IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA. CRIMINAL APPEAL No.2785/2009

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1 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 03 RD DAY OF FEBRUARY, 2015 BETWEEN BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA CRIMINAL APPEAL No.2785/ BASU SHANKRAPPA LAMANI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. MUCHAKHANDI TANDA, TQ. & DIST BAGALKOT. 2. ASHOK RAMU LAMANI, AGE: 25 YEARS, OCC : AGRICULTURE, R/O.MUCHAKHANDI TANDA, TQ & DIST BAGALKOT.... APPELLANTS (BY SRI RAMAKRISHNA G DHONGADI, ADV.) AND THE STAET OF KARNATAKA, THROUGH THE PSI NAVANAGAR PS, BAGALKOT. (BY SRI K.S. PATIL, HCGP)... RESPONDENT THIS CRL.A IS FILED U/S 374 CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S SEEKING TO SET ASIDE THE JUDGEMENT OF THE CONVICTION DATED IN SESSION CASE NO.22/2009 ON THE FILE OF THE SESSION JUDGE, BAGALKOT AND DIRECT THE ACQUITTAL OF THE ACCUSED/APPELLANTS.

2 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T This appeal is by the accused in S.C.No.22/2009 on the file of Sessions Judge, Bagalkot vide judgment dated assailing the judgment of conviction passed. 2. The parties are referred to as per their rankings in the Court below. 3. Briefly stated, the appellants/accused were charge sheeted by P.S.I. of Navanagar, Bagalkot Police Station in Crime No.22/2008 for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 ((hereinafter referred to as the K.E. Act, for brevity) and under Section 328 read with Section 34 of Indian Penal Code, The allegation of the prosecution was that the accused were found transporting illicit liquor of 400 pockets each containing 100 ml. liquor on a motorcycle. The motorbike on which the accused were travelling along with a cell phone, cash amount of

3 3 Rs.190/- and illicit liquor were seized under a mahazar in the presence of Panchas by the PSI who had proceeded to the spot on receiving credible information. 4. The learned Magistrate who took cognizance of the offence, committed the case to the Sessions Court. The learned Sessions Judge procured the accused, framed the charges for the offences punishable under Sections 32 and 34 of the K. E. Act and under Section 328 read with Section 34 of IPC. The accused pleaded not guilty. The prosecution entered into trial and examined witnesses PWs-1 to 4; documents at Exs.P-1 to P-5 and Material Objects Nos.1 to 3 were marked. After closure of prosecution evidence, the accused were examined under Section 313 of Cr.P.C. and they denied all incriminating evidence appearing in the statements of prosecution witnesses and did not lead rebuttal evidence. 5. After hearing both the parties, the learned Sessions Judge acquitted the accused for the offences under Section 328 read with Section 34 of IPC and

4 4 convicted both of them for the offences punishable under Section 32 and 34 of the K.E. Act. After hearing the accused on the punishment, sentenced both the accused to undergo rigorous imprisonment for 2 years for each of the offence under Section 32 and 34 of the K.E. Act with fine of Rs.10,000/- each and in case of default of payment of fine, to undergo rigorous imprisonment for 3 months, under each head and period spent by the accused as under trial prisoners was given set off. 6. Sri Ramakrishna Dhongadi, learned counsel for the appellants submits that the accused persons are solely convicted on the basis of the evidence of the official witness. There are no independent witness to the alleged incident. Though there were two panch witnesses, one of them examined as PW-3 has turned hostile to the prosecution case. In that view of the matter, there is no legal evidence on record to infer that the incriminating material was seized by the Investigating Officer under the mahazar. In the absence of legal and convincing evidence from the side of the prosecution, the accused were not

5 5 bound to prove the defence contention. Under the circumstance, the judgment of conviction has resulted in miscarriage of justice to the appellants and same is liable to be set aside. 7. In reply, learned High Court Government Pleader submits that there is admission of the prosecution case during the cross-examination. As per the judgment of the Apex Court, when the statement of the official witness is trustworthy, the Court is bound to convict the accused persons. The appeal lacks merits and the same is liable to be dismissed. 8. In the above circumstances, the following point arises for my consideration: Whether a case for conviction under Section 32 and 32 of Karnataka Excise Act, 1965 is made out? 9. During the trial, the prosecution examined police inspector who conducted the raid on getting a credible information about the offence. As per his evidence, on

6 6 getting the information he procured two independent witnesses from a public place; along with his staff, he went to the spot. Both accused came on a motorcycle from Muchkhandi Tanda at 7.00 p.m.; the vehicle was waylaid and surrounded; the riders of the vehicle were found in possession of two bags of spurious liquor. There were totally 200 sachets of spurious liquor in two bags in the motorbike. On body search of the accused, they found one cell phone and cash amount of Rs.190/-. All these items were seized under a mahazar in the presence of pach witnesses. From each of the bag, one sachet of spurious lickquor was separately taken for the purpose of clinical examination. The accused and the seized articles were taken to the police station and complaint was lodged. PW-2 is the constable who accompanied PW-1 for the raid. He corroborated the evidence of PW-1. PW-3 is the pach witness, though he turned hostile to the prosecution case during the cross-examination, admitted his signature on the mahazar.

