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2023 Supreme(Online)(KAR) 14546
PRINCIPAL BENCH AT BENGALURU
S. Vishwajith Shetty, J
Kullegowda – Appellant
Versus
State of Karnataka – Respondent
CRL.R.P.No.597/2014
For the Appellants/Petitioners: Sandesh J. Chouta, Somashekar Kashimath
For the Respondents: Mahesh Shetty
Non-compliance with the mandatory search and seizure provisions under Sections 53 and 54 of the Karnataka Excise Act, 1965, regarding the requirement of a search warrant and recording of reasons for its absence, vitiates the entire prosecution case and renders a conviction unsustainable.
Headnote:(A) Karnataka Excise Act, 1965 - Sections 53, 54, 32, 38-A - Illegal storage and manufacture of liquor - Search and seizure - Non-compliance with mandatory provisions - Prosecution failed to obtain search warrant as required by S. 53 - Failure to record reasons for exemption under S. 54 prior to raid - Requirement of compliance with S. 53 and S. 54 is mandatory and non-compliance vitiates the trial. (Paras 9, 10, 11, 12)
(B) Evidence - Chemical examination - Failure to submit entire seized contraband for FSL analysis - Non-examination of FSL report author - Absence of certificate under S. 59-A of the Act - Reliance solely on official witnesses without independent corroboration in residential area - Prosecution case held unreliable. (Paras 13, 14, 15)
Facts of the case:
The appellants were convicted for the illegal storage and manufacture of illicit liquor after a raid was conducted on their dwelling house. They challenged the lower court's conviction arguing that the mandatory legal procedures for search and seizure were not followed.
Findings of Court:
The court found that the authorities failed to comply with Sections 53 and 54 of the Karnataka Excise Act, as no search warrant was obtained and no prior reasons for its omission were recorded. The evidence was further undermined by the failure to analyze the entire quantity of seized liquor and the lack of independent witnesses.
Issues: Whether the raid and seizure complied with the mandatory procedures of the Karnataka Excise Act and whether the prosecution proved its case beyond reasonable doubt.
Ratio Decidendi: The mandatory requirements of Sections 53 and 54 of the Act are not mere procedural formalities; their non-compliance renders the search and seizure vitiated, and where procedural safeguards are ignored alongside insufficient forensic and corroborative evidence, the conviction cannot be sustained.
Result: Revision petition allowed; conviction and sentence set aside.
| Table of Content |
|---|
| 1. background and procedural history of the conviction. (Para 1 , 2 , 3 , 4) |
| 2. appellate arguments regarding procedural failures in search and seizure. (Para 5 , 6) |
| 3. mandatory compliance with sections 53 and 54 of the act. (Para 7 , 8 , 9 , 10 , 11 , 12) |
| 4. requirements for forensic evidence and independent witness corroboration. (Para 13 , 14 , 15) |
| 5. final acquittal based on failure of prosecution to prove case. (Para 16 , 17) |
THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:20.09.2012 PASSED BY THE JMFC, MALAVALLI IN C.C.NO.749/2007 AND CONFIRMING THE ORDER DATED:27.5.2014 PASSED BY THE I ADDL. AND S.J., MANDYA IN CRL.A.NO.104/2012. AND ACQUIT THE PETRS.
THIS PETITION HAVING BEEN HEARD AND RESEVED, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This criminal revision petition under Section 397 read with Section 401 CrPC is filed by the accused challenging the judgment and order of conviction and sentence dated 20.09.2012 passed by the I Addl. Civil Judge & JMFC, Malavalli, and the judgment and order dated 27.05.2014 passed by the I Addl. District & Sessions Judge, Mandya, in Crl.A.No104/2012.
2. Heard the learned Senior Counsel for the petitioners and the learned HCGP for the respondent-State.
3. Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, on 22.08.2007 at about 9.30 p.m. after receiving credible information with regard to illegal storage and manufacture of illicit liquor in the house of the accused situated at NES Extension, 4th Cross, Malavalli Town, Mandya District, from the Deputy Commissioner of Excise, Mandya, the Sub-Inspector of Excise of Malavalli Zone, his officials and the Sub-Inspector of Malavalli Town Police Station, conducted a raid on the dwelling house of the accused persons and found that illicit liquor was manufactured and stored in the said house. At the time of raid, accused no.2 who allegedly was in the house, after seeing the raiding party, pushed the Excise Officer and managed to escape from the spot. In all, 273 bottles containing 180 ml of liquor which totally amounted to 49.140 litres of liquor was seized from the house of the accused and in addition to the same, several cans, plastic bags, empty bottles, equipments for manufacturing liquor was also seized and a mahazar as per Ex.P-1 was prepared in the spot in the presence of PWs-1, 2 & 5. Some bottles were separately kept for the purpose of forwarding the same to the Forensic Science Laboratory (FSL) for chemical examination. On the basis of the mahazar, the police recovered the property found in the house of the accused and returned to the Police Station and a case was registered against the accused for having committed the offences punishable under Sections 32 & 38-A of the Karnataka Excise Act, 1965 (for short, 'the Act').
4. The Police after investigation filed charge sheet against the accused for the aforesaid offences. The accused had appeared before the Trial Court and claimed to be tried, and therefore, the prosecution in order to prove its case, had examined seven witnesses as PWs-1 to 7 and marked 15 documents as Exs.P-1 to P-15 and 26 material objects recovered from the spot were also marked as MOs.-1 to 26. The incriminating circumstances available on record was denied by the accused during the course of their Section 313 Cr.PC statement. However, they did not choose to lead any defence evidence nor did they produce any documents in support of their defence. Thereafter, the Trial Court heard the arguments addressed on both sides and by judgment and order dated 20.09.2012 convicted the accused for the offences under Sections 32 & 38-A of the Act and sentenced them to undergo rigorous imprisonment for a period of three years and pay fine of Rs.20,000/- each and in default to undergo simple imprisonment for a period of 9 months. Being aggrieved by the said judgment and orde
