Sri.Raju Naik S/O Samya Naik Vs the State of Karnataka

THE STATE OF KARNATAKA BY ITS EXCISE POLICE SUB-INSPECTOR, EXCISE POLICE STATION, HUVINAHADAGALI, NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA, BENCH AT DHARWAD.

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…RESPONDENT

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(BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) R/W. SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DTD.14/07/2015 PASSED BY THE III ADDL. DIST. & SESSIONS JUDGE, BALLARI IN CRL.APL.NO.5008/2013 CONFIRMING THE JUDGMENT & ORDER DTD.23/09/2013 IN C.C.NO.645/2011 PASSED BY THE COURT OF CIVIL JUDGE & JMFC AT HUVINAHADAGALI FOR THE OFFENCES PUNISHABLE UNDER SECTION 32(1) OF KARNATAKA EXCISE ACT.

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THIS PETITION, COMING ON FOR FINAL HEARING, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Kum.Priyanka Y. Upadhya for Srinand A.

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Pachhapure and learned High Court Government Pleader Praveena Y.Devareddiyavara for accused.

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Accused suffered an order of conviction in CC No.645/2011 for the offences punishable under Section 32(i) of the Karnataka Excise Act,1965(for short hereinafter called as ‘K.E.Act’) and ordered to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- which got confirmed in Crl.A.No.5008/2013 and 5014/2014 are the revision petitioners.

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Facts in nutshell for disposal of the criminal revision petition are as under:

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3.1 The Police Sub-inspector, Excise, Hadagali Range filed charge sheet against the accused-revision petitioners and another accused for the offences punishable under

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Section 32(i) and 38A of Excise Act, 1965. Material facts

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which lead to filing of the charge sheet are as under:

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3.2 On 29.09.2010 complainant along with CW.4 and five others had visited Itagi village for patrolling duty. While so discharging patrolling duty, at 9.30 p.m., they received credible information that some persons are illegally transporting the liquor from Hospet to Davanagere. Accordingly a raid team was formed comprising of complainant and other staff members by securing two persons to act as panchas. Team visited Mahajanadahalli village cross. Two persons were found proceeding on a motorcycle. On suspicion, motorcycle was intercepted by the complainant and other persons of raid party. Two wooden boxes were being carried on the motorcycle. Accused after seeing the Police officials, tried to escape. But complainant and other members of the raid team were successful in apprehending them.

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3.3 On enquiry, they revealed their names and they

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did not offer proper explanation with regard to the

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contents of the wooden boxes. On suspicion wooden boxes were opened and they found 192 liquor bottles of the label ‘Royal Gold cup’. The same was seized in the presence of panchas. Samples were drawn from 28 bottles randomly from the whole lot.

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3.4 Complainant thereafter took them to his custody. Motorcycle on which the revision petitioners were moving bearing No.KA 35/Q-1413 and a mobile hand set were also taken into custody. They enquired about the license to transport the liquor bottles and both the persons submitted that they do not have license. As such the head of the ride party treated them as illicit liquor and seized the same by drawing a panchanama.

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Thereafter, they visited the Excise police station and registered the case in Excise Case No.09/10-11. The accused persons were arrested and then sent to judicial custody. Thereafter, seized materials were sought to be retained by them for the purpose of investigation.

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Sri Hanumanth Guttedar conducted the further

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investigation and sent the seized samples for FSL examination and concluded the investigation and filed charge sheet against three persons including revision petitioners.

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Presence of the accused persons was secured and charges were framed. Accused persons pleaded not guilty. Therefore, trial was held.

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In order to bring the guilt of the accused persons, prosecution proceeded to examine 8 witnesses as PWs1 to 8 comprising of head of the ride party, panchas, sub-staffs and the investigating officer and the FSL officer.

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As many as 7 documents were placed on record which are exhibited and marked as Exhibit P1 to P7. Seized sample bottles 38 in numbers were placed on record and marked as M.O.1 to M.O.38.

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On conclusion of recording of evidence, accused

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statement as is contemplated under Section 313 of Cr.P.C.

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was recorded, wherein accused persons have denied the incriminating materials but failed to offer the written submission as is contemplated under Section 313(4) of Cr.P.C. nor placed any defense evidence.

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Thereafter, the learned trial judge heard the arguments of the parties and by considered judgment dated 23.09.2013 convicted accused Nos.1 and 2 and acquitted the accused No.3.

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Being aggrieved by the order of conviction and sentence, each of the revision petitioners filed appeals in Crl.A.No.5008/2013. State has also filed an appeal in Crl.A.No.5014/2014 seeking enhancement of the sentence and acquittal of accused No.3. Learned Sessions Judge dismissed both the appeals and confirmed the order of conviction and sentence of revision petitioner and revision petitioner.

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Being aggrieved by the same, accused Nos.1 and 2 have filed the present revision petition and State did not take further action about the dismissal of it’s appeal.

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Miss.Priyanka Y.Upadhaya, counsel representing

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Sri.Srinand A.Pachhapure, counsel has reiterated the grounds urged in the revision petition and contended that trial court falsely convicted the revision petitioner for the aforesaid offence especially when PW2 has turned hostile to the case of the prosecution and samples were not

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drawn from each and every bottle resulting in procedural lapses and miscarriage of justice and sought for allowing the revision petition.

