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2020 DIGILAW 1109 (KAR)

Shankar v. State Of Karnataka

2020-06-17

SHIVASHANKAR AMARANNAVAR

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JUDGMENT Shivashankar Amarannavar, J. - This is an appeal filed by the accused against the judgment of conviction and sentence dated 18.10.2011 passed by the learned Principal District and Sessions Judge, Dharwad in S.C. No.64 of 2011 wherein the accused was convicted for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965, (hereinafter referred to as the 'KE Act', for brevity) 2. Brief facts of the case are as under: PW-1-H.K. Pathan, Police Inspector of Special Police Station, based on the credible information received by him on 23.12.2010, summoned panchas and his staff and took them to Bendalgatti village. In the said village, he found the accused preparing illicit liquor near water tank and on seeing the police, the accused tried to escape by holding two plastic cans. He was apprehended and after enquiry, verified the spot where 5 liters of 5 cans were filled with illicit liquor apart from two cans in the hands of the accused. They also found 200 liters of 3 plastic barrels consisting of jaggery mixture for preparing illicit liquor. They also found 10 mud pots buried in the earth which also contained jaggery mixture and a motorcycle was also found and on enquiry, the accused told that he used to sell the illicit liquor by going to the village on his motorcycle and the Police Inspector removed samples of 180 ml of illicit liquor in each 7 cans and also 180 ml sample from chemical mixture from 3 barrels and 10 mud pots; they destroyed the jaggery mixtures kept in the plastic barrels and also the mud pots, seized plastic barrels, steel vessel and one pipe for distilling liquor and also a motor cycle under panchanama as per Ex.P-1 and prepared a complaint as per Ex.P-2 and produced the same to the Station House Officer, who registered a case in Crime No.81/10 for the offences punishable under Sections 328 and 273 of Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and under Sections 32 and 34 of the KE Act, issued FIR and after following the arrest procedure, the accused was sent to judicial remand and then sent the samples for chemical analysis; statement of the witnesses were recorded and after completing the investigation, charge sheet was filed. 3. 3. The prosecution, in order to prove its case, examined 6 witnesses as PWs.1 to 6 and 6 documents as per Exs.P1 to P-6 and 20 material objects as per M.Os.1 to 20 were got marked. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The case of the accused is one of total denial. 4. The trial Court, after hearing the arguments, acquitted the accused of the offence punishable under Section 328 of IPC and convicted the accused for the offences punishable under Sections 32 and 34 of the KE Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- in default of payment of fine, to undergo simple imprisonment for three months for the offence under Section 32 of the KE Act and further ordered to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- in default of payment of fine, to undergo simple imprisonment for three months for the offence under Section 34 of KE Act and ordered that both the sentences shall run concurrently. 5. Aggrieved by the same, the accused is before this Court assailing the judgment of conviction and sentence imposed by the trial court on the following grounds: a. The judgment and order of conviction and sentence passed by the trial Court is bad in law and contrary to the provisions of law; b. The learned trial Judge has not at all considered the facts of the case on hand wherein the prosecution has failed to cite any independent witness to narrate the incident. c. The trial Court has wrongly come to the conclusion that the prosecution has proved its case wherein the court has come to the conclusion that the panchanama is proved, in the absence of examination of another co-pancha, who has not been examined. d. The panchanama does not disclose the chakbandi of the spot in question. PW-1 has clearly admitted in his cross-examination that panchanama does not bear the signature of the person i.e. CW-11, who is alleged to have written the contents of panchanama. e. The trial Court has also failed to appreciate and go through the evidence of PW-2 wherein he has clearly stated that he is also unaware of the chakbandi of the spot. e. The trial Court has also failed to appreciate and go through the evidence of PW-2 wherein he has clearly stated that he is also unaware of the chakbandi of the spot. f. The trial Court has also failed to appreciate that PW-1 in his cross-examination has clearly stated that he has failed to record the statement of any independent witness. g. The trial Court has also failed to appreciate the point and contradiction elicited in the evidence of PW-3 wherein he has stated that he has brought the panchas as per the instruction of PW-1, which is quite contrary to the statement of PW-2. h. The trial Court has also failed to arrive at a conclusion that the prosecution has proved the ingredients of Section 34 of the KE Act. There is no evidence to show that the appellant/accused was transporting illicit liquor to place to place. There is no direct evidence to connect the appellant to the alleged crime in question. The trial Court ought to have given the benefit of doubt to the appellant. i. The reasons assigned at the conclusion arrived at by the trial Court are quite contrary to the evidence on record. 