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The State of Karnataka Vs. Guruva Poojari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1975CriLJ1708
AppellantThe State of Karnataka
RespondentGuruva Poojari
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. sections 386 & 378: [v. jagannathan, j] appeal against acquittal - appellate court has got power to re-appreciate and reweigh evidence and come to its own conclusion. indian evidence act,1872[c.a.no.1/1872]-- section 3: [v. jagannathan, j] appreciation of evidence - hostile witness held, his evidence cannot be ignored in totality. where the hostile witness is not supporting prosecution case in certain minor aspects which has no bearing on prosecution case, said portion of evidence can be rejected. part of evidence which supports prosecution case will have to be accepted. - (old) was not satisfied. (old) applies to this ease as all the ingredients in it are satisfied......act (52 of 1962). the gist of the reasoning of the learned sessions judge is that p.w. 3 being an excise officer, the raid conducted by him on the house of the accused was not by a police officer and hence, the evidence collected by him was as an excise officer and that was an investigation by the excise officer. therefore, sending of the sample bottles to the chemical examiner by p.w. 3 through p.w. 1 could not be under the provisions of the code of criminal procedure (old) and hence one of the ingredients of section 510, cr. p. c. (old) was not satisfied. in the result, the report of the chemical examiner could not be held admissible in evidence.7. in abdul rahim's case 1972 cri lj 406 (mys.) the certificates in question had been issued by the mint master at bombay reporting that the.....
Judgment:

M.S. Nesargi, J.

1. This appeal by the State is directed against the judgment of acquittal passed by the Sessions Judge, S.K. Mangalore in Criminal Appeal No. 75 of 1973 acquitting the respondent who was the appellant therein of the offence punishable under Section 13 read with Section 32(1) of the Karnataka Excise Act, 1965 (hereinafter referred to as the 'Act').

2. The respondent-accused was prosecuted for having committed the said offence in C. C. No. 1095 of 1972 on the file of the Additional Munsiff-cum-I Class Magistrate, Udipi, South Kanara. He was convicted and sentenced. He preferred Cr. A. No. 75 of 1973 before the Sessions Judge, S.K. Mangalore wherein he was acquitted. He will be, in the course of this judgment, referred to as the accused.

3. The prosecution case is that at about 3.45 P. M. on 7-9-1972, P.W. 3 K. A. Kariappa, the Excise Inspector accompanied by his staff and panchas including P.W. 2 Sridhar, raided the house bearing No. 1-27, situated in Kodavoor village, belonging to the accused as he had credible information that the accused was illicitly manufacturing arrack in that house. They found the accused actually manufacturing arrack. They seized the implements wash and the liquor and they also took samples in separate bottles and sealed them. A report was filed to the Magistrate by P.W. 3 as per Section 57 of the Act stating that the accused was to be tried.

4. The accused pleaded not guilty. The defence being total denial only.

5. The prosecution examined P.W. 1 B. R. Baliga, an Excise Guard to establish that he had taken the sample bottles to the chemical examiner as per the instructions of P.W. 3 and handed them over to the Chemical Examiner at Man-galore for analysis and report. P.W. 2 Sridhar, a panch, who was one of the persons in the raiding party and P.W. 3 the Excise Inspector have been examined in proof of the charge against the accused. The learned Magistrate accepted the evidence of those witnesses and convicted the accused. He sentenced the accused to undergo simple imprisonment for three months and to pay a fine of Rs. 100 and in default to undergo further S. I. for one month.

6. The learned Sessions Judge has acquitted the respondent-accused on a technical ground. He has reasoned that Ex. P-3 the chemical examiner's report showing that the samples examined by him contained alcohol was not admissible in evidence under Section 510 of the Code of Criminal Procedure (old) and hence it could not be taken into consideration and that shows that the prosecution had not produced any evidence to show that any intoxicant much less liquor was manufactured by the accused. In support of this reasoning the learned Sessions Judge has placed reliance on certain observations in Abdul Rahim v. State of Mysore reported in (1971) 2 Mys LJ 422 : 1972 Cri LJ 406. That was a case under the Customs Act (52 of 1962). The gist of the reasoning of the learned Sessions Judge is that P.W. 3 being an Excise Officer, the raid conducted by him on the house of the accused was not by a police officer and hence, the evidence collected by him was as an excise officer and that was an investigation by the excise officer. Therefore, sending of the sample bottles to the chemical examiner by P.W. 3 through P.W. 1 could not be under the provisions of the Code of Criminal Procedure (old) and hence one of the ingredients of Section 510, Cr. P. C. (old) was not satisfied. In the result, the report of the Chemical Examiner could not be held admissible in evidence.

