- 1 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100121 OF 2018 (397(CR.PC)/438(BNSS)) BETWEEN: 1. MAHANTESH @ MAHANTAPPA S/O. CHANDRASHEKHARAPPA CHATTER @ SHETTAR, AGE: 48 YEARS, OCC: PROPRIETOR OF AUTOMOBILE SPARE PARTS, AT PRESENT R/O: VINAYAK TEMPLE, SAJJAL SHRINIVAS,ILKAL-587125, TQ: HUNGUND, DIST: BAGALKOT. 2. YALLAPPA S/O BUDDAPPA VATKAL AGE: 41 YEARS, OCC: AGRICULTURE, AT PRESENT R/O: ALAMPUR-PETH,ILKAL-587125, TQ: HUNGUND, DIST: BAGALKOT. …PETITIONERS (BY SRI. A. M. GUNDAWADE ,ADVOCATE) AND: 1. STATE OF KARNATAKA THROUGH ILKAL POLICE STATION, REPRESENTED BY, STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD. …RESPONDENT (BY SMT. MALA BHUTE, ADDITIONAL GOVERNMENT ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO ALLOW REVISION PETITION, BY EXERCISING POWER UNDER SECTION 397 READ WITH SECTION 401 OF CODE OF CRIMINAL PROCEDURE 1937 BY CALLING PAPER EXAMINE LEGALITY AND PROPRIETY OF JUDGMENT PASSED IN CRIMINAL APPEAL 127/2013 DATED 23/01/2018 AND ETC. Digitally signed by SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE ORDER THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) This revision petition is directed against the judgment of conviction and order of sentence dated 29.11.2013 passed in C.C.No.306/2007 by the Additional Civil Judge and JMFC, Hunagund, (for short, ‘the Trial Court’) confirmed in Crl.A.No.127/2013 dated 23.01.2018 by the Principal District And Session Judge Bagalkot (for short, ‘the First Appellate Court). 2. Parties to this revision petition are referred to as per the rank before the Trial Court for convenience. 3. Brief and relevant facts as per the case of the prosecution are:- that the P.S.I. of Ilakal Police Station filed the charge sheet against accused Nos.1 and 2 for the offences punishable under Section 7-C1 (a)2 of Essential Commodities Act, 1955, on the ground that, on - 3 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 25.01.2006 he received a credible information regarding illegal transportation of kerosene on Hanamasagar-Ilakal road, near Shreenivas theatre. Therefore, along with his staff at 5:30 pm, he went near the said Shreenivas theatre. At that time, he noticed coming of a tanker bearing registration No.KA-25/3021. When the said vehicle was stopped and inspected, the driver of the said tanker ran away from the said place. One person who was in the cabin was apprehended. On inspection of the said vehicle, it is noticed that, tanker was found carrying 6,000 liters of kerosene without any permit, license or any document. Therefore, after confirmation that, it is kerosene, he extracted a liter of kerosene for the purpose of chemical examination in 3 bottles each and sealed and seized them and prepared the mahazar at the spot itself. Thereafter, filed a complaint before the S.H.O. and set the criminal law in motion. After thorough investigation, charge sheet was filed against the accused persons for the aforesaid offences. The jurisdictional Magistrate took the cognizance of the offence and presence of the accused was secured. - 4 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 They were enlarged on bail. Copies of the police papers were furnished to the accused persons as contemplated under Section 207 of Cr.P.C. After hearing both the sides, the learned trial Court framed the charges against the accused for the aforesaid offences. 4. To bring home the guilt of the accused, prosecution in all examined 6 witnesses from PWs.1 to 6 and got marked Exs.P1 to P4, the documents at MO.No.1 - three sample bottles sent for chemical examination. Closed prosecution evidence. 5. On closure of the prosecution evidence, the accused Nos.1 and 2 were questioned under Section 313 of Cr.P.C., so as to enable them to answer the incriminative circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence. The learned trial Court on hearing the arguments on assessment of the evidence, found the accused guilty for the aforesaid offence and sentenced them as under: - 5 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 “The accused No.1 and 2 are sentenced to undergo three months simple imprisonment each with fine of Rs.5,000/- each for the offence punishable under Section 7(a)A of E.C. Act, 1955. In default for payment of fine amount the accused No.1 and 2 shall undergo simple imprisonment for a period of 45 days each. The above sentences shall run concurrently.” 