- 1 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.170 OF 2021 BETWEEN: 1. SRI. MANJUNATHA, S/O LATE MUNIYAPPA, AGE ABOUT 48 YEARS, R/O KAMALAVARIPALLI VILLAGE, THADIGOAL PANCHAYATH, SRINIVASAPURA TALUK, KOLAR DISTRICT. …PETITIONER (BY SRI. SURYA NATARAJ SHARMA, ADVOCATE) AND: 1. STATE OF KARNATAKA, BY SUB-INSPECTOR, EXCISE POLICE, SRINIVASAPURA EXTENSION, SRINIVASAPURA, KOLAR DISTRICT, REPRESENTED BY GOVT. PLEADER, HIGH COURT BUILDING, BENGALURU - 560 001. …RESPONDENT (BY SMT. PUSHPALATHA B., ADDL. SPP) THIS CRL.RP IS FILED UNDER SECTION 397(1) R/W 401 OF THE CR.PC PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION AND SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC, SRINIVASAPURA, PASSED IN C.C.NO.62/2017 DATED 30.07.2020 CONVICTING THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 32 AND 38A OF KARNATAKA EXCISE ACT BY ALLOWING THE ABOVE REVISION PETITION AND PLEASED TO ACQUIT THE PETITIONER IN THE Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 ABOVE CASE AND TO SET ASIDE THE JUDGMENT AND ORDER OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR PASSED IN CRL.A.NO.28/2020 CONFIRMING THE LOWER COURT JUDGMENT OF C.C.NO.62/2017. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard the learned counsel for the petitioner and the learned Additional SPP appearing for the respondent State. 2. The factual matrix of the case of the prosecution is that on 24.08.2016 at about 7.00 p.m., based on the credible information of selling of liquor without any permission in the shop by the accused, the complainant went and conducted the raid and found 180 ml. of 7 Hayward tetra packets of Cheers Whiskey and 90 ml. of 13 Hayward tetra packets of Cheers Whiskey, totally to an extent of 2.430 liters and mahazar was drawn and seized the same in the presence of the panch witnesses. The case was registered, investigated the matter and filed the charge-sheet invoking the offences punishable under Sections 32 and 38A of the Karnataka Excise Act (‘the Act’ for short). The cognizance was taken and the accused was secured and he did not plead guilty and hence the prosecution relied upon the evidence of P.W.1 to P.W.5 and got marked the - 3 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 documents at Exs.P.1 to 8. The accused was subjected to 313 statement and not led any defence evidence. M.O.1 and M.O.2 were marked. The Trial Court having considered the evidence of P.W.1 to P.W.5 comes to the conclusion that the prosecution has proved the case against the petitioner and convicted him for the offences punishable under Sections 32 and 38A of the Act and imposed rigorous imprisonment of 1 year 6 months with fine of Rs.10,000/- and in default, five months imprisonment was imposed for the offence punishable under Section 32 of the Act and in respect of Section 38A of the Act, rigorous imprisonment for one year with fine of Rs.10,000/- and in case of default, three months imprisonment was imposed. 3. Being aggrieved by the said conviction and sentence, an appeal was filed in Criminal Appeal No.28/2020 and the Appellate Court on re-assessing both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court considering the evidence of P.W.2 to P.W.5 official witnesses, who have deposed in consonance of official rounds at about 5.30 p.m. near the Tadigoal Cross and drawing the mahazar and accepting the evidence of P.W.2 to P.W.5, the Appellate Court confirmed the judgment of the Trial Court. - 4 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 4. Being aggrieved by the conviction and sentence and confirmation, the present revision petition is filed before this Court. 5. The learned counsel for the petitioner would vehemently contend that both the Courts have committed an error in appreciating the evidence on record and perversity is found in the findings, since there are contra evidence in the evidence of P.W.2 to P.W.5 and P.W.1 though he is an independent witness, he has not supported the case of the prosecution. The learned counsel contend that P.W.2 says that when he was on official rounds at 5.30 p.m. on the date of the incident, he had participated in the raid. According to P.W.2, credible information was received at 5.30 p.m., but raid was conducted at 7.00 p.m. P.W.2 to P.W.5 are the Government officials and their evidence has been accepted and both the Courts ought to have meticulously analyzed the evidence when P.W.2 to P.W.5 are the official witnesses and also the raiding parties and the same has not been done and not properly appreciated the same. The learned counsel contend that Ex.P.8 also cannot be accepted as what quantum was sent for chemical examination is not stated and author of the document is not examined before the Trial Court. The learned counsel contend - 5 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 that Section 54 of the Act has not been complied with. In support of his arguments, the learned counsel relied upon the orders passed by this Court in Crl.P.No.7033/2022 dated 24.01.2024 and Crl.P.No.3398/2024 dated 10.01.2025, wherein discussion was made with regard to the compliance of Section 54 of the Act. 6. Per contra, the learned Additional SPP appearing for the respondent State would contend that document Ex.P.7 is very clear that they could not get the search warrant, but reason was assigned for having conducted the search since credible information was received only at 6.30 p.m. and raid was conducted at 7.00 p.m. and reason has been recorded and the same was also intimated to the Court. Apart from that, the learned counsel contend that the evidence of P.W.2 to P.W.5 is consistent and hence both the Courts have not committed any error and hence it does not require interference of this Court. 7. Having heard the learned counsel for the petitioner and the learned Additional SPP appearing for the respondent State and also considering the principles laid down in the judgments referred supra and also the material on record, the points that arise for the consideration of this Court are: - 6 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 (i) Whether the Trial Court has committed an error in convicting and sentencing the petitioner and whether the Appellate Court has committed an error in confirming the same and whether it requires interference of this Court by exercising the revisional jurisdiction? (ii) What order? Point No.(i): 8. Having heard the learned counsel for the respective parties, it is not in dispute with regard to compliance of Section 54 of the Act is concerned. This Court in Crl.P.No.7033/2022 in paragraph No.8 discussed with regard to compliance of Section 54 of the Act, wherein it is categorically stated that when the respondent seizing the liquors without obtaining the warrant or not recording the reasons under Section 54 of the Excise Act, seizing the articles and thereafter registering the FIR amounts to an investigation commenced prior to registering the FIR which is mandatory in Cr.P.C. In Crl.P.No.3398/2024, this Court has taken note of the judgment of the Apex Court in the case of K.L. SUBBAYYA v. STATE OF KARNATAKA reported in (1979) 2 SCC 115, wherein in paragraph No.4 of the said judgment of the Apex Court an observation is made that this, therefore, renders the entire search without jurisdiction and, as a logical - 7 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. In paragraph No.16 of the same order it is discussed with regard to on perusing of the above said authority, it is crystal clear that Section 54 of the Act has to be complied. The warrant for search and seizure should be obtained for the offences under Sections 32, 33, 34, 36 and 37. It is only in the event of contingency, Section 54 provides for search and seizure by excise officials without warrant to prevent the offender escaping or concealing the evidence that may be found against the accused. Whatever the information that the Commissioner of Excise or Police Officer had received regarding the commission of offence punishable under Sections 32, 33, 34, 365 and 37 of the Act would be rendered without jurisdiction and vitiates conviction. 9. Having considered the judgment of this Court and the Apex Court referred supra, it is clear that if warrant is not obtained, reasons has to be assigned in compliance of Section 54 of the Act. Having perused Ex.P.7, it is clear that credible information was received at 6.30 p.m. and raid was conducted at 7.00 p.m. and reason also assigned for conducting the search - 8 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 without obtaining the warrant that there are chances of escaping and hence the very contention of the learned counsel for the petitioner that there is no compliance of Section 54 of the Act cannot be accepted since reason was given by the Investigating Officer and the same is also intimated to the Court after conducting of search. Hence, these two judgments will not come to the aid of the petitioner. 10. Now coming to the aspect of merits of the case is concerned, it is the case of the prosecution that they have received the credible information and P.W.5 is the Excise Inspector who conducted the raid on credible information. Having considered his evidence, he says that immediately after receiving the credible information, he called the panch witnesses and the panch witnesses gave consent to become witnesses for seizure and thereafter all of them went to the spot and seized the same. The evidence of P.W.5 is that on credible information he has secured the panch witnesses and went along with the panch witnesses. 