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2016 DIGILAW 885 (KAR)

SHANTABAI GURUNATH JADHAV v. STATE

2016-11-21

B.A.PATIL

body2016
JUDGMENT : B.A. PATIL, J. 1. The present appeal has been preferred by the accused - appellant, being aggrieved by the judgment of conviction and sentence dated 27.01.2011 passed by the Presiding Officer, Fast Track Court-II, Bidar sitting at Bhalki, convicting and sentencing the accused to undergo rigorous imprisonment for a period of three years and shall pay fine of Rs.4,000/- for the offence punishable under section 328 of Indian Penal Code in default, she shall undergo simple imprisonment for a period of four months and the accused - appellant has also been sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 34 of the Karnataka Excise Act ('Act' for short) and shall pay the fine of Rs. 10,000/-, in default, she shall undergo simple imprisonment for a period of four months and the accused-appellant has been further sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 32 of the Act and shall pay fine of Rs. 10,000/-, in default, she shall undergo simple imprisonment for a period of four months and has further ordered that the accused is entitled for set-off for imprisonment already undergone. 2. The brief facts of the case of the prosecution before the trial Court are that, on 19.07.2009 at about 9:00 p.m., CW.9 received the credible information that accused was selling the country made liquor in her house, he along with his staff and panchas raided the house of the accused and seized the country made liquor stored in a tyre tube for sale, knowing very well that the said country made liquor is mixed with poison and harmful to the human life and further the said accused was not having the licence and permit from the Excise Department to sell the liquor and thereby committed an offence punishable under Section 328 of IPC read with Sections 32 and 34 of Act, 3. The trial Court framed charge against the accused for the offence punishable under Section 328 of Indian Penal Code and under Sections 32 and 34 of the Act. 4. The trial Court framed charge against the accused for the offence punishable under Section 328 of Indian Penal Code and under Sections 32 and 34 of the Act. 4. In order to prove its case, the prosecution has examined seven witnesses as PWs.1 to 7 and got marked Exs.P1 to P4 and thereafter closure of evidence on the prosecution, statement of the accused was recorded under Section 313 of Criminal Procedure Code accused denied the incriminating material against him and thereafter arguments were heard and impugned order was passed by the trial Court convicting the accused. 5. Being aggrieved by the said order, the appellant is before this Court. 6. The learned counsel for the appellant vehemently argued and contended that the said judgment of conviction and sentence is not sustainable in law. The trial Court has committed a serious error by holding that the appellant is guilty of offence under Section 328 of IPC since neither there was any material to show that the ingredients of Section 328 of IPC are applicable while convicting the accused. He has also contended that the Investigating Officer while conducting search hat not complied with the provisions of Section 53 and 54 of the Act. In order to substantiate his arguments, he also relied upon a decision of the Hon'ble Apex Court in the case of K.L. Subbayya v. State of Karnataka, reported in AIR 1979 SC 711 . He has also further con-tended that when the raid took place, the accused ran away from that place is the case of the prosecution, the heavy burden lies upon the prosecution to show that the accused-appellant was the same person who was present in the said house. In this behalf no substantial evidence has been produced before the trial Court for the purpose of identity of the accused. It is his further contention that even though there is no substantial evidence to prove the case of the prosecution, the trial Court has erred in convicting the accused and sentenced her to pay the fine. It is further contended that there is no material to show that the said house belongs to accused. In this behalf also the prosecution has utterly failed and even though there is no material to substantiate the said fact, the trial Court has come to a wrong conclusion and has convicted the accused. 7. It is further contended that there is no material to show that the said house belongs to accused. In this behalf also the prosecution has utterly failed and even though there is no material to substantiate the said fact, the trial Court has come to a wrong conclusion and has convicted the accused. 