Allowed

Swamygowda @ Mahendra v. the State by

Karnataka HC14 Feb 2023CRL.RP/854/2014

Case brief

AI extract

What is this about?

Held that accused acquitted. The High Court acquitted petitioners after setting aside conviction. The court held the prosecution failed to obtain a search warrant under Section 53 of the Karnataka Excise Act, 1965, violating Section 53 and 54. The seizure mahazar was invalid due to lack of independent panchas and failure to inform higher officers. Furthermore, the prosecution failed to prove the l

What did the court decide?

Impugned judgment and order of conviction set aside; petitioners acquitted of offences under Sections 32, 34 and 38(A) of the Karnataka Excise Act, 1965.

Swamygowda @ Mahendra Vs the State by — Narcotics (NDPS) | Karnataka HC (2023)

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CRL.RP No. 854 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CRL.R.P. NO. 854 OF 2014

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BETWEEN:

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SWAMYGOWDA @ MAHENDRA

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S/O PUTTEGOWDA

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AGED ABOUT 46 YEARS

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R/O PALYA VILLAGE

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PALYA HOBLI, ALUR TALUK

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HASSAN DISTRICT - 573 213.

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SWAMYGOWDA @ SWAMY

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S/O LAKKEGOWDA

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AGED ABOUT 41 YEARS

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R/O HALLEPALYA VILLAGE

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PALYA HOBLI, ALUR TALUK

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

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HASSAN DISTRICT - 573 213.

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SURESH

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S/O DASEGOWDA

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AGED ABOUT 47 YEARS

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R/O SINGAGOWDANAHALLI VILLAGE, PALYA HOBLI

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ALUR TALUK, HASSAN DISTRICT - 573 213.

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...PETITIONERS

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(BY SRI UMESH P.B., ADV., FOR SRI RAVINDRA B. DESHPANDE, ADV.)

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AND:

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THE STATE BY EXCISE POLICE

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HASSAN - 573 201. ...RESPONDENT

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(BY SRI MAHESH SHETTY, ADV.)

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CRL.RP No. 854 of 2014

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THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED:27.9.13 PASSED BY THE ADDL.C.J. AND JMFC, HASSAN IN C.C.NO.362/2007 AND ORDER DATED:4.8.14 PASSED BY THE PRL.S.J., HASSAN IN CRL.A.N.196/13 AND ACQUIT THE PERS. OF ALL THE CHARGES LEVELED AGAINST THEM.

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THIS CRL.R.P. COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition under Section 397 of Code

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of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the petitioners challenging the judgment and order of conviction and sentence passed by the Court of Additional Civil Judge & JMFC, Hassan (for short the 'Trial Court) in C.C.No.362/2007 dated 27.09.2013 and the judgment and order passed by the Principal Sessions Judge, Hassan (for short the 'Appellate Court') in Crl.A.No.196/2013 dated 04.08.2014.

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Heard the learned counsel for the petitioners and the learned High Court Government Pleader for respondentState.

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Brief facts leading to filing of this petition as revealed from the records are that, on 08.08.2007 at about 1.30 a.m., in the midnight, when the complainant-P.W.3 and

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his staff were on patrolling duty they found auto-rickshaw

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bearing registration No.KA-46-446 suspiciously moving and when they asked the driver of the said auto-rickshaw to stop the vehicle, he did not stop the vehicle and therefore, PW.3 and his staff intercepted the auto-rickshaw and found three persons in the said auto-rickshaw who were in possession of five plastic bags each containing 600 packets of arrack and another five plastic bags each containing 300 packets of arrack. On verification, it was learnt by PW.3 that accused persons did not have any valid permit for transporting the said arrack packets. PW.3 therefore seized all the bags which contained arrack packets under a mahazar in the presence of panchas and thereafter brought the accused persons to the police station and lodged a complaint against them and also produced the seized articles.

