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2022 DIGILAW 374 (KAR)

Mahadeva v. State of Karnataka

2022-03-16

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This petition is filed under Section 401 of Cr.P.C., praying to call for the records and set aside the Judgment dated 20.03.2015 passed in Crl.A. No. 76/2013 by the II Additional District and Sessions Judge, Tumakuru and the judgment dated 12.06.2013 in C.C. No. 2617/2018 passed by the II Additional and JMFC-III, Tumakuru and pass such other order as deems fit in the facts and circumstances of the case. 2. Heard the learned senior counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 3. The factual matrix of the case of the prosecution is that when the police have conducted a raid in front of the house of this petitioner, they found 41 Macdowel Whisky bottles. Hence, the same was seized by drawing the Mahazar and a case has been registered. The police have investigated the matter and filed the charge-sheet for the offences punishable under Sections 34 and 38 of the Karnataka Excise Act, 1965 ('the Excise Act' for short). 4. The prosecution in order to prove the case examined the witnesses as PWs. 1 to 6, got marked the documents as Exs. P1 to P4(a) and the material objects - MOs. 1 to 41-sample bottles. The petitioner/accused has not led any defense evidence. 5. The trial Judge after considering both oral and documentary evidence convicted the petitioner for both the offences for a period of one year with fine of Rs. 10,000/-. Hence, an appeal is filed before the Appellate Court in Crl.A. No. 76/2013. 6. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the conviction. However, modified the order on sentence in Crl.A. No. 76/2013 filed by the petitioner for a period of six months, in default of payment of fine amount. Hence, the present revision petition is filed before this Court. 7. The main contention of the learned senior counsel appearing for the petitioner before this Court is that the very conclusion of the Trial Court that Ex. P2 is not disputed, is not correct. It is the burden on the prosecution to prove the said document. The Trial Court as well as the Appellate Court on the material available on record ought to have held that the evidence of P.Ws. 4 and 5 and Ex. P2 are not acceptable since P.Ws. P2 is not disputed, is not correct. It is the burden on the prosecution to prove the said document. The Trial Court as well as the Appellate Court on the material available on record ought to have held that the evidence of P.Ws. 4 and 5 and Ex. P2 are not acceptable since P.Ws. 4 and 5 are the interested witnesses. The learned senior counsel also would submit that it is the contention of the prosecution that on the credible information they conducted the raid, but they have not complied the provisions of Section 54 of the Excise Act, wherein, they have to record the ground of his belief in committing the offence, the same is not found in any of the records. The learned senior counsel also would submit that the witnesses, who have been examined are all interested witnesses and PWs.1 and 2 are also the Village Accountants, they were taken together while conducting the raid. The learned senior counsel also would submit that the persons, who went with raid are the Assistant Commissioner, Tahasildar, Revenue Inspectors, Superintendent of Excise Department and other officials belongs to the Excise Department and their evidence cannot be believed. Both the Courts have failed to consider the said aspect while appreciating the material available on record. 8. The learned senior counsel appearing for the petitioner in support of his arguments, he relied upon the judgment of the Apex Court in the case of K.L. Subhayya v. State of Karnataka reported in AIR 1979 SC 711 , regarding non compliance of Section 54 of the Excise Act. 9. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that in the Mahazar itself, it is specifically mentioned that on credible information they went and found this petitioner, who is in front of the house keeping the illicit liquor bottles and the same was seized in the presence of the witnesses. The said witnesses were also examined before the Trial Court and proved the document Ex. P1-Mahazar; Ex. P2 - FSL report and Ex. P3 is PF report regarding seizure is concerned and nothing is elicited in the cross-examination of prosecution witnesses and only took the contention in the revision that they are the interested witnesses. Hence, the very contention of the learned senior counsel for the petitioner cannot be accepted. 10. P1-Mahazar; Ex. P2 - FSL report and Ex. P3 is PF report regarding seizure is concerned and nothing is elicited in the cross-examination of prosecution witnesses and only took the contention in the revision that they are the interested witnesses. Hence, the very contention of the learned senior counsel for the petitioner cannot be accepted. 