- 1 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 157 OF 2021 (397(Cr.PC) / 438(BNSS)) BETWEEN: SRI. PAPANAIKA S/O. SRI. DHARMANAIKA, AGED ABOUT 31 YEARS, R/O. NEMMANAHALLY VILLAGE, KANDALIKE HOBLI, H. D. KOTE TALUK, MYSURU DISTRICT - 571 114. …PETITIONER (BY SMT. SHYAMALA, ADVOCATE FOR SRI. V. R. BALARAJ, ADVOCATE) AND: STATE OF KARNATAKA, BY SHO HEGGADADEVANAKOTE, EXCISE RANGE, H. D. KOTE, MYSURU DISTRICT, REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, BANGALORE - 560 009. …RESPONDENT (BY SRI. B. LAKSHMAN, HCGP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.20 15:23:24 +0530 - 2 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 17.03.2017 PASSED BY THE CIVIL JUDGE AND J.M.F.C., HEGGADADEVANAKOTE IN C.C.NO.36/2010 PRODUCED AT ANNEXURE-B AND THE JUDGMENT DATED 09.12.2020 PASSED BY THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU SITTING AT HUNSUR IN CRL.A.NO.99/2017 PRODUCED AT ANNEXURE-A. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL ORDER The accused-revision petitioner has preferred this revision petition against the judgment of conviction and order of sentence dated 17.03.2017 passed in CC No36/2010 by the Civil Judge and JMFC, Heggadadevanakote (for short “the trial Court”), which is confirmed by the VIII Additional District and Sessions Judge, Mysuru sitting at Hunsuru (for short “appellate Court”) in Crl.A.No.99/2017 dated 09.12.2020. 2. Parties to this revision petition are referred to as per their rank before the Trial Court. 3. Brief facts leading to this revision petition are that the Excise Sub-Inspector, Heggadadevanakote Excise Range, submitted the final report against the accused for the offence under Section 11, 13(1), 32, 34 of Karnataka Excise Act. It is - 3 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 alleged by the prosecution that on 15.10.2009 at 4.30 p.m., on the direction of Deputy Superintendent, Excise Sub-Division, Hunsur, when CW.8-Excise PSI was on patrolling duty along with his staff at Nemmanahalli village, he received a credible information that the accused is possession illicit liquor at his house. Thereafter, they went near the house of accused and conducted a raid in the presence of panch witnesses and found that accused was in unlawful possession of can containing 10 litres of illicit liquor. The accused was arrested at the spot and the illicit liquor was seized by drawing mahazar and case was registered in the Excise Department under Crime No.02/2009- 10. After investigation, Investigating Officer submitted the charge sheet against the accused for the offence under Sections 11, 13(1), 32, 34 of Karnataka Excise Act, 1965. 4. Upon registration of First Information Report, the accused was remanded to judicial custody and was enlarged on bail. After taking cognizance, case was registered in CC No.36/2010; charges were framed for the alleged offence under Sections 32 and 34 of Karnataka Excise Act, same was read - 4 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 over and explained to the accused. Accused pleaded not guilty and claimed to be tried. 5. To prove the guilt of the accused, the prosecution has examined, in all, 7 witnesses as PWs1 to 7 and three documents are marked as Exhibits P1 to P3 and one material object is marked as MO1. On closure of prosecution side evidence, statement of accused under Section 313 of Cr.PC was recorded and the accused has denied the evidence appearing against him, but has not chosen to lead any defence evidence on his behalf. 6. Having heard the arguments on both sides, the Trial Court has convicted the accused for the offence under Sections 32 and 34 of Karnataka Excise Act and sentenced to undergo rigorous imprisonment for a period of 1 year and pay fine of Rs.10,000/- for the offence under Section 32 of Karnataka Excise Act. Further sentenced to undergo simple imprisonment for a period of 1 year and pay fine of Rs.10,000/- for the offence under Section 34 of Karnataka Excise Act. Being aggrieved by the judgment of conviction and order on sentence passed by the Trial Court, the accused has preferred the appeal - 5 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 before the appellate Court in Crl.A.No.99/2017. The same came to be dismissed on 09.12.2020. Being aggrieved by this judgment of conviction and order on sentence passed by the both Courts, the petitioner has preferred this revision petition. 7. Smt. Shyamala, learned counsel appearing on behalf Sri V.R. Balaraj, for the revision petitioner would submit that the trial court has not considered the deposition of mahazar witnesses-PWs1 and 2. She would submit that they have not stated anything about seizure of the liquor by CW.8. PW.2 is the teacher and has not stated anything about the alleged incident. Based on official witness, trial Court has convicted the accused and the same is not sustainable under law. There are material omissions and contradictions in the evidence of prosecution witnesses. The Investigating Officer has not complied with the mandatory provisions of Karnataka Excise Act and also the Code of Criminal Procedure. However, the trial Court has convicted the accused. Both courts have failed to appreciate the evidence on record in accordance with law and facts. Hence, he sought to allow this revision petition. - 6 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 8. As against this, Sri B. Lakshman, learned High Court Government Pleader, would submit that both the Courts have properly appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with the impugned judgment of conviction and order on sentence passed by the Trial Court, which is confirmed by the Appellate Court. Hence, he sought for dismissal of the revision petition. 