IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 4TH DAY OF FEBRUARY 2019

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

CRIMINAL REVISION PETITION NO.2044/2011

BETWEEN:

GOVIND S/O. BASAPPA AGE: 40 YEARS, OCC: JEEP DRIVER, R/O. HALIAGINAHAL, TQ. HUNGUND DIST. BAGALKOT.

... PETITIONER

(BY SRI JAGADISH PATIL, ADVOCATE.)

AND:

THE STATE OF KARNATAKA REP. BY ITS SPP, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD

... RESPONDENT

(BY SRI A.R.RODRIGUES, ADDL. GOVERNMENT ADVOCATE.)

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER PASSED BY THE FAST TRACK COURT-III, HOSPET, IN CRL.A.NO.22/2000, DATED 11.08.2005 CONFIRMING THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE (JR.DN.) & JMFC COURT, H.B.HALLI, IN C.C.NO.228/1998 DATED 20.05.2000, BY ALLOWING THIS REVISION PETITION, ETC.,.

THIS PETITION HAVING BEEN HEARD IN PART, COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard the arguments of the revision petitioner's counsel and also the Addl. Government Advocate for the State.

2. The factual matrix of this case is that, on 26.1.1994, at about 09.00 p.m., accused No.1 was standing in front of the house of one H.Basappa situated at Mandalbatti, H.BHalli, and on enquiry he found that 300 packets of liquor of 100 ml each and on enquiry he did not produce any licence for possessing the same and on enquiry as to from where he brought it, he took the complainant and other staff near the place of a hut, wherein accused Nos.2 to 8 were there and they were involved in possessing the illegal liquor and found that 12880 liters of spirit and about 10,000 liters liquor was kept in different plastic and other utensils like sintex and also parked a Jeep bearing registration No.KA-25/M-971 to transport the same illegally and the same are seized. After the investigation a case has been registered against total 9 accused persons. The prosecution in order to prove the charges leveled against this revision petitioner and others, relied upon the evidence of PWs.1 to 9 and also relied upon documents Ex.P.1 to P.7 and M.O.Nos.1 to 11.

3. The Court below after hearing the arguments of both the sides, convicted accused Nos.1, 3, 5 to 9 and sentenced them to undergo rigorous imprisonment for one year and to pay fine of `2,000/- each and in default to pay fine, the accused shall undergo rigorous imprisonment

for another six months in respect of the offence punishable under section 32 of Karnataka Excise Act and the Court below also sentenced them to undergo simple imprisonment for six months and to pay fine of `2,000/- each, in default to pay the fine, the accused shall undergo simple imprisonment for six months for the offence punishable under section 34 of Karnataka Excise Act and both the sentences shall run concurrently. Being aggrieved by the judgment of conviction, this revision petitioner and others filed an appeal before the Fast Track Court at Hosapete and the lower appellate Court on re-appreciating the evidence, confirmed the conviction against accused Nos.1, 3, 5 to 8 and acquitted accused No.9. Being aggrieved by the confirmation of conviction and sentence, the accused No.7 i.e., the revision petitioner herein has preferred this revision petition before this Court.

4. The main grounds urged by the revision petitioner before this Court is that both the Courts below have ignored the acceptable and trustworthy evidence and both the Courts bellow have also not raised proper points for consideration and also failed to consider the contradiction between the versions of PWs.5, 6, 8 and 9 and PWs.1 to 4 and 7 have turned hostile. The other contention that the Courts below have failed to appreciate the fact that the police have sent samples for chemical examination on 6.4.1994 and the same creates doubt in respect of the case of the prosecution and only the prosecution relied upon the voluntary statement of accused No.1 which is totally untrustworthy and considering the same, the trial Court convicted the accused and the same was confirmed by the lower appellate Court.

5. The main contention of the revision petition's counsel before this Court is that it is the case of the prosecution that on the first instance they found illegal liquor sachets of 300 in numbers and thereafter when accused No.1 taken the complainant to the particular place of hut, they found large quantity of spirit. Only one sachet was sent for chemical examination and also recovery is not proved and not sent the entire material for FSL and M.O.Nos.1 to 7 which are relied upon by the prosecution are liquor sachets and M.O.Nos.8 to 11 are the samples of spirit and not produced entire seized sachets and spirit and also not produced any machineries allegedly seized. The very recovery has not been proved since the panchas have turned hostile and only relying upon the evidence of police witnesses, the trial Court and the lower appellate Court came to conclusion that the prosecution has proved the case and there are infirmities in the order of the

Court below and hence it is required to be set aside.

