Allowed

Sri Nagaraju @ Naga v. State of Karnataka

Karnataka HC27 Oct 2023CRL.RP/61/2017

Case brief

AI extract

What is this about?

High Court set aside conviction and sentence of accused No.2 in Karnataka Excise Act case. Court held search without warrant under Section 54 KE Act was illegal, investigation vitiated due to procedural lapses, and prosecution failed to prove possession of illicit liquor.

What did the court decide?

Judgment of conviction and sentence set aside; accused acquitted; bail bond cancelled; fine refunded.

Sri Nagaraju @ Naga Vs State of Karnataka — Corruption | Karnataka HC (2023)

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1 - NC: 2023:KHC:38176 CRL.RP No. 61 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO. 61 OF 2017

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BETWEEN:

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SRI NAGARAJU @ NAGA, S/O. MALLEGOWDA, AGED ABOUT 52 YEARS, RESIDENT OF PADUVANAHALLI GATE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK - 573 201. HASSAN.

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…PETITIONER

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(BY SRI CHETHAN B, ADVOCATE)

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AND:

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STATE OF KARNATAKA, EXCISE SUB INSPECTOR, CHANNARAYAPATNA, HASSAN DISTRICT - 573 201.

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560 001.

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(BY SRI VINAY MAHADEVAIAH, HCGP)

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…RESPONDENT

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 24.12.2016/28.12.2016 PASSED BY THE IV ADDL. DIST. AND S.J., HASSAN DISTRICT (SIT AT CHANNARAYAPATNA) IN CRL.A.NO.92/2016 BY CONFIRMING THE JUDGMENT DATED 2.1.2016 PASSED BY THE ADDL. C.J. AND J.M.F.C., CHANNARAYAPATNA IN C.C.NO.752/2009 AND ACQUIT THE PETR.

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

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The petitioner has filed this revision petition being aggrieved by the judgment of conviction dated 24.12.2016 and order on sentence dated 28.12.2016 passed by learned IV Additional District and Sessions Judge, Hassan District, Sitting at Channarayapatna in Crl.A.No.92/2016, whereby, the petitioner has been convicted for the offence punishable under Section 14 read with Section 32 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'KE Act' for short).

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The genesis of the complaint is that on 06.12.2007 at 02.00 am, on Channarayapatna-Holenarasipura road, near Panduvanahalli Gate, the petitioner and accused No.1 were transporting illegal manufactured 54.360 liters of domestic liquor in a Maruthi Omni car bearing registration No.KA-03-M8969 belonged to accused No.1, for sale without any license. Hence, PW.2 lodged the complaint and seized the liquor bottles, conducted seizure panchanama and arrested accused.

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Based on the complaint, case has been registered in Cr.No.14/2007-08 of Excise Police, Channarayapatna and submitted FIR to the Court, PW.2 after conducting investigation, filed charge sheet against accused Nos.1 and 2 in C.C.No.752/2009 for the aforesaid offences. Soon after the charge sheet, the trial Court framed charges for the aforesaid offences, read over to the accused persons, they pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, it examined in all four witness as PWs.1 to 4 and 11 documents have been marked as Exs.P1 to P11 and no material object marked on behalf of the prosecution.

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After hearing the parties to the lis, the learned trial Court acquitted accused Nos.1 and 2 for the offence punishable under Sections 32 and 34 of KE Act.

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Being aggrieved by the judgment of acquittal, the State preferred appeal in Crl.A.No.92/2016. The First Appellate Court set aside the judgment of acquittal passed by trial Court and convicted accused No.2 for the offence under Section 14 read with 32 of KE Act and sentenced him to undergo rigorous

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imprisonment for one year and to pay a fine of Rs.10,000/-, in default, he shall undergo simple imprisonment for six months. However, the First Appellate Court confirmed the judgment of acquittal against accused No.1.

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Being aggrieved by the judgment of conviction and order on sentence passed by the First Appellate Court, accused No.2 preferred this revision petition contending that the judgment of conviction and order on sentence passed by the First Appellate Court is not in accordance with law.

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It is the contention of the learned counsel for

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petitioner that though there were independent witnesses in the locality, where alleged raid was conducted, but no independent witnesses have been examined by the Investigation Officer; the judgment of conviction and order on sentence passed by trial Court slipped into an error and has passed the impugned order; the evidence of PW.1 and other witness are contrary to each other and their testimony creates doubts in the case of prosecution. It is contended that, compliance of Sections 53 and 54 KE Act have not been followed by the Investigation Officer before conducting the raid; it is contended that the illicit

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liquor has been seized in the car which belongs to accused No.1 but same has not been seized before independent mahazar witness or any independent Gazetted Officer; further, the Investigation Officer has not obtained search warrant from the competent authority before conducting raid on accused. Hence, the First Appellate Court has erred in coming to the conclusion that the prosecution proved the guilt of the accused under Section 14 read with 32 of KE Act. It is further contended that the Investigating Officer has not obtained warrant before the intended raid and as per Section 54 of KE Act, he ought to have obtained a warrant from the jurisdictional Magistrate before conducting raid and if any such contingency is there and he is not having much time to obtain the warrant, then the same has to be mentioned somewhere in this regard and thereafter, he can proceed and seize and in the absence of such material before the Court, there is a violation of Section 54 of KE Act.