10. Having heard the learned senior counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Court as well as the Appellate Court have committed an error in not appreciating the material available on record and passed any perverse order. Whether it requires an interference of this Court by exercising the revisional jurisdiction? (ii) What order? Point No. (i): 11. Having heard the respective counsel and on perusal of the material available on record, the very first contention of the learned senior counsel for the petitioner is that there is no compliance of Section 54 of the Excise Act. The Apex Court in K.L. Subhayya's case (supra), referred by the learned senior counsel for the petitioner, has categorically held 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. It is also observed that, the inspector who had searched the car of the accused 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. Hence, comes to the conclusion that Section 54 of the Excise Act has not yet complied with and the order passed by the respective Courts are vitiates. In the case on hand also, on perusal of Ex. P1-Mahazar, it clearly discloses that the Assistant Commissioner, Tahasildar and Revenue officials i.e., Village Accountants and also the officials belongs to the raiding party, all went together. But nothing is mentioned in Ex. P1 that they have recorded the grounds of his belief that this petitioner has committed an offence. 12. P1-Mahazar, it clearly discloses that the Assistant Commissioner, Tahasildar and Revenue officials i.e., Village Accountants and also the officials belongs to the raiding party, all went together. But nothing is mentioned in Ex. P1 that they have recorded the grounds of his belief that this petitioner has committed an offence. 12. It is also important to note that it is not the case of the prosecution that he was having 41 bottles of liquor in his possession to sell the same to the general public only in the Mahazar, it is stated that he was in conscious possession of 41 bottles of liquor but no compliance of Section 54 of the Excise Act. The Apex Court also in the judgment has categorically held 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. In the case on hand, raiding parties are also official witnesses and the mahazar disclose that Assistant Commissioner, Tahsildar and all revenue officials and also the officials belonging to Excise Department together went to the spot and there is no explanation as to how all of them gathered together. Apart from that, there is no reason mentioned in the mahazar regarding compliance of Sections 53 and 54 of the Excise Act. Hence, there is a force in the very contention of the learned counsel for the petitioner that mandatory compliance is not complied. 13. The second limb of argument of the learned counsel for the petitioner before this Court is that all the witnesses are official witnesses but, in the mahazar in Ex. P1, it is stated that local witnesses were not found. But, except mentioning the same, nothing is stated as to where they attempted to secure local witnesses. On perusal of the records also, it is seen that P.Ws.1 and 2 are the revenue officials and the raid was also conducted along with the superiors of the Revenue Department i.e., Assistant Commissioner, Tahsildar and the Trial Court, ought to have taken note of this aspect into consideration. Apart from that, other witnesses are also the official witnesses of Excise Department and no independent witnesses are examined before the Trial Court. 14. When such being the factual aspects of the case, the very safeguard as contemplated under Sections 53 and 54 of the Excise Act is not complied with. Apart from that, other witnesses are also the official witnesses of Excise Department and no independent witnesses are examined before the Trial Court. 14. When such being the factual aspects of the case, the very safeguard as contemplated under Sections 53 and 54 of the Excise Act is not complied with. First of all, the grounds are not stated before conducting the search and apart from that, no local witnesses are secured. It is also the case of the prosecution that the petitioner was having 41 bottles of illicit liquor in front of the house and nothing is available on record, as to why he kept the same in front of the house. Hence, the very seizure itself is doubtful and only believing the evidence of official witnesses, the Trial Court and the Appellate Court have come to the conclusion that the prosecution has proved the case beyond reasonable doubt. 15. The material available on record does not inspire the confidence of the Court even for confirmation of the offences which have been invoked against the petitioner herein. Hence, I am of the opinion that both the Courts have committed an error and passed perverse order and failed to take note of the evidence of the witnesses, who are part of conducting the raid and also no compliance is made in respect of Sections 53 and 54 of the Excise Act. Hence, I answer point No. (i) as 'affirmative'. Point No. (ii) 16. In view of the discussions made above, I pass the following: ORDER (i) The Criminal Revision Petition is allowed. (ii) The impugned judgment dated 20.03.2015 passed in Crl.A. No. 76/2013 by the II Additional District and Sessions Judge, Tumakuru and the judgment dated 12.06.2013 in C.C. No. 2617/2018 passed by the II Additional and JMFC-III, Tumakuru are hereby side aside. (iii) If the petitioner has deposited any fine amount, the same is ordered to be refunded to the petitioner on proper identification (iv) The bail bond also stands cancelled.