IMAM HUSEN HAMIDSAB ATTAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant appearing as Amicus Curie and the learned Government Pleader. The facts of the case are as follows: On 07.02.2008 at about 1730 hours, Excise Sub -Inspector along with Excise Inspectors, together with police constable, Excise Officials and the Deputy Superintendent of Excise, had gone to the village Gujanal and reached the hillock situated close to the village, where there is a temple known as Mailarling Temple and were looking out for a person, on the basis of the information received by them, as to the said person engaged in selling illicit liquor. When they neared Mailarling Temple in their jeep at about 1745 hours, a person was noticed carrying a rubber tube, in which, apparently was carrying illicit liquor and there were three persons standing close to him and he has apparently serving them with liquor drawn from the rubber tube. The police party had taken the person selling the liquor into custody, whereas the three persons, who had consuming the liquor had fled and could not be apprehended. It is found that, the person apprehended was selling the liquor at the rate of Rs. 5/ - per glass and on further questioning, he revealed his name as Imamhussain Hamidsab Attar of Ankalagi village. On opening the rubber tube that he was carrying, it was found to contain 15 liters of country liquor worth Rs. 800/ -. On further questioning, he had informed that, he did not process any permit or licence for the sale of liquor and had failed to furnish the information as to the source, from which he had secured the said liquor. The complainant -Assistant Sub -Inspector, Ankalagi Police Station, prepared a mahazer in the presence of panch witnesses and seized the illicit liquor found in the rubber tube along with plastic pot and a yellow coloured plastic Tambige, as well a steel glass and returned to the police station along with the accused and aforesaid properties seized from his possession. A complaint was thereafter was prepared on behalf of the state and on the strength of the same, a case was registered in Crime No. 12/2008 for the offences punishable under Section 328 of the Indian Penal Code, 1860 (hereinafter referred to as' I.P.C., for brevity) and Section 34 of the Karnataka Excise Act, 1963 (hereinafter referred to as 'the Excise Act', for brevity). The first information report was received and the investigation was handed over to the Police Sub -Inspector. The accused was then produced before the Court of Judicial Magistrate. with a request for judicial remand and accordingly, he was remanded to judicial custody. Subsequently, the matter was committed to the Sessions Court for trial. A case was registered as Sessions Case No. 133/2008 and the accused was summoned. The charges under Sections 328 of the IPC and Section 34 of the Excise Act were framed. The accused pleaded not guilty and claimed to be tried. The prosecution has examined seven witnesses and placed reliance on Exhibits P1 to P5 and material objects 1 to 5. The evidence of the Excise Guard and one of the excise officials, who took part in the said raid, the Assistant Sub -Inspector at Ankalagi Police Station, who conducted the raid along with Excise Officials, PW3 -the Excise Inspector, Gokak division who had accompanied PW2 and PW6 in the raid, PW4 -the Police Constable, PWs. 5, 6 and 7 and two punch witnesses were examined. On the basis of the said evidence and on the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973, the Court below framed the following points for consideration: i. Whether the prosecution proves beyond reasonable doubt that on 07.02.2008 at about 5.54 pm, near hillock of Ankalagi village, the accused Imamhussain Hamidsab Attar found in possession of around 15 liters of illicit liquor without valid permit or licence to possess the same and thereby committed an offence punishable under Section 34 of the Karnataka Excise Act? ii. Whether the prosecution further proves beyond reasonable doubt that, on the above said date, time and place, the accused Imamhussain was found selling illicit liquor to the public with intention to cause or knowing it to be likely that accused would be causing hurt to the public punishable under the Excise Act and thus committed an offence punishable under Section 328 of the Indian Penal Code?. iii. What sentence or order? The Court below had held point No 1 in the affirmative and point No. 2 in the negative and acquitted the accused for offence punishable under Section 328 of the IPC and convicted the accused for offence punishable under Section 34 of the Excise Act, while imposing the' minimum punishment prescribed for the first offence. It is that which is under challenge in the present appeal.

(2.) THE learned Counsel Sri. Prakash Yelli who was appointed as Amicus Curiae failed to appear, because he had discontinued practice before this Court and was said to be practicing before the Gulbarga Bench of this Court. Accordingly Sri. Mohankumar, was appointed as Amicus Curiae, who had argued at length.