6. This judgment of conviction and order of sentence was challenged by accused Nos.1 and 2 before the First Appellate Court by filing Crl.A.No.127/2013. The First Appellate Court on hearing the arguments and on reassessment of the evidence passed the judgment on 23.01.2018 confirmed the judgment of conviction and order of sentence which was impugned. This is how now accused Nos.1 and 2 are before this Court challenging the judgments of the Courts below. - 6 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 7. Sri. A.M. Gundawade, the learned counsel appearing for the revision petitioners-accused, in addition to narrating the facts of the case as well as the grounds urged in the revision petition, with all vehemence, submits that in this case, the so called pancha to the seizure of the alleged 6000 liters of kerosene have been turned hostile. He submits that, there is a delay in sending the sample bottles of kerosene for the chemical analysis. The other witnesses are the official witnesses. Therefore, he submits that, the investigation is not done properly. The investigation officer has not collected the documents of the so called seized vehicle to show that it was really carrying the said kerosene of 6000 liters. He submits that in the absence of such an evidence placed on record by the prosecution, when no independent witnesses examined to available, it is fatal to the case of the prosecution. He would further submits that, for a period of 5 months where these sample bottles were kept and stored is also not explained by the prosecution. According to him, if all these factual features are put together, all is not well with the - 7 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 case of the prosecution. Therefore, he submits to allow the revision petition and acquit the accused by setting aside the impugned judgments of the Courts below. 8. As against this submission, Smt. Mala Bhute, the learned AGA with all vehemence submits that, the trial Court as well as the First Appellate Court have rightly concluded that this accused Nos.1 and 2, being the driver and inmate of the said vehicle are guilty of the offences for carrying the said kerosene without any permit. On enquiry, no document is produced by the accused persons to show their ownership or the licence to carry the said kerosene. When such documents are not placed on record before the I.O., he has seized the same, it is sufficient to prove that these accused are found transporting the said kerosene without any prior pass or permit. Though the panchas to the seizure have been turned hostile, but with regard to the seizure of the said kerosene, the police officials and the constables have supported the case of the prosecution. They were very much present when the - 8 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 seizure was conducted. Panchanama was prepared in the presence of the panchas. Therefore, according to her, there is no scope for any interference into the impugned judgments of the Courts below. In support of the submissions of both the side, both the counsels relied upon the various evidence, so also the inconsistencies alleged to have been brought on record in the cross examination. Thus, it is prayed by the learned AGA to dismiss the petition. 9. I have given my anxious consideration to the arguments of both the side. Perused the records. The points that would arise for my consideration are: (i) Whether the trial Court and the First Appellate Court have committed an illegality or infirmity in appreciating the evidence placed on record by the prosecution in finding the accused guilty of the aforesaid offences? - 9 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 (ii) If so, whether the judgment of conviction and order of sentence passed by the trial Court confirmed by the First Appellate Court requires any interference by this Court? 10. This case has been registered by the police under the provisions of the Essential Commodities Act, 1955. As per the provisions of this Act, this Act has been enacted empowering the parliament to enact this enactment under Article 369 of the Indian Constitution. The object of this Act is in the public interest such a transportation of the articles like cold, textile, iron, steel, foodstuffs, etc., should not be transported without any permit or licence. So to say it amounts to regulation of the transportation of such articles interstate to enable to have interstate trade and commerce in all the commodities. Now, it is alleged by the prosecution that these accused Nos.1 and 2 are found transporting the said 6000 liters of kerosene without any license or permit. Therefore, they - 10 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 are guilty of committing the said offences under Section 7 of the Essential Commodities Act. The learned AGA, Smt. Mala Bhute, submits that, there is a violation of Section 3 of the said Act by the accused persons. Therefore, as the witnesses have spoken truth before the Court about the seizure of the said kerosene without any loss of licence or permit, they are guilty of the offences. Therefore, according to the learned AGA, no fault can be found with the judgments of the Courts below. 