JUDGMENT

Since these two proceedings are arising out of the same order and since common questions of law and facts are involved in these proceedings, they are taken up together to dispose of them by this common Judgment.

The appellant-State preferred the appeal challenging the validity and legality of the judgment and order of the First Appellate Court allowing the appeal partly and reducing the sentence imposed on the respondent – accused.

2. The revision petition is preferred by the petitioner - accused being aggrieved by the judgment and order of conviction passed by the Trial Court dated 24.06.2008 passed in C.C.No.719/2008 by the JMFC III Court at Bijapur, so also being aggrieved by the judgment and order of the First Appellate Court dated 15.02.2011 passed in Crl.A.No.45/2008 by the II Addl. Sessions Judge, Bijapur the revision petitioner challenged the judgment and orders of the courts below on the grounds as mentioned in the memorandum of the petition.

3. Brief facts of the prosecution case before the Trial Court that on 31.01.2008 at about 6:50 a.m. the complainant who being the Railway PSI along with his staff were checking passengers on the arrival of Bagalkot – Solapur train bearing No.386 at Bijapur, at that time the petitioner-accused was standing in suspicious manner near platform No.1 holding a bag, the complainant along with his staff apprehended him and enquired as to the contents of the bag and found that the petitioner-accused was in possession of 150 duplicate arrack sachets in the said bag. Panchanama was drawn at the spot in the presence of PWs.3 and 4. The petitioner was taken to the railway police station and PW.1 is the Railway PSI lodged a complaint on behalf of the State against the petitioner-accused. In pursuance of the said complaint, case came to be registered in Crime No.2/2008 of the railway police station for the offence under section 34 of Karnataka Excise Act (for short ‘the Act’). The railway PSI has investigated the matter and having found sufficient material submitted the charge sheet against the petitioner-accused for the offence punishable under Section 34 of the Act.

4. In order to prove its case, the prosecution in all examined six witnesses and produced four documents. So also, the defence examined three witnesses and produced one document as per Ex.D1. On evaluation of the entire materials on record both oral and documentary ultimately the Trial Court held the petitioner - accused guilty for the offence under section 34 of the Act and imposed sentence to undergo simple imprisonment for 1 year and pay fine of Rs.10,000/-, in default of payment of fine he shall further undergo simple imprisonment for 6 months. When the revision petitioner herein taken the matter before the First Appellate Court, the First Appellate Court after re- appreciating the materials ultimately allowed the appeal partly in Crl.A.No.45/2008 by its judgment and order dated 15.02.2011 but confirmed the conviction passed by the Trial Court and the First Appellate Court modified the sentence imposed he was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.10,000/- for the offence under section 34 of the Act and in default of payment of fine amount, he shall further undergo simple imprisonment for 2 months. Because of the judgment of the First Appellate Court which modified by the Trial Court these two proceedings are filed before this court, one of the State in criminal appeal challenging the sentence which is modified by the First Appellate Court and another proceeding is the criminal revision petition by the petitioner-accused challenging the judgment and order of the courts below convicting him for the said offences.

5. Heard the arguments of the learned counsel appearing for the revision petitioner-accused who is also the respondent in criminal appeal preferred by the State, so also, the arguments of the learned Government Pleader for respondent – State who is also the appellant – State