Allowed

Sri Raghu K v. Santhosh Kumar M

Karnataka HC4 Jan 2024CRL.RP/847/2016

Case brief

AI extract

What is this about?

Revision petition by accused convicted in appeal after acquittal for storing liquor. Court found appellate conviction illegal because Investigating Officer failed to comply with mandatory Sections 43-A and 54 of the Karnataka Excise Act and Section 102 CrPC, and house ownership evidence was unexplained.

What did the court decide?

Conviction and sentence set aside; acquittal judgment dated 24.06.2015 confirmed

Sri Raghu K Vs Santhosh Kumar M — Criminal Trial and Appeal | Karnataka HC (2024)

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1 - NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO.847 OF 2016

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BETWEEN:

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SRI RAGHU K S/O KRISHNEGOWDA NO.3803, 12TH CROSS 9TH MAIN, THYAGARAJANAGAR NEAR POLICE STATION, BSK 3RD STAGE BANGALORE-560085

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…PETITIONER

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(BY SRI. D GANGADHARA, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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SANTHOSH KUMAR M S/O MAHADEVI S TELI NO.4185, CHAITHANYA DHAMA 2ND B MAIN, 4TH PHASE GIRINAGAR BANGLAORE-560085

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…RESPONDENT

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(BY SRI. M.R. PATIL, HCGP)

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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 ORDER DATED 7.6.2016 PASSED BY THE PRL. DIST. AND S.J., CHIKKAMAGALURU IN CRL.A.NO.169/2015 AND ALSO CONFIRM THE EARLIER ORDER DATED 24.06.2015 PASSED BY THE PRL. C.J. AND J.M.F.C., CHIKMAGALURU IN

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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C.C.NO.873/2013.I.A.NO.1/2016 FOR SUSPENSION OF SENTENCE.

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

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ORDER

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The accused/revision petitioner has preferred this

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Revision Petition against the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Chikkamagalur in Criminal Appeal No.169 of 2015 dated 07^th June, 2016 (for brevity, hereinafter referred to as the “trial Court”).

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For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the trial Court.

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It is the case of the prosecution that 25^th April, 2013 about 12.15 pm in Kaimara village and surrounding places Excise Inspector along with his staff had been doing patrolling duty, at that time he received reliable information that the accused-C.V. Suresh has stored liquor in his house situate at Arasinaguppe village. After receipt of information, complainant secured two persons as panchas and proceeded to the house of accused along with panch witnesses and conducted raid. On

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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search, they found 90 ml. 160 Martin Special Whisky sachets in a plastic bag in the kitchen of the accused’s house. Out of those 160 sachets, 52 sachets were separated as samples under the panchanama and the remaining liquor sachets were seized under mahazar; accused was arrested on the spot and thereafter, they have registered the case against the accused. On completion of investigation, Investigating Officer has submitted charge sheet against the accused for commission of offence punishable under Section 32 and 38A of the Karnataka Excise Act, 1965 (for brevity, hereinafter referred to as “the Act”). After taking cognizance, the trial Court has registered a case against the accused in CC No.873 of 2013 for commission of offence punishable under Sections 32 and 38 of the Act. Accused has obtained bail. Charges were framed against the accused for the alleged commission of offences. Having understood the same, the accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution has examined four witnesses as PWs1 to 4 and eight documents were marked as Exhibits P1 to P8 and 52 Captain Martins Whisky sachets were marked as MOs No.1 and 2. On closure of

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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prosecution side evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused has totally denied the evidence of prosecution witnesses, but has not chosen to lead any defence evidence.

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Having heard the documents, the trial Court acquitted the accused for the offence punishable under Sections 32 and 38 of the Act. Being aggrieved by the said judgment of acquittal, the State has preferred appeal before the Principal District and Sessions Judge in Criminal Appeal No.169 of 2015. The appeal came to be allowed by the Appellate Court by setting aside the judgment of acquittal dated 24^th June, 2015 passed in CC No.873 of 2013 on the file of the Principal Civil Judge and JMFC, Chikkamagalur, accused was convicted for the offence punishable under Section 32 of the Act and sentenced the revision petitioner to undergo rigorous imprisonment of three years and to pay fine of Rs.10,000/- and in default to pay fine, the accused shall undergo simple imprisonment three months. Being aggrieved by the impugned judgment of conviction and order of sentence, passed by the Appellate Court, the accused/Revision Petitioner has preferred this revision petition.

