Ramegowda vs State

Pradeep D. Waingankar, J.—This Criminal Revision Petition u/s 397 r/w Section 401 of Cr.P.C. is filed challenging the judgment dated 22.11.2007 in C.C. No. 638/2006 on the file of the Civil Judge, Junior Division and JMFC, Periyapatna and the judgment dated 20.04.2009 in Criminal Appeal No. 376/2007 on the file of the Principal Sessions Judge, Mysore, dismissing the appeal and confirming the conviction of the petitioner/accused u/s 34 of the Karnataka Excise Act.

The revision petitioner was the accused before the Magistrate. Upon credible information, PSI of Periyapatna Police Station conducted a raid in a petty shop belonging to the accused on Bettadapura road on 09.08.2006, at about 6.15 pm and found the accused in possession of 63 arrack packets which the accused was selling without pass or permit. The accused was arrested and 63 arrack packets were seized under panchanama and upon obtaining a report from the Chemical Examiner, a charge-sheet came to be filed against the accused for the offence punishable u/s 34 of the Karnataka Excise Act. The accused having pleaded not guilty to the charge against him, the prosecution in order to prove the charge., examined as many as 8 witnesses as PW1 to PW8 and marked 3 documents as Exs.P1 TO P3 apart from M.O. 1-Sample Arrack Packets. The learned Magistrate upon hearing the arguments and upon appreciation of the evidence placed on record, by his order dated 22.11.2007 convicted the accused for the offence u/s 34 of the Karnataka Excise Act and sentenced him to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs. 2,000/-. The judgment of conviction and sentence passed by the Magistrate was taken in Criminal Appeal No. 376/2007 on the file of the Principal Sessions Judge, Mysore. The learned Sessions Judge, on re-appreciation of the evidence, by his order dated 20.04.2009 dismissed the appeal while confirming the judgment of conviction and sentence passed by the Magistrate. The accused has called in question the orders passed by both the Courts below as to his conviction as well as sentence.

Heard the learned counsel for both the parties. Perused the records.

Learned counsel for the petitioner-accused has vehemently submitted before me that the search in a petty shop has been conducted without obtaining a search warrant or without even recording the reasons for not obtaining a search warrant. It is further submitted that the quantity which has been sent for Chemical Examination is less than permitted quantity and therefore there is no evidence for having committed an offence by the petitioner. Hence, he sought to allow the revision petition and to set aside the orders passed by both the Courts below.

Learned High Court Government Pleader, on the other hand, has argued in support of the orders passed by both the Courts below.

It is seen from the spot panchanama that was drawn that out of 63 packets of arrack only 3 packets of 100 ml. each were sent for Chemical Examination. In other words, 300 ml. of arrack was sent for Chemical Examination, which is far less than permitted quantity as per Rule 21 of the Karnataka Excise Rules. Since the arrack in the packets sent for Chemical Examination was less than the permitted quantity and since there is no evidence to show that the other 60 packets also contained arrack, it can safely be held that the prosecution has failed to prove that the accused was in possession of illicit liquor so as to constitute an offence u/s 34 of the Karnataka Excise Act.

Secondly, it is evident from the records that upon receipt of the credible information the police conducted a raid. Whenever, credible information is received regarding possession of illicit liquor in a house or a shop, the officer concerned, before conducting raid, is required to obtain a search warrant from the Jurisdictional Magistrate so as to make a search. That has not been done in this case. If for any reason, the officer concerned is of the opinion that obtaining of search warrant would defeat the very purpose of conducting a raid, the officer is authorized to make a search only after recording the reasons for not obtaining the search warrant. In the case on hand, neither search warrant has been obtained nor reasons were recorded. In other words, there is violation of mandatory provisions of Sections 53 and 54 of the Karnataka Excise Act. It is suffice to say that the search conducted is illegal and therefore all the further proceedings done in furtherance of the illegal search are vitiated. Both the Courts below have failed to appreciate these vital aspects and thereby order passed by both the Courts below has led to miscarriage of justice. It is for this reason, the impugned orders passed by both the Courts below call for my interference. Hence, the following order.

Criminal Revision Petition is allowed. The impugned orders passed by both the Courts below are hereby set aside. The petitioner/accused is acquitted of the charge u/s 34 of Karnataka Excise Act.