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On the basis of complaint, a case was registered against the accused persons in Crime No.7/2007 for the offences punishable for the offences punishable under Section 32, 34 and 38(A) of the Karnataka Excise Act, 1965 (for short the 'Act') and the police, after investigation had filed a charge sheet against the petitioners herein for the offences punishable under Section 32, 34 and 38(A) of the Act. The petitioners

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CRL.RP No. 854 of 2014

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claimed to be tried for the alleged offences. During the course

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of the trial, in support of its case, the prosecution has totally examined four witnesses as PW.1 to P.W.4 and got marked six documents as Exs.P1 to P6. No witnesses were examined on behalf of defence nor was any document marked on behalf of the defence. The sample arrack packets were marked as M.O.1 and 2. The Trial Court, after hearing the arguments on both sides had convicted the petitioners vide impugned judgment and order dated 27.09.2013 for the alleged offences and sentenced them to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,000/- each and in default to undergo simple imprisonment for a period of two months. Being aggrieved by the said judgment and order, the petitioners had filed an appeal in Crl.A.No.196/2013, which was dismissed by the Appellate Court on 04.08.2014. It is under these circumstances, the petitioners are before this Court.

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Learned counsel for the petitioners submits that the prosecution has failed to prove the alleged offences against the petitioners. He submits that no independent witness has been examined by the prosecution to prove the alleged offences against the petitioners. He also submits that possession and

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seizure of the arrack packets from the petitioners was also not proved and no investigation has been done with regard to source of manufacture of the arrack packets which was allegedly seized from the petitioners. He submits that unless the possession of arrack packets by the petitioners is proved there cannot be any presumption under Section 40 of the Act for having committed the offence punishable under Section 32, 34 and 38(A) of the Act and accordingly, he prays to allow the petition.

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Per contra , learned High Court Government Pleader

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has argued in support of the impugned judgment and order of conviction and submits that the seizure was made at about 1.30 a.m. and therefore independent panchas could not be secured. He submits that evidence of PWs.1 to 3 has remained uncontraverted and nothing has been elicited from them by the defence during their cross-examination and therefore the Courts below have rightly placed reliance on the deposition of the said witnesses and convicted the petitioners. He therefore, prays to dismiss the petition.

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CRL.RP No. 854 of 2014

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I have carefully considered the arguments

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

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It is the case of the prosecution that on 08.08.2007 at about 1.30 a.m., when the officials of the Excise department were on patrolling duty they found the auto-rickshaw bearing registration No.KA-46-446 moving in suspicious manner and therefore they intercepted the said vehicle and found that the petitioners were in illegal possession of the liquor sachets totally amounting 900 packets. PW.3 is the Excise Inspector who allegedly received credible information about illegal transport of liquor when he was on patrolling duty. He has deposed before the Trial Court stating that on receipt of such information he along with his staff members had intercepted a vehicle bearing registration No.KA-46-446 and after stopping the said vehicle they found that inmates of the said vehicle were in possession of illegally manufactured arrack packets which they were transporting without any valid permit. Immediately, thereafter, he had seized the said arrack packets from the petitioners and had drawn a mahazar as per Ex.P.1. PWs.1 and 2 are staff of Excise department, who had

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CRL.RP No. 854 of 2014

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accompanied PW.3 and acted as panchas to the said seizure mahazar.

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PW.1 who was a Excise guard had deposed before

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the Court that on 08.08.2007 at about 1.30 a.m, while he was on patrolling duty they spotted an auto-rickshaw moving suspiciously and when they asked the driver of auto-rickshaw to stop the vehicle he did not stop the same and therefore, the said vehicle had to be intercepted by the patrolling staff. He does not speak about any credible information that was received by PW.3 prior to intercepting the auto-rickshaw. On the other hand, he has deposed that since panchas were not available at that point of time seizure mahazar was conducted at the spot and staff of the department themselves had acted as panchas to the same. The evidence of PWs.2 and 3 would go to show that prior to intercepting the vehicle in question, PW.3 had a credible information about illegal transport of liquor and it is only after receipt of such information, he and his staff had intercepted the vehicle in question. Neither PW.3 nor PW.2 state about any attempts made by them to secure independent panchas after receiving the alleged credible information about illegal transport of liquor. There is also no material to show that

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CRL.RP No. 854 of 2014

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on receipt of such information they had informed their higher officers about the same. Therefore, it cannot be said that the seizure of arrack packets from the accused persons under the seizure mahazar - Ex.P.1 has been proved by the prosecution as the seizure mahazar is not supported by any independent panchas.

