Allowed

Nandappa v. the State of Karnataka

Karnataka HC15 Sept 2023CRL.RP/552/2017

Case brief

AI extract

What is this about?

The Court allowed the Criminal Revision Petition. Setting aside the conviction and sentence for offences under Sections 32 and 34 of the Karnataka Excise Act, the Court acquitted the petitioner holding the prosecution case legally unsustainable by the trial and appellate courts.

What did the court decide?

Criminal Revision Petition allowed; Judgment and order of conviction and sentence set aside; Petitioner acquitted; Amount deposited refunded.

Nandappa Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL REVISION PETITION NO. 552 OF 2017

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BETWEEN:

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NANDAPPA S/O. SHIVAPPA MUDUTAGI, AGED ABOUT 51 YEARS, OCCUPATION: COOLIE, R/A: HIREKODAGALI VILLAGE, HUNGUND TALUK, BAGALKOT DISTRICT-585330.

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…PETITIONER (BY SRI VIDYASHANKAR DALWAI, ADVOCATE)

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AND:

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ROHAN HADIMANI T

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Digitally signed by ROHAN HADIMANI T Date: 2023.09.23 12:09:40 +0530

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THE STATE OF KARNATAKA, BY EXCISE SUB-INSPECTOR, HUNGUND POLICE STATION-585330.

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(BY SRI PRAVEEN UPPAR, AGA)

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…RESPONDENT

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED ON 20.09.2012 C.C. NO. 476/2008 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., HUNGUND AND ALSO THE JUDGMENT AND ORDER DATED 05.12.2016 IN CRIMINAL APPEAL NO. 106/2012 ON THE FILE OF II ADDITIONAL AND S.J., BAGALKOT AND ACQUIT THE PETITIONER.

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IN THIS PETITION, ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Revision Petition is filed by the petitioner-accused seeking to set aside the judgment of conviction and order of sentence dated 20^th September, 2012 passed in C.C.No.476 of 2008 by the Additional Civil Judge and JMFC, Hungund, which is confirmed vide judgment of conviction and order of sentence dated 05^th December, 2016 passed in Criminal Appeal No.106 of 2012 by the II Additional District and Sessions Judge, Bagalkot (for short, hereinafter referred to as “Appellate Court”).

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The trial Court convicted the accused for the offence punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 and accused No.1 was acquitted for the offence punishable under Section 38(a) of the Karnataka Excise Act. The accused No.1 was also sentenced to undergo rigorous imprisonment for a period of one year and also liable to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months. Further, he is sentenced to undergo rigorous imprisonment for a period of one year and also liable to pay a fine of Rs.10,000/-, in default, to undergo simple

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imprisonment for a period of three months. The said judgment of conviction and order of sentence, was confirmed by the Appellate Court.

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Heard Sri Vidyashankar Dalwai, learned counsel appearing on behalf of the revision petitioner and Sri Praveen Uppar, learned Additional Government Advocate for respondentState.

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SUBMISSIONS ON BEHALF OF REVISION PETITIONER:

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The learned counsel for the Revision Petitioner is arguing that the judgment of conviction and the sentence imposed by the trial court, which was upheld by the Appellate Court, are flawed and should be considered illegal, perverse, and against the law. Here are the main points raised by the counsel:

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4.1. Improper Appreciation of Evidence: The counsel

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argues that both the trial court and the Appellate Court failed to properly evaluate the evidence presented during

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the case. It is claimed that this failure to evaluate evidence in accordance with the law has led to an unjust conviction.

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4.2. Lack of Search Warrant: The Investigation Officer

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allegedly did not obtain a search warrant from the authorized officer, as required by law. This omission could potentially affect the legality of the search conducted.

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4.3. Lack of Support from Independent Witnesses: It is asserted that none of the independent witnesses supported the prosecution's case. This lack of support from independent witnesses may weaken the credibility of the prosecution's claims.

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4.4. Reliance on Official Witnesses: The conviction appears

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to rely heavily on the statements of official witnesses (PW-1

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to PW-3). The counsel argues that this reliance is unjustified and that the courts should have demanded stronger evidence to convict the accused.

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4.5. Failure to Prove Possession: The prosecution is alleged

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to have failed in its preliminary burden to prove that the accused was in possession of country-made arrack, a crucial element of the case.

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4.6. Misapplication of Section 40 of the Karnataka Excise Act: Section 40 of the Karnataka Excise Act is mentioned, and it is argued that this section is only applicable if the prosecution can successfully establish its case. The counsel

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claims that there is insufficient material to apply this section, and its incorrect application is cited as a legal error.

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4.7. Reference to Legal Precedent: The learned counsel cites a decision from a Co-ordinate Bench of the court (the

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case of BABU NAIKA v. STATE OF KARNATAKA, Criminal Revision Petition No.52 of 2014 decided on

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09th March 2020 to support their arguments and substantiate their claims about the improper handling of the

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case.

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4.8. In summary, the counsel is requesting that the Revision Petition be allowed based on these grounds, arguing that the judgment and sentence against the petitioner are not legally sustainable. They are highlighting alleged errors in the handling of the case by the trial and appellate courts and are relying on legal precedent to support their position.