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5 - NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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Learned Counsel appearing for the petitioner remains absent. However, this Court has perused the grounds taken in the revision petition and heard the arguments of Sri M.R. Patil, learned High Court Government Pleader appearing for respondent-State.

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Having heard the learned High Court Government Pleader and having perused the records, the following point would arise for my consideration in this revision petition:

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Whether the judgment of conviction and order of sentence passed by the appellate Court is illegal, capricious and opposed to law and facts?

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What order?

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My answer to the above points are as under:

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Point No.1: in the affirmative;

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Point No.2: as per final order

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Regarding Point No.1:

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I have carefully examined the material placed before this Court. It is the case of prosecution that on 25^th April, 2013

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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at about 12.15 pm in Kaimara village and surrounding places Excise Inspector along with his staff had been doing patrolling duty, at that time he received reliable information that the accused-C.V. Suresh has stored liquor in his house situate at Arasinaguppe village. Thereafter, Excise Officials seized the same under mahazar. To prove the case of prosecution, four witnesses were examined as PWs1 to 4 and eight documents were marked as Exhibits P1 to P8 and two objects were marked as Material objects as MOs 1 and2.

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PW1-Chandrashekara, Excise Guard and PW4Chandrappa, Inspector of Excise, Chikkamagalur have deposed as to seizure of Material Objects 1 and 2 in the house of the accused. PW2-Ranganatha, has deposed in his evidence as to the submission of model sachets of Captain Martin Whisky to the Laboratory along with the Articles Exhibit P2. PW3Vijaykumar said to be attestor to the mahazar Exhibit P1 and 4, has not supported the case of prosecution. Exhibit P1-mahazar reveals that excise officials have seized the Whisky sachets in the house of the accused on 25^th April, 2013 at 12.15 pm and this mahazar is prepared on 25^th April, 2013 between 12.15 to 1.30 pm. Soon after the seizure of Whisky sachets, the

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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Investigating Officer, without any reasonable delay, has not produced the same before the office not below the rank of Superintendent of Excise authorised by the Government in this behalf as required under Section 43-A of the Act. Investigating Officer has also not submitted the report as to seizure of property to the jurisdictional Magistrate as required under Section 102 of Code of Criminal Procedure. Before search of the house, the Investigating Officer has not complied with the mandatory provisions of Section 54 of the Act. The Investigating Officer has not explained anything as to noncompliance of Section 43-A and Section 54 of the Act and also the provisions of Section 102 of Code of Criminal Procedure, 1973.

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Apart from this, Exhibit P8-certificate issued by the Panchayat Development Officer of Village Panchayat Dasarahalli, Chikkamagalur Taluk, reveals that the House Khata No.96/117 Assessment No.121, belongs to one Saroja W/o C.V. Suresha of Arasinaguppe, Mallenahalli Post, Chikkamagalur and C.V. Suresh, is residing in this house. The owner of the house is one Saroja, who is not arrayed as accused in this case. The Investigating Officer has not explained anything in this regard.

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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Even the Investigating Officer has not collected the katha and assessment extract pertaining to the house in question. The learned Sessions Judge has observed that prosecution has failed to prove the guilt of the accused under Section 38A of the Act. The learned Sessions Judge has ignored the mandatory provisions of Sections 43A and 54 of the Act and Section 102 of Code of Criminal Procedure. Hence, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, is illegal, capricious and opposed to law and facts and requires to be set aside. Hence, I answer point No.1 in the affirmative.

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Regarding Point No.2:

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

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O R D E R

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Revision petition is allowed;

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Judgment of conviction and order of sentence dated 07^th June, 2016 passed in Criminal Appeal No.169 of 2015 by the Principal District and Sessions Judge, at Chikkamagaluru, is set aside;

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NC: 2024:KHC:467 CRL.RP No. 847 of 2016

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Judgment of acquittal dated 24^th June, 2015 passed in CC.No.873 of 2013 by the Principal Civil Judge and JMFC, Chikkamagaluru, is confirmed;

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Send the trial Court records along with copy of the order to the court below.

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Sd/JUDGE

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LNN List No.: 1 Sl No.: 32

Sri Raghu K v. Santhosh Kumar M

Case brief

What is this about?

What did the court decide?

Sri Raghu K v. Santhosh Kumar M

Case brief

What is this about?

What did the court decide?

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