Sadanand and Others vs State

K.N. Phaneendra, J.—The appellants are accused Nos. 1 and 2 before the I Addl. Sessions Judge at Gulbarga, in S.C. No. 299/2009 and were convicted for the offence punishable under Sections 32 and 34 of the Karnataka Excise Act. However, acquitted for the offence punishable under Section 328 of IPC. The State appears to have not preferred any appeal so far as the acquittal of the appellants for the offence punishable under Section 328 of IPC, and the same reached its finality.

I have heard the arguments of the learned counsel for the appellants as well as learned High Court Government Pleader for respondent. Perused the records.

The prosecution case in brief are that the Police Inspector of Brahmpur police laid a charge sheet against the accused persons stating that as per the directions of his higher officers. On 05.04.2009 at about 11.00 p.m. on credible information he went to the spot called Bapu Nagar Mangarwadi galli to the house of one Jani Chandru Patil. It is alleged that three persons were found selling illicit arrack to public. One person was actually consuming the said illicit liquor , two persons ran away from the spot and police have arrested one person by name Sadanand S/o. Chandu Pujari (accused No. 1) who was actually consuming the alleged illicit liquor . The police in fact have seized the illicit arrack of about 10 litres valued at Rs. 40,400/- and out of the said seized arrack the police have sent only one litre out of that, to FSL for examination and report. The seizor was conducted in presence of the pancha witnesses and also in presence of the police witnesses. It is also the case that the police have also seized Chlorohydrate powder from the place where the liquor was seized and the said powder pocket alleged to be in a plastic bag, which was hanged to the handle of a motorcycle. On the basis of the above said seizer the police after due investigation submitted the charge sheet. The accused No. 1 was released on bail on 30.04.2009 and accused No. 2 was on anticipatory bail throughout. After the charge sheet the Court also secured the presence of the accused persons and charge sheet were leveled against them. They denied the charges after recording their plea. The Court has proceeded with the trial. The Prosecution in all examined 12 witnesses and Ex. P1 to P4 documents and MO''s 1 and 2 material objects. After conclusion of the prosecution evidence the Court also recorded the statement of the accused under Section 313 of Cr.P.C., as the accused persons did not choose to lead any defence evidence, after hearing the arguments rendered the judgment convicting the appellants for the offences punishable under Sections 32 and 34 of Karnataka Excise Act and acquitted them for the offence punishable under Section 328 of IPC.

I have carefully reevaluated the evidence of the prosecution. PW. 1 Vijaya Anche police inspector, DCRB, Gulbarga, who in fact conducted the raid along with the pancha witnesses. PW. 2 one Prakash the police constable of Excise and Lottery Prohibition Cell, Gulbarga who secured the presence of pancha witnesses and took them to the spot. PW. 3 Shanmukappa another police constable attached to the Excise and lottery prohibition squad, he also accompanied the raiding party. PW. 4-one Ningappa is also another police constable who accompanied the raiding party. One Sunil Kumar, is the APC attached the said police station, who also accompanied the raid party. PW. 6-Lokesh is the public analyst who examined the seized articles sent for examination by the investigating officer. PW. 7-Amit, one of the pancha witnesses to the mahazar, who turned totally hostile to the prosecution. PW. 8-Mohan is also another pancha witness turned hostile to the prosecution. PW. 9-Syed Mehboob is head constable attached to the above said police station is also in fact accompanied the raiding party. PW. 10-Ramayya who is also part of the raiding party. PW. 11-Panduranga is also the police constable attached to the above said police station, who also part of the raiding party. PW. 12-is the investigating officer who further investigated the matter sent the seized articles to FSL and obtained his report and submitted the charge sheet.

