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2021 DIGILAW 160 (KAR)

Panchalinga v. State

2021-01-27

H.B.PRABHAKARA SASTRY

body2021
ORDER : H.B. Prabhakara Sastry, J. 1. The present petitioner was tried as an accused by the Court of the Additional Civil Judge and Judicial Magistrate First Class, Nanjangudu, (hereinafter for brevity referred to as the "Trial Court") in C.C. No. 2068/2007, for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (hereinafter for brevity referred to as the "Act") and was convicted by the judgment of conviction and order on sentence dated 30-10-2010. Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No. 145/2010, in the Court of the IV Additional Sessions Judge, Mysore (hereinafter for brevity referred to as the "Sessions Judge's Court"), which after hearing both side dismissed the appeal filed by the accused by its judgment dated 22-07-2011. Not satisfied with the same, the accused has preferred the present revision petition. 2. The summary of the case of the prosecution in the Trial Court is that, on 03-09-2007, the Excise Inspector received a credible information that, the accused was selling Original Choice Deluxe whisky bottles, each bottle containing 180 ml of whisky in it, without holding any valid permit or licence, as such, he was in unlawful possession of the same. On the basis of the said information, the complainant who is PW-6 joined by her staff went to the hut situated near Alambur Gate on Nanjangudu - T. Narasipura Road and found that, the accused was in possession of twenty-six bottles of Original Choice Deluxe whisky, each bottle containing 180 ml of whisky in it. All those bottles were found placed in a wire basket. On questioning the accused, the raiding team could not get any satisfactory reply by him about the legality of the accused possessing the whisky bottles. It was also satisfied to the raiding team by their questioning that, he had stored those whisky bottles only for the purpose of their sale to the consumers. All those whisky bottles were seized from the possession of the accused at the spot under a seizure panchanama as per Ex. P-1 and the complainant, returning to the Police Station, registered a complaint against the accused for the offences punishable under Sections 32 and 34 of the Act. 3. Charges were framed against the accused for the alleged offences. All those whisky bottles were seized from the possession of the accused at the spot under a seizure panchanama as per Ex. P-1 and the complainant, returning to the Police Station, registered a complaint against the accused for the offences punishable under Sections 32 and 34 of the Act. 3. Charges were framed against the accused for the alleged offences. Since the accused pleaded not guilty, the prosecution, in order to prove the alleged offences against the accused, examined in all six witnesses from PW-1 to PW-6 and got marked documents from Exs. P-1 to P-4(a) and also got marked material objects at MO-1 and MO-2 and closed its side. Neither any evidence was led from the accused's side nor any documents were got marked as exhibits. 4. After hearing both side, the Trial Court by its impugned judgment dated 30-10-2010 convicted the accused for the offences punishable under Sections 32 and 34 of the Act and sentenced him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default for payment of fine, to undergo six months' imprisonment. Challenging the same, the accused preferred a criminal appeal in Criminal Appeal No. 145/2010 in the Sessions Judge's Court, which also, after hearing both side, by its judgment dated 22-07-2011 dismissed the appeal and confirmed the impugned judgment of conviction passed by the Trial Court. It is against the said judgment of conviction and order on sentence, the accused has preferred the present revision petition. 5. The respondent - State is being represented by the learned High Court Government Pleader. 6. The Trial Court and the Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records. 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 9. After hearing the learned Counsels for the parties, the only point that arise for my consideration in this revision petition is:. Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965, warrants any interference at the hands of this Court? 10. Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965, warrants any interference at the hands of this Court? 10. Learned Counsel for the petitioner in his single point argument submitted that, since no independent witnesses have been examined in this matter, the evidence of the prosecution witnesses loses its trustworthiness, as such, the accused deserves to be acquitted. 11. Per Contra, learned High Court Government Pleader for the respondent - State in his argument submitted that, all the prosecution witnesses have supported the case of the prosecution. Even though PW-4 and PW-6 are the official witnesses, but the remaining witnesses are independent witnesses who have fully supported the case of the prosecution. Since the accused was caught red handed and admittedly, he was in possession of a considerable quantity of illicit liquor without any valid licence or permit for possessing it and that the accused was possessing the same for the purpose of its sale to the consumers, both the Courts have rightly convicted him for the alleged offences. 