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2013 DIGILAW 1246 (KAR)

Anasuya v. State of Karnataka

2013-10-30

N.ANANDA

body2013
Judgment : 1. The appellants were arrayed as accused no.1 to 5 and they were tried for offences punishable under Sections 272, 273, 307, 284, 304, 302 r/w 34 IPC and also for offences punishable under Sections 32, 34 and 37 of the Karnataka Excise Act, 1965. 2. The learned trial judge has acquitted the accused of offences punishable under Sections 272, 273, 307, 284, 304, 302 r/w 34 IPC and also of offences punishable under Sections 32 and 37 of the Karnataka Excise Act, 1965. The learned trial judge has convicted and sentenced the accused to undergo imprisonment for a period of two years and pay fine of Rs.2,000/-for an offence punishable under Section 34 of the Karnataka Excise Act, 1965. 3. The State has not preferred appeal against the judgment of acquittal of accused of offences punishable under Sections 272, 273, 307, 284, 304, 302 r/w 34 IPC and also for offences punishable under Sections 32 and 37 of the Karnataka Excise Act.1965. 4. In this appeal, the points that would arise for consideration are: 1) Whether the prosecution has proved that accused no.1 to 5 have committed an offence punishable under Section 34 of the Karnataka Excise Act, 1965 ? 2) Whether the impugned judgment calls for interference? 3) What Order ? 5. I have heard Sri.Chandrashekar, learned counsel for appellants and learned State Public Prosecutor for the State. 6. It is the case of prosecution that accused no.1 to 3 were residents of Halli Mysore village and they were running a Bakery near Hallimysore circle. Accused no.3 is the elder brother of accused no.1 and he also used to look after the Bakery along with accused no.1. Accused no.5 was looking after Asha Bar and Restaurant at Holenarasipura town. The said Bar and Restaurant belonged to CW.21-Rajmohan. Accused no.4 was an employee of Asha Bar and Restaurant. There was no Bar and Restaurant or liquor vending shop in Hallimysore village, therefore, the accused were selling liquor in their Bakery without licence and permit. They used to bring liquor bottles from Asha Bar and Restaurant from accused no.4 and 5. Accused no.4 and 5 thought of making easy money and therefore, started manufacturing illicit liquor. They used bottle of illicit liquor and affix labels on the bottles to make them appear as liquor manufactured by standard companies. They used to bring liquor bottles from Asha Bar and Restaurant from accused no.4 and 5. Accused no.4 and 5 thought of making easy money and therefore, started manufacturing illicit liquor. They used bottle of illicit liquor and affix labels on the bottles to make them appear as liquor manufactured by standard companies. They used to supply such illicit liquor to the customers at lesser price. 7. In order to bring home the guilt of accused, the prosecution had to prove that accused no.1 to 3 without lawful authority were in possession of illicit liquor, so also, accused no.4 and 5 were in possession of liquor and they were manufacturing illicit liquor. 8. The prosecution has mainly relied on the evidence of PW's.12, 13, and 14 because independent witnesses and mahazar witnesses have not supported the case of prosecution. 9. The law is fairly well settled, the evidence of investigation officer need not be rejected merely because the independent witnesses do not support the case of prosecution. In such circumstances, evidence of investigation officer needs guarded approach and close scrutiny. 10. The prosecution has proved that accused no.1 had taken a commercial building belonging to PW.10- Virupakshaiah in Hallimysore village and she was running a Bakery in the said premises. On 06.06.2005, at about 5.00 p.m., the complainant Bojanna came to Holenarasipura Police Station and produced 3 liquor bottles, out of them one bottle was containing some liquor and the rest of the bottles were empty. 11. PW.14-Rasool Khan the Sub-inspector of Police of Holenarasipura Rural P.S., seized 6 bottles of Original Choice Whisky, 6 bottles of Old Mont XXX Rum and six bottles. PW.14 seized the liquor bottles as per MO's.1, 2, 37 to 39 under mahazar in the presence of panchas. The prosecution has traced the source of these bottles to the Bakery run by the accused. The liquor found in one of the bottles was sent to Forensic Science Laboratory and on analysis it was found that liquor containing quantity of ethyl alcohol fatal for consumption. PW.14 visited the Bakery of accused no.1 and seized six bottles of 6 bottles of Original Choice Whisky, 6 bottles of Old Mont XXX Rum in the presence of the panchas. 12. At this juncture, it is relevant to state that accused no.1 was running a Bakery. PW.14 visited the Bakery of accused no.1 and seized six bottles of 6 bottles of Original Choice Whisky, 6 bottles of Old Mont XXX Rum in the presence of the panchas. 12. At this juncture, it is relevant to state that accused no.1 was running a Bakery. There is no evidence to prove that accused no.2 and 3 were the employees of accused no.1. There is no evidence to prove that accused no.2 and 3 had knowledge and they were aware that accused no.1 had stored the aforestated quantity of liquor in her Bakery. 