- 1 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 682 OF 2017 BETWEEN: 1. CHINNASWAMY S/O LATE BADHYANAYAK AGED ABOUT 39 YEARS, R/AT GUNDAPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT-571 440. …PETITIONER (BY SRI. MANJUNATH N.D., ADVOCATE -THROUGH V.C) AND: 1. STATE OF KARNATAKA THROUGH SPECIAL P.S. EXCISE ENFORCEMENT AND LOTTERY PROHIBITION WING CHAMARAJNAGAR DISTRICT-571 440 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU - 01. …RESPONDENT (BY SRI. M. DIVAKAR MADDUR, HCGP) THIS CRL.RP IS FILED UNDER SECTIONS 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 08.06.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR IN CRL.A.NO.7/2015 AND ORDER AND CONVICTION DATED 20.01.2015 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, KOLLEGALA IN C.C.NO.831/2010. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3034 CRL.RP No. 682 of 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 learned counsel for petitioner and learned HCGP for the respondent-State. 2. This criminal revision petition is filed against the conviction order passed by the Trial Court for the offence punishable under Sections 32, 34 and 43 of the Karnataka Excise Act R/w. Section 272 and 273 of IPC. 3. The factual matrix of the case of the prosecution is that on credible information, conducted raid on 06.10.2010, at about 12.30 p.m. wherein the accused had unlawfully manufactured and possessed illicit liquor and immediately, the complainant along with his staff and panchas went to the house of the accused and they arrested the accused and thereafter, they searched the house, wherein they found out 10 liters of illicit liquir, 5 pots of kole, 2 steel vessels and 5 kgs. of raw material to manufacture the illicit liquor. Out of the raw material, samples are seized and mahazar was conducted and initiated the proceedings and filed the charge sheet. - 3 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 4. The prosecution in all examined five witnesses as P.Ws.1 to 5 and got marked the documents as Exs.P1 to P9(a) and sample bottles as M.Os.1 and 2. On the other hand, the accused was examined under Section 313 of Cr.P.C. and he has not lead any defence evidence. The Trial Court having perused the evidence of P.Ws.1 to 5 and though the panch witnesses only relied upon the evidence of P.Ws.1 to 4 and conducted the seizure, the prosecution has proved the case for the offence against the accused and sentenced the accused for one year in respect of offence under Sections 32 and 34 of the Karnataka Excise Act and imposed fine of Rs.10,000/- each and to undergo imprisonment of one month each for the offence under Sections 272 and 273 of IPC and fine of Rs.500/-. 5. Being aggrieved by the said order, an appeal is filed before the First Appellate Court by the petitioner and the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment in coming to the conclusion that prosecution has made out the case and also taken note of presumption under Section 40 of the Karnataka Excise Act and mainly relied upon - 4 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 the evidence of P.Ws.1 and 4. Being aggrieved by the conviction and sentence and also confirmation by the First Appellate Court, the present revision petition is filed before this Court. 6. The main contention of the learned counsel for the petitioner is that both the Courts completely erred in believing the evidence of complainant and discarded the case of the revision petitioner. The admissions which have been given by P.W.4 has not been taken note while appreciating the evidence on record. P.Ws.1 and 4 are the raiding parties and while considering their evidence, the Court has to consider the evidence meticulously. The evidence of P.Ws.1 and 4 clearly disclose that P.W.4 conducted raid along with P.W.1, panchas i.e., P.Ws.2 and 3 and other officials and found that one plastic can was there in a cement tank near the house of the accused. Though P.Ws.1 and 4 were cross-examined in length, nothing worth was elicited in their mouth to disbelieve their version. Learned counsel for the petitioner vehemently urged that P.W.4 is the complainant as well as I.O. and he himself conducted investigation after raiding the house of the accused and therefore, his evidence cannot be relied upon. It is also - 5 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 contended that though panch witnesses P.Ws.2 and 3 turned hostile, believed the case of the prosecution and confirmed the impugned order observing that it does not suffer from its legality and correctness. 7. Per contra, learned HCGP for the respondent-State would contend that witnesses P.Ws.1 to 4 are raiding parties and their evidence is very clear that raid was conducted and seized M.O.1 and also evidence of P.W.5, Chemical Examiner supports the case of the prosecution. Hence, the Trial Court rightly convicted the petitioner and the First Appellate Court confirmed the order of the Trial Court having reassessed the material on record and drawing presumption under Section 40 of the Karnataka Excise Act, the First Appellate Court comes to the conclusion that Trial Court has not committed any error, particularly considering the evidence of P.Ws.1 to 5. Hence, it does not require interference of this Court. 8. Having heard learned counsel for the petitioner and learned HCGP for the respondent-State and also considering the material on record, the points that would arise for consideration of this Court are: - 6 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 (i) Whether both the Courts committed an error in appreciating the evidence and whether finding is perverse and the order suffers from its legality and correctness and whether this Court can exercise revisional jurisdiction? (ii) What order? Point No.