- 1 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100067 OF 2017 (397(Cr.PC)/438(BNSS)) BETWEEN: SHRI BHIMASHI S/O. SATYAPPA VADDARYAI, AGE: 50 YEARS, OCC. AGRICULTURE, R/O. BASAPUR, TALUK: HUKKERI, DISTRICT: BELAGAVI. …PETITIONER (BY SRI H.M. DHARIGOND, ADVOCATE) AND: THE STATE OF KARNATAKA, REPRESENTED BY HUKKERI POLICE STATION, HUKKERI, DISTRICT: BELAGAVI. …RESPONDENT (BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 19.11.2014 PASSED IN CRIMINAL CASE NO. 352 OF 2013 IN OFFENCES UNDER SECTION 11, 14 READ WITH SECTION 32 OF KARNATAKA EXCISE ACT, PASSED BY THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUKKERI AT HUKKERI AND JUDGMENT DATED 23.12.2016 PASSED IN CRIMINAL APPEAL NO.154 OF 2014 IN OFFENCES UNDER SECTIONS 11, 14 READ WITH SECTION 32 OF KARNATAKA EXCISE ACT PASSED BY THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKODI. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.03.11 11:04:00 +0530 - 2 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Sri.H.M.Dharigond, learned counsel for the revision petitioner and Sri.Preveen B. Devareddyavar, learned High Court Government Pleader for respondent- State. 2. Revision petition is filed by the accused who suffered an order of conviction for the offence punishable under Sections 11, 13, 14 read with Section 32 of the Karnataka Excise Act, in C.C.No.352/2013 which was confirmed in Crl.A.No.154/2014 by considered judgment dated 23.01.2016. 3. Facts in the nut shell which are utmost necessary for disposal of the revision petition are as under: 3.1 On 09.01.2013 at about 12.00 noon in Bassapur bus-stop, revision petitioner said to have been - 3 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 found carrying a plastic can containing illicit liquor. He was in the process of transporting the same to be sold to the general public. 3.2 Upon receipt of the credible information in this regard, a raid team came to be formed comprising of head of the raid party, two independent panchas, sub-staff of the head of the raid party belonging to the Excise Department. As per the credible information, when they apprehended the petitioner and contents of the plastic Can was questioned, there was no proper explanation offered by the accused. Therefore, forcibly the contents of the Can were examined by the raid party, where under, they found that contents of the plastic Can was illicit liquor and which was measuring about 5 liters. Sample was drawn from the same collected in a separate battle, sealed and seized. Since the accused did not possess any valid license to carry 5 liters of liquor and it was treated as illicit liquor and same was also seized. A panchanama was drafted in - 4 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 that regard on the spot. About the incident, a report came to be filed. 3.3 Based on the report, a case to be registered for the offences punishable under Sections 11, 13 and 14 read with section 32 of the Karnataka Excise Act. Apprehended person was taken to the custody by head of the raid party was then arrested and sent to judicial custody. Seized material objects were sought to be retained by the investigation agency for the purpose of investigation. 3.4 After completing the investigation, interalia obtaining FSL report, which confirms that presence of alcohol in seized sample, charge sheet came to be filed by the investigation agency. 4. Learned magistrate took cognizance of the aforesaid offences and secured the presence of the accused and framed the charges. 5. Accused pleaded not guilty. Therefore, trial was held. - 5 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 6. In order to bring home the guilt of the accused, prosecution in all examined 6 witnesses as PW.1 to PW.6 comprising of head of the raid party, panch witnesses, sub staff, officer from the Forensic Science Laboratory and Investigation Officer. As many as 7 documents were placed on record, which were marked as Ex.P.1 to P.7 comprising the spot mahazar, complaint, FIR, sample sheet, FSL report, report of PW-1. Sample bottle which was drawn from the seized illicit liquor was marked as M.O.1. 7. On conclusion of recording of evidence, learned trial magistrate proceeded to record the statement of the accused as is contemplated under Section 313 of the Cr.P.C., wherein accused has denied all the incriminating materials, but did not choose to place his version on record in writing as is contemplated under Section 313(4) of the Cr.P.C., nor placed any defence evidence. 8. Thereafter, learned trial magistrate heard the arguments of the parties in detail and on cumulative - 6 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 analysis of the material on record, convicted the accused and sentence as referred to supra. 9. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.154/2016. 10. Learned judge in the first appellate court after securing the records from the trial court, heard the arguments of the parties in detail in light of the appeal grounds and on reappreciation of the material evidence placed on record, dismissed the appeal of the accused by judgment dated 23.12.2016. 11. Being further aggrieved by the same, accused is before this court in this revision petition. 12. Sri.H.M.Dharigond, learned counsel representing the revision petitioner, vehemently contended that both the courts have not properly appreciated the material evidence on record and wrongly - 7 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 convicted the accused resulting in miscarriage of justice and sought for allowing revision petition. 13. He would further contend that head of the raid party knowing fully well that there was a person who was about to transport illicit liquor did not choose to register the FIR nor obtained necessary search warrant from the jurisdictional magistrate and proceeded directly to the spot resulting in procedural lapses and therefore, the order of the conviction is incorrect. 