1. The revision petitioner has filed this revision petition under Section 397 R/w Section 401 of Cr.P.C seeking to set aside the Judgment dated 04.03.2014 passed by the I Additional Sessions Judge and Special Judge at Shimoga in Crl.A.No.99/2013 and consequently the Judgment of conviction and order of conviction dated 25.04.2013 passed in C.C.No.1394/2010 passed by the JMFC-II, Shimoga, convicting the petitioner under Section 32 of the Karnataka Excise Act.

2. The parties are referred to as per their ranks before the trial court.

3. The brief facts of the case is that:

On 09.11.2009 around 1.30 p.m. in Erekoppa village, the accused was found in possession of 7 ltrs of Toddy and 120 ltrs. of Jaggery Wash for the purpose of manufacturing Toddy without any valid licence or permit from the concerned authorities and thereby committed the offences punishable under Sections 32 and 34 of Karnataka Excise Act.

4. After filing the charge sheet, cognizance was taken against the accused for the alleged commission of offences and case was registered in pursuance of summons, accused appeared before the trial court and enlarged on bail. Charges are framed against the accused for the alleged commission of offences, accused has pleaded not guilty and claimed to be tried.

5. To prove the guilt of accused, in all 5 witnesses were examined as PWs.1 to 5 and 6 documents were got marked as Exs.P.1 to P.6 and 2 bottles are marked as MOs.1 and 2. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C is recorded. Accused has totally denied the evidence appearing against him, but he has not chosen to lead any defence evidence on his behalf.

6. On hearing the arguments, trial court has convicted the accused for the commission of offence punishable under Section 32 of the Karnataka Excise Act, 1965. Being aggrieved by this Judgment of conviction and order of sentence, the accused has preferred an appeal before the I Addl. District and Sessions Judge, Shimoga in Crl.A.No.99/2013. Said appeal came to be dismissed on 04.03.2014. Being aggrieved by this impugned Judgments passed by both courts, the accused has preferred this revision petition.

7. Heard the arguments on both sides and perused the records.

8. According to the case of prosecution on 09.11.2009, when PW-4 - Excise Inspector along with the staffs has raided the land of accused at 01.30 p.m. and found 120 litre Jaggery wash (belladaKole) in 8 plastic pots, each 15 litres and 7 litres illicit arracks in one plastic pot, then he has seized the same under mahazar - Ex.P.1 and took samples of 750 mls in each two bottles and thereafter case was registered against the accused and submitted FIR to the Court as per Ex.P.3.

9. PW1-Shivanna said to be the attestor to mahazar has not supported to the case of prosecution. PW2-Sub Inspector of Excise has deposed in his evidence as to the Mahazar-Ex.P.1 and also seizure of M.O.Nos.1 and 2. PW4-Excise Inspector, Dharani Kumar, has deposed in his evidence as to the seizure of properties under Ex.P.1. PW-5-K.M Krishnamurthy has deposed in his evidence as to the filing of charge sheet against the accused.

10. PW3-Kumara Venkatesh said to be the attester to mahazar-Ex.P.2 has examined on 03.01.2013, on that day, cross-examination of accused was deferred as the advocates abstained from court proceedings due to Bharath Bandh. The evidence of PW-3 is not subjected to cross-examination. Therefore, the incomplete evidence of PW-3 cannot be considered as evidence. PW-2 and PW-4 are the official witnesses and their evidence has not been substantiated by other independent witnesses.

11. Whether the official witness/evidence is sufficient to convict the accused for the alleged commission of offence In this regard, I have gone through the material placed by the prosecution. On perusal of same, it is crystal clear that Investigating Officer has not complied the mandatory provisions of Sections 53 and 54 of the Karnataka Excise Act. In this regard, in the case of K.L.SUBBAYYA vs. STATE OF KARNATAKA reported in 1979 (2) SCC 115, [LQ/SC/1979/57 ;] the Hon’ble Apex Court has observed as under:

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 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 included 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.”

12. I have also relied on the decision of Co-ordinate Bench of this Court in Crl.P.No.101436/2022 dated 14.07.2022.

13. The I.O. has not offered any explanation as to the delay in submitting the seizure report to the jurisdictional Magistrate and also to the concerned Authorized Officer under the provisions of Karnataka Excise Act. The I.O. has not issued any endorsement to the accused as to the list of seized properties from possession of the accused as required under Section 100(7) of Cr.P.C. Accordingly, the I.O. has failed to comply the mandatory provisions of sub-section (7) of Section 100 of Cr.P.C. The I.O has not offered any explanation as to the non compliance of sub-section (7) of Section 100 Cr.P.C.

14. Both the Courts below have not considered noncompliance of the mandatory provisions of Section 54, 43A of Karnataka Excise Act and also Section 102 and 100(7) of Cr.P.C and also the aforesaid decisions of Hon’ble Supreme Court and passed the impugned judgments, which are not sustainable under law.

15. Viewed from any angle, the impugned Judgments passed by the trial court and appellate court are not sustainable under law. Therefore, I am of the considered opinion that impugned judgments are required to be set aside.

Accordingly, I proceed to pass the following:

ORDER

a) The Criminal Revision Petition is allowed.

b) The Judgment of conviction and order of sentence dated 25.04.2013 passed by the JMFC-II, Shimoga in CC No.1394/2010, which is confirmed by I Additional Sessions Judge and Special Judge at Shimoga in Crl.A.No.99/2013 by Judgment dated 04.03.2014, are hereby set aside.

c) The Revision Petitioner is acquitted from the offence punishable under Section 32 of the Karnataka Excise Act, 1965. His bail bond and surety bond, if any, shall stand cancelled.

d) The fine amount if any deposited by the petitioner is ordered to be refunded to him after due identification.

e) Registry is directed to transmit the records to the jurisdictional court along with the copy of this order.