- 1 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO.495 OF 2018 BETWEEN: SRI KUMARA AGED 36 YEARS S/O RANGAIAH R/A AMBEDKAR EXTENSION CHAMARAJANAGARA TOWN CHAMARAJANAGARA DISTRICT – 571 313. …PETITIONER (BY SRI. M KRISHNAPPA, ADVOCATE) AND: STATE BY TOWN POLICE STATION CHAMARAJANAGARA CHAMARAJANAGARA DISTRICT REP BY STATE PUBLIC PROSECUTOR – 571 313. …RESPONDENT (BY SRI. K NAGESHWARAPPA, HCGP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 11.04.2018 PASSED IN CRL.A.NO.31/2012 BY THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA), DISMISING THE APPEAL AND CONFIRMING THE JUDGMENT, CONVICTION AND SENTENCE DATED 24.05.2012 PASSED IN C.C.NO.699/2008 BY THE COURT OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHAMARAJANAGARA, FOR THE OFFENCE P/U/S 34 OF THE KARNATAKA EXCISE ACT AND ETC., THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 CORAM: HON'BLE MR JUSTICE S RACHAIAH ORAL ORDER 1. This revision petition is filed by the petitioner / accused being aggrieved by the judgment of conviction and order on sentence dated 24.05.2012 passed in C.C. No.699/2008 on the file of the Principal Civil Judge and J.M.F.C., Chamarajanagar, and its confirmation judgment and order dated 11.04.2018 passed in Crl.A No.31/2012 on the file of the Additional District and Sessions Judge, Chamarajanagara (Sitting at Kollegala), has filed this revision petition seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused was convicted for the offence punishable under Section 34 of Karnataka Excise Act (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of two years with fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of two months. 2. The ranks of the parties in the Trial Court will be considered henceforth for convenience. - 3 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 Brief facts of the case: 3. It is the case of the prosecution that the respondent - police have filed charge sheet against the petitioner alleging that on 24.08.2008 at about 10.00 a.m., at Ambedkar Extension, Chamarajanagara, the petitioner was found selling toddy in front of his house, without having any permission or license and also in spite of prohibition of selling or manufacturing the toddy etc., 4. The prosecution in order to prove its case, examined four witnesses as PWs.1 to 4 and got marked seven documents as Exs.P1 to P7 and identified one plastic sample bottle as M.O.1. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offence stated supra. On appeal being filed, the Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Hence, this revision petition. 5. Heard Sri M. Krishnappa, learned counsel for the petitioner and Sri K. Nageshwarappa, learned High Court Government Pleader for the respondent – State. - 4 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 6. It is the submission of the learned counsel for the petitioner that the Trial Court and the Appellate Court have failed to notice that the panch witnesses, who were examined as PWs.2 and 3, were the police stock witnesses. Though, they have supported the case, the fact remains that they are the interested witnesses like the police officials. In such circumstances, both the Courts have to scrutinize their evidence properly before rendering the conviction. Having not considered the evidence properly, resulted in passing the impugned judgments which are required to be set aside. Making such submissions, learned counsel for the petitioner pays to allow the revision petition. 7. Per contra, learned High Court Government Pleader justified the concurrent findings passed by the Courts below. He submitted that the officials have rightly received the information regarding the sale of toddy by the accused and seized all the items and the same has not been disputed even by the accused. Merely because, all the witnesses are official witnesses, that itself is not a ground to discredit their evidence. The evidence of official - 5 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 witnesses if reliable and relevant, conviction has to be rendered in such circumstances. Likewise, the Trial Court and the Appellate Court rightly held that the accused found guilty of the offence punishable under Section 34 of the Act. Hence, it is not proper to interfere with the said findings. Making such submissions, learned High Court Government Pleader prays to dismiss the revision petition. 8. Having heard learned counsel for the respective parties and also perused the findings of the Courts below, the Trial Court relied on seven documents under which Ex.P6 is the complaint and Ex.P1 is the mahazar. These two documents are relevant for consideration before adverting to the evidence of the witnesses. 9. Ex.P6 is the complaint filed before the learned Magistrate on 24.08.2008. It appears from the record that the same has been received by the Magistrate on 24.05.2008. In the said complaint, it is stated that the police officials had conducted the search and seizure without informing the learned Magistrate and seized the items said to be used - 6 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 by the accused and also arrested him, thereafter, they registered the case. 10. It is needless to say that, before conducting the search and seizure, it was the duty of the officials to obtain the permission from the Magistrate, which was required to be followed under the provisions of Section 53 of Karnataka Excise Act. In case, if the officials were unable to obtain such permission from the Magistrate, after conducting search and seizure of the materials or liquor, they may inform the Jurisdictional Magistrate by stating the reasons for not having obtained the permission before conducting the search and seizure. The same has been contemplated under Section 54 of the Karnataka Excise Act. 11. On reading of the entire records, the officials / respondent - police have not complied with these two provisions. The said legal aspects which are required to be followed by the respondent - police. However, the Investigating Officers without following the procedure as contemplated under Sections 53 and 54 of the Karnataka Excise Act, conducted investigation and submitted charge - 7 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 sheet, the said search and seizure held to be illegal and unsustainable. Such being the facts, rendering the conviction on such illegal search and seizure cannot be sustained. In such a way, it can be held that the concurrent findings of the Courts below are not proper and erroneous. Thus, the concurrent findings are liable to be set aside. 12. In the light of the observations made above, I proceed to pass the following:- ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction and order on sentence dated 24.05.2012 in C.C.No.699/2008 on the file of the Principal Civil Judge and JMFC, Chamarajanagar and its confirmation judgment and order dated 11.04.2018 in Crl.A.No.31/2012 on the file of the Additional District and Sessions Judge, Chamarajanagara (Sitting at Kollegala), are set aside. - 8 - NC: 2025:KHC:8243 CRL.RP No. 495 of 2018 (iii) The petitioner is acquitted for the offence punishable under Section 34 of the Karnataka Excise Act. (iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE Bss List No.: 1 Sl No.: 41