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Further, for the purpose of offences punishable under Section 34 of the Act is concerned, mere possession of intoxicant would not be sufficient, the prosecution is also required to prove that the accused persons were in possession of the same with a knowledge of it is unlawful manufacture. The material on record would go to show that seized arrack packets had a seal on it and the name of "Samson Distillery Limited" was printed on these arrack packets. However, no investigation has been done in the present case with regard to manufacturer of liquor that was seized from the possession of the petitioners. The chemical examination report of seized liquor would go to show that the same was fit for human consumption. Therefore, it was for the prosecution to prove that seized liquor was manufactured unlawfully without there being any license. The accused persons can be punished for an

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CRL.RP No. 854 of 2014

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offence punishable under Section 34 of the Act, if only the prosecution proves possession of the seized articles were illegal and the accused persons were also aware that seized articles were manufactured unlawfully. It is only then presumption under Section 40 of the Act can be drawn against the accused persons. Under Section 40 of the Act there cannot be any presumption that the seized articles were manufactured unlawfully.

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In the present case, the prosecution has failed to comply with the requirement of Sections 53 & 54 of the Act. PW-3 before searching the auto rickshaw bearing No.KA-46446 had not obtained any search warrant from the jurisdictional Magistrate as provided under Section 53 of the Act nor has he complied the requirement of Section 54 of the Act by recording any reasons for not having complied the requirement of Section 53 of the Act. The Hon'ble Supreme Court in the case of

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K.L.SUBHAYYA VS STATE OF KARNATAKA - AIR 1979 SC

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711 has held that the provisions of Sections 53 & 54 of the Act would be equally applicable even to the vehicle in which the the liquor was being transported illegally. Non-compliance of the aforesaid provisions of law is fatal to the case of the

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CRL.RP No. 854 of 2014

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prosecution and the Hon'ble Supreme Court in the aforesaid

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case has stated that conviction in such cases gets vitiated.

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In the present case, the prosecution has not

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satisfactorily proved seizure of the liquor packets from the accused persons under the seizure mahazar - Ex.P.1, since the prosecution has failed to examine any independent witness in support of their case. The seizure mahazar - Ex.P1 for which the staff of the department have acted as panchas becomes doubtful as the prosecution has not given satisfactory explanation as to why independent panchas were not secured when the department had credible prior information with regard to transport of liquor. In addition to the same, the prosecution has also failed to prove that arrack packets which were already seized from the possession of the petitioners were unlawfully manufactured. There is absolutely no investigation with regard to source of manufacturing of the seized articles. It is trite law that in a case where the requirements of law has not been complied with by the official witness during the course of the investigation, by relying solely on the evidence of official witnesses, the accused persons cannot be convicted. Under the circumstances, I am of the considered view that the Courts

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CRL.RP No. 854 of 2014

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below were not justified in convicting the petitioners for the alleged offences.

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Accordingly, Criminal Revision Petition is allowed. The

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judgment and order of conviction passed by the Trial Court in C.C.No.362/2007 confirmed in Crl.A.No.196/2013 by the Appellate Court is set aside and the petitioners are acquitted of the offences punishable under Sections 32, 34 and 38(A) of the Karnataka Excise Act, 1965.

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SD/JUDGE

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NMS

Swamygowda @ Mahendra v. the State by

Case brief

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Swamygowda @ Mahendra v. the State by

Case brief

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