6. The learned counsel for the appellant/accused submitted that the accused has been acquitted for the offence punishable under Section 328 of IPC and the prosecution has not preferred any appeal against the said acquittal. He further submitted that the information received by PW-1 has not been reduced to writing. Further, PW-1 has not followed procedure laid down under Section 53 and 54 of the KE Act. All the witnesses are official witnesses. PW-2 pancha is a stock witness. No preliminary inquiry was conducted by the Investigating Officer. Investigation is bad in law and therefore the learned counsel prayed to allow the appeal by setting aside the impugned judgment of conviction and sentence imposed on the appellant accused. In support of his contention, learned counsel for the appellant has relied on the ruling in the case of K.L. Subbayya v. State of Karnataka, (1979) 2 SCC 115 . 7. Learned High Court Government Pleader for the State supports the impugned order and further submitted that the accused was found in possession of illicit liquor. In support of his contention, learned counsel for the appellant has relied on the ruling in the case of K.L. Subbayya v. State of Karnataka, (1979) 2 SCC 115 . 7. Learned High Court Government Pleader for the State supports the impugned order and further submitted that the accused was found in possession of illicit liquor. He was manufacturing the liquor and found selling the same in a public place and the raiding party along with the panchas raided the spot and found the accused manufacturing the illicit liquor. There is clear violation of the provisions of KE Act. Hence, he prayed for dismissal of the appeal. 8. Having heard the learned counsel for the appellant and the learned High Court Government Pleader, the points that arise for my consideration are as under: i. Whether the investigation conducted by the Excise Officials was hit by the provisions of Sections 53 and 54 of the KE Act and therefore the judgment of conviction and sentence passed by the trial Court against the accused is bad in law? ii. Whether the prosecution has proved that the accused had committed the offences punishable under Sections 32 and 34 of the KE Act? and answer the aforesaid points as under: Point No.1- in the affirmative; and Point No.2- in the negative 9. I have carefully and cautiously gone through the judgment of the trial Court and perused the oral and documentary evidence on record. 10. Points 1 and 2: Both the points are considered together since they are interconnected and to avoid repetition. It is the specific contention of the learned counsel for the appellant that the provisions of Section 54 of the KE Act have not been followed. As per Section 54 of the KE Act, any inspector before searching the place must obtain a warrant from the jurisdictional Magistrate. Section 54 of the KE Act is also a special provision which provides that if there is some contingencies and it is not possible for the officer concerned to get a warrant from the Magistrate, under such circumstances, the officer, who is making search, has to make an endorsement to the effect that because of contingency he was not able to obtain the warrant and thereafter he has made a search. But for the reasons best known to the prosecution, no such evidence has been produced. But for the reasons best known to the prosecution, no such evidence has been produced. This proposition of law has been upheld by the Hon'ble Apex Court in the case of K.L. Subbayya (supra) at paragraphs 2 to 4 which reads as follows: " 2. Thus this section relates to a contingency where the statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus: Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not blow the rank of an officer in charge 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. 3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section case and thus the provisions of Section 54 were not at all complied with. 4. This, therefore, renders the entire search without jurisdiction and, as a logical corrolary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. 4. This, therefore, renders the entire search without jurisdiction and, as a logical corrolary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him." 11. A close reading of the aforesaid decision and in the absence of any material being placed and under what circumstances PW-1 went to the place, without there being any warrant, and made a search can be held as the same is in violation of Section 54 of the KE Act, illegal and having no effect. Violation of the provisions of Section 54 of the KE Act vitiates the entire investigation. 