- 1 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 710 OF 2018 BETWEEN: FRANCIS D SOUZA @ SANTHU S/O MARSHEL D SOUZA, AGED ABOUT 46 YEARS, AGRICULTURIST, R/O KUMBARGODU VILLAGE, SANGAMESHWARA PET POST, KHANDYA HOBLI, CHIKKAMAGALUR TALUK & DISTRICT - 577 001. …PETITIONER (BY SRI. S G RAJENDRA REDDY, ADVOCATE) AND: STATE BY EXCISE INSPECTOR CHIKKAMAGALUR, CHIKKAMAGALUR DISTRICT, REPTD. BY S.P.P, HIGH COURT OF KARNATAKA, BENGALURU-01. …RESPONDENT (BY SRI. M.R. PATIL, HCGP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 13.06.2018, PASSED IN CRL.A.NO.138/2017, BY THE 2ND ADDITIONAL SESSIONS JUDGE AT Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.06 11:05:44 +0530 - 2 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 CHIKKAMAGALUR, AND THE JUDGMENT AND ORDER DATED 16.05.2016, IN C.C.NO.1769/2014, PASSED IN THE PRINCIPAL CIVIL JUDGE AND JMFC, CHIKKAMAGALUR, FOR THE OFFENCE P/U/S 32 OF KARNATAKA EXCISE ACT AND ALLOW THIS PETITION AND ACQUIT THE PETITIONER FOR WHICH HE IS CHARGED WITH. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL ORDER The revision petitioner/accused has preferred this revision petition against the judgment of conviction and order on sentence passed in CC.No.1769/2014 on the file of the Prl. Civil Judge and JMFC, Chikkamagaluru, dated 16.05.2016, which is confirmed by the II Addl. Session Judge at Chikkamagaluru in Crl.A.No.138/2017 dated 13.06.2018. 2. For convenience, the parties are referred to as per their ranking before the trial Court. 3. The brief facts leading to this revision petition are that, on 03.07.2014 CW.6 Excise Inspector accompanying with the CWs.3 and 4 were on patrolling duty at Sangameshwara - 3 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 Pete, at that time they received information that one Francis D’souza has stored molasses and illicit liquor near his house at Kumbaragodu village. He secured CWs1 and 2 and conducted a raid. Upon inspection, they found 300 ltrs of molasses in 20 plastic cans and 15 liter capacity loaded can and 5 liters of illicit liquor in possession of the accused. On enquiry, the accused informed that he had kept them for sale, thereupon CW6 conducted mahazar and seized the articles under mahazar and produced the accused before the Court. After investigation, the Investigating Officer has submitted the charge sheet against the accused for the offense punishable under Section 273 of IPC, and Sections 32 and 38 of Karnataka Excise Act, 1965. 4. After appearance, the trial Court framed charges for the offences under Section 273 of IPC, and Sections 32 and 38 of Karnataka Excise Act, and the same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. 5. To prove the case of the prosecution, in all, 7 witnesses were examined as PWs1 to 7 and eleven documents were marked as Exhibits P1 to P11. One material object - 4 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 marked as MO1. On conclusion of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. The accused has denied the evidence appearing against him, however, he has not adduce the 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 Section 32 of the Karnataka Excise Act, and passed a sentence of one year rigorous imprisonment and fine of Rs.10,000/-. The Trial Court has acquitted the accused for the offence under Section 273 IPC and under Section 38 of Karnataka Excise Act. Being aggrieved by the judgment of conviction and order on sentence, the accused has preferred the appeal before the II Addl. Session Judge, at Chikkamagaluru, in Crl.A.No.138/2017, same came to be dismissed on 13.06.2018. Being aggrieved by this judgment, the accused has preferred this revision petition. 7. The learned counsel for the revision petitioner would submit that both Courts have not properly appreciated the evidence on record in accordance with the law and facts. - 5 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 Independent panch witnesses have not supported to the case of the prosecution. The Investigating Officer has taken only 180 ml. in one can for chemical examination and from the other seized cans, the Investigating Officer has not taken any sample. The Investigating Officer has not complied by obtaining the search warrant from the competent authority as required under Section 53 and 54 of the Karnataka Excise Act and the same is fatal to the case of the prosecution. To substantiate his arguments, he relied on the decision of the Co- ordinate Bench of this Court in the case of MELEGOWDA M T v. STATE OF KARNATAKA, EXCISE POLICE STATION made in Crl.P.No.1366/2024 decided on 12.02.2025. On all these grounds, it was sought for allow this revision petition. 8. As against this, Sri M.R.Patil, learned HCGP, would submit that both Courts have properly appreciated the evidence on record in accordance with the law and facts. Absolutely, there are no grounds to interfere with the judgments passed by the both the Courts. Accordingly, seeks dismissal of revision petition. - 6 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 9. Having heard the arguments and on perusal of entire materials placed before me, the point that would arise for my consideration is “Whether the judgment of conviction and order on sentence passed by the trial Court which is confirmed by the appellate Court is perverse, capricious, and suffers from legal infirmities?” 10. I have given my anxious consideration to the submissions advanced by the learned Counsel for the Revision Petitioner. 11. It is the case of the prosecution that, as per the evidence of PWs3, 6 and 7 that they have seized 300 litres of molasses in twenty plastic cans of fifteen liter capacity and five liters illicit liquor from the house of the accused bearing property No.43, Kumbargod village of Devadana Grama Panchayat. The learned counsel for the accused vehemently submitted that the seizure of the property from the house of the accused is not in accordance with and the provisions of Sections 53 and 54 of Karnataka Excise Act. Prior to seizure of the properties from the house of the accused, the Excise authorities have not obtained search warrant as required under Section 54 - 7 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 of Karnataka Excise Act. Even after seizure of the property, the investigating officer has not obtained search warrant or has assigned any reason for not obtaining search warrant before the seizure. In this regard, the prosecution witnesses have not whispered anything. There is no reference in the FIR or in the mahazar as to non-compliance of mandatory requirement of provisions of Section 54 of Karnataka Excise Act. The prosecution has produced Exhibit P9-report of search warrant. This report does not reveal as to on which date it is submitted to the concerned authority. This document has not been placed before the jurisdictional Magistrate along with FIR or mahazar and is produced only at the time of filing of charge-sheet against the accused. From the perusal of seizure mahazar and other records, there is nothing to indicate as to investigating officer mentioning any reason for search and seizure the house of the accused without the permission of the Magistrate or the concerned Designated Officer under the provisions of Karnataka Excise Act, 1965. Admittedly, there is no prior permission of the Magistrate or concerned designated Authority to search the house of the accused and to seize the property. Therefore, the non-compliance of the mandatory provisions of Section 54 of - 8 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 Karnataka Excise Act, will create doubt as to the seizure of property, i.e. illicit liquor and molasses from the house of the accused. 