7. In Abdul Rahim's Case 1972 Cri LJ 406 (Mys.) the certificates in question had been issued by the Mint Master at Bombay reporting that the seized gold was of a particular degree of purity. The gold had been seized by the Customs Officers under the provisions of the Customs Act (52 of 1962). This Court considered the scheme of the Customs Act and the, decisions of the various High Courts and the Supreme Court and concluded that the Customs Officers were not police officers and therefore, the investigation made by them was not an investigation under the provisions of the Code of Criminal Procedure (old). Particular reliance was placed on the decision of the Supreme Court in Ramesh Chandra Mehta v. The State of West Bengal : 1970CriLJ863 . In view of this reasoning, it was held that those certificates did not become admissible in evidence as Section 510. Cr. P. C. (old) was not applicable to such circumstances. Therefore, before applying the observations contained in Abdul Rahim's case, it was incumbent upon the learned Sessions Judge to go into the scheme of the Act to find out whether the reasoning contained in Abdul Rahim's case would be available or not in the case on hand.

8. Section 55 of the Act lays down the powers of excise officers in matters of investigation. It states that in regard to the offences under Sections 32, 33, 34, 36 and 37 of the Act, an Inspector of Excise or a Sub-Inspector of Excise or any Excise Officer not below such rank would exercise the powers conferred on an officer incharge of a police station in regard to the area falling within his jurisdiction and that area would be deemed to be a police station and he shall be deemed to be an officer incharge of such police station for the purpose of Section 156 of the Code of Criminal Procedure (old). We are now concerned with the offence under Section 32 of the Act. It is undisputed that the house in question was within the jurisdiction of P.W. 3. Section 56 of the Act deals with the report by the investigating officer. It says that if, on any investigation under Section 55 of the Act, it appears that there is sufficient evidence to justify the prosecution of the accused, the investigating officer shall submit a report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on police reports and such, report shall be deemed to be a police report for the purpose of Section 190 of the Code of Criminal Procedure (old).

This provision makes it abundantly clear that the report of an Excise Officer would fall within Section 190 1)(b) of Cr. P. C. (old). Section 57 of the Act makes this aspect of the matter further clear as it deals with the report by an Excise Officer. Section 60(b) of the Act states that no Magistrate shall take cognizance of an offence punishable under any other Section of this Act. other than Section 46 or Section 48, except on his own knowledge or suspicion or on the complaint or report of an Excise or Police Officer. All these provisions make it crystal clear that the investigation done by an Excise Officer empowered under the provisions of the Act in regard to offences punishable under Sections 32, 33 and so on, is recognised to be an investigation done by a police officer in charge of a police station and the report filed by such Excise Officer after investigation is deemed to be a report by a police officer for the purpose of Section 190, Cr. P. C, (old) and the Magistrate shall take cognizance of the offence as per the provisions of Section 190(1)(b) of the Code of Criminal Procedure (old). Section 60-A of the Act lays down the procedure to be followed by a Magistrate and that procedure is the procedure prescribed in the Code of Criminal Procedure (old).

9. The scheme of the Act as above stated leaves no doubt in our mind that the principle laid down in Abdul Rahim's case 1972 Cri LJ 406 (Mys.) has no application to the facts of this case, and Section 510, Cr. P. C. (old) applies to this ease as all the ingredients in it are satisfied. Therefore, the conclusion of the learned Sessions Judge that Ex. P-3 is not admissible in law in this case cannot stand.

10. That takes us to the merit of this case.

11. P.W. 3 the Excise Inspector has sworn that he had credible information that the accused was manufacturing illicit liquor in his house at Kodavoor village and hence he and his staff along with P.W. 2 Sridhar the panch raided the said house and found the accused actively engaged in manufacturing liquor illicitly as the accused was not able to produce any licence to do so when demanded. He has also stated that he collected the samples from the wash and the distilled product, sealed the samples in the presence of the accused and the panchas and seized under a panchanama, Nextly he has stated that he sent them to the chemical examiner through P.W. 1 B. R. Baliga, the Excise guard. This evidence of P.W. 3 is satisfactorily corroborated by P.W. 2 Sridhar (the panch) in all material particulars. The only thing that is suggested in his cross-examination is that he was deeply interested in a person who was an enemy of the accused but that suggestion has been denied. No material worthwhile has been elicited in his cross-examination to make us doubt his evidence. Therefore, we agree with the learned Magistrate that the evidence of these two witnesses satisfactorily established that at 3.45 p. m. on 7-9-1972 P.W. 3 and the raiding party raided the house bearing No. 1-27 of the accused situated in Kodavoor village and found the accused actively engaged in distilling liquor and that the accused had no licence to manufacture liquor.

12. P.W. 1 B. R, Balisa, Excise Guard has sworn that he took the sample bottles to the chemical examiner and delivered them in the same condition that they were when entrusted to him. That Provides the connecting link to establish that the sample bottles had been sent to the chemical examiner in the very condition they were when the house of the accused was raided and the samples were collected. Therefore, all the ingredients of Section 32 of the Act are satisfactorily established. It is not the contention of the accused that he did possess licence to manufacture liquor.

13. In view of the foregoing reasens, we allow this appeal and set aside the judgment of acquittal passed by the Sessions Judge, South Kanara, Mangalore in Criminal Appeal No. 75 of 1975 and restore the conviction passed by the Additional Munsiff-cum-I Class Magistrate. Udipi against the respondent-accused (Guruva Poojary) in C. C. No. 1095 of 1972. We sentence the accused to undergo rigorous imprisonment for three months end to pay a fine of Rs. 100 and in default to undergo simple imprisonment for fifteen days.


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