IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 27"' DAY OF NOVEMBER, 2009,-.__
BEFORE
HON' BLE MR. EUSTICE A.N.VENUGOPAl...A '
CRIMINAL REVISION PETITION »NQ.6_:2.v7I/V020-fJ"6'.VV'
BETWEEN:
Sri. Rajesh,
S/0. Jayadev Singh,
Age 29 years, _
R/0. Ramraagar, Ta_l"uE< J-aide,"
Uttara Kannada DiStriCt.'s..f* .
" Petitioner
(By SriIv;I"\/'eVe're.sh RAiRI?3'iI'di':haO.JR; Adyidééte)
The of. i<ar"nat'aka,
.. Represen't'ed by its State
'PI;i'bIic~ Proseczitdr,
A _ H,ig'hC,01:.rt of Karnataka,
' Bya'nga|b*V:e',j..
* Respondent
(By._Sri. VPJ-_|E’.4j{5Otkhindi, HCGP)
T§’1_5_A”3 Cri.R.P is filed I;/S 397 and 401 Cr.P.C by the
I Ig.,Advo_cate for the petitioner praying that this Horfble Court
– T “rrsay_A’De pleased to set aside the Order dated 11.08.2004
— passed by the JMFC, Dandeli, in C.C.No.870/2001 and the
prove the guilt of the petitioner and hence, the conviction
and sentence imposed is illegal. It was contentedthat,
mere possession of an unlawfully manufactured in–«to>r;’ifca’ritA4
is not made punishable under Section 34 of ‘
is punishable under the Act is poss.e»s»slon ‘rruI,rilawf_L:llly.,,
manufactured intoxicant with the;-Ekiiowilledlgepii’
unlawfully manufactured andisbeing”‘transplo-rtedfi”Since ” V
the basic fact of knowledge—-utha_t”vthehintoxicaint was
unlawfully manufacturedh— vriesitablished, the
presumption unde’r.__Sec:tionQCV_of,?th.’e..VAct not attracted
and hence Vlowevr’a_npHellate court to the
effect liquor should be
Dresumed tollknéow carrying on the liquor
without .i”lez’ga| finding and calls for
revlianlce was placed on the Division
Bench : d.iecilsion–«._:of.l’.i’VVtl’i’is court, in the case of State of
l”vv:_’ll”M;’sore “ills. Kush Gowda reported in 1973(1)
/
5. On the other hand, Sri P.H.Gotkhindi, Learned
HCGP invited my attention to the provisions con_taVi_r’i.ed.,_in
Sections 32, 34 & 40 of the Act and submittedgthat,’~i.irijiti.ew_T’ .
of the concurrent finding recorded the C.0’U’i’té::i’3e’|VO:\.Ai”vyltlfi ‘*
regard to seizure of the liquor V=frorn-the’ea.;joss’esslC>n
Accusecl–1, who was driving’ -the lot’-ry’, the=’V:’pres.u,ifh_otioin
raised that, he was carrying permit, is
justified and hence the sentence
imposed are legal ‘interference is
called for. in support of
the findings. below, insofar as
the co nviction” ‘a.nd,,V.s3e.nte,ncirig . oi’ Accused– 1.
6. View-__of..,the~7rival contentions, the point for
.–v..,_dete’riT.1in__ation is:V…. …..
Whether the Trial court below is justified
convicting and sentencing the
petitioner/Acciised–l for the offence
piinishable under Section 34 of Karnataka
Excise Act and whether the Appellate
Court is justified in affirming the findings
of Trial Court’?
(“K
5/
12
opinion that in such cases the presumption that can
be raised under Sec/10 of the Mysore Excise Act is in
regard to the knowledge which is a necessary
ingredient of an offence under S34 of
Excise Act. When once the prosecutioéiesta.b?:isi’1é$
that an accused was in posses_sion_~’ofintoziicartst it
and that intoxicant :.._wasI_ “«uniawfu11y
inanufactured….etc., then a’V__p;r’e_sump:t1jon” thatl’the’–..
accused has the requisite”‘V}gnovv.I’ed__ge of i.e.,l”
that it was unlawfully 1na’11t11’actureCi;,._.v_Etc:§, can be
raised by virtue ‘uMysore Excise Act.
But to contendllthlatll presuxnfgtion provided
under Section 4,\”)””of Alt:/§yvfsore«.:.t’I¥idccise Act would
extend lupfesuming that an
into1Eica_izi’t_’Vis .ama131ufactured. . .etc. , as laid
of _Mysore Excise Act would be,
in_o’u’_1~ opilnio:1:,’i’te’arl:i’1;g”too much into S.40 of the
Mysore’ and would lead to disastrous
;’eo_1.1secV1uen’ce1s iierhich would be contrary to the
V intenvdmeritl 6f”tl1e Legislature.
[Emphasis supplied by me)
u13..:.VThere is no evidence on record, which
“..jfv.esta’taiishes that the petitioner/Accused-*1 had the
kijolvtiedge that the intoxicant found in the lorry was
I3
illegally manufactured and is being transported. The two
courts below have not taken into considerati.C5tn_<:"'rtehe
aforesaid decision of this court into considerat_io'n'.'-«\Iif–it:h"o;;rt'« _
there being any evidence placed on
prosecution to the effect that
authority in his possession had.___theVintoxicant"knoyyingl they
same to be unlawfully manuf'a'ct'ur'ed '._tra':nspforting it,
have convicted and has not
alleged that, the Accusedfl tiheefikin-o'wledge of the
intoxicant mvaV.n'Vu'fa'ctured and was
transportin€g__Etj_u_"fflahe' of S34 of the Act
has has failed to prove its
case In my view, the impugned
judgments are_p'e'rver'se and manifestly erroneous, also
.fi"b.eeiVn"g. ciontrlary to theélaw declared by this court in the said
A ,rJe'c'i sieo ni – . V
}§n"v.the"result, the revision petition is allowed and the
luv'ligirraputgneld judgments are hereby set~aside and accused
— hereby acquitted. The fine amount if any paid by
/
r
14
him, is directed to be refunded and bail bond stands
cancened.
Ordered accordingly.
§§ud9n]fir*~
Yi3/ –