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Per contra , learned Additional Government Advocate, appearing for the respondent-State submitted that both the Courts have properly appreciated the evidence on record in accordance with law and facts. There are no grounds to interfere with the concurrent judgment of conviction and order of sentence and accordingly, sought for dismissal of the Revision Petition.

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Having heard the arguments on both sides and on perusal of records, the following points that would arise for my consideration are:

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(i) Whether the judgment of conviction and order of sentence dated 20^th September, 2012 passed in CC No.476 of 2008 by the Additional Civil Judge and JMFC, Hungund which is confirmed by the Appellate Court vide order dated 05^th December, 2016 passed in Criminal Appeal No.106 of 2012 are sustainable under law?

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(ii) What order?

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My answer to the above points is as under: Point No.1: in the negative; Point No.2: as per the final order.

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Upon a thorough examination of the evidence presented before this esteemed court, the prosecution's case unfolds as follows: On the morning of January 24^th , 2008, around 8:00 am, the Sub-Inspector of Excise received reliable information indicating that the accused was unlawfully in possession of homemade liquor, specifically country-made arrack, near the Murtuzakhadri Darga in Ilkal, Hungund Taluk. Responding swiftly to this information, the complainant, Mr. M.D. Lamani, accompanied by his team and impartial witnesses, proceeded to the reported location. While patrolling the area, Mr. Lamani

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encountered the primary accused, Nandappa, who was riding a motorcycle bearing registration No.KA-22/K-7942 and carrying a plastic container. Upon questioning, Nandappa failed to produce any license or permit authorizing the transportation of the 20 liters of liquor in his possession. Consequently, Mr. Lamani seized the contraband, meticulously documenting the act with a mahazar, and obtained a 180 m.l. sample for subsequent chemical analysis. Nandappa was promptly arrested and presented before the court. Following a comprehensive investigation, Mr. Lamani filed a formal charge sheet against the accused, accusing them of committing the offense of unlawful liquor possession. In support of the prosecution's case, Mr. Lamani, designated as PW1, provided detailed testimony concerning the contents of both the complaint and the charge sheet, as well as the mahazar. PW2, Mr. Dyavappa Prasappa Ganti, who served as the attester to the spot mahazar, corroborated the seizure detailed in Exhibit P3-panchnama and the collection of the arrack sample in a bottle. Lastly, PW3, Mr. Rangappa Basappa Ambigera, an Excise Guard, testified regarding the transportation of the sample bottle to the relevant

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office and positively identified MO-1, the aforementioned bottle containing the seized sample. In summary, this account elucidates the events leading to the apprehension of the accused on charges of unlawful liquor possession, setting the stage for the court's deliberation based on the presented evidence and legal arguments from both sides. It is relevant to mention here that the trial Court has acquitted accused No.1 for the offence punishable under Section 38(a) of Karnataka Excise Act, 1965.

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The defense contends that there are critical deficiencies in the prosecution's case, particularly concerning the noncompliance with essential provisions of the Karnataka Excise Act and the Code of Criminal Procedure, 1973. They assert that the prosecution has failed to produce any documentation verifying adherence to the mandatory provisions outlined in Section 52 and 54 of the Karnataka Excise Act. Additionally, it is emphasized that the Investigation Officer, PW-1, did not provide any testimony regarding compliance with these statutory provisions and did not offer any justification for this non-

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compliance, which, according to the defense, constitutes a fatal flaw in the prosecution's case.

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Moreover, the defense argues that the Investigating Officer did not adhere to the mandatory requirements of Section 43A and Section 102 of the Code of Criminal Procedure. Specifically, it is highlighted that after the property was seized, the Investigating Officer did not submit the requisite report as mandated by Section 102 of the Code of Criminal Procedure, nor did they provide any explanation for their failure to do so. The defense asserts that both the trial court and the appellate court failed to adequately consider these instances of non-compliance with mandatory provisions by the Investigating Officer. Consequently, they argue that the judgment of conviction and the accompanying sentence, as rendered by the trial court and affirmed by the appellate court, are legally unsustainable. Hence, I answer Point No.1 in the negative.

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For the aforesaid reasons, I proceed to pass the following:

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O R D E R

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(i) Criminal Revision Petition is allowed;

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(ii) Judgment of conviction and order of sentence dated 20th September, 2012 passed in C.C.No.476 of 2008 by the Additional Civil Judge and JMFC, Hungund, which is confirmed vide judgment of conviction and order of sentence dated 05th December, 2016 passed in Criminal Appeal No.106 of 2012 by the II Additional District and Sessions Judge, Bagalkot are set aside.

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(iii) Accused is acquitted for the offence punishable under Section 32 and 34 of the Karnataka Excise Act.

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(iv) Amount if any deposited by the accused shall be refunded to him in accordance with law;

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(v) Registry to send the copy of this Order along with the trial Court records to the concerned Courts.

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Sd/JUDGE

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Lnn

Nandappa v. the State of Karnataka

Case brief

What is this about?

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Nandappa v. the State of Karnataka

Case brief

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