C.R. Nagesh vs State

D.V. Shylendra Kumar

This revision petition u/s 397 read with Section 401 of Code of Criminal Procedure. 1908 [CrPC] is to get over the conviction and sentence suffered by the revision petitioner in terms of the judgment and order dated 27-2-2007 passed in CC No 1333 of 2005, on the file of Court of Principal Civil Judge (Jr Dn) and JMFC, Mandya, convicting the petitioner, who figured as second accused along with another person who was arraigned as first accused, for the offences punishable u/s 32 read with Section 38A of the Karnataka Excise Act, 1965 [for short, the Act], and sentencing them to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default to further undergo simple imprisonment for a period of two months for the offence u/s 32 and likewise for the offence u/s 38A to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default to further undergo simple imprisonment for a period of two months, a conviction and sentence which the petitioner was unable to wriggle out in his appeal in Criminal Appeal No 15 of 2007, on the file of Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Mandya, as in terms of the judgment dated 19-12-2007, the learned sessions judge dismissed the appeal, finding no occasion to differ from the conclusion arrived at by the trial court.

I have heard Sri Rahul, learned counsel appearing for the petitioner and Sri P M Nawaz, learned Addl SPP, appearing for the respondent-state, perused the judgments of the trial court as well as the first appellate court and looked into the records.

The prosecution case being that certain contraband goods viz., 7 bags containing 1700 sachets of illicit arrack were found in the premises of accused persons at their house on Guthal Road, Mandya, behind Venkateshwara Rice Mill, when the premises was inspected by the officials of the excise department at about 10.00 pm on 29-7-2005, without valid licence for storing or possessing them and thereby committed offences punishable u/s 32 and 38A of the Act.

Prosecution supported its case by examining three witnesses. PW1 being an independent mahazar witness, a person who witnessed preparation, of ExP1 mahazar, and PWs 2 and 3 being officials of the excise department, who headed the raiding party. Seized liquor sachets constitute material objections. The accused pleaded not guilty and prayed for being tried. No rebuttal evidence is led on behalf of the accused persons nor any defence set up on their behalf.

The learned judge of the trial court found the accused guilty of the offence and sentenced them as stated above. Learned judge of the first appellate court, on appraisal of the materials on record, found no occasion to interfere with the findings and conclusions arrived at by the trial court, but on the other hand found that the imprisonment of six months on both accused was below the minimum period of one year which is the minimum punishment to be imposed in terms of the amendment to Section 32 of the Act, as per the Amendment Act No 14/2005 with effect from 11-4-2005, enhancing the minimum punishment from six months to one year rigorous imprisonment, but the learned judge of the trial court having not taken note of this amendment and having imposed punishment based on the law as stood earlier-, but nevertheless declined to act on the same, as the state was not in appeal, but the appeal was only by the convicted accused.

I find that the trial court has rightly convicted the accused on the proper conclusion with sufficient supporting evidence placed by the prosecution and in fact, as observed by the learned judge of the appellate court, the punishment imposed on the accused persons is less than the statutorily prescribed period of imprisonment and though this court in the exercise of revisional jurisdiction u/s 397 CrPC can rectify such mistake, I do not propose to exercise such power in this case, but dismiss the revision petition as one without merit for interference with the conviction and sentence already imposed by the trial court and affirmed by the appellate court.

Revision petition dismissed.