Non-compliance of statutory provisions, lack of evidence beyond reasonable doubt, errors in lower court orders.

JUDGMENT

H.P. Sandesh, J. - This petition is filed under Section 401 of Cr.P.C., praying to call for the records and set aside the Judgment dated 20.03.2015 passed in Crl.A. No. 76/2013 by the II Additional District and Sessions Judge, Tumakuru and the judgment dated 12.06.2013 in C.C. No. 2617/2018 passed by the II Additional and JMFC-III, Tumakuru and pass such other order as deems fit in the facts and circumstances of the case.

2. Heard the learned senior counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

3. The factual matrix of the case of the prosecution is that when the police have conducted a raid in front of the house of this petitioner, they found 41 Macdowel Whisky bottles. Hence, the same was seized by drawing the Mahazar and a case has been registered. The police have investigated the matter and filed the charge-sheet for the offences punishable under Sections 34 and 38 of the Karnataka Excise Act, 1965 ('the Excise Act' for short).

4. The prosecution in order to prove the case examined the witnesses as PWs. 1 to 6, got marked the documents as Exs. P1 to P4(a) and the material objects - MOs. 1 to 41-sample bottles. The petitioner/accused has not led any defense evidence.

5. The trial Judge after considering both oral and documentary evidence convicted the petitioner for both the offences for a period of one year with fine of Rs. 10,000/-. Hence, an appeal is filed before the Appellate Court in Crl.A. No. 76/2013.

6. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the conviction. However, modified the order on sentence in Crl.A. No. 76/2013 filed by the petitioner for a period of six months, in default of payment of fine amount. Hence, the present revision petition is filed before this Court.

7. The main contention of the learned senior counsel appearing for the petitioner before this Court is that the very conclusion of the Trial Court that Ex. P2 is not disputed, is not correct. It is the burden on the prosecution to prove the said document. The Trial Court as well as the Appellate Court on the material available on record ought to have held that the evidence of P.Ws. 4 and 5 and Ex. P2 are not acceptable since P.Ws. 4 and 5 are the interested witnesses. The learned senior counsel also would submit that it is the contention of the prosecution that on the credible information they conducted the raid, but they have not complied the provisions of Section 54 of the Excise Act, wherein, they have to record the ground of his belief in committing the offence, the same is not found in any of the records. The learned senior counsel also would submit that the witnesses, who have been examined are all interested witnesses and PWs.1 and 2 are also the Village Accountants, they were taken together while conducting the raid. The learned senior counsel also would submit that the persons, who went with raid are the Assistant Commissioner, Tahasildar, Revenue Inspectors, Superintendent of Excise Department and other officials belongs to the Excise Department and their evidence cannot be believed. Both the Courts have failed to consider the said aspect while appreciating the material available on record.

8. The learned senior counsel appearing for the petitioner in support of his arguments, he relied upon the judgment of the Apex Court in the case of K.L. Subhayya v. State of Karnataka reported in AIR 1979 SC 711, regarding non compliance of Section 54 of the Excise Act.

9. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that in the Mahazar itself, it is specifically mentioned that on credible information they went and found this petitioner, who is in front of the house keeping the illicit liquor bottles and the same was seized in the presence of the witnesses. The said witnesses were also examined before the Trial Court and proved the document Ex. P1-Mahazar; Ex.