Sri Ganga @ Gangadhar Naika Vs State of Karnataka

SRI GANGA @ GANGADHAR NAIKA S/O CHANDRA NAIKA AGED ABOUT 39 YEARS, RESIDING AT KENCHAPURA VILLAGE SHIVANI HOBLI, TARIKERE TALUK CHIKKAMAGALURU DISTRICT PIN-577647

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…PETITIONER

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(BY SRI. JAIRAJ G., ADVOCATE)

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AND:

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STATE OF KARNATAKA

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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BY AJJAMPURA POLICE STATION CHIKKAMAGALURU DISTRICT PIN-577101

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REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560001

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…RESPONDENT

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(BY SRI. M. DIVAKAR MADDUR, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 03.01.2018 IN C.C.NO.392/2016 PASSED BY THE CIVIL JUDGE AND ADDITIONAL J.M.F.C., TARIKERE AND JUDGMENT DATED 08.11.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.8/2018 AND ACQUIT THE PETITIONER.

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NC: 2026:KHC:25516 CRL.RP No. 1483 of 2019

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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Heard learned counsel for revision petitioner and also learned High Court Government Pleader for respondent-State.

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The factual matrix of case of the prosecution before the Trial Court is that on 18.06.2015 at 5.00 p.m., the CPI, Tarikere along with his subordinates were inspecting the vehicles regarding violation of traffic rules near Sai Ram Petrol Bunk of Bukkambudi Village. At that time, two persons came in a motorcycle bearing number KA-27-K/8200 to the said place. The pillion rider of the motorcycle was holding the box. The CPI suspected against them. On enquiry, it was found that the said persons were illegally transporting liquor. On inspecting the box, they found that it was containing 96 bottles of Raja Whiskey each containing 180 ml. and 24 bottles of Beer each containing 330 ml. On enquiry, they told that they do not have any permit or licence to transport the said liquor. The CPI enquired name and address of said two persons. They are the accused persons in this case. He seized the liquor bottles in the

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HC-KAR

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presence of witnesses and drawn the mahazar as per Ex.P1 and gave report to SHO of Ajjamupura Police Station as per Ex.P2. On the basis of the same, Crime No.112/2015 for the offence punishable under Sections 32 and 34 of Karnataka Excise Act, 1965 was registered. Bottles seized from the spot were sent to the FSL and report was obtained as per Ex.P4. The motorcycle on which both the accused came to the spot was seized and handed over to the Excise Department to take action in accordance with law.

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The Investigating Officer, on conclusion of the investigation invoked the offence under Sections 32 and 34 of the Karnataka Excise Act, 1965 and case was also registered as C.C.No.392/2016. The accused persons did not plead guilty and claimed trial.

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Hence, the prosecution examined P.W.1 to P.W.6 and got marked the documents as Exs.P1 to P8 and also M.O.1 to M.O.6. On closure of the prosecution evidence, 313 statement of the accused was recorded and accused did not choose to lead any evidence.

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NC: 2026:KHC:25516 CRL.RP No. 1483 of 2019

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HC-KAR

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The Trial Judge having considered both oral and documentary evidence comes to the conclusion that the evidence of P.W.1 is supported by evidence of P.W.2 and P.W.3, who are the witnesses to the mahazar and nothing is elicited from the mouth of witnesses P.W.1 to P.W.3, so also other witnesses and the evidence of P.W.1 to P.W.3 and P.W.5 are consistent and corroborative. He also comes to the conclusion that FSL report goes against the accused as per Ex.P4. Having considered all these materials, convicted and sentenced the revision petitioner.

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The said judgment of the Trial Court is challenged before the First Appellate Court. The First Appellate Court also having re-appreciated the material available on record in Criminal Appeal No.8/2018, confirmed the same.

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Learned counsel appearing for the revision petitioner would vehemently contend that both the Courts have committed an error in believing the case of the prosecution. The counsel would submit that the Investigating Officer erroneously invoked the offence under Sections 32 and 34 of the Karnataka Excise Act, 1965 and ought not to have invoked

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NC: 2026:KHC:25516 CRL.RP No. 1483 of 2019

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HC-KAR

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Section 32. The counsel would further submit that both the Courts failed to consider that Section 40 is available when it is established that petitioner was in possession of intoxicant and that the intoxicant was unlawfully manufactured. Mere possession of unlawfully manufactured intoxicant is not punishable under Section 34. The counsel also would vehemently contend that the very approach of Trial Court as well as the First Appellate Court is erroneous. Hence, it requires interference.

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Per contra, the learned High Court Government Pleader for the respondent-State would submit that the evidence of P.W.1 to P.W.6 is consistent and nothing is elicited in the cross-examination of these witnesses to disbelieve the case of the prosecution and both the Courts rightly appreciated both oral and documentary evidence, particularly, seizure was done in the presence of panch witnesses P.W.2 and P.W.3 and so also, Ex.P4 is very clear that seized articles were sent to FSL and FSL report is also positive. Hence, it does not require any interference of this Court.

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HC-KAR

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Having heard learned counsel appearing for the revision petitioner and learned High Court Government Pleader appearing for the respondent-State, the points that would arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in convicting and sentencing the accused for the offence punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 and whether judgment of conviction and sentence suffers from its legality and correctness ?

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(ii) What order ?

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Point No.(i)

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Having heard learned counsel appearing for the revision petitioner and also learned High Court Government Pleader appearing for the respondent-State and also considering the material available on record, it is very clear that accused persons were transporting seized articles in their motorcycle and the same was seized and mahazar was drawn. The seized articles were also sent to FSL and FSL report Ex.P4 is very consistent with regard to seized articles are Whiskey and the evidence of P.W.1 and P.W.5, so also the evidence of

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NC: 2026:KHC:25516 CRL.RP No. 1483 of 2019

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HC-KAR

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P.W.2 and P.W.3, who are the witnesses to the seizure is consistent.

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No doubt, the FSL report is not marked through the FSL Expert. The evidence of prosecution is very clear with regard to seizure and the same was proved and seized articles was also sent to FSL and report is obtained. When the evidence of witnesses P.W.1 to P.W.6 is consistent and even having perused the cross-examination, nothing is elicited, except the suggestions with regard to the seizure and mahazar was drawn and sent the seized articles to the FSL. When such being the case, I do not find any error on the part of Trial Court and the First Appellate Court in considering the evidence and the judgment of Trial Court and the First Appellate Court not suffers from its legality and correctness. When such being, the very contention that both the Courts have committed an error cannot be accepted.

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However, at this juncture, learned counsel appearing for the revision petitioner would contend that this Court can enhance the fine amount and set the liberty of the revision petitioner. The same cannot be done when the material

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HC-KAR

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available before the Court is consistent with regard to transporting of liquor and they were not having any license and without any license, the petitioner was transporting the same and possession was also proved. The Court has to take note of extent of bottles seized at the instance of the revision petitioner and the same not comes within the exempted limit and it is more than the same. Hence, I do not find any ground to modify the sentence also and the same commensurate with the quantum of articles which were seized i.e., M.O.1 to M.O.6 and even not a case for modifying the sentence by enhancing the fine amount. Therefore, I answer point No.(i) as ‘negative’.

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Point No.(ii)

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