7 7 PW-4 is the PSI who registered a case, submitted FIR to the Court, recorded the statements of the witnesses forwarded the sized articles to excise department (for disposal) sent samples of spurious liquor for chemical examination and after receipt of the RFSL report, submitted charge sheet to the Court. 10. The learned Sessions Judge has recorded the conviction under Section 32 and 34 of the K.E. Act, which provisions read as under: 32. Penalty for illegal import, etc. (1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act imports, exports, transports, manufactures, collects or possesses any intoxicant, shall on conviction, (be punished for each offence with rigorous imprisonment for a term which may extend to [five years and with fine which may extend to fifty thousand rupees]) 34. Penalty for illegal possession. Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported,

8 8 manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon shall on conviction, be punished with imprisonment for a term which may extend to [four years and with fine which may extend to fifty thousand rupees.] 11. While the former contemplates punishment even for innocent possession, import, transportation etc. of intoxicant, latter provision contemplates punishment for the conscious possession, import, transport, manufacture etc. The former offence is punishable with rigorous imprisonment extending upto five years with fine amount extending upto Rs.50,000/-. The latter provision is punishable with simple imprisonment extending up to four years with a fine extending up to Rs.50,000/-. Such being the rigor of punishment, the leaned District Judge only on the basis of the evidence of official witness has recorded the conviction. Of course, it is the trend of the public in not coming forward to co-operative with the prosecution, but what about the responsibility of prosecution? Even after the first Panch witness turned

9 9 hostile to the prosecution case, no effort was made to procure the second panch witness and he was given up. 12. But for the offence under Section 328 of the IPC, it would have been a summery trial case. Section 58 of the K.E. Act contemplates the procedure for arrest, search etc. Unless otherwise, provided the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as code ) relating to arrest, detention in custody, searches, summons, warrants of arrests, search warrants, the production of persons arrested and disposal of things shall apply to all the actions taken under the Act. Section 100 (3) of the code mandates the officer making search of the person or place, shall call upon two or more independent and respectable inhabitants of said locality, if such witnesses are not available from the locality, he may call upon such witnesses from any other locality as witnesses. During search in the presence of those witnesses, the list of things seized in the course of the search shall be prepared by the officer and the witnesses. The prosecution which claims to have seized the

10 10 incriminating material in the presence of two panch witnesses is complicit with the hostile evidence of one panch witness and getting admission from him of his signature on the mahazar. That is an infirmity in the case of the prosecution. The search contemplated under Section 100 of the Code, is under the authorization given by the concerned Court by way of search warrant to the officer concerned. However, Section 165 of Code has some relaxation to the officer from obtaining search warrant before proceeding for search, which reads as under; 165. Search by police officer. (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be

11 11 made, search, or cause search to be made, for such thing in any place within the limits of such station. 13. The corresponding provisions of the K.E. Act is Section 54 which reads as under: 54. Power to search without warrant. Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an Officer-incharge 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. (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (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.

12 Admittedly, in the case on hand, PW-1 without getting the search warrant has proceeded with search and seizure and arrested the accused. That apart, he has not recorded his reasons in writing for proceeding so without warrant much against the above statutory provisions. That is another infirmity in the case of the prosecution. The accused have not claimed the vehicle alleged to have seized under mahazar. A cumulative effect of above infirmities vitiates search and seizure thereby unacceptable. The conclusion is, illegal possession of the spurious liquor which is punishable under Section 32 of the K.E. Act is not proved beyond doubt. 15. There is a presumption under Section 40 of the K.E. Act in respect of Section 32 and 34 which reads as under: 40. Presumption as to commission of offence in certain cases. In prosecutions under Section 32 and Section 34, it shall be presumed, until the contrary is proved, that the accused person has

13 13 committed the offence punishable under that Section in respect of (a) any intoxicant; or (b) any still, utensil, implement or apparatus whatsoever in the manufacture of any intoxicant other than toddy; or (c) any materials which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured, for the possession of which he is unable to account satisfactorily. 16. Once the possession of the intoxicant is proved, the presumption under Section 40 of the K.E. Act comes into operation and it is for the accused to account satisfactorily for the said possession. Since the offence under Section 32 of the K.E. Act itself is not proved in this case, the statutory presumption under Section 40 of the K.E. Act does not come into play and onus did not shift to the accused to account satisfactorily for the said possession. When there is no case for the prosecution under Section 32 of the K.E. Act, there is no case for them

14 14 under Section 34 also. The Court below without distinguishing between the provisions of Sections 32 and 34 of the K.E. Act, on the basis of fragile and sketchy evidence has mechanically recorded the judgment of conviction and sentence which has resulted in miscarriage of justice. 17. For the discussion supra, the appeal is allowed. The impugned judgment of conviction recorded by the Sessions Judge, Bagalkot, whereby the accused persons are convicted for the offence punishable under Sections 32 and 34 of the K.E. Act and sentenced with rigorous imprisonment and fine in S.C. No.22/2009, dated is set aside. The accused persons are acquitted of the said charges. The bail bonds executed by them stand discharged. Naa Sd/- JUDGE