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On all these grounds, learned counsel prayed to allow the revision petition and to set aside the impugned judgment of conviction and order on sentence passed by First Appellate Court.

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Per contra , learned High Court Government Pleader contended that, the evidence of PWs.1 to 4 clearly establishes that accused Nos.1 and 2 were transporting illicit liquor in a car and PWs.1 to 4 were conducted raid on accused Nos.1 and 2 and seized illicit liquor from the car, they conducted seizure panchanama, that itself is sufficient to draw presumption under Section 40 of KE Act and said act has not been denied by accused. It is further contended that PWs.1 to 4 have identified accused No.2, hence, after considering all material placed on record, the First Appellate Court came to the conclusion that accused No.2 committed alleged offences and thus, rightly convicted him and there are no grounds to interfere with the well reasoned judgment of conviction and order on sentence. On all these grounds, learned High Court Government Pleader prayed to dismiss the revision petition.

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I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.

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13. Having heard the learned counsel for the parties,

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the following points that would arise for Courts' consideration, which are as under:

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"1. Whether the prosecution proved its case beyond doubt?

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Whether judgment of conviction and order on sentence passed by First Appellate Court is perverse, hence, call for interference?

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What order?"

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Point Nos.1 and 2

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Since point Nos.1 and 2 require common discussion,

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I take these points for common discussion in order to avoid repetition of facts and evidence.

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On perusal of Ex.P1-Spot Mahazar, Ex.P3-Search Warrant, Ex.P4-First Information Report and other materials, there is an allegation that, on credible information, the raiding party went to the place of the incident and on search, they noticed that accused Nos.1 and 2 were transporting illicit liquor in a car bearing registration No.KA-03-M-8969. Hence, they made enquiry to accused No.2 and he was transporting illicit

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liquor worth 54.360 liters without any license. During the course of the trial, the prosecution in all examined four witnesses as PWs.1 to 4.

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PW.1-Ramesh, the Excise Guard, who accompanied PW.2-Vanajakshi, the Excise Inspector, PW.3-Rajappa, who is also Excise Guard and PW.4-Pushpa B., Excise Inspector, who accompanied PW.2 and they also reiterated the evidence of PW.2.

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As could be seen from the evidence of PW.2, in her evidence, she has stated that, she received credible information and she along with PWs.1, 3 and 4 went to the place of incident at about 02.00 am and at the spot, they intercepted the car and on being enquiry, they found 54.360 liters of liquor were transporting in a car without any license. Hence, they seized the same and conducted seizure panchanama as per Ex.P2 and arrested accused Nos.1 and 2 and registered the case. She investigated the matter and filed charge sheet to the Court. PW.1-Ramesh, Excise Guard and PW.3-Rajappa, Excise Guard, they have reiterated the evidence of PW.2. PW.4-Pushpa B., Excise Inspector also reiterated the evidence of PW.2.

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As per Section 32 of KE Act, the penalty of such violation can be imposed only when the possession of illicit liquor has been proved. If the said articles have been seized from the possession of accused, whereas in the instant case, Maruthi Car belongs to accused No.1 but the trial Court as well as the First Appellate Court acquitted him.

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In the case of STATE OF MYSURU VS. KARIA

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reported in 1973 (2) MYS.L.J.SN 141, it is held that, in order to attract Section 32 of KE Act, the prosecution must establish the fact that the accused manufacture of illicit liquor and also possession of illicit liquor but in the instant case, the prosecution has not placed any material to establish that, accused No.2 was in possession of the said illicit liquor and he was having control over said illicit liquor, which was seized in car, which belongs to accused No.1, in that light, the prosecution utterly failed to establish the case in accordance with law.

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Learned counsel for the revision petitioner submitted that there is a gross violation of Sections 52 and 53 of KE Act, hence, the entire investigation was vitiated and the

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seizure panchanama has not at all been proved. The counsel contended that though independent witnesses were available on the spot, but the Investigation Officer intentionally not cited the mahazar witness and the information received by the officials is not adduced in writing.

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The investigation under the Special Act for special offences, a duty is casted on Investigation Agency to do the investigation within the parameter of the Act. The seized articles should be proved that it was illicit liquor and the search and seizure should be proved beyond any reasonable doubt and there should not be violation of any law governing the investigation.