12. As regards the evidence of the prosecution witnesses are concerned, PW-1 has deposed that on 23.12.2010, when he was in the police station, he received credible information that in Bendalgatti village, Kalaghatagi taluk, one Shankar Shivappa Lamani is preparing illicit liquor near the public water tank and he secured panchas and went along with his staff to the said place and found that one person was near the water tank and he was preparing illicit liquor and he tried to run away holding two plastic cans and his staff surrounded and secured him. He further deposed that he seized 5 liters of 5 cans containing illicit liquor and there were 3 plastic cans of 200 liters and some chemical was filled in them and he took out 180 ml sample from 7 cans and 180 ml of chemical sample from 10 mud pots and 180 ml chemical sample from 3 barrels and destroyed mud pots and chemical cans and prepared mahazar as per Ex.P-1 and filed a complaint as per Ex.P-2. After returning to the police station, produced the seized articles. In the cross-examination he has stated that he has reduced the credible information in the SHD diary and has not produced the same to the Court. He has further elicited that the names of panchas are not written in Ex.P-1 panchanama. It is elicited that in the complaint he has not written as "public water tank" instead he has written as "water tank". It is also elicited that he has not written the chakbandi of the spot in panchanama Ex.P-1. He has further deposed that the accused tried to run away with two plastic cans and they secured them. The said fact cannot be believed because if a person doing any illegal act, on seeing the police, tries to escape but will not carry any articles. 13. Pw-3, who is the Head Constable and had accompanied PW-1, has deposed similar to that of PW-1. PW-3 has written the contents of Ex.P-1. It is also elicited in the cross-examination of PW-3 that he secured the panchas when they came to the police station. 14. Pw-2 is one the panchas. He has deposed that he has been called as a pancha to the police station and he went along with PWs.1, 3 and others to Bendalgatti village and deposed regarding seizure of the articles and collecting illicit liquor samples and affixation of his signature on Ex.P-1. In the cross-examination of PW-2, it is elicited that on that day he went to the police station for filing a complaint regarding sale of illicit liquor in his village. The said aspects itself goes to show that PW-2 is an interested witness as he had some work with the police. Therefore, his testimony cannot be believed. PW-2 further has stated in his cross examination that there were some customers along with the accused and PWs.1 and 3 have not stated the same. The said aspects itself goes to show that PW-2 is an interested witness as he had some work with the police. Therefore, his testimony cannot be believed. PW-2 further has stated in his cross examination that there were some customers along with the accused and PWs.1 and 3 have not stated the same. He has further elicited that it is not possible for him to give the boundaries of the spot. The prosecution has not examined another pancha even though he has been cited as one of the charge sheet witnesses. Therefore, without there being any corroboration by the independent witnesses, the evidence of PWs.1, 2 and 3 cannot be believed. 15. Fsl report is produced and marked as Ex.P-3. It is not known as to whether PW-1 has undergone any prescribed training in the examination and analyses of intoxicants and materials and he is authorized by the Government in this behalf to analyze the material. Before seizing the said articles, he must satisfy himself that the said articles are intoxicants and thereafter he has to send the samples for analysis. In this behalf, there is a lacuna on the part of the Investigating Officer. The samples which are at M.Os.1 to 20, though, have been seized on 23.12.2010, were sent for chemical analysis on 19.02.2011. PW-4-police constable has carried the material objects on 19.02.2011 to handover them to Assistant Chemical Examiner on the same day. There is a long gap of two months in sending the seized samples for chemical examination. There is no explanation for the delay in sending the seized samples for chemical examination. 16. Considering the entire evidence and the material on record, this Court is of the view that the trial court has not properly appreciated the law and facts as observed above and is swayed away by the evidence of PWs.1 to 3 and raised a presumption under Section 40 of KE Act and has come to the conclusion that the prosecution has made out the case against the accused and has convicted him. Hence, I feel that the said finding of the trial Court is not in accordance with law and the same is liable to be set aside. 17. Accordingly, the appeal is allowed. Hence, I feel that the said finding of the trial Court is not in accordance with law and the same is liable to be set aside. 17. Accordingly, the appeal is allowed. The judgment of conviction and sentence dated 18.10.2011 passed by the learned Principal District and Sessions Judge, Dharwad, in S.C. No.64 of 2011 convicting the accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act is hereby set aside. The accused is acquitted of all the charges leveled against him. Bail bond and surety bond stands cancelled. Fine amount, if any, paid by the accused shall be refunded to him.