12. A perusal of the Trial Court records would go to show that, PW-1, PW-2 and PW-5 have uniformly stated that, they joined by the raiding team on 03-09-2007, proceeded to the house (hut) of the accused at Alambur Gate on Nanjangud - T. Narasipura Road and noticed that, the accused was in possession of twenty-six bottles of Original Choice Deluxe whisky, each bottle containing 180 ml of whisky in it. They further stated that it was in their presence, the accused was enquired and the details were ascertained and it was also confirmed that he was in illegal possession of such huge quantity of whisky. It is in their presence, the Mahazar as per Ex. P-1 was drawn. All these three witnesses have also identified the accused in the Court as the one in whose possession the seized goods were recovered from. Nothing could be elicited in their cross- examination either favouring the accused or shaking the credibility of their evidence. As such, the evidence of PW-1, PW-2 and PW-5 have remained un-disturbed with regard to the raid conducted by the raiding team headed by PW-6 and seizing the articles at MO-2 in their presence in the seizure panchanama at Ex. P-1. 13. As such, the evidence of PW-1, PW-2 and PW-5 have remained un-disturbed with regard to the raid conducted by the raiding team headed by PW-6 and seizing the articles at MO-2 in their presence in the seizure panchanama at Ex. P-1. 13. PW-4 - Sri. Shivaraju was the Excise Guard and PW-6 - Smt. M.N. Susanna was the Excise Inspector, who have uniformly stated that on 03-09-2007, PW-6 received a credible information about the accused possessing and selling huge quantity of liquor without any valid licence or permit. It is based on that, she summoned panchas to the Station and accompanied by them, she went to the place where the accused was found in possession of twenty-six bottles of Original Choice Deluxe whisky and after enquiring the accused and confirming that he had no valid licence or permit to possess or sell them, proceeded to seize the entire goods by drawing a seizure panchanama as per Ex. P-1. She has identified the accused in the Court. She has also stated that after taking the accused and the seized articles along with Panchanama with her, a case was registered against him and an FIR was submitted to the Court. PW-6 has also stated that on the very same day of seizure, the bottles which were the seized articles were properly sealed and on 10-09-2007 they were sent for their chemical examination to the Regional Forensic Science Laboratory at Mysuru. She has also identified the Mahazar at Ex. P-1, the copy of the specimen seal at Ex. P-2, report of the Chemical Examiner at Ex. P3 and the FIR at Ex. P-4. The denial suggestions made to her in her cross- examination were not admitted as true by the witness. 14. PW-4 - Shivaraju the Excise Guard has also stated that he accompanied PW-6 and twenty-six whisky bottles with Original Choice deluxe whisky in it were seized in a raid from the possession of the accused on 03-09-2007. He too has identified the accused in the Court and also MO-1 and MO-2. His evidence also could not be shaken in his cross-examination. He too has identified the accused in the Court and also MO-1 and MO-2. His evidence also could not be shaken in his cross-examination. Therefore, the evidence of PW-4 and PW-6 is further corroborated by the evidence of PWs 1, 2 and 5, which clearly go to show that the accused was found in illegal possession of twenty-six bottles of a branded whisky, each bottle containing 180 ml of whisky in it and he was found selling the same to the consumers. 15. PW-3 - Smt. P. Prema is the Investigating Officer in this matter, who has stated about she sending the seized articles for their chemical examination to the Regional Forensic Science Laboratory at Mysuru on 10-09-2007 and receiving the report on 11-10-2007 as per Ex. P-3 and after confirming through the said report that the seized article was the liquor which was possessed by the accused without any licence or permit, she has filed the charge sheet against the accused for the alleged offences. 16. Thus, the evidence of PW-1, PW-2 and PW-5 who are the independent witnesses is further corroborated by the evidence of PW-4 and PW-6. The entire act of investigation said to have been conducted in this case by PW-3 is further corroborated by the evidence of PWs. 1, 2, 5, and PWs 4 and 6. The document at Ex. P-3 which is the FSL report is also not in dispute, which report goes to show that the Chemical Examiner has examined the contents of all the twenty-six bottles of whisky, each measuring 180 ml, sent to him and noticed the presence of alcohol content at 42.55% V/V in all the twenty-six bottles. Therefore, it is clearly established that the accused was found in illegal possession of 4,680 ml of liquor-without any valid licence or permit to possess them. Except the denial, the accused has not taken any defence from his side. However, as already observed, even the defence of denial taken by him could not shake the evidence of PW-4 and PW-6. Consequently, it has to be held that the prosecution has proved the guilt of the accused for the offences punishable under Sections 32 and 34 of the Act beyond all reasonable doubts. 17. However, as already observed, even the defence of denial taken by him could not shake the evidence of PW-4 and PW-6. Consequently, it has to be held that the prosecution has proved the guilt of the accused for the offences punishable under Sections 32 and 34 of the Act beyond all reasonable doubts. 17. It is thus appreciating the materials placed before it the Trial Court has convicted the accused for the alleged guilt which was further confirmed by the learned Sessions Judge's Court in the criminal appeal. 18. The sentence ordered by the Trial Court for the proven guilt also being proportionate to the gravity of the proven guilt, I do not find any reason to interfere in the finding of conviction of the accused for the alleged offences and sentencing him for the alleged offences. Accordingly I proceed to pass the following: ORDER The Criminal Revision Petition stands dismissed. Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records forthwith.