

the police station he had mentioned the names of all accused persons. None of the witnesses examined before the Court have stated that they knew the accused persons and they had seen them at the spot when the ride was conducted. All witnesses examined by the prosecution have consistently stated that the accused persons who were present at the location had ran away from the spot after seeing the riding squad and none of them have said they knew anyone of the said accused persons who had ran away from the spot and they

¶68

11 -

¶69

CRL.RP No. 451 of 2014

¶70

would be able to identify them, if they were shown to them. From the deposition of these witnesses, it is clear that the witnesses before the Court did not know the accused persons and they were identified by them for the first time in the Court.

¶71

CW1 - complainant who had mentioned the names of accused persons who had ran away from the spot was the best witness to say as to how he has mentioned their names in the complaint. Unfortunately, the prosecution has not examined the said material witness and they have also not given any reason for his non-examination. The Courts below have failed to appreciate that non-examination of CW1 who is material witness is fatal to the case of the prosecution. CW1 was the person who has received credible information and it was for him to explain why he has not complied with Section 53 or 54 of the Act and it was also for him to explain as to how he was able to mention the name of the accused persons in the complaint. In the absence of any good reason for nonexamination of CW.1, the Courts below ought to have raised an adverse inference against the prosecution.

¶72

CW.1 is the person who had seized the articles that

¶73

were found in the spot under spot mahazar Ex.P1. PW.3 who is

¶74

12 -

¶75

CRL.RP No. 451 of 2014

¶76

one of the panch witness has not supported the case of the prosecution. The other panch witnesses to the spot mahazar has not been examined by the prosecution. The prosecution placed reliance on the evidence of other witnesses who were members of the riding party but the said witnesses had accompanied CW.1 on his instruction and they do not have any knowledge about the credible information that was received by CW.1 based on which the ride was conducted. Having regard to the fact that the prosecution had failed to establish the compliance of requirements under Section 53 and 54 of the Act and the prosecution has failed to explain the reasons for nonexamination of material witness - CW.1, the Trial Court as well as the Appellate Court have erred in convicting the petitioners for the alleged offence and therefore, the impugned judgment and order of conviction, which is questioned by the petitioners in this revision petition cannot be sustained. Accordingly, the following:-

¶77

::ORDER::

¶78

Criminal Revision Petition is allowed.

¶79

The judgment and order dated 12.04.2014 passed in Crl.A.No.77/2009 by the

¶80

13 -

¶81

CRL.RP No. 451 of 2014

¶82

Appellate Court and the judgment and order of conviction and sentence passed by the Trial Court dated 04.04.2009 in C.C.No.939/2006 are set-aside. The petitioners are acquitted of the offences for which they were charged.

¶83

Sd/JUDGE

¶84

NMS

M B Mahesh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

M B Mahesh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Amzad Khan Vs State by Panchanahalli

Murali Vs B v Ravikumar

Sri. Subramani Vs State of Karnataka

The Enforcement Officer Vs Shri C.S. Subramanian

Pokar Vs State of Karnataka

Sri B K Chandrashekar Vs Sri Udaya M Shetty