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2015 DIGILAW 391 (KAR)

S. Thippeswamy v. State of Karnataka

2015-04-07

G.NARENDRA

body2015
ORDER : G. Narendra, J. 1. Though the matter is listed for admission, with the consent of both the counsels the matter is taken up for final disposal. 2. The above revision petition is filed being aggrieved by the order passed by the J.M.F.C., Shiraguppa, accepting the complaint lodged by the respondent-State represented by the Inspector of Police, Excise Enforcement and Lottery Prohibition Wing, Special Police Station, Bellary and convicting the petitioner for offences punishable under Sections 15, 32 and 34of the Karnataka Excise Act (hereinafter referred to as 'the K.E. Act', for brevity) and sentencing him to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs. 10,000/- for the offences punishable under Section 32 read with Section 15 of the K.E. Act. The accused - petitioner has also been separately convicted for the offence punishable under Section 34 of the K.E. Act and sentenced him to undergo simple imprisonment for one year and to pay fine amount of Rs. 10,000/-. It is further ordered that the sentences have to run concurrently. Aggrieved by the same, the petitioner approached the Appellate Court of the Principal Sessions Judge, Bellary. The Appellate Court after a detailed hearing was pleased to confirm the order of conviction and sentence passed by the trial Court. 3. The facts of the case in a nutshell are as follows: It is the case of respondent that P.W. 5, who is the Police Inspector (Excise Enforcement and Lottery Prohibition) In-charge of the Special Police Station, Bellary, was on patrol duty on 13.11.2010 and at about 12.30 p.m. when he was in Shiraguppa town he received reliable information that liquor is being illicitly transported in a jeep towards Bellary. On receipt of the information, P.W. 5 secured the panchas P.Ws. 1 and 3 through his P.C. No. 822 and after informing the panchas about the information he sought for their co-operation and requested them to act as panchas and that about 3.00 p.m. they spotted a jeep coming from Shiraguppa town and it was found that the accused/driver was the sole occupant of the vehicle. It is further submitted that a search of the vehicle bearing Registration No.AP-09/Q-1516 revealed that the accused was transporting 20 boxes and each box contained the bottles of 180 ml. measure. It is further submitted that a search of the vehicle bearing Registration No.AP-09/Q-1516 revealed that the accused was transporting 20 boxes and each box contained the bottles of 180 ml. measure. A detailed scrutiny of the boxes revealed that nine boxes contained bottles with a brand label Magic Blended Fine Whisky and the remaining 11 boxes contained bottles with a brand label Good Day Delux Whisky. The investigation revealed that the accused driver did not possess any permit as required under the K.E. Act nor was any permit produced which authorised the accused to transport the liquor bottles. It is alleged that as per the provisions of Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 (hereinafter referred to as 1967 Rules', for brevity), no person shall possess whisky in quantities exceeding 4.6 litres and possession of whisky (Indian made liquor) in excess of 4.6 litres is an offence punishable under the K.E. Act. 4. The said twenty boxes were seized by the complainant and not all the boxes were forwarded for chemical analysis. The process of seizure was completed in the presence of panchas and submitted the seized articles and accused to C.W. 9 and C.W. 9 has registered the case and forwarded the F.I.R. to the trial Court and to the Superior Officers. On submission of final report, the prosecution has examined five witnesses as P.Ws. 1 to 5, got marked M.O. Nos. 1 to 20 and Exs.P-1 to P-3. On behalf of the accused no one was examined in defence nor exhibits were marked. The above materials were considered by the trial Court and by a detailed judgment and order the trial Court has passed an order convicting the accused and sentenced him to one year rigorous imprisonment and one year simple imprisonment for the offences punishable under Section 32 read with Section 15 and Section 34 of the K.E. Act. Both the Courts have approved the procedure adopted by the prosecution for ascertaining the contents of 960 bottles seized by the complainant. The complainant has taken one bottle from each box i.e., in all 20 bottles have been taken from the 20 boxes and forwarded to F.S.L., Raichur, which has issued Ex. P-2 and has confirmed that the contents of the 20 bottles are whisky (Indian made liquor) and has also detailed the chemical components of the contents. 5. The complainant has taken one bottle from each box i.e., in all 20 bottles have been taken from the 20 boxes and forwarded to F.S.L., Raichur, which has issued Ex. P-2 and has confirmed that the contents of the 20 bottles are whisky (Indian made liquor) and has also detailed the chemical components of the contents. 5. Based on the F.S.L. report the courts below have arrived at the conclusion that a prosecution has demonstrated the guilt of the accused beyond reasonable doubt and have accordingly convicted the petitioner accused. 6. Heard the learned counsel for petitioner, Sri K.L. Patil and Sri K.S. Patil, learned H.C.G.P. for the respondents. 7. The petitioner's counsel relies upon the order passed by this Court in similar cases. In particular, the petitioner's counsel lies on the order passed by this Court in Crl.R.P. No. 313/2014 by the said order this Court has held that the prosecution in order to secure the conviction of the accused must demonstrate that the accused possess quantities over and above the limits specified in Rule 21 of the 1967 Rules and for that purpose the prosecution must test a quantity in excess of the permissible limit and has accordingly allowed the petition. 8. In view of the above interpretation the question that arises for consideration before this Court is as to, "whether the conviction of the accused is sustainable". 9. It is the case of prosecution that though they seized 20 boxes containing 960 bottles and, in all, the total content of the bottles is 172.8 litres. But, they got tested only 20 bottles i.e., 3.6 litres and there is no other material to demonstrate that the remaining quantity of 169.2 litres are intoxicants and hence it is argued that the tested quantity is only 3.6 litres and it is well within the limits permitted under Rule 21 of the 1967 Rules. 10. The assertion of the petitioner's counsel is correct and is liable to be accepted. 10. The assertion of the petitioner's counsel is correct and is liable to be accepted. If the Act specifies that a person is exempted from obtaining any permit for possessing quantities below 4.6 litres then it is mandatory duty of the prosecution to demonstrate that the accused was possessing quantities of Indian made liquor as described under Rule 21 of the 1967 Rules, in excess of the permissible limits, in the present case the prosecution was duty bound to demonstrate that the accused possessed more than 4.6 litres of whisky. 11. Admittedly, the F.S.L. report is only with regard to 3.6 litres. The failure of the prosecution to test quantities in excess of 4.6 litres has resulted in their failure to demonstrate that the accused possessed whisky over and above the permissible limit of 4.6 litres. Consequently, the revision petition is accepted and is allowed. The conviction of the petitioner is set aside and he is acquitted of the charges levelled against him. The bail bond stands cancelled and the sureties are discharged.