Looking to the above said nature of the prosecution witnesses examined except PWs. 6, 7 and 8 all the other persons are the police officers who were part of the raiding party. Invariably all these witnesses have supported the case of the prosecution i.e. police witnesses they have categorically stated that the accused persons were found with the illicit liquor at the above said place and time and in fact they seized 10 litres in a plastic pot and out of that one litre was taken out for chemical examination. They also stated that one motorcycle was parked near the said place and they seized about 1/2 Kg of CH powder from the said motorcycle bearing its registration number KA-32/F-4499. The said motorcycle was released in favour of one Kiran. There is no material to show and no witnesses have stated that this particular chlorohydrate (CH) powder was recovered at the instance of any of the accused persons and that any of the accused person actually put the said CH powder on the said motorcycle.

The pancha witnesses examined totally turned hostile to the prosecution. The police witnesses including the investigating officer who was part of the raiding party have stated that after seizing one litre of Sendhi (arrack) they destroyed the remaining arrack. But nowhere in the evidence of these witnesses it is elicited in their examination-in-chief including the investigating officer how and with the permission of whom the said remaining arrack has been destroyed, nowhere it is stated by any of the witnesses that the said seized article was first produced before the jurisdictional Magistrate and subjected the same to the PF, and then taken permission from the Magistrate and destroyed the same. In this background the prosecution has to prove that the entire 10 litres alleged to be in the said plastic pot was arrack. On the other hand only one litre was separated and sent for chemical examination.

The Chemical Examiner one Mr. P. Lokesh who has stated that he has examined one plastic bottle containing the same liquid, he subjected the said liquid and tested and found 1.86 percentage presence of chlorohydrate powder. He has stated that if a person consume the said arrack which is dangerous to his health, that clearly goes to show that the prosecution has proved that only one litre of arrack which was sent to FSL containing CH powder and also alcoholic contents. Therefore, it can be safely said that the prosecution has proved that the said one litre containing the alcoholic chlorohydrate contents. It is not that the prosecution can be said to has proved the case against the accused persons that they were in possession of 10 litres which is also a illicit arrack containing alcoholic contents. The admissions made by the prosecution witnesses that they have destroyed the remaining arrack there is no question of Court examining the remaining portion of the liquor alleged to have been seized from the custody of the accused persons. Further, added to that the pancha witnesses to the prosecution case have turned totally hostile to the case of the prosecution by stating that they never saw any seized articles at the instance of the accused persons and even they gone to the extent that the police did not take them to any place but their signatures were taken to the panchanama i.e., Ex. P1 in the police station itself. When such being the case, the Court has to ascertain whether proving of one litre arrack in possession of the accused persons even accepting the same whether it amounts to commission of any offence by the accused persons. In this background, when the Trial Court has acquitted the accused persons for the offence punishable under Section 328 of IPC, what is to be presumed is liquor alleged to have been seized at the instance of the accused i.e. one litre which was sent to the FSL cannot be said to be illicit liquor , if it is consumed causes any hazardous to the human being, because Sections 32 and 34 of the Karnataka Excise Act, do not speak about any spurious liquor , it only speaks about the transportation of liquor or possession of liquor import, export, manufacturing., collecting or possessing any intoxicant. Section 34 also refers to, if any person without any lawful authority have in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated, collected, or knowing the prescribed duty not to have been paid thereon.

If the above said two provisions are read the stress has been given with regard to the possession manufacturing, importing, exporting, transporting, cultivating, or collecting any intoxicant without any lawful authority. Therefore, it is incumbent upon the prosecution in order to bring home the guilt of the appellants, under these two provisions, they must prove that accused were in possession of such quantity of intoxicant which was unlawful then only it can be said that the prosecution has proved its case beyond reasonable doubt.

It is worth to note here rule 21 of Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, (for short ''the rules''). Rule 21 of the Rules empowers a person to have possession or transport of some quantity of liquors without any lawful authority or permission. That means to say, if the quantity mentioned under Rule 21 is in possession of anybody, it goes without saying that he is lawfully possessing such liquor. If it exceeds quantity mentioned in Rule 21, then only, it can be said that he is holding possession of the said property without any licence or permission. Therefore, he can be said as unlawful possessor. In this rule, the liquor and quantity have been specifically mentioned which are as follows:

Cases where permit or licence is not required.- No permit or licence, under these rules, shall be required for the possession or transport of the following quantities of liquors.

