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2019 Supreme(Kar) 714
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B.A. Patil, J.
Pomappa Pujar – Appellant
Versus
State of Karnataka, by Excise Police-Koppal – Respondent
Criminal Appeal No. 2536 of 2012
Decided On : 12-07-2019
Neelendra D. Gunde, Adv., Praveen K. Uppar, Adv.
Headnote:
Criminal Procedure Code,1973 - Section 207 - Indian penal Code,1860 - Sections 273, 284, 328 - Karnataka Excise Act, 1965 - Sections 32 and 34 - FIR - Punishment - Person selling and persons who were taking drinks ran away from that place in said lane and at place of incident they verified and found three white plastic cans liters each illicit distilled liquor same were seized by drawing and a complaint was registered- On basis of complaint after investigation charge sheet was filed- Thereafter said case was committed to Court of Sessions after supplying case papers to accused Sessions Court took cognizance and secured presence of accused and after hearing charge was prepared and read over to accused- Accused pleaded not guilty and trial was fixed –Held, 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 word "place" would not include car but definition of word "place" Act clearly includes vehicle which would include a car- Thus ground on which argument of petitioner has been rejected by High Court cannot be sustained by us- Court are satisfied that there has been a direct non- compliance of provisions Court and in absence of any material placed under what circumstances went to place without there being any warrant and made a search said search also can be that it is in violation of Section and it can be that is illegal and it is not having any effect in this behalf- Looking from any angle prosecution has utterly failed to establish its case as contemplated law - Case is not deposed that he has undergone prescribed training in examination and analyses of intoxicants and materials and he is authorized by Government in this behalf to analyze material- But he has also produced FSL Report- Before seizing said articles he must satisfy himself that said articles are intoxicants and thereafter he has to send sample for analysis- In this behalf also there is a lacuna on part of Investigating Officer - Court has not properly appreciated law and of case as observed above and it is swayed away by Evidence and ultimately came to conclusion that there is a case made out by prosecution and has convicted accused- Court feel that said finding of trial Court is not in accordance with law and there is no proper appreciation and same is liable to be set aside - Appeal allowed
JUDGMENT :
B.A. Patil, J.
This appeal has been preferred by the appellant-accused being aggrieved by the judgment of conviction and order of sentence passed by the District and Sessions Judge, Koppal in SC No.25/2011 dated 09.01.2012, whereby the accused was acquitted of the offences punishable under Sections 273, 284, 328 of IPC and convicted for the offences punishable under Sections 32 and 34 of Karnataka Excise Act, 1965 (hereinafter called as 'the Act' for short).
2. I have heard the learned counsel for the appellant and learned HCGP for respondent-State.
3. The geneses of the complaint is that on 23.12.2010, complainant received credible information that a person is selling illicit liquor in Hulageri Tanda of Kushtagi Taluka. Immediately, he secured his staff and proceeded towards the spot and on the way he secured two panch witnesses and thereafter they went near the place of incident and started watching, where they noticed that one person was selling the liquor and two persons were taking the same in two glasses. Immediately, they made a raid. The person selling and the persons who were taking drinks ran away from that place in the said lane and at the place of incident, they verified and found three white plastic cans of 10 liters each illicit distilled liquor. The same were seized by drawing a mahazar and a complaint was registered. On the basis of the complaint, after investigation, the charge sheet was filed. Thereafter, the said case was committed to the Court of Sessions after supplying the case papers to the accused under Section 207 of Cr.P.C. The Sessions Court took cognizance and secured presence of the accused and after hearing, charge was prepared and read over to accused. Accused pleaded not guilty and the trial was fixed.
4. In order to prove the case of the prosecution, prosecution has got examined PWs 1 to 5 and got marked Exs.P.1, P.1(a), P-2, P-2(a), P-3 to P-5 and also material objects 1 to 3. After hearing the learned Public Prosecutor and learned counsel for the accused, the impugned order came to be passed. Assailing the legality and correctness of the said judgment, the appellant is before this Court.
5. It is the contention of the learned counsel for the appellant that though there were independent witnesses in the said village at the time of raid, no independent witnesses have been examined by the Investigating Officer. It is his further contention that the conviction and sentence passed by the Court below slipped into an error and passed the impugned order. It is further submitted that the evidence of Complainant: PW1 and police constable who has been examined as PW5, is contradictory to each other. PW-1 deposed that near the temple, in front of the house, two persons were selling the liquor, but PW5 has deposed that one person was selling the liquor to two persons inside the house at the time of raid that itself creates doubt in the case of prosecution.
6. He further submitted that the identity of the accused itself is doubtful. When the raiding party went there, the accused is at a distance of more than 20 feet and immediately they ran away from that place but only on verification and questioning the local peoples that the complainant came to know the name of the accused person. If he has not seen properly, then under such circumstances, the Investigating Officer ought to have held the Test Identification Parade as contemplated under the law. Non-holding of the Test Identification Parade is a fatal to the case of the prosecution. He further contended that the prosecution has made out a case that illegal liquor has been seized from the possession of the accused. But, Ex.P5 the property extract is standing in the name of one Basavva Lachamappa Lamani but the name of the accused is Pomappa Lachamappa Pujar, there is no link to show that he is the son of the owner of the said house. It is his further submission that admittedly the said liquor has not been seized from the house, but the said liquor has
