- 1 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 948 OF 2017 BETWEEN: 1. AMITHA ACHARI, AGE 31 YEARS BAGAMBILA GUDDE, BAGAMBILA SITE, NITYANANDA NAGARA, KOTEKAR VILLAGE MANGALURU TALUK – 574 227. 2. ASHOK D’SOUZA S/O LAWRENCE D’SOUZA BAGAMBILA SITE, KOTEKAR VILLAGE MANGALURU TALUK – 574 227. 3. IVAN D’SOUZA S/O LAWRENCE DSOUZA, AGE 40 YEARS, BAGAMBILA SITE, KOTKAR VILLAGE, MANGALURU TALUK …PETITIONERS (BY SRI. KARUNAKAR P, ADVOCATE) AND: THE STATE BY EXCISE SUB INSPECTOR ULLAL SUB DIVISION, REPRESENTED BY THE PUBLIC PROSECUTOR, D.K. MANGALURU, …RESPONDENT (BY SRI. K NAGESHWARAPPA, HCGP) THIS CRL.RP., FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 08.09.2006 PASSED BY THE J.M.F.C.(III COURT), MANGALURU, D.K. IN C.C.NO.1477/2005 AND JUDGMENT AND ORDER DATED 23.11.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.298/2006. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 20.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S RACHAIAH Digitally signed by NARAYANA UMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 CAV ORDER 1. This Revision Petition is filed by the petitioners being aggrieved by the judgment of conviction and order of sentence dated 08.09.2006 in CC No.1477/2005 on the file of the J.M.F.C (III Court) at Mangaluru, D.K and its confirmation judgment and order dated 23.11.2013 in Crl.A No.298/2006 on the file of II Additional District and Sessions Judge, Mangaluru, D.K, wherein the petitioner was convicted for the offences under Sections 14 r/w 34 of the Karnataka Excise Act, 1965 (for short ‘Act’). 2. The ranks of the parties would be considered henceforth as per their rankings in the Trial Court for convenience. 3. Heard Sri.Karunakar.P, learned counsel for petitioners and Sri.K.Nageshwarappa, learned High Court Government Pleader for the respondent. 4. It is the submission of the learned counsel for the petitioners that the prosecution has examined five - 3 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 witnesses. Out of those 5 witnesses, P.W.2 and 3 are the witnesses for the seizure mahazar. They have turned hostile. Though the official witnesses have supported the case of the prosecution, since they are the interested witnesses, their evidence ought not to have been considered for the purpose of rendering the conviction. 5. It is further submitted that the officials of the Department of Excise have not followed the procedure as required to be followed in the case of conducting the search and seizure as contemplated under Sections 53 and 54 of the Act, therefore, the alleged seizure would be rendered ineffective. These aspects should have been considered by the Trial Court and having failed to do so, resulted in passing the impugned judgment, which is required to be set aside. Making such submissions, the learned counsel for the petitioners prays to allow the petition 6. Per contra, the learned High Court Government Pleader for the respondent - State vehemently justified - 4 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 the concurrent findings and he further submitted that though the independent witnesses have turned hostile, the facts remains that illicit liquor was seized in the house of accused No.1 and the FSL report would also indicate that it was illicit liquor. 7. It is further submitted that merely because P.Ws.1, 3 and 5 are the official witnesses, their evidence cannot be discarded as they are consistent in their evidence that the accused Nos.1 to 3 were involving in preparing the illicit liquor. Therefore, the findings of the Trial Court in respect of the conviction of the petitioners need not be interfered with. Making such submissions, the learned High Court Government Pleader for the respondent - State prays to dismiss the petition. 8. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below, the facts emerge from the record that on 17.11.2003, the Sub Inspector of Excise had conducted a raid around 7.00 p.m., in the house of - 5 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 accused No.1. He said to have found 420 liters of illicit liquor which was filled in the 7 rubber tubes and it was kept under the firewood heap. 9. After he found the illicit liquor in the house of accused No.1, he arrested accused No.1. However, the other two accused stated to have fled away from the spot. On information received from accused No.1, he came to know that all the three persons were preparing the illicit liquor. Therefore, the samples of the said liquor were collected by him and sent for chemical examination. After conducting the proper investigation, submitted the charge sheet. 10. In this case, the prosecution examined 5 witnesses. Out of them, P.W.1 was working as Sub Inspector of Excise. P.W.3 was working as Excise Guard and P.W.5 was also working as Excise Guard. The rest of the two witnesses were independent witnesses, they did not support the case of the prosecution. 11. Be that as it may, on overall reading of the Exhibits produced in this case, there is no complaint lodged by - 6 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 the officials in respect of the incident. It is needless to say that before registering the case, they have conducted mahazar and seized the alleged illicit liquor and thereafter, submitted the charge sheet. 12. It is a settled principle of law that every FIR must follow the complaint. Complaint as defined under Section 154 of Cr.P.C. Under this provision, the complaint can also be known as an information given either orally or documentary. The FIR cannot be registered on the basis of mahazar drawn in respect of seizure of illicit liquor. In this case, the FIR was registered based on the mahazar report which is illegal and erroneous. Acting on such FIR and rendering the conviction would certainly be considered as an abuse of process of law. Therefore, the said conviction cannot be sustained. Both the Courts have committed error in arriving at a conclusion that the FIR should not have been filed on the strength of the mahazar report. - 7 - NC: 2025:KHC:8116 CRL.RP No. 948 of 2017 13. 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 and order dated 08.09.2006 passed in CC No.1477/2005 by J.M.F.C (III Court) at Mangaluru, D.K and the judgment and order dated 23.11.2013 passed in Crl.A No.298/2006 by the II Additional District and Sessions Judge, Mangaluru, D.K, are set aside. iii) The petitioner / accused Nos.1 to 3 are acquitted for the offences punishable under Sections 14 r/w 34 of the Karnataka Excise Act. iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE UN List No.: 1 Sl No.: 57