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In support of her arguments, she placed reliance on the judgment of single judge of this Court in the case of Siddappa Davalappa Chavan Vs. State of Karnataka¹ , wherein paragraph Nos. 25 to 27 and 30 it has been held as under:

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25 . In the instant case, PWs.1 and 2, being the panchas, who had accompanied PW6 for the purpose of raid in the house of accused have turned hostile to the case of the prosecution. PWs. 3 to 5, who are the official witnesses, have stated that, when they left to raid in the house of accused, no persons were gathered there.

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1 AIR online KAR 1197

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26 . Undisputedly, the prosecution has not examined any independent witnesses in the present case to prove the search and seizure mahazer. Admittedly, they have not cited any local persons as witnesses in this case. Further, the prosecution has not complied with the statutory requirement by complying Sections 53 and 54 of the Excise Act. In the case where statutory requirements are mandatory in nature and if the Police Officer has not complied with the said requirement, the prosecution has failed to give proper reason for non-examination of independent witnesses and for not securing independent panchas, it would be highly unsafe to place reliance on the prosecution witnesses, who are official witnesses for convicting the accused. Further, PW5 is the police constable, who registered the case, though there is a bar under Section 2(o) of Cr.P.C., as Police Constable would not come within the definition of Section 2(o) read with Section 154 Cr.P.C.

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27 . According to the prosecution, the Investigating Officer has seized 60 pockets of arrack containing 100 ml and cash of Rs.20/- and two pockets are taken as sample and put in the bottles, but the same is not produced before the jurisdictional Magistrate for necessary orders for retaining the said articles or for disposal of the articles as contemplated under Section 102 of the Code of Criminal Procedure. The Investigating Officer has also not submitted seizure report to the concerned Excise Authorities as required under Section 43(a) of the Karnataka Excise Act, 1965. Admittedly, the Investigating Officer has not offered any explanation in this regard..

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30 . After seizure of the property, the Investigating Officer has not complied the mandatory provisions of Section 100(7) of Cr.P.C. The Investigating Officer has not offered any explanation for noncompliance of Section 100(7) of Cr.P.C. Insofar as Section 328 of the IPC is concerned, the prosecution has not placed any documents either oral or documentary.”

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Per contra , learned High Court Government

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Pleader supports the impugned order.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of material on record, the following points would arise for consideration:

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1) Whether the revision petitioners make out a case that the impugned orders are suffering from legal infirmity and perversity or patent factual error so as to set aside the impugned orders and acquit the revision petitioners?

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2) Whether the sentence is excessive?

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3) What order?

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Regarding Points No.1 and 2:

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In the case on hand, the seizure of 192 bottles

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of liquor with the labels Royal Gold Cup whisky is established by placing the panchanama and the oral

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evidence of the parties. Merely on the fact that PW-2 has turned hostile to the case of the prosecution, would not sufficient enough to hold that the prosecution case is false case foisted against the revision petitioners.

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Admittedly, the motorcycle was also seized and in the absence of any previous enmity or animosity nurtured by the head of the raid party and other members of the raid team, why the revision petitioners would be falsely implicated in a case of this nature is a question that remains unanswered on behalf of the revision petitioners.

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Having said so, the samples were drawn randomly from the lot, which were marked as M.Os.1 to 28.

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Counsel for the revision petitioners vehemently contended that samples should have been drawn from each of the bottles following the principles of law enunciated in Siddappa Davalappa Chavan supra.

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Such an argument is impermissible because in

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the case on hand, there were no different lots and samples drawn from one lot is sufficient enough to test the same. Moreover, if it is the case of the revision petitioners that few of the bottles are original liquor bottles, nothing prevented the revision petitioners to apply for re-test from all the bottles.

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Fact remains that the FSL report shows that 34% of ethyl alcohol were present in the sample bottle which were safe for the consumption for human being. Admittedly, there was no licence possessed by the revision petitioners for the purpose of transporting 192 liquor bottles. Admittedly, there was no excise duty paid on the liquor bottles which were being transported.

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Therefore, the learned Trial Judge and learned Judge in the First Appellate Court were justified in convicting the accused revision petitioners for the offence punishable under Section 32(i) of the K.E. Act.

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Having said thus, this Court having regard to the limited power in the revisional jurisdiction, in view of the principles of law enunciated in Amit Kapoor vs. Ramesh Chander and another² , has re-assessed the material on record in the limited scope.

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On such re-appreciation of the material on record, having regard to the limited scope of the revisional jurisdiction, this Court did not find any patent factual error or legal infirmity or perversity in the impugned judgments.

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With regard to sentence, learned Trial Judge has imposed one year rigorous imprisonment and also fine of Rs.10,000/- for the aforesaid offence, which is minimum.

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Therefore, hardly there is a scope for modification of sentence either. Taking note of the above aspect of the matter and in view of the foregoing reasons, this Court is of the considered opinion that revision petitioners failed to make out any grounds whatsoever 2 (2012) 9 SCC 460

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muchless calls for interfere with the orders of the learned Trial Judge confirmed by the First Appellate Court.

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Though principle of law enunciated in Siddappa Davalappa Chavan is not disputed, facts of the present case are different. Therefore, the same has no application to the case on hand especially having regard to the fact that there is one lot and samples are brought from the said lot randomly. Accordingly, point Nos.1 and 2 are answered in the negative.

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Regarding point No.3

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