11. As against this, Sri A.M. Gundawade, the learned counsel submits that though Section 3 speaks with regard to the conditions, but the investigation officer has not collected any of the documents to show that this vehicle was found transporting the said kerosene and no documents are collected by him to show that the accused Nos.1 and 2 are involved in the said offences. They never carried any such kerosene in the manner alleged by the prosecution. - 11 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 12. The prosecution much relies upon the evidence placed on record by the prosecution both oral and documentary. Amongst the oral evidence, PW.1 - Shankargouda Amargouda Jaralli is stated to a pancha to Ex.P1. He is an independent person, but has been turned hostile. As per his evidence, the police took his signature when he was in the bus stand. He states that, he has not invited to the scene of offence where the said vehicle was stopped and kerosene was seized. Though a severe cross examination is directed to him by the prosecution, but he has denied all these suggestions so directed to him. Therefore, important witness that is a pancha has not supported the case of the prosecution. 13. PW2 - S.C. Koulagi was a Head Constable at the relevant point of time. According to his evidence, on 25.01.2006 at the instructions of PSI, Hanamasagar Police Station, he accompanied him near the Shreenivas theater and started watching. At that time, the tanker came bearing registration No.KA25/3021 loaded with kerosene. - 12 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 On stopping the said tanker, the driver ran away from the said place. The inmate of this said tanker was one Mahantesh Chandrashekharappa Chatter and he told his name and informed that they are transporting the blue kerosene in the said tanker. Therefore, a panchanama was drawn and vehicle was brought to the police station and the case was registered. Further, he states that a sample bottles were taken containing the kerosene which are marked as M.O.No.1. When the said incident took place, it was about a 5:30 pm. He has been cross examined at length. As per the arguments in the complaint, at the spot itself, 3 bottles were used by the I.O. for the purpose of taking these samples and they were seized there itself. But, PW2 says that, they brought the vehicle to the police station and there, the sample bottles were prepared. In the cross examination, it is stated that, they were standing near the KEB office and watching. After 15 minutes of their watching, the said vehicle came. He admits that, near the scene of offence, where the vehicle was stopped, there exists a Xerox shop and other shops. But, none of the - 13 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 owners or the persons who were available at the said shops were arrayed as a witnesses in this case. According to him, along with him PC No.1175, HC No.800 and PSI were there. Further, he states that the PSI opened the cap of the said tanker and noticed transportation of the kerosene in the said tanker. The said kerosene was measured. This evidence of PW2 is quite contrary with regard to the taking of the sample. 14. PW3-Ramesh Hanumantappa was another constable who corroborates the evidence of PW2 in material particulars. According to his evidence, for the first time, he states that on enquiry, it was revealed by the Mahantesh Chatter that the said kerosene was brought from one Gangadhar Gaddi of Gadag. The said Gangadhara Gaddi is either arrayed as witness in this case or examined by the prosecution. He being the best witness to say that, whether the said kerosene belongs to him or otherwise, PW.4 speaks in similar words. Hence, the said Gangadhar Gaddi is not arrayed as a witness or examined - 14 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 by the prosecution to know that really these accused Nos.1 and 2 were found transporting the kerosene illegally. It is fatal to the case of the prosecution. It is the evidence of PW.3 that, at the spot itself, they seized the kerosene and filled them in a 3 sample bottles. According to the case of the prosecution, the said sample bottles were seized on 25.01.2006 and packed. 15. PW5- Pandurang Basappa Lakkuri, is the I.O., who registered the crime and set the criminal law in motion. He identified M.O.No.1 - the three sample bottles which were sent for chemical analysis. 16. PW6 - Shripad Dasarath Jalade, the CPI is the investigation officer and the officer who has filed a charge sheet against the accused persons. It has come in evidence of PW6 that, on completion of the investigation and after obtaining the FSL report on 13.07.2007, he filed the charge sheet. 