1) Toddy, in such areas of the State where the sale of toddy to public is allowed under sub-rule (4) of Rule 3 of the Karnataka Excise (Tapping of Trees) Rules, 1991 2.5 litres

(rest of the provision not applicable)

On perusal of the above said provision and applying the said rule to the present case, it is an admitted fact that only one litre of Toddy (arrack) has been sent for chemical examination. Rule 21 of the rules says that person can have the possession upto 2.5 litres of toddy. Therefore, the prosecution has to prove that atleast, the accused/appellants were found in possession of 2.5 litres or above. But in this particular case, when only one litre has been proved in possession of the accused, the remaining 9 litres were not available to the prosecution to prove that the said quantity was also liquor as alleged against the appellants The investigating agency in fact, did not take so much of care atleast to send minimum of 2.5 litres for chemical examination to establish that the accused persons without any authority were possessing Toddy (arrack) above the quantity prescribed under Rule 21 of the rules.

Relying upon the similar facts, this Court in a case reported in Malayali Saroia Vs. State of Karnataka, , has held that:

"Since item No. 5 of Rule 21 of the Rules permits possession without permit or licence, of liquor manufactured in the Karnataka State and liquor manufactured in other places in India and imported into the Karnataka State upto 2.30 litres and as the accused was in possession of 2.25 liters of liquor only, without the prosecution establishing that the liquid found was not liquor manufactured in the State or liquor manufactured in India and imported into the State had not rational basis or foundation. Therefore the conviction and sentence under Section 13 r/w Section 32of the Act was set aside." 12. In another ruling reported in 1977 (2) KLJ 463 in the case of Mahapursha Durga Vs. State of Karnataka, wherein the Court has held that:

"Ten bottles were seized form petitioner the bottles having labels of brandy, etc. The contents of one bottle was sent to the chemical examiner, and it contained 650 M/s. In the absence of evidence to show that the other nine bottles also contained brandy or other intoxicant, petitioner could not be convicted under Section 34 Excise Act.

Even granting that the bottle sent to the chemical examiner contained brandy, the quantity was less than the quantity permitted under rule 21 of the Rules.

Quantity seized within permitted limit no offence."

These rulings have been consistently followed by this Court. This Court in W.P. No. 17991/2011 also has laid down the same principle.

Of-course, in this case, as compared to other cases, separate bottles were not there and separate sachets were not there but in a plastic pot the entire 10 litres alleged to have been seized by the prosecution, was found. But the significant point is that atleast minimum of 2.5 litres should have been taken from the said pot and sent for chemical examination. The destruction of the remaining illicit liquor alleged to have been seized from the custody of the accused persons without the permission of the Court creates serious doubt in the conduct of investigating agency. When once doubt is created in the mind of the Court with regard to the promptness and correctness of investigation by the police, such benefit of doubt should have been given in favour of the accused persons. Therefore, looking from any angle, I am of the opinion that the prosecution has not proved the case against accused/appellants for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act. In fact, the Trial Court has not at all bestowed its attention towards rule 21 of the Karnataka Excise Rules nor it has considered the interested testimony of the investigating agency in proper perspective. Therefore, in my opinion, the benefit of doubt has to be given in favour of the appellants. Hence, I have no hesitation to set aside the judgment of conviction and sentence passed by the Trial Court against the appellants for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act.

Hence, I pass the following:

ORDER

The appeal is allowed. Consequently, the judgment of conviction and sentence passed in S.C. No. 299/2009 by the I-Additional Sessions Judge at Gulbarga, dated 12.05.2010 is hereby set aside. Consequently, accused/appellants are acquitted for the above said offences.

If any amount is already deposited by virtue of the order of the Trial Court, the same is ordered to be refunded to the appellants. The bail bonds and surety bonds of the appellants and sureties are hereby cancelled.