6. Per contra, learned Addl. Government Advocate in his arguments he contended that the prosecution relied upon both oral and documentary evidence and accused No.1 has given voluntary statement and on the say of accused No.1, the hut was also subjected to raid and there, they found large quantity of spirit and manufacturing machines were also seized and accused No.9 is the owner of the said hut and accused Nos.2 to 8 were working under accused No.9 and there are ample material to believe the case of the prosecution since in Ex.P.7 seizure mahazar, signatures have not been disputed by the witnesses who have been turned hostile and when they did not dispute their signatures, it cannot be contended that the prosecution has not proved the case.

7. In reply to the arguments of the respondent's counsel, the counsel appearing for the revision petitioner contended that the case of the prosecution against this revision petitioner is that he was standing near the Jeep and there is no any recovery at the instance of this revision petitioner and chemical analyst has not been examined before the Court and Ex.P.7 is also not proved. In support of his contention he relied upon the judgment of this Court reported in LAWS (KAR) 2012 2 30 between M.R.Manjunath vs. Authorized Officer and the counsel brought to the notice of this Court paragraphs No.7 and 8 of the judgment with regard to non sending of the entire sachets for chemical examination and there is no proof with regard to the fact that all the seized sachets contained arrack or other intoxicating substance and in the absence of the same, there cannot be any conviction and the invoking of sections 32 and 34 of the Excise Act.

8. Having heard the arguments of the revision petitioner's counsel and also the Addl. Government Advocate, this Court has to analyze the material available on record with regard to whether the Court below has rightly convicted this revision petitioner for the offence punishable under section 34 of the Karnataka Excise Act and whether the lower appellate Court failed to re-appreciate the evidence available on record and it ought to have been reversed the order of the trial Court as contended by the revision petitioner's counsel.

9. Before appreciating both oral and documentary evidence and also the conclusion arrived by the both the Courts below, this Court would like to make a mention in nutshell the accusation made in the charge sheet against this revision petitioner. On perusal of the allegation made in the charge sheet, it is a general allegation

against this revision petitioner and others that they indulged in manufacturing illegal liquor and he was in the said hut and working in the said hut. In order to arrive for a conclusion or to prove the guilt of the revision petitioner, the Court below recorded the plea of the accused persons and the first plea against the accused No.1 is that he was in possession of 300 liquor sachets of 100 ml each and the second charge is that knowing fully well that unlawful manufacturing was taking place, prescribed duty was not paid thereon, involved in illegal possession of liquor and thereby he committed the offence. The charges leveled against the other accused Nos.2 to 8 is that without obtaining the licence from the Government and without paying any duty to the Government, this revision petitioner was in possession of 12,880 liters of spirit and liquor about 10,000 liters was kept in different plastic and other utensils like sintex, etc., and thereby committed offence under sections 32 and 34 of Karnataka Excise Act.

10. The prosecution mainly relies upon the evidence of PWs.5 and 6, they are the Sub-Inspector of Police and Circle Inspector of Police and PW.8 Dy.S.P. and PW.9 Police Inspector regarding the apprehending of accused No.1 and seizing of the articles in a hut. On perusal of the charge, there is no any specific charge against this revision petitioner that whether he was possessing the liquor, or any recovery is made at his instance and only general allegation is made that the accused persons were manufacturing the liquor without obtaining the licence from the Government. On perusal of the evidence of the star witnesses who are all the official witnesses, PW.1 only says that the accused Nos.2 to 8 were supervising in the factory and also they were present while manufacturing the illegal liquor and in the evidence of PW.5 also. PW.6 says only this petitioner was working along with Thippeswamy, Shivareddy, Steven, S.Basavaraj and Hanumantappa. The evidence of PW.8, who is the Dy.S.P. did not adduce anything about the presence of this petitioner and the evidence remains only with regard to accused No.1 took them to a particular place of hut and PW.9-the Police Inspector is not the raiding party. Only he has spoken with regard to the apprehension of accused No.9 and hence, the evidence remains before the Court is only PWs-5 and 6. On perusal of the evidence of PW-5, he says that this revision petitioner was working as Supervisor and also says that in order to produce the illegal arrack, they were present and PW-6 says this petitioner was working as coolie and the prosecution is not firm about what is the nature of work of this petitioner. In one breath, he says that he is a Supervisor and in another breath, he says that he

is working as coolie and other records reveal that he was standing near the jeep and there is no recovery as contended by the revision petitioner before this Court and also the charges are not specific against this revision petitioner and mere presence of a person in a particular place is not the ground to bring the accused for the guilty of the offence alleged against him. There is no any proper evidence with regard to the role of this petitioner and mere inclusion of a person in a criminal case is not suffice to come to a conclusion that he has been involved in manufacturing of illegal liquor. The allegation is also general in nature against this petitioner. Only, it appears that he was in the spot, that is why he has been booked in the case.