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In the instant case, the Investigation Officer has not complied Section 54 of KE Act. As per Section 54 of KE Act, any Excise Inspector before searching a place, must obtain a warrant from the jurisdictional Magistrate. Section 54 of KE Act is also a special provision, which provides that, if there is some contingencies and it is not possible for the officer concerned to get a warrant from the Magistrate, under such circumstances, the officer who is making search has to make an endorsement

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to the effect that, because of the contingency, he was unable to obtain the warrant and thereafter, he has made a search. But for the reasons best known to the prosecution, no such evidence has been produced by PWs.1 to 4.

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23. The Hon'ble Apex Court in case of K.L.SUBBAYYA

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VS. STATE OF KARNATAKA reported in (1979) 2 SCC 115, at paragraph Nos.2 to 4 has held as under:

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"2. Thus this section relates to a contingency where the statute enjoins that any inspector before searching a place must obtain a warrant from the Magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus:

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“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

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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, 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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3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with.

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4. This, therefore, renders the entire search without jurisdiction and, as a logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word “place” would not include the car, but the definition of the word “place” under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of

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Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him."

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On perusal of the above authority, it is crystal clear that Section 54 of the KE Act has to be complied. The warrant for search and seizure should be obtained for the offence punishable under Sections 32, 33, 34, 36 and 37 of the KE Act. It is only in the event of contingency, Section 54 provide for search and seizure by excise officials without warrant to prevent the conduct, escaping or concealing the evidence that may be found against the accused. Whatever the information that the Commissioner of Excise or Police Officer had received regarding commission of offence punishable under Sections 34 and 34 of the KE Act would be rendered without jurisdiction and vitiates conviction. But this aspect has not been considered by the First Appellate Court.

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On careful perusal of the decision stated supra and in the absence of any materials placed on record and under what circumstances, PWs.1 to 4 went to the place of incident without there being any warrant and made a search. The said

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search also can be held that it is in violation of Section 54 of the KE Act and it can be held that it is illegal and it is not having any effect in this behalf.

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In view of the non following procedure laid down under Sections 53 and 54 of the KE Act, whole investigation is vitiated. No reasons are assigned by the Investigation officer as to why the procedure laid down under law was not following before proceeding for investigation. In fact, no crime was registered after receiving the information regarding commission of offence. Therefore, the investigation appears to have done before registration of the crime, that is also a serious error committed by the First Appellate Court. When the Investigation officer proceeds with the investigation without obtaining any search warrant or seizure warrant from the Magistrate, corroboration by an independent witness is necessary. In this case, no independent witness has been cited by the Investigation Officer and no witness have been examined to corroborates the oral testimony of PWs.1 to 4, who are excise officials.

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As per the case of prosecution, the Investigation Officer seized 302 bottles of illicit liquor but the Investigation Officer has not sent all bottles for chemical examination.

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After seizure of the property, the Investigation Officer has not complied the mandatory provisions of SubSection 7 of Section 100 of Cr.P.C. Further, the Investigation Officer has not offered any explanation for non-compliance of Sub-Section 7 of Section 100 of Cr.P.C.

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Further, PWs.1 to 4 being excise officials and they are interested witnesses. It is well settled law that evidence of an interested witness is required to be scrutiny to discover false, embellishment, exaggeration, which must be eschued .

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The Hon'ble Apex Court in the case of CHANDRAPPA AND OTHERS VS. STATE OF KARNATAKA

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reported in (2007) 4 SCC 415, wherein, the Hon'ble Apex Court at paragraph No.44 has held as under:

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"44. In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the

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appellate court are as wide as that of the trial court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside."

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It is well established principle of law laid down by the Hon'ble Apex Court that there is no embargo on the Revisional Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because, the presumption of innocence of the accused is furthered strengthened by acquittal. The golden thread which runs through the web of administration of the justice in criminal cases is that, if two views are possible on the

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evidence adduced in the case, one pointing to the guilt of accused and the other to the accused should be adopted

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towards the innocence of the accused. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty, is no less than from the conviction of innocent. The trial Court on considering the evidence of prosecution inclusive of defense therein rendered a judgment of acquittal but First Appellate Court without appreciating the oral and documentary evidence and as well as the basic legal requirement and the procedure to be followed under the special statute proceeded to convict accused No.2 is not just and proper and is not based on the legal evidence. Thus, the conviction and sentence passed by the First Appellate Court is not sustainable under law. Therefore, I am of the considered opinion that impugned judgment of conviction and order on sentence passed by the First Appellate Court requires to be set aside. Accordingly, I pass the following:

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ORDER

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The Criminal Revision Petition is allowed.

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The judgment of conviction dated 24.12.2016

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and order on sentence dated 28.12.2016 passed by learned IV Additional District and Sessions Judge,

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