7. On the contrary, learned High Court Government Pleader has contended that the said house belongs to the accused and she was very much residing in the said house and raid has been taken place and illicit liquor has been seized from the house and even the panch witnesses who have been examined before the trial Court, have also substantiated the said facts. In view of the said fact, the presumption under Section 40 of the Act is attracted and on the basis of that the burden shifts upon the accused to substantially explain and rebut the said presumption. In this behalf, the accused has failed to produce any material to rebut the presumption. Even it is contended by the learned High Court Government Pleader that the address given in the appeal memo is also one and the same which has been mentioned in the panchanama. He has also contended that the FSL report Ex.P3 clearly goes to show that the said liquor which has been examined is contemplating and it contains the poison and it is not fit for human consumption. He has also further contended that the trial Court after considering all the material on record, has rightly convicted the accused and the appellant has not made out any grounds to set aside the impugned order and he requests for confirmation of the said order of the trial Court. 8. I have perused the records and gone through the evidence. The first contention of the appellant is that the prosecution has utterly failed to prove that the said house belongs to the accused and no material has been produced by the prosecution to establish the same and even the identity of the accused is also not proved by the prosecution. The prosecution in order to establish its case has mainly relied upon the evidence of PWs. 1 and 2, the seizure mahazar panch witnesses and the other police witnesses. The prosecution in order to establish its case has mainly relied upon the evidence of PWs. 1 and 2, the seizure mahazar panch witnesses and the other police witnesses. It is the specific case of the prosecution that PW.5 received credible information and immediately he rushed to Janthi Village along with his staff and panchas and thereafter proceeded to the house of the accused. On seeing the police, the accused ran way to sugarcane land from the back door of the house. Thereafter 20 ltrs. of liquor has been seized by the police. As could be seen from the evidence of PW.1 during the cross-examination, it has been elicited that the police reached Janthi Village in between 9.00 p.m. and 9.15 p.m. and he has seen the accused from the distance of 80 to 90 feet. Admittedly, when PW. 1 and other witnesses were at a distance of 80 to 90 feet that too at about 9.00 p.m. to 9.15 p.m. how could they identify the accused in the said night hours, what lighting facility was available is not forthcoming. Under such circumstances, the evidence of PWs 1 and 2 and other witnesses to the extent that they saw accused-appellant running from the back door is not acceptable and reliable. In this behalf, the prosecution has utterly failed to put forth the cogent and reliable evidence in so far as identity of the accused is concerned. This aspect of the case has not been properly looked into and appreciated by the trial Court. Even though the prosecution has contended that the said house was belonging to the accused, no documents are produced to show that the house was belonging to the accused and she was residing in the said house. If really the accused was residing in the said house, the prosecution would not have failed to produce the khatha extract of the house. If it is a rented house, wherein the accused was residing as a tenant, the prosecution would have definitely examined the owner of the house or the neighbours of the house of the accused In the absence of any such material, it cannot be held that the liquor has been seized from the house of the accused. No doubt, PWs.1 and 2 have supported the case of the prosecution. No doubt, PWs.1 and 2 have supported the case of the prosecution. But, however, as could be seen from the evidence of PW.2, it appears that he has given his evidence in four to five cases, which itself indicates that he is a stock witness of the police and therefore, the evidence which has been given by PWs.1 and 2 has to be scrutinized carefully that how much weight which is going to carry. In that background, if the entire case is looked into, it creates doubt and if any doubt arises, then the benefit of doubt should go in favour of the accused. Apart from that, the other witnesses who are examined before the trial Court are the police officials and they are not independent witnesses. Even though when other persons residing near the house of seizure were available to be examined as independent witnesses, the prosecution has not tried to examine them before the trial Court. Under such circumstances, the evidence of the police witnesses is not acceptable. 9. Even though learned High Court Government Pleader has contended that in the appeal memo the address has been shown one, which has been mentioned in the panchanama, only on the basis of the said address, one cannot presume that the said house was belonging to the accused. Always heavy burden lies on the prosecution to establish its case. In this behalf, the contention of the learned HCGP is not acceptable in law. 10. The second contention of the appellant is that in order to attract the provisions of Section 328 there must be a hurt by means of poison with which intent to commit an offence. Section 328 of IPC, which reads as under: "328. Causing hurt by means of poison, etc.. with intent to commit an offence.- Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may ex tend to ten years, and shall also be liable to fine." 11. The essential ingredients of Section 328 of IPC are that there was an intention to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt. Stored the said stupefying, intoxicating or unwhole some drug. When the sail ingredient is said to be very essential, in the instant case, there is no evidence to substantiate the fact that the accused had an intent or knowledge that it is likely to cause hurt When initial burden is always there on prosecution and if it is not discharged, then no presumption can be drawn, that too when the seizure of the said liquor itself is doubtful from the house of the accused. On perusal of the impugned judgment, it is clear that on the presumption that the said house was belonging to the accused and the liquor has been seized and on that basis the trial Court has come to the conclusion that there was an intention and knowledge on the part of the accused. Looking from this angle, the prosecution has also utterly failed to establish its case. 12. The another ground which has I urged by the learned counsel for the appellant is that in order to search the house of the accused, the Investigating Officer has to obtain a warrant as contemplated under Section 51 of the Act and if he is of the opinion that it is not possible to obtain such warrant, he should record the grounds that he had a reasonable belief that an offence under the Act is being committed and that there will be delay in training the search warrant and in the meanwhile the accused may flew away from the scene of offence. In this connection, I quote Section 54 of the Act, which reads thus: "54. In this connection, I quote Section 54 of the Act, which reads thus: "54. Power to search without warrant Whenever the Excise Commissioner or Deputy Commissioner or any Police Off not below the rank of an officer-in-charge a police station or any Excise Officer not low such rank as may be prescribed, has son 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 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. 13. On going through the submissions of the learned counsel for the appellant the provisions of law and the ratio laid down in the above cited case, it is clear that the duty is cast on the Investigating Officer to obtain the warrant from the jurisdictional Magistrate before making the search of a place and if it is not possible for him to get such search warrant, then, he has to record the grounds on the basis of which he had a reasonable belief that an offence under the Act is committed before proceeding to search the said place. The only documents which are available before the trial Court were Ex.P1-panchanama, Ex.P2-FIR, Ex.P3-FSL Report and Ex.P4, the letter of Excise Sub-Inspector, Bidar and the statement of Abdul Samad. In the said documents, nowhere it is mentioned specifically by PW.5-Investigating Officer the contingency under which he has not obtained the search warrant and immediately rushed to the place of seizure. Even during the course of his evidence also, PW.5-Investigating Officer has not deposed anything to overcome the said provisions of law. In the said documents, nowhere it is mentioned specifically by PW.5-Investigating Officer the contingency under which he has not obtained the search warrant and immediately rushed to the place of seizure. Even during the course of his evidence also, PW.5-Investigating Officer has not deposed anything to overcome the said provisions of law. In the absence of any such material before the trial Court it can be inferred that the provisions of Section 54 of the Act having not been complied with by the Investigating Officer and when that being the case, the said search amounts to without jurisdiction and when there is no jurisdiction, the conclusion arrived at by the trial Court in this behalf vitiates. 14. As per the provisions of Section 54 of the Act, it is not only mandatory on the part of the Investigating Officer but the hidden object of Section 54 of the Act is to safeguard and value the liberty of the citizens and to protect them from ill-founded or frivolous prosecution or harassment. On going through the records, it appears that there is non-compliance of the provisions of Section 54 of the Act and when there is no compliance of the said provision, it renders that the entire search is without jurisdiction and when there is no jurisdiction, the case of the prosecution has to fail. In that view of the matter and for the reasons stated above. I am of the considered opinion that the order of the trial Court is not sustainable in law and is liable to be set aside and accused is entitled to be acquitted. Hence, I pass the following order: The appeal is allowed. The judgment of conviction and order of sentence, dated 27/28.01.2011 passed by the Fast Track Court-II, Bidar in SC.No.1 10/2010 is set aside. The appellant-accused is acquitted of the charge levelled against her. If any fine amount is deposited before the trial Court as per the order, on proper identification and acknowledgment, the same shall be refunded to the appellant-accused.