- 1 - CRL.A No.1114 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.1114 OF 2014 BETWEEN: MR. PATRICK D'SOUZA AGED 51 YEARS, S/O LATE LAWRENCE D'SOUZA, R/AT ELLIYARPADAVU, AMBLAMOGARU VILLAGE AND POST, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT-575 017 ...APPELLANT (BY SRI. P. P. HEGDE, SR. COUNSEL FOR SMT. SAKSHA BHAGAVAN, ADV.) AND: THE STATE THROUGH POLICE INSPECTOR, EXCISE ENFORCEMENT AND LOTTERY PROHIBITION WING, SPECIAL POLICE STATION, MANGALORE-REPRESENTED BY THE STATE PUBLIC POSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-01. …RESPONDENT (BY SRI. RANGASWAMY R., HCGP.) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:19.11.14 PASSED BY THE PRL.S.J., MANGALORE IN S.C.NO.62/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 32 AN 34 OF KARNATAKA EXCISE ACT AND THE APPELLANT/ACCUSED IS SENTNECED TO UNDERGO R.I. FOR ONE YEAR AND TO PAY FINE OF RS.TEN THOUSAND (RS.10,000/-) AND IN DEFAULT, - 2 - CRL.A No.1114 of 2014 HE SHALL UNDERGO FURTHER S.I. FOR SIX MONTHS FOR THE OFFENCE P/U/S 32 AND 34 OF KARANTAKA EXCISE ACT. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.11.2025 AND COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT, DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the Prl. Sessions Judge, D.K., Mangalore in S.C.No.62/2012 dated 19.11.2014. 2. For the sake of convenience, parties herein are referred to as per their rank before the trial court. 3. Brief facts leading to this appeal are that, the Police Inspector, Excise Enforcement and Lottery Prohibition Wing Special Police Station, Mangalore, has filed the charge-sheet against the accused for the offences punishable under Section 32 and 34 of Karnataka Excise Act, 1965 (hereinafter referred to as 'the Act' for short) and Section 328 of IPC. 4. It is the case of the prosecution that on 12.03.2011, the Sub-Inspector of Police, Excise Department and Lottery Prohibition Wing Special Police Station, Mangalore, received credible information regarding unlawful possession - 3 - CRL.A No.1114 of 2014 and transportation of illicit liquor by accused in Karnataka- Kerala border. On receipt of such information, the police officials went near the pathway of Elliyarpadavu near Elliyarpadavu-Kuthar public road at Amblamogaru village of Mangalore Taluk. In that place, they found the accused in possession of plastic can containing five litres of intoxicant/ illegally manufactured liquor. The accused was transporting the same for the purpose of selling to general public. The accused by such acts attempted to administer liquor containing ethyl alcohol, which was not fit for human consumption. The said liquor contained poisonous substance and the accused was proceeding to sell the same to general public with an intent to cause hurt and knowing that if the said liquor was consumed, it would cause hurt to such person. Thus the accused has committed the alleged offences. 5. The accused was apprehended at the spot and after his production before the learned Magistrate, he was remanded to judicial custody and after filing of charge-sheet, case was registered in C.C.No.3181/2011. Thereafter, case was referred to the Court of Sessions and was registered as S.C.No.62/2012. 6. The learned Sessions Judge has framed the charges against the accused for the commission of alleged offences. The same was read over and explained to the accused. Having - 4 - CRL.A No.1114 of 2014 understood the same, accused pleaded not guilty and claimed to be tried. 7. To prove the guilt of the accused, the prosecution in all, examined five witnesses as PWs.1 to 5 and nine documents were marked as Exhibits P1 to P9. One material object marked as M.O.1. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of prosecution witnesses. However, he has not chosen to lead any defence evidence on his behalf. 8. Having heard the arguments on both sides, the trial Court has acquitted the accused for the offence punishable under Section 328 of Indian Penal Code and convicted the accused for the offence punishable under Sections 32 and 34 of Karnataka Excise Act. 9. Being aggrieved by this judgment of conviction and order on sentence passed by the trial Court, the appellant/accused has preferred this appeal. 10. Sri.P.P.Hegde, learned Senior Counsel would submit that the impugned judgment is incorrect, improper and illegal and not sustainable under law and facts. The prosecution rests upon the recovery as alleged in the seizure mahazar dated 12.03.2011 marked as Ex.P.1. The independent witness PW.4 has turned hostile. He has clearly stated that mahazar was not - 5 - CRL.A No.1114 of 2014 prepared at the spot and his signature was obtained in the office of the Excise Department. The evidence of PW.1 and PW.2 is also contradictory to each other and unbelievable. The trial Court Judge has erred in looking into Exhibit P7, which is not proved in accordance with law. He would further submit that, without registration of the FIR, the seizure mahazar is conducted, which is illegal. The Investigating Officer has not complied with the mandatory provision of Section 54 of the Act, as the Investigating Officer has not obtained search warrant from the concerned authority and has not assigned any reasons for seizure of the property without search warrant. Further, he would submit that the trial Court has not properly appreciated the evidence on record in accordance with law and facts and on all there grounds, sought for allowing this appeal. 