SRI M DEVARAJU v. STATE BY ANEKAL EXCISE INSPECTOR

the trial Court, which came to be confirmed by the Session Court by dismissing the appeal filed by him, petitioner who is the accused has filed this petition under Section 397 r/w 401 Cr.P.C.

2. For the sake of convenience, the parties are referred to by their rank before the trial Court.

3. A charge sheet came to be filed against the accused for the offences punishable under Sections 32 and 34 of Karnataka Excise Act and Section 273 of I.P.C, alleging that on 11.11.2010, during routine beat duty, when the Excise Sub-Inspector along with his staff received credible information that accused is selling illicit 3 CRL.RP NO.65 OF 2019 liquor near Babu Theatre, they along with two panchas reached the spot at around 6-15 p.m. They found accused with a tube containing 20 Ltrs of illicit liquor with an intention to sell the same. On sighting the excise officials and others, accused ran away from the spot. Though the Excise Sub-inspector and staff tried to apprehend him, he manage to escape. The illicit liquor was seized through mahazar. On examination by the chemical examiner, it was found to contain Ethyl alcohol and it is not fit for human consumption and thereby accused has committed the offences punishable under Section 32 and 34 of Karnataka Excise Act and Section 273 of I.P.C.

4. During the crime stage, accused secured bail. He pleaded not guilty to the charges leveled against him and claimed trial.

5. In order to prove the allegations against the accused, prosecution has relied upon testimony of PWs-1 to 5 and Ex.P1 to 5 and MOs-1 to 5. 4 CRL.RP NO.65 OF 2019

6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the prosecution.

7. Accused has not led defence evidence on his behalf.

8. The trial Court convicted the accused and sentenced him as under: "To undergo rigorous imprisonment for a period of one year and also to pay fine in a sum of Rs.5,000/-. In default to undergo S.I. for a period of three months for the offence p/u/s 32 of Karnataka Excise Act. To undergo rigorous imprisonment for a period of one year and also to pay fine in a sum of Rs.5,000/-. In default to undergo S.I. for a period of three months for the offence p/u/s 34 of Karnataka Excise Act. To undergo S.I for a period of three months and also to pay fine in a sum of Rs.1,000/-. In default to undergo S.I. for a period of one month for the offence p/u/s 273 of I.P.C"..

9. Aggrieved by the same, accused filed appeal before the Sessions Court. However, Sessions Court dismissed the appeal and confirmed the judgment and order of the trial Court. 5 CRL.RP NO.65 OF 2019

10. Being aggrieved by both orders, accused is before this Court, contending that the complainant himself is the Investigating Officer and as such the investigation is vitiated. PW-1 and 5 who are stated to be independent witnesses have turned hostile. PW-2 to 4 are official witnesses and interested persons. Their evidence is not supported by independent witnesses. The provisions of Section 32 of Karnataka Excise Act are not attracted to the case on hand as there was no conscious possession of alleged illicit liquor by the accused. Both the Courts have erred in interpreting Section 35 and 40 of Karnataka Excise Act. The provisions of Section 53 and 54 of Karnataka Excise Act are not complied with. The identity of accused is not established. The seized article is not proved to be illicit liquor and pray to allow the petition, set aside the impugned judgment and order of the trial Court and Sessions Court and acquit the accused.

11. In support of his arguments, learned counsel for accused has relied upon the following decisions: 6 CRL.RP NO.65 OF 2019 (i) Rabindra Kumar Pal @ Dara Singh Vs. Republic of India (Rabindra Kumar Pal)1 (ii) Anil Lusana @ Anil Rathi Vs. State (National Capital Territory of Delhi) (Anil Lusana)2 (iii) Dana Yadav @ Dahu & Ors. Vs. State of Bihar (Dana Yadav)3 (iv) Md. Sajjad @ Raju @ Salim Vs. State of West Bengal (Md.Sajjad)4 (v) State of Punjab Vs. Balkar Singh and Anr (Balkar Singh)5 (vi) Mohan Lal Vs. State of Punjab (Mohanlal)6

12. On the other hand learned High Court Government Pleader has supported impugned judgment and order passed by the trial Court and pray to dismiss the petition.

13. In support of his argument, learned High Court Government Pleader has relied upon the following: (i) Narayanaswamy Vs. State of Karnataka (Narayanaswamy)7 ORDER (i) Petition filed by the petitioner under Section 397 r/w 401 Cr.P.C is dismissed. (ii) The impugned judgment and order dated

05.05.2018 in C.C.No.547/2010 on the file of Prl. Civil Judge and JMFC., Anekal and the Judgment and order dated

19.12.2018 in Crl.A.No.5008/2018 on 14 CRL.RP NO.65 OF 2019 the file of III Addl.District and Sessions Judge, Bengaluru Rural District, Anekal are confirmed. (iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith. Sd/- JUDGE RR