11. P.W.2 who is also a raiding party, in his cross- examination he says that except the raiding parties i.e., department employees, no other persons were there in the jeep - 9 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 and also he says that he was not having any credible information. But he says that he was on gust duty at 5.30 p.m. and distance between Gownipalli, where he was on gust duty and Tadigoal cross, is only 15 minutes and he is also a party to the raid, but his evidence is contrary to the evidence of P.W.5. P.W.5 says that he secured the panch witnesses and went along with the jeep. But P.W.2 says that only the staff belonging to the department were there in the vehicle. 12. The other witness P.W.3 is the raiding party and he says that independent witnesses did not support them and hence he himself and his staff called C.W.1 and C.W.2 and conducted the search. In the cross-examination he admits that C.W.1 to C.W.3 are also his co-staff. Hence, it is clear that they are not independent witnesses and his evidence is contrary to the evidence of P.W.5. P.W.3 says that independent witnesses have not cooperated and hence they called C.W.1 and C.W.2, who are their co-staff. Hence, it is clear that no independent witnesses were there. 13. P.W.4 is also a raiding party and at the time of evidence he was working as PDO. He says that at 6.30 p.m. he was on gust duty and conducted the search. He says that while - 10 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 taking the independent panch witnesses, they did not subject for their personal examination as to what they are having. The evidence of raiding party witnesses P.W.2 to P.W.5 is contrary to each other and the very Investigating Officer says that he has secured the panch witnesses, but P.W.3 says that independent witnesses have not given any consent and not cooperated and hence made C.W.1 and C.W.2 as panch witnesses and they are co-staff of the very same Department. P.W.1 is an independent witness, but he did not support the case of the prosecution. He says that his signature was taken on Ex.P.2. In the cross- examination he says that his signature was taken in the Excise Department. He says that he was near the tea shop at the time of conducting the mahazar and only on the call made by the police he went to the spot. Hence, it is clear that he did not accompany the raiding party and inconsistent evidence available before the Court was not taken note of by the Trial Court and the Appellate Court and both the Courts have lost sight of the answers elicited from the mouth of the witnesses. 14. It is settled law that the evidence of the official witnesses cannot be discarded, but there must be credible evidence before the Court. Having perused the evidence of these witnesses, there is no credible evidence and the evidence - 11 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 are contrary to each other. The Investigating Officer says that he secured the independent witnesses, but P.W.3 says that the independent witnesses did not support and hence made C.W.1 and C.W.2, who are co-staff of the raiding party, as witnesses for seizure. When such being the case, the very seizure itself is doubtful, since P.W.1 says that his signature was taken in Excise Department and not at the spot. All these contradictions were not considered by the Trial Court. The Court also cannot expect the mathematical niceties while considering the evidence on record. But here is a major contradiction in the evidence of P.W.2 to P.W.5 and seizure itself is doubtful, since the evidence given by P.W.2 to P.W.4 is contrary to the evidence of P.W.5. Hence, there is no legal finding by the Trial Court and the Appellate Court and the reasoning given by both the Courts is perverse and lost sight of the material contradictions in the evidence of P.W.2 to P.W.5. The order suffers from legal infirmities and the same is also not in conformity with its legality and correctness. Hence, I answer the point in the affirmative. Point No.(ii): 15. In view of the discussions made above, I pass the following: - 12 - NC: 2025:KHC:7737 CRL.RP No. 170 of 2021 ORDER (i) The criminal revision petition is allowed. (ii) The impugned judgment of conviction and sentence is set aside and consequently the confirmation order passed by the Appellate Court in the appeal is also set aside. (iii) The petitioner is acquitted for the offences punishable under Sections 32 and 38A of the Karnataka Excise Act. (iv) The amount in deposit, if any, is ordered to be released in favour of the petitioner, on proper identification. (v) The bail bond executed by the petitioner is cancelled. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 71