13. On 06.06.2005, the investigation officer (PW.13) arrested H.G.Umesha (accused no.4) and Balakrishna (accused no.5) and interrogated them. Accused no. 4 and 5 led the investigation officer to Asha Bar and Restaurant where the accused 4 and 5 had stored 4 bottles of old whisky and 2 bottles of Rum. PW.13 seized the aforestated bottles of liquor under mahazar in the presence of panchas. As already stated, the mahazar witnesses have not supported the case of prosecution. PW.13 has identified the seized liquor bottles as the bottles of liquor from Asha Bar and Restaurant. PW.13 has deposed that, accused no.4 and 5 took PW.13 to the house of one H.N.Murthy from where 21 items of liquor were seized under mahazar as per Ex.P.15. Some of the bottles had not been labeled and the labels on some of the bottles were torn. PW.13 has deposed that, thereafter accused nos.4 and 5 took PW.13 and panchas to the house of one Rajanna from where PW.13 seized 9 items of liquor which included articles for preparing illicit liquor. PW.13 seized the same under mahazar as per MO's.26 to 34 in the presence of panchas. The evidence of PW.13 is sufficient to prove that accused 1, 4 and 5 were in possession of aforestated quantity of liquor without permit. Accused no.1 was selling the liquor in her Bakery without permit and without license. Accused no.4 and 5 were manufacturing and selling illicit liquor. 14. The learned counsel for accused has made following submissions: The prosecution has failed to prove that accused no.1 was in possession of liquor and she had control over the Bakery. As already stated, A1 had taken the shop on rent from its owner and she was running a Bakery. This fact has not been controverted. 14. The learned counsel for accused has made following submissions: The prosecution has failed to prove that accused no.1 was in possession of liquor and she had control over the Bakery. As already stated, A1 had taken the shop on rent from its owner and she was running a Bakery. This fact has not been controverted. When examined under Section 313 Cr.P.C., accused no.1 has not denied that she was running a Bakery. The seizure of liquor bottles from the Bakery run by accused no.1 coupled with evidence of PW.14 that they had purchased three bottles of liquor form the Bakery run by accused no.1 is sufficient to establish that accused no.1 was in possession of liquor and she was selling liquor without permit. 15. As regards accused no.2 and 3, there is no tangible evidence. They were the employees of accused no.1. Accused no.2 and 3 were not responsible for selling liquor. The evidence on record does not disclose that accused no.2 and 3 had knowledge of accused no.1 selling liquor in her Bakery. Accused no.2 and 3 who were the employees of PW.1 cannot be held to be in possession of illicit liquor. It is not the case of prosecution that accused no.2 and 3 were found in possession of illicit liquor or selling the liquor. 16. The independent witnesses have not supported the case of prosecution. The prosecution has relied on evidence PW.14, the Police Inspector of Holenarasipura Circle. 17. PW.14-Rasool Khan, the then Circle Inspector of Police of Holenarasipura Police Station has deposed; that he had visited the Bakery run by accused no.1. PW.14 seized 3 bottles of XXX Rum and 6 bottles of Original Choice Whisky and 6 bottles of old monk rum from the Bakery run by accused no.1 under mahazar in the presence of panchas. The cross-examination of PW.14 does not reveal that he had enmity with accused no.1. PW.14 had planted aforestated liquor bottles to foist a case against accused no.1. 18. Therefore, notwithstanding the hostility shown by independent witnesses, the prosecution through the evidence of investigation officers PW.13 and PW.14 has proved that accused no.1, 4 and 5 were found in possession of illicit liquor for the purpose of sale and they were selling the liquor without license and permit. In the circumstances, the judgment of conviction of accused no.1, 4 and 5 does not call for interference. 19. In the circumstances, the judgment of conviction of accused no.1, 4 and 5 does not call for interference. 19. As already stated, accused no.2 and 3 are stated to be the employees of accused no.1. They had no control over the Bakery. They had no control over accused no.1 who was carrying on the business of liquor in her bakery. In the circumstances, it is not possible to fix vicarious criminal liability on accused no.2 and 3. 20. The learned counsel for accused would submit that offences are alleged to have been committed on 03.06.2005. Section 34 was amended by Act No.14/2005 with effect from 11.04.2005 wherein, it is stated that punishment for first offence under Section 34 shall not be less than one year imprisonment and fine of Rs.10,000/-. In the case on hand, the accused are first offenders. Therefore, the learned trial judge should not have sentenced the accused for a period of two years. 21. The learned State Public Prosecutor would justify the sentence imposed by the trial court. 22. The learned trial judge has not assigned any reasons for sentencing the accused to undergo rigorous imprisonment for a period of two years and pay fine of Rs.2,000/-for an offence punishable under Section 34 of the Karnataka Excise Act. The accused are first offenders and they have chances to reform. Therefore, the sentence imposed on accused no.1, 4 and 5 needs modification. 23. In the result, I pass the following: ORDER The appeal is accepted in part. The impugned judgment as it relates to conviction of accused no.2 and 3 for an offence punishable under Section 34 of the Karnataka Excise Act, 1965 is set aside. Accused no.2 and 3 are acquitted of an offence punishable under Section 34 of the Karnataka Excise Act, 1965. The conviction of accused 1, 4 and 5 of an offence punishable under Section 34 of the Karnataka Excise Act, 1965, is confirmed. However, the sentence is modified. Accused no.1, 4 and 5 are sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.10,000/- for an offence punishable under Section 34 of the Karnataka Excise Act, 1965, in default, they shall undergo simple imprisonment for a period of six months.