Nehru, Jani and Bharatibai vs The State

Huluvadi G. Ramesh, J.—This appeal is by the accused challenging the order of conviction and sentence passed by the I Addl. Sessions Judge, Gulbarga in SC No. 253/2009 dated 12.05.2010, convicting and sentencing the accused for the offence punishable under Sections 32 and 34 of the Karnataka Excise Act. According to the prosecution, the Police Inspector of Brahmapur Police Station, Gulbarga filed a complaint alleging, on information that there is sale of illicit liquor, this Police Inspector went along with the panchas and staff in a jeep bearing No. KA-32-G-282 and reached the spot at Bapu Nagar, Mangarwadigalli, Gulbarga wherein the accused persons were found selling illicit arrack to public. Two of the accused ran away from the spot. The police apprehended one person by name Nehru S/o Kherulal and ascertained from him that the persons who ran away from the spot are Jani S/o Ramachandra Patil and Bharatibai W/o Jani Patil residents of Bapu Nagar, Mangarwadigalli and also seized illicit arrack and also motorcycle. Stating that said arrack is spurious and injurious to public health, complaint is filed. Charges were framed against the accused. Since the accused pleaded not guilty and claimed to be tried, the prosecution examined, in all 10 witnesses and got marked four documents and material objects M.Os. 1 to 5. Thereafter, after hearing, the trial Court while acquitting the accused for the offence punishable u/s 328 of IPC, convicted and sentenced the accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act and sentenced each of the accused to undergo one year imprisonment for each of the offence punishable under Sections 32 and 34 of Karnataka Excise Act and to pay fine of Rs. 10,000/- each, for each of the offence punishable u/s 32 and 34 of Karnataka Excise Act. Aggrieved by the same, the appellants are before this Court.

It is the argument of the learned counsel for the appellants that accused have been falsely implicated in the case. The seizure of spurious arrack is not proved. Further the sample is not produced before the Court. The appellants are innocent of the alleged offences. The complainant himself is the Investigating Officer. As such, there is violation of the principles of Criminal Jurisprudence. Complainant being the I.O. filed charge sheet, which is deprecated. The accused are entitled for benefit of such irregularity in procedure followed in filing the complaint and investigation by the same person. Accordingly, he has sought acquittal.

On the contrary, Addl. SPP has submitted that the case against the accused is proved beyond reasonable doubt. Complaint is filed by different person and investigation has been conducted by another police officer. Though the independent panchas have not supported the case of prosecution, there is nothing to disbelieve the evidence of police witnesses. Nothing worth is elicited to discard their evidence. 40 litres of illicit arrack has been seized from the custody of the accused and they were selling illicit/spurious liquor, which was injurious to health. Accordingly, he has sought dismissal of the appeal and also submitted that Chemical Examination Report proves that contents of the sample are spurious and injurious to health. PW-4 being the Chemical Examiner has deposed in this regard. As such, the case of the accused cannot be considered to acquit them.

It appears, throughout, the judgment there is no consistency as to the nature of the quantity seized. In Kannada it is mentioned as Sendhi, Sendhi refers to Toddy. Arrack refers to alcohol, which is raw alcohol i.e., in the form of spirit, or alcohol for which it is being prepared. The present product seized is shown to be toddy for which Chloral Hydrate powder will be mixed. Opinion of the Chemical Examiner is that the toddy prepared out of Chloral Hydrate is injurious to health. As per the prosecution, it is being stored for unlawful gain.

As per the version of the Head Constable-Laxman-PW. 1, a message was received regarding sale of illicit toddy on 5.4.2009 around 6.00 a.m. On such receiving the information, along with staff and two panchas and also PSI of the Crime Branch and Law and Order and two more Women Police Constables went in the jeep and found the accused selling illicit toddy. There was a lady and two male persons involved in selling the toddy. They conducted a raid and the accused started running away. Out of them, they apprehended one person and on inquiry, he disclosed the name of other two accused. They have also taken the sample of toddy, which was kept in a plastic pot under panchanama and also seized Chloral Hydrate powder and one Hero Honda motorcycle. Nothing worth is elicited in the cross-examination of this PW. 1-Laxman, Head Constable.

PW. 2 Rajshekhar another Police Constable has also spoken similar to that of PW. 1. However, in the cross-examination of this Police Constable, it is elicited that there were no customers to purchase toddy except the accused and also admitted that they have not seized any amount at that time.

PW. 3 Savitha, Women Police Constable has also spoken similar to that of PWs. 1 and 2. She has also spoken about seizure of the toddy and sample chloral hydrate as well as illicit toddy. A suggestion that none of the accused were apprehended on the spot, is denied by this witness.

PW. 4 P. Lokesh who is said to be the Chemical Examiner of FSL, Gulbarga has deposed that on 29.4.2009 he received a sealed bottle and a cover from Brahmapur police said to be containing liquor and 100 grams of CH powder. As per his opinion, there is said to be 1.71% of alcohol contents and it was mixed with chloral hydrate powder. It is also opined that the powder sent in sealed cover is chloral hydrate powder. He has deposed that after examination, he sent back the said articles along with his report to the Investigating Officer. What is being ascertained in the cross-examination of this witness is, chloral hydrate powder will be used in terms of milligrams. However, he has denied the suggestion that by mixing of 1.71% ratio of alcohol, it is not injurious to health.

