IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1025/2019 BETWEEN:
The State by Sub-Inspector of Excise Channarayapatna Range Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) AND:
Prashanth S/o Puttegowda Aged about 38 years R/at Bidare Village, Bagur Hobli, Channarayapatna Taluk-573 116.
(Notice dispensed with in R/o Respondent) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment dated 16.04.2016 passed in C.C.No.908/2011 by the Additional Civil Judge and JMFC, Channarayapatna and the judgment dated 22.09.2017 passed in Criminal Appeal No.166/2016 by the IV Additional District and Sessions Judge, Hassan District Sitting at Channarayapatna and allow the above Criminal Revision Petition and convict and sentence the respondent for the offences punishable under Sections 32(1) and 38(A) of Karnataka Excise Act.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R The present revision petition has been filed by the State challenging the judgment passed by 4th Additional District and Sessions Judge, Hassan, in Criminal Appeal No.166/2016 dated 22.9.2017.
2. I have heard the learned High Court Government Pleader for the petitioner-State. Notice to respondent- accused is dispensed with.
3. The facts leading to the case are that in a retail shop at Bidari Village accused has stored illegal Indian Liquor. On credible information Excise Inspector by preparing the search warrant along with PWs.1 to 4 on 23.3.2011 at 4.30 p.m., went and accused was not there and they found 20 bottles of original choice whisky, 25 bottles of old Tavarin whisky and 5 bottles of DSP whisky, each contained 180 ml. Total 9 liters of Indian Liquor and immediately the spot mahazar was drawn as per Ex.P1 and thereafter a case has been registered and after investigation charge sheet has been filed.
4. The learned Magistrate took the cognizance and secured the presence of the accused and thereafter the plea of the accused was recorded. Accused pleaded not guilty, he claims to be tried and as such the case was fixed for trial.
5. In order to prove the case of the prosecution, prosecution got examined four witnesses, got marked five documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and accused denied the incriminating material. He has not led any evidence and he has not got marked any documents. After hearing the learned counsel appearing for the parties, the trial Court acquitted the accused. Being aggrieved by the same, the State has preferred the appeal before the lower appellate Court. The lower appellate Court also dismissed the appeal by confirming the order of the trial Court. Being aggrieved by the same, the State is before this Court.
6. The main grounds urged by the learned High Court Government Pleader are that the judgment and order of acquittal passed by the lower appellate Court and the trial Court are contrary to evidence and material placed on record. The trial Court and the lower appellate Court have grossly erred in not appreciating the evidence of PWs.1 and 3. It is his further submission that PWs.1 and 3 have categorically stated that the accused was selling the liquor and there is substantial evidence and the said evidence is credible and trustworthy and reliable. Without appreciating the said fact the Courts below have wrongly came to a wrong conclusion and have acquitted the accused. On these grounds he prayed to allow the petition and to set aside the impugned order and prays to convict the accused.
7. I have carefully and cautiously perused the records including the evidence and also the documents exhibited, made available by the learned High Court Government Pleader.
8. The prosecution got examined four witnesses. PW1 is the Excise Guard who accompanied PW3. In his evidence he has deposed that on 23.3.2011 at about 4.30 p.m. along with PW3 he went to Bidari Village and no person was present in the shop and when said shop was searched, they found whisky bottles and the same were seized by drawing a mahazar as per Ex.P1. During the course of cross-examination nothing has been elicited so as to discard his evidence.
PW2 is the seizure mahazar pancha to Ex.P1. He has not supported the case of the prosecution.
PW3 is Excise Inspector. He has also deposed that on credible information he prepared the search warrant and he went to the shop and at that time nobody was there and he searched and found the whisky bottle and same were seized by drawing the mahazar as per Ex.P1 and thereafter the samples MOs.1 to 27 have been sent for chemical examination and after receipt of the report as per Ex.P5 he has filed the charge sheet.
During the course of cross-examination he has deposed that he has not seen the document to whom the said shop belongs.
PW4 is a Mahazar witness, he has also not supported the case of the prosecution and he has been treated as hostile.
9. On close reading of the said records and material admittedly the evidence of PWs.1 and 3 clearly goes to show that when they went in search of the shop, at that time nobody was there including the accused and they made a search. The search made itself appears to be not in accordance with law. When no person was present in the said shop, then under such circumstances the search conducted itself creates a doubt in the case of the prosecution. Be that as it may. Even the independent witnesses PWs.2 and 4 have also not supported the case of the prosecution and even the evidence of PW3 goes to show that he has not verify any document to whom the shop belongs. Without verifying the documents making a search and seizing the articles also creates a doubt in the case of the prosecution.
10. Looking from any angle, I am of the considered opinion that there is a concurrent finding of the lower appellate Court and the trial Court. Petitioner-State has not made out any good grounds so as to interfere with the judgment of the lower appellate Court.
It is well settled proposition of law, when a petition has been filed against an order of acquittal, appellate or revisional Court must be very slow in interfering with such order.
Petition is devoid of merits. Same is liable to be dismissed and accordingly it is dismissed.
IA No.1/2019 does not survive for consideration and accordingly it is dismissed.
Sd/- JUDGE *AP/-