17. Ex.P1 is the seizure panchanama prepared by the police with regard to the seizure of the said kerosene - 15 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 and also preparation of the 3 sample bottles in a bottle. Ex.P2 is the complaint, Ex.P3 is the FIR. These documents are not disputed by the defence seriously. The important document is Ex.P4. It is the chemical analysis report and as per the contents of Ex.P4, the office of the Forensic Laboratory, Madiwala, Bangalore, received the sample bottles on 25.05.2006 though the alleged offence has taken place on 25.01.2006. For a period of 5 months where these sample bottles were stored or preserved is not explained by any of the police officers examined in this case. It is submitted by the counsel for the accused that, for a period of these 5 months, there is a possibility of replacement or preparation for keeping these bottles according to the convenience of the prosecution so as to falsely implicate the accused etc. In the absence of the acceptable evidence from the prosecution side with regard to the preservation of these 5 bottles for a period of 5 months and then sending the same to the forensic laboratory for chemical examination, it gives room to draw an adverse inference against the prosecution. When on - 16 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 25.01.2006, the sample bottles were prepared by the I.O. what made the I.O. to keep the said bottles with him till 25.05.2006 is not explained. Therefore, the possibility of false implication according to the counsel for the accused cannot be ruled out. But, the I.O. has not explained about the delay in sending the said sample bottles to the forensic laboratory, it is fatal. 18. The learned counsel for the accused submits that the pancha who has been examined in this case in the shape of PW.1 has been turned hostile. The other panchas, who was very much available stated in the panchanama is not examined by the prosecution. He further submits that when panchas have been turned hostile, nothing remains with regard to the proof of seizure of the said kerosene in the manner stated. 19. In this regard, it is relevant to note the judgment of this Court in ILR 1999 KAR 4123 in a case between Mr. Vishakante Gowda MP and Others Vs. State of Karnataka. In this judgment, co-ordinate - 17 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 benches of this Court has held that “non examination of the pancha witnesses in a case of present nature is fatal to the case of prosecution. It is held that, the sole testimony of the police officer, who has drawn panchanama regarding seizure of the rice cannot be accepted. It is the duty of the prosecution to examine the pancha witness, even if they have been turned hostile”. 20. In this case, PW.1 has been turned hostile and the other pancha is not examined by the prosecution. In view of the facts so brought on record, the I.O. has not cared to send the said sample bottles immediately after seizure though it was packed and sealed. After 5 months, he sent the same to the Chemical Analysis Laboratory for the purpose of chemical examination. So also, the other pancha is not examined. Only on the basis of the sole testimony of the police officers whose evidence is not consistent and when Gangadhara Gaddi, the person whose name is mentioned by accused No.2 that, from whom he has brought the said kerosene is not arrayed as a witness - 18 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 or examined by the prosecution, then we find lacuna in the case of prosecution. The particulars of the vehicle also have not been collected by the I.O. to show that, it was used for the purpose of transporting the kerosene. Then it gives room to doubt the case of the prosecution. Therefore, a doubt arise in the case of prosecution and that benefit of doubt has to be extended to the accused persons. The learned trial Court as well as the First Appellate Court have not appreciated the evidence in proper manner and hurriedly have held that, the prosecution has proved its case, in view of the lacuna pointed out by the learned counsel for the accused, as narrated above, the revision petition so filed by the accused deserves to be allowed. The impugned judgments are liable to be set aside by exercising power under Section 397 of Cr.P.C. Accordingly, the aforesaid points are answered in favour of the accused. Resultantly, I pass the following: - 19 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 ORDER i) The revision petition is allowed. ii) The judgement of conviction dated 29.11.2013 and order of sentence dated 30.11.2013 passed in CC No.306/2007 by the Additional Civil Judge and JMFC, Hungund and confirmed in Crl.A No.127/2013 dated 23.01.2018 by the Principal District and Sessions Judge, Bagalkot, are hereby set aside. iii) Consequentially, accused are acquitted of the charge punishable under Section 7(1)A(a) of the Essential Commodities Act, 1955 and their bail bonds stand cancelled and are set at liberty. iv) Fine amount if paid shall be returned to the accused forthwith digitally. v) Registry to send back the trial Court records along with a copy of this judgment forthwith. - 20 - NC: 2025:KHC-D:2099 CRL.RP No. 100121 of 2018 vi) Registry is directed to send the operative portion of the judgment to the trial Court and First Appellate Court for compliance through mail. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE VMB/CT-VG LIST NO.: 1 SL NO.: 20