11. The learned A.G.A. appearing for the State in his arguments contends that the other witnesses and pancha witnesses who have been

examined before the Court though they turned hostile, they did not dispute the signatures. On perusal of evidence of PWs-1 to 4, none of the witnesses have spoken to that in their presence only they have seized all the materials. PW-1 says that when he went to Hotel to have the tea, at that time, he was called to the police station and police took his signature and PW-2 also says that he was called to police station and took his signature. PW-3 says police came to hotel and took his signature in the hotel. PW-4 also says that he is not having any acquaintance with the accused persons and he has not given any statement before the police. In the cross examination of PW-5 also categorically says that he did not record the statement of the accused, i.e., this revision petitioner and in order to book a person for the criminal case that too bring the guilt of the accused, there must be substantiating evidence before the Court and I did not find any

substantial materials against this petitioner. In all the witnesses, i.e., PWs.5 and 6 have given different version. PW-5 says he was a Supervisor and PW-6 says he was working in the said hut and there is no any proof before the Court that he was working as supervisor or working as a worker in the hut that too involved in the process of manufacturing of illegal liquor. None of the witnesses have also supported, only the Court below relying upon the evidence of PWs-5, 6, 8 and 9 who are all the parties to the alleged raid, comes to the conclusion that this petitioner also committed an offence.

12. The Lower Appellate Court also while appreciating the oral and documentary evidence did not appreciate the evidence available before the Court and in page-6 only comment is made that on perusal of the trial court judgment, the Court did not find any illegality committed by the Court below in believing the witnesses of PWs.5, 6, 8 and 9 and observation is that PW-5 got the information and he went to the spot and found accused Nos.2 to 8 at the spot and also found the jeep and spirit and not discussed with regard to the evidence available before the Court in order to prove the guilt of the accused, particularly, i.e. accused No.7. Only an observation that merely Pancha witnesses have not supported the case of the prosecution and same cannot be thrown away the evidence available before the Court.

13. Having considered both the oral and documentary materials available before the Court and the nature of accusation made against this revision petitioner and only he was arrested at the spot, when he was there in the spot and there is no any incriminating evidence against this revision petitioner that he indulged in manufacturing of the illegal liquor. In one

breath, PW-5 says that he was a Supervisor and in another breath PW-6 says he was a worker and the records reveal that he was standing near the jeep and the same is not enough to comes to a conclusion that too convict the person for the offences punishable under Sections 32 and 34 of the Exercise Act.

14. Under the circumstances, I am of the opinion that the Court below and also the First Appellate Court did not appreciate the evidence available before the Court in a perspective manner to comes to a conclusion that the revision petitioner has involved in committing the crime for the offences punishable under Sections 32 and 34 of the Exercise Act. The other contention of the revision petitioner's counsel is that M.Os.1 to 6 and 7 to 11 are the samples of sachet and spirit and the same is not sent for FSL examination, only a particular sachet has been sent for

chemical examination and in support of his contention, he contends that prosecution ought to have sent the same and brought to my notice paragraphs 7 and 8 of the judgment of this Court. This Court made an observation that when the remaining 32 sachets allegedly contains the arrack and intoxicating substances, the Confiscating Officer as well as the learned Appellate Judge were clearly in error in holding that the petitioner has committed an offence under Section 34 of the Act. Apparently, from the evidence of PWs.3 and 4, it becomes clear that the only substance, which was subjected to analysis was the substances under one sachet, which was sent.

15. In the case on hand also, it is an undisputed fact that the entire seized sachet and the spirit is not sent for chemical examination and when the spirits are seized, the same is on different cans and there is no evidentiary proof that in each can samples are taken and only spirit found in one can was sent to examination and the very procedure when they found the spirit of different cans ought to have taken the samples in each cans and the same has not been taken. The judgment is also aptly applicable to the case on hand and particularly, in respect of this revision petitioner is concerned, there is no any evidence that at the instance of this petitioner, either the sachet or the spirit is recovered and when such being the case, I am of the opinion that there is no any incriminating evidence against this petitioner to convict him for the alleged offences and benefit of doubt goes in favour of this revision petitioner. Only material found that he was in the place at the time, when accused No.1 took the officials to the particular hut and other than that, there is no any material and only because he was present in the spot is not the ground to convict

him. It is not the case of the witnesses that he was in the process of manufacturing of illegal liquor and in the absence of particular evidence, it is not safe on the part of this Court also to confirm the order of conviction and hence, the revision petitioner gets the benefit of doubt.

16. In view of the discussions made above, I pass the following:

ORDER

The revision petition is allowed.

The conviction order passed by the Court below is set aside in respect of this petitioner and consequently acquitted.

Sd/- JUDGE

Mrk/Vmb/-