9. Having heard the arguments of both sides and on perusal of the records, the following points would arise for my consideration. 1. Whether the impugned judgment of conviction and order on sentence passed by the Trial Court, which is confirmed by the Appellate Court, is illegal, perverse, capricious and suffers from legal infirmities? 2. What order? Regarding point No.1: 10. It is the case of the prosecution that on the direction of Deputy Superintendent, Excise Sub-Division, Hunsur when - 7 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 Excise Sub-Inspector, Heggadadevanakote Excise Range, while was on patrol duty along with staff at Nemmanahalli village, received a credible information that the accused is possession illicit liquor at his house, accordingly he went to the house of the accused, conducted raid and arrested the accused at the spot and the illicit liquor was seized and submitted the report for the offence punishable under Sections 11, 13(1), 32, 34 of Karnataka Excise Act. 11. To prove the case of prosecution, in all, seven witnesses were examined as PWs1 to 7. Out of them, PWs1 and 2, who are said to be the independent witnesses to spot mahazar, have not supported the case of the prosecution. The other witnesses PWs3 and 5 to 7 have deposed in their evidence that on 15th October, 2009 when they were on patrol duty at Nemmanahalli vilage, on the basis of credible information received by PW6, they conducted raid in the presence of PWs1 and 2 and found ten liters of illicit liquor stored by the accused in a can. The same was seized in the presence of PWs1 and 2 as per mahazar-Exhibit P1, from which one liter of liquor was taken out as sample for the purpose of - 8 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 chemical examination as MO1. The accused was arrested and produced before the Police Station and FIR was registered against him as per Exhibit P3. Thereafter, PW6 handed over the case file to PW4 for further investigation. PW4 has deposed as to the filing of final report after obtaining FSL report. 12. The FIR-Exhibit P3 reveals that the concerned excise authorities have seized ten liters of illicit arrack from the possession of the accused on 15.10.2009 at 4.30 pm. They have also seized the same under mahazar Exhibit P1. But the concerned authorities have not submitted the FIR to the Court. Jurisdictional magistrate has not endorsed Exhibit P3-FIR. The seizure report also not submitted to the jurisdictional Magistrate as required under Section 102 of Code of Criminal Procedure. The Investigating Officer has not explained anything as to non- compliance of Sections 43A & 54 of the Karnataka Excise Act. The Investigating Officer has not obtained any permission from the jurisdictional magistrate to raid the house and also to send the sample bottle for chemical examination. Non-compliance of mandatory provisions of Sections 102 of Code of Criminal Procedure, Sections 43A and 54 of the Karnataka Excise Act will - 9 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 create reasonable doubt as to the seizure of illicit liquor from the possession of the accused as alleged by the prosecution and the same is also fatal to the case of prosecution. Both the courts have not appreciated the non-compliance of mandatory provisions of Section 102 of Code of Criminal Procedure as also provisions under Sections 43A and 54 of the Karnataka Excise Act. Accordingly, the judgment of conviction and order on sentence passed by the trial Court which is confirmed by the appellate Court are not sustainable under law. Hence, the point for consideration is answered in the affirmative. Regarding Point No.2: For the reasons aforestated, I proceed to pass the following: O R D E R i) Revision Petition is allowed; ii) Judgment of conviction and order of sentence dated 17.03.2017 passed in CC No36/2010 by the Civil Judge and JMFC, Heggadadevanakote, which is confirmed by the VIII Additional District and - 10 - HC-KAR NC: 2025:KHC:27849 CRL.RP No. 157 of 2021 Sessions Judge, Mysuru sitting at Hunsuru in Crl.A.No.99/2017 dated 09.12.2020, is set aside; iii) Accused is acquitted of the offence punishable under Sections 32 and 34 of Karnataka Excise Act, 1965; iv) Fine amount, if any, deposited by the accused, shall be refunded to him; v) Registry to send the copy of this order along with trial Court Records to the concerned court. Sd/- (G BASAVARAJA) JUDGE SSD List No.: 1 Sl No.: 15