14. In support of his arguments, he placed reliance on the order passed in Crl.P.No.793/2022 dated 14.03.2022. Relevant portion of the said order is in paragraph 21 which has been culled out hereunder for ready reference: “21. In view of non following the procedure laid down under Section 53 and 54 of the Karnataka Excise Act, whole investigation is vitiated. No reasons are assigned by the Investigating Officer as to why the procedure laid down under law was not following before proceeding for investigation. Infact, no crime was registered after receiving the information regarding commission of offence. Therefore, - 8 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 investigation appears to have done before registration of the crime that is also a serious error committed by the trial Court. When the Investigating Officer proceeds with the investigation without obtaining any search warrant or seizure warrant from the Magistrate, corroboration by independent witness is necessary. In this case, pancha witnesses have not supported the case of the prosecution. No witness examined for having purchased noxious drink from the accused. Therefore, I find that the accused cannot be convicted for the above said offences. Hence, point No.1 answered in the affirmative and point No.2 answered in the negative. Hence, I proceed to pass the following: ORDER The appeal filed by the appellant-accused against the judgment of conviction and sentence dated, 18.06.2010 passed by the Presiding Officer, Fast Track and Additional Sessions Judge, Hukkeri at Hukkeri sitting at Gokak in Sessions Case No.35/2010 for the offence punishable under Section 34 of Karnataka Excise Act and for the offence punishable under Section 273 of IPC is allowed. The conviction and sentence imposed for the above offences is hereby set aside. The accused is acquitted of all the offences alleged against him. Fine amount if deposited by the accused shall be refunded to him." 5. The aforesaid position of law is not disputed by the learned High Court Government Pleader appearing for the respondents - State. 6. In the light of the judgments rendered (supra), I deem it appropriate to obliterate the proceedings against the petitioner for the - 9 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 same reasons as is rendered by the Co- ordinate Benches of this Court. 7. For the aforesaid reasons, I pass the following: ORDER (i) The criminal petition is allowed. (ii) The proceedings in C.C.No.27075/2020 pending on the file of the Metropolitan Magistrate Traffic Court -1, Bengaluru, stands quashed qua the petitioner.” 15. He would further contend that in the event this Court upholding the order of conviction, since the revision petitioner is a first time offender, he may be granted the benefit of the probation and sought for allowing revision petition. 16. Sri.Praveena Devareddiyavar, learned High Court Government Pleader for respondent-State supports the impugned orders. He would further contend that P.W.1 is a total stranger to the accused and she did not nurture any previous enmity or animosity as against the petitioner to falsely implicate the petitioner in the incident. - 10 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 17. He further contend that panch witnesses and other sub staff having supported the case of the prosecution makes it clear that illicit liquor was seized in the presence of panch witnesses and 5 liters of illicit liquor was seized and the sample drawn from the seized illicit liquor would get established that it is the illicit liquor as per FSL report marked at Ex.P.6 and sought for dismissal of revision petition. 18. Sri.Praveena Devareddiyavar, also contended that learned trial magistrate and learned judge in the first appellate court have rightly appreciated the material evidence on record and granted the minimum punishment for the proved offence and therefore, alternate submission of petitioner cannot be countenanced in law. 19. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration: - 11 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 i. Whether revision petitioner makes out the case that the impugned judgments are suffering from legal infirmities, perversity or patent factual error so as to interfere in the revisional jurisdiction? ii. Whether the sentence is excessive? iii. What order? REGARDING POINT Nos.1 and 2: 20. In the case on hand, P.W.1 after receipt of the credible information formed the raid team comprising of official, two independent panch witnesses, sub staff and proceeded to the place of the incident. 21. As per the information, they spotted the suspicious person, who was carrying a plastic Can. On apprehending him, enquiry was made. But there was no proper explanation offered by said person. On further inquiry, he revealed his name as Bhimashi Satteppa Vaddarayi, on opening the Can, head of the raid party found liquor in the Can and sample was drawn measuring 180 ML which was separately sealed and seized. - 12 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 22. On further enquiry accused submitted that he has no license to possess the liquor not to transport the same. Accordingly, the liquor was seized and accused was taken into custody. About incident panchanama was drawn and report came to be filed with the Hukkeri Police Station. Based on the report and the panchanama, Hukkeri Police registered a case and thereafter, investigated the matter and filed charge sheet. 23. As could be seen from the material evidence on record, prosecution has placed sufficient oral and documentary evidence on record to establish his case. Witnesses have withstood the searching cross examination. 24. Therefore, ingredients to attract the offences alleged against the accused stands established by placing cogent and convincing evidence on record. In the absence of any previous enmity or animosity why would P.W.1 proceed to foist a false case against the accused is a question that remains unanswered on behalf of the - 13 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 accused. No explanation whatsoever is forth coming in the accused statement as well. 25. Now coming to the question of non registration of the FIR and non obtaining the search warrant in the light of the principles of law enunciated in Crl.P.No.793/2020 refer to supra is concerned, protocol in a matter of this nature would not warrant pre-registration of the FIR. Secondly, if the incident has taken place in the bus-stop, which a public place. As such, no search warrant was either necessary for the head of the raid party. 26. Therefore, the arguments on behalf of the revision petitioner cannot be countenanced in law in terming the impugned judgment as suffering from legal infirmities, perversities or the patent factual error. Accordingly, the conviction order needs no interference. 27. Learned trial judge has passed the order of sentence granting minimum imprisonment and minimum fine for the proved offence. - 14 - NC: 2025:KHC-D:4343 CRL.RP No. 100067 of 2017 28. Therefore, the alternate submission made on behalf of revision petitioner to grant probation by enhancing the fine amount cannot be countenanced in law. Accordingly, point Nos.1 and 2 are answered in the negative. REGARDING POINT NO.3: 29. In view of the findings of this Court on points No.1 and 2 as above, the following order is passed. ORDER i. The revision petition is meritless and hereby dismissed. ii. Time is granted for the revision petitioner to surrender before the trial Court for serving the remaining part of the sentence till 30.03.2025. SD/- (V.SRISHANANDA) JUDGE AC CT:PA/List No.: 2 Sl No.: 41