(i) 9. Having heard learned counsel for the petitioner and learned HCGP and also considering the factual aspects of the case, the prosecution case is that on 06.10.2010 at about 12.30 p.m., they have conducted raid on the basis of credible information and found illicit liquor in the possession of the accused to sell the same which was not fit for human consumption and also found 5 pots of kole which was seized and mahazar was conducted and drawn the samples from the raw material in the presence of panchas. Having perused the records, panch witnesses who have been examined as P.Ws.2 and 3 have turned hostile with regard to seizure of M.Os. in terms of M.Os. Though signature of P.W.1(b) is marked, he has completely turned hostile and also during the cross- examination of P.Ws.2 and 3, nothing is elicited and the evidence which only remains is P.Ws.1 and 4. Admittedly, - 7 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 P.W.1 is a raiding party and though he speaks about the raid, but in the cross-examination, he categorically says that he does not know the survey number, but says that accused was at the spot, but not found any other object for weighing the illicit liquor and the panch witnesses are not local persons and only he claims that they were standing near the spot. On perusal of evidence of P.W.4, who is also a raiding party and also investigator, though he deposes that raid was conducted on credible information and seized M.Os.1 and 2, mahazar was drawn and in the cross-examination, he categorically admits that he is the complainant as well as the Investigating Officer. But, he claims that the accused was residing in the said house, but in the mahazar he says that the same belongs to Chinnaswamy and also categorically admits that he did not collect any document to show that the said house and property belongs to accused from the Panchayath Secretary. But, he claims that description of the property was given by the panchas. He also admits that the panchas are not localites, but claims that description was given by the accused and that nothing is mentioned in the mahazar whether the said illicit liquor was prepared and also no articles were seized at the - 8 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 instance of the accused to measure the liquor which was in his possession. He also categorically admits that in Ex.P1, nothing is mentioned as to at what time, the same was prepared and also the measurement and even survey number is also not mentioned. 10. Having taken note of evidence of P.Ws.1 and 3, who are star witnesses to the prosecution, very seizure itself is doubtful and no articles are seized for measuring the liquor to show that the same contains 10 litres as alleged and no scale was used for measuring the same. There is a clear admission on the part of P.W.4, who categorically admits that he did not collect any documents that house belongs to accused even from the Panchayath Secretary. The prosecution relied upon the evidence of P.W.5, who conducted chemical examination. He also categorically admits in the cross-examination that he did not mention on what basis, he examined the seized articles, which was sent to him and also did not mention anything about what are the objects used for preparing alcohol and the same is not mentioned in the report. Even inspite of this admission of P.W.5, the Trial Court committed an error in accepting the evidence of P.Ws.1 and 4. - 9 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 11. No doubt, law is settled that even if police officials are the only witnesses, the Court cannot discard the evidence of State witness, but the evidence of State witness must be credible while accepting the same and the very evidence of P.Ws.1 and 5 contradicts to each other and nothing is placed on record to prove that house belongs to accused. Even, the survey number details are also not collected by the Investigating Officer, whether it belongs to the accused and very seizure itself is doubtful and independent witness have also not supported the case, who have been examined as P.Ws.3 and 4. When such being the case, the very contention of the Trial Court is erroneous and without any credible evidence available on record, the petitioner has been convicted for the offence punishable under Sections 32 and 34 of the Karnataka Excise Act. In the absence of credible evidence available on record before the Court in the case on for criminal prosecution, the Court cannot convict the accused and benefit of doubt goes in favour of the accused and in the absence of any cogent evidence, the order impugned requires to be set aside. Even though First Appellate Court reassessed the material on record, drawn the presumption under Section 40 of - 10 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 Karnataka Excise Act and before drawing the presumption, the Court has to take note of the very seizure and very seizure itself is doubtful. P.Ws.2 and 3 have not supported the case of the prosecution and only relied upon the evidence of P.Ws.1 and 4, who are the raiding parties and when the seizure itself is doubtful, the evidence of P.Ws.1 and 4 cannot be believed. Hence, the First Appellate Court also ought not to have confirmed the judgment of the Trial Court and both the order of the Trial Court and the confirmation made by the First Appellate Court suffers from its legality and correctness. Therefore, I answer point No.(i) as affirmative. Point No.(ii) In view of the discussion made above, I pass the following: ORDER (i) The criminal revision petition is allowed. (ii) The impugned judgment of conviction and sentence is set aside and consequently, the order passed by the First Appellate Court confirming the order of the Trial Court and sentence is set aside and accused is acquitted for the offence punishable under Sections - 11 - NC: 2025:KHC:3034 CRL.RP No. 682 of 2017 32, 34 and 43 of the Karnataka Excise Act read with Sections 272 and 273 of IPC. (iii) The bail bond executed by the petitioner is cancelled and the Trial Court is directed to refund the fine amount, if any deposited in favour of the petitioner on proper identification. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 79