PW. 6-Vittal is the then Sub-Inspector of Police of Brahmapur police station. He has accompanied other witnesses to conduct raid and also participated in the raid. He has deposed similarly to that of the other witnesses. Nothing worth is elicited in the cross-examination.

PW. 7-Ramulu is the Head Constable of Brahmapur Police Station who registered the FIR and also received two plastic bowls and motorcycle and seized articles at M.Os. 1 to 5.

So far as PW. 8 one Gurubasappa, Head Constable is concerned, he was also the person involved in the raiding party. PW. 9-Gurudevi is another Women Police Constable who was also member of the raiding arty.

PW. 10-Shivamurthy is a pancha for seizure panchanama. He has not supported the version of the prosecution. Though it is suggested to him about the seizure of toddy from a plastic bowl and also seizure of the CH powder and motorcycle, except admitting the signature being taken, he has not admitted anything. Another panch viz., Shrimanth-PW. 11 also has not supported the version of the prosecution. Nothing worth is elicited in the cross-examination. PW. 12 one Veeranna, PSI of Brahmapur police station has deposed regarding accused selling illicit toddy and also he being a witness to running away of some of the accused from the spot and later apprehending one of the accused. He has deposed to the similar effect.

After hearing, the points that arise for consideration are;

i) Whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt?

ii) Whether the accused have violated the provisions of Sections 32 and 34 of Karnataka Excise Act as they were found selling illicit toddy mixed with chloral hydrate powder?

iii) Whether the, trial court is justified in convicting and sentencing the accused?

iv) What order?

The evidence on record that of the Police Inspector, Police Constables do depict that there is evidence of police officials about the seizure of CH powder and illicit toddy. The CE report also is to the effect that the seized illicit toddy contains alcohol to the extent of 1.71% and also contains chloral hydrate powder. The opinion of the Chemical Examiner is to the effect that the this liquor is spurious and injurious to health, as it was mixed with CH powder. Though the independent panch witnesses have turned hostile, but all the police witnesses unequivocally state about the involvement of the accused and one of them was apprehended whereas other two accused ran away from the spot and ultimately, on getting identified through the accused who was apprehended, they also booked those persons for the offences with which they were alleged.

The argument of the learned counsel for the appellants is that no independent witnesses supported the version of the prosecution regarding seizure. But there is sufficient evidence of police officials who were present at the time of raid and also seizure of the toddy to the extent of 40 litres and CH powder.

It is for the accused to rebut the presumption of commission of offence under Sections 32 and 34 of the Karnataka Excise Act. Rather the accused have not discharged their burden. What is to be noticed is, there is no licence or permit being produced by the accused regarding possession and sale of toddy and CH powder. The evidence on record coupled with the evidence of the police officials is sufficient to hold that there was 40 litres of toddy being seized and also little quantity of CH powder. Though the independent witnesses have not supported, but as per the prosecution, it was spurious toddy which was seized, and injurious to health. Further for the offence u/s 32 of Karnataka Excise Act, the punishment prescribed is five years with fine up to Rs. 50,000/- and for the offence u/s 34 of the Karnataka Excise Act, penalty for illegal possession is, for the first offence it should be minimum one year and fine of Rs. 10,000/-. The trial Court has sentenced the accused to undergo one year simple imprisonment and fine of Rs. 10,000/- for each of the offences under Sections 32 and 34 of Karnataka Excise Act. So far as running of the sentence is concerned, the trial Court has ordered that both the sentences shall run concurrently and has also given set-off u/s 428 of Cr.P.C.

The argument of the learned counsel for the appellants that the seizure of the toddy and CH powder is not proved as the independent panch witnessed turned hostile, cannot be accepted in view of the fact that all the official witnesses have deposed before the Court about the seizure of the articles and involvement of the accused and also arrest of one of the accused on the basis of which, two other accused were also arrested. Rather, the accused never disputed the presumption as per Section 40 of the Karnataka Excise Act. Except minor irregularities as to the fact that no independent witnesses have supported the version of the prosecution, the CE report also speaks to the fact that contraband articles contain chloral hydrate powder which is injurious to health.

In that view of the matter, there is no scope for interference in the order of conviction passed by the trial court and also in the sentence passed, in view of the fact that possession of illicit toddy mixed with CH powder has been confirmed by the Chemical Examiner when he was being examined before the Court and nothing worth is elicited in his cross examination. In view of the above, appeal deserves to be dismissed. Accordingly, appeal is dismissed. However, so far as imposition of fine of Rs. 10,000/- each for the offences under Sections 32 and 34 of Karnataka Excise Act is concerned, the default sentence is fixed at one month SI and sentences shall run concurrently. Ordered accordingly.