11. Learned High Court Government Pleader Sri.Rangaswamy.R, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts. That there are no grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court. Accordingly, he sought for dismissal of the appeal. - 6 - CRL.A No.1114 of 2014 12. Having heard the arguments on both sides and on perusal of the materials, the following points would arise for consideration: 1. Whether the judgment of conviction and order on sentence passed by the trial Court is illegal, capricious, perverse and not sustainable under law? 2. What order? Regarding Point No.1: 13. Before appreciation of the evidence on record, it is necessary to mention the decision of the Hon'ble Apex Court in the case of in the case of K.L.Subbaiah v. State of Karnataka reported in 1979 (2) SCC 115, in which at para Nos.3 and 4 it is observed as under: "3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with. 4. This, therefore, renders the entire search without jurisdiction and, as a logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal - 7 - CRL.A No.1114 of 2014 lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far- reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him". 14. To prove the guilt of the accused, the prosecution has examined PW1-Lokanath, PC No.743, PW2, Narayana Baindur, retired Sub Inspector, PW3-B.Ganapathy Achar, Retired Police Inspector. PW4-K.Ganesh Pai, the driver of the police vehicle and PW5-M. K. Keshava Murthy, the Inspector of Excise. 15. PW4-K.Ganesh Pai said to be the attestor to the Exhibit P1- seizure mahazar, has not supported the case of the prosecution. He was treated as hostile witness with the permission of the Court. He was cross-examined by the - 8 - CRL.A No.1114 of 2014 Assistant Public Prosecutor. Even in his cross-examination, he has categorically denied the contents of Exhibit P1-seizure mahazar and also the statement said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which is marked as Exhibit P9. 16. The substance of the evidence of PW1 to PW3 who are the official witnesses is that, on 12.03.2011, credible information was received by PW1 and CW4 that one Patrick D'souza of Amblamogaru village, Elliyarpadavu, is transporting illicit liquor from Kerala to Karnataka Border. So they shared the information to CW1 and they, along with their staff and pancha, PW2 went in their jeep via Thokkottu, Kuttaru, Ranipadav and reached Elliyarpadavu at 10.30 a.m. and they were watching the said person at about 11.30 a.m. They saw one person coming on Kaludari camping one plastic white polythene bag, and on confirmation, they went near him and that person ran away from the spot leaving the polythene bag. Then PW1 and CW4 chased him for one furlong and apprehended him and produced him to CW1. The said person was interrogated by CW1 before Pancha. He disclosed his name as Patrick D'souza and stated that plastic polythene bag contains Kallabhatti Sarai. They found a black plastic can in that plastic bag and the cap was removed and on smelling the - 9 - CRL.A No.1114 of 2014 content, they found that it is illicit liquor. The said can was full. He was carrying the can with liquor for sale. CW1 extracted 180 ml. of the liquor from the bulk as sample in a bottle, which was seized, sealed by affixing the signature chits of pancha and CW1. The remaining bulk liquor was also seized and sealed under mahazar Exhibit P1. 17. In the case of hand, Exhibit P1- seizure mahazar drawn on 12.03.2011 in between 11.30 a.m., to 12.20 noon near Elliyarpadavu. The Investigating Officer has submitted the FIR to the Court on the same day at 4.00 p.m. However, the Investigating Officer has not produced the seizure mahazar along with the FIR. 18. A perusal of the evidence placed before this Court, makes it is crystal clear that after seizure of the property under mahazar, the Investigating Officer has not submitted the seizure report to the Jurisdictional Magistrate as required under with Section 102 of Code of Criminal Procedure and also not complied with the provision of Section 43A of Karnataka Excise Act, 1965. Even, the statement of witnesses was recorded on 13.03.2011 as shown in the statement, same were not produced at the earliest point of time. Same were produced before the Court only at the time of filing charge-sheet i.e., on 24.05.2011. The Investigating Officer has not explained - 10 - CRL.A No.1114 of 2014 anything as to delay in submitting the statement of witnesses before the Court, it will create a reasonable doubt as to the alleged act of the accused. The prosecution has also not placed any materials as to compliance of the provisions of Sections 53 and 54 of the Karnataka Excise Act. 19. The interested testimony of the official witnesses has not been supported by any independent witnesses and one of the Independent witnesses has not supported the case of the prosecution. The prosecution has failed to elicit any favourable answers from him. 20. Viewed from any angle, I do not find any cogent, convincing, corroborative legal evidence before the Court to convict the accused for the alleged commission of offence. However, the trial Court has convicted the accused only on the interested testimony of the official witnesses. The trial Court has not considered the non-compliance of aforesaid mandatory provisions of Karnataka Excise Act, 1965 and also Section 102 of Code of Criminal Procedure. Considering the facts and circumstances of the case and also keeping in mind the aforesaid decision, I am of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, I answer point No.1 in the Affirmative. - 11 - CRL.A No.1114 of 2014 Regarding Point No.2: 21. For the aforestated reasons and discussion, I proceed to pass the following: O R D E R i) Appeal is allowed. ii) The judgment of conviction and order on sentence passed by the Prl. Sessions Judge, D.K., Mangalore in Sessions Case No.62/2012 dated 19.11.2014 is set aside. iii) Accused is acquitted of the offence under Sections 32 and 34 of Karnataka Excise Act. iv) The fine amount, if any, deposited by the accused shall be returned to him in accordance with law. v) Registry is directed to send the copy of this judgment along with the Trial Court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE lnn