12. Upon perusal of material on record the same will indicate that, the learned Counsel for the Revision Petitioner is correct in his submission that before conducting the search and seizure whereby the alleged cans of illicit liquor and molasses were seized from the house of the accused, the respondent had not obtained any search warrant, so also not recorded any believable reasons in writing, so as to dispense with permission for search warrant. 13. Further, the learned Counsel for the accused-Revision petitioner has also submitted that the investigating officer has taken only 180 ml. from one can for chemical examination and from other seized cans, the investigating officer has not taken any sample. The prosecution has not explained anything as to non-sending of samples from all the cans for chemical examination. Hence, non-sending of samples from all the cans for chemical examination, is fatal to the case of the prosecution which is not considered by both the Courts. At this juncture, it - 9 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 is pertinent to refer to the decision of the Hon’ble Supreme Court in the case of K L SUBBAYA v. STATE OF KARNATAKA reported in (1979)2 SCC 115, wherein in the course of judgment, the Hon'ble Supreme Court observed as follows: “Thus this Section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus: "Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36 or section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and - 10 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid." 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. 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 lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelavant. 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 - 11 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 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.” Non-compliance of the same, is also fatal to the case of the prosecution. 14. The panch witnesses PWs1 and 2 have not supported the case of the prosecution. The spot and seizure panchanama- Exhibit P1 dated 03rd July, 2014 is not produced along with FIR to the jurisdictional magistrate. Exhibit P11-FIR reveals that on 03rd July, 2014, the FIR is submitted at 4:40 PM. However, this mahazar, which was conducted earlier to the submitting of FIR, has not been submitted to the jurisdiction and magistrate along with FIR. The mahazar-Exhibit P1 was produced by the prosecution only at the time of filing the charge-sheet. Reasons for not submitting the seizure-cum-spot mahazar to the jurisdictional Magistrate along with the FIR, will also create doubt as to the preparation of mahazar at the relevant point of time. Since the investigating officer has failed to comply with the mandatory provisions of Section 54 of Karnataka Excise Act and also in view of the the aforestated material lapses - 12 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 committed by the investigating officer, relying upon the decision cited by the learned counsel for the accused-revision petitioner, i am of the considered opinion that the both the Courts have failed to appreciate the evidence and record in accordance with law and facts. 15. On re-examination and re-evaluation of the entire material placed on record and the provisions of Karnataka Excise Act, 1965 and also the provisions of Code of Criminal Procedure, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. 16. The appellate Court has observed in its judgment that there is presumption under section 114(e) of Indian Evidence Act that the official acts have been duly performed. It is true that illustration (e) to Section 114 of Indian evidence act, declares that judicial and official acts may be presumed to have been regularly performed. But it does not say that it may be presumed that any particular judicial or official act has been performed. No doubt when the only evidence is that particular judicial or official act has been performed and there is no other evidence on record, it may be presumed that the particular - 13 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 judicial or official act was regularly performed. In the instant case, as already discussed above, the report as to the search warrant does not reveal the date on which the investigating officer has submitted the report to the higher authorities or the jurisdictional Magistrate. This report is submitted to the Magistrate only at the time of filing of charge-sheet. There is no reference as to the contents of the report in the First Information Report or in the mahazar. Therefore, in the absence of such material piece of evidence, the provisions of Section 114(e) of Indian Evidence Act are not applicable. If prosecution had produced the relevant materials before the Court, then only the Court can draw inference under section 114(e) of the Indian Evidence Act that judicial and official acts may be presumed to have been regularly performed. Since the prosecution failed to produce material evidence in this regard, the question of drawing inference under Section 114(e) of the Indian Evidence Act cannot be made applicable to the case on hand. Hence, I answer the point that arose for consideration in the negative. 17. For the aforestated reasons, I proceed to pass the following: - 14 - HC-KAR NC: 2025:KHC:28732 CRL.RP No. 710 of 2018 O R D E R i) Revision petition is allowed; ii) Judgment of conviction and order on sentence dated 16.05.2016 passed in CC.No.1769/2014 by the Prl. Civil Judge and JMFC, Chikkamagaluru, which is confirmed by judgment dated 13.06.2018 in Criminal Appeal No.138/2017 by the II Addl. Session Judge at Chikkamagaluru, set aside; iii) The accused is acquitted of the offences punishable under Section 32 of Karnataka Excise Act, 1965; iv) The fine amount, if any. deposited by the accused shall be refunded to him in accordance with law; v) Registry to send the copy of this order along with tile court records to the concerned court forthwith. Sd/- (G BASAVARAJA) JUDGE SRK List No.: 1 Sl No.: 21