RAMEGOWDA Vs. STATE

JUDGEMENT

(1.) THIS Criminal Revision Petition under Section 397 r/w Section 401 of Cr.P.C. is filed challenging the judgment dated 22.11.2007 in C.C. No. 638/2006 on the file of the Civil Judge, Junior Division and JMFC, Periyapatna and the judgment dated 20.04.2009 in Criminal Appeal No. 376/2007 on the file of the Principal Sessions Judge, Mysore, dismissing the appeal and confirming the conviction of the petitioner/accused under Section 34 of the Karnataka Excise Act.

(2.) THE revision petitioner was the accused before the Magistrate. Upon credible information, PSI of Periyapatna Police Station conducted a raid in a petty shop belonging to the accused on Bettadapura road on 09.08.2006, at about 6.15 pm and found the accused in possession of 63 arrack packets which the accused was selling without pass or permit. The accused was arrested and 63 arrack packets were seized under panchanama and upon obtaining a report from the Chemical Examiner, a charge -sheet came to be filed against the accused for the offence punishable under Section 34 of the Karnataka Excise Act. The accused having pleaded not guilty to the charge against him, the prosecution in order to prove the charge., examined as many as 8 witnesses as PW1 to PW8 and marked 3 documents as Exs.P1 TO P3 apart from M.O. 1 -Sample Arrack Packets. The learned Magistrate upon hearing the arguments and upon appreciation of the evidence placed on record, by his order dated 22.11.2007 convicted the accused for the offence under Section 34 of the Karnataka Excise Act and sentenced him to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs. 2,000/ -. The judgment of conviction and sentence passed by the Magistrate was taken in Criminal Appeal No. 376/2007 on the file of the Principal Sessions Judge, Mysore. The learned Sessions Judge, on re -appreciation of the evidence, by his order dated 20.04.2009 dismissed the appeal while confirming the judgment of conviction and sentence passed by the Magistrate. The accused has called in question the orders passed by both the Courts below as to his conviction as well as sentence.

(3.) LEARNED counsel for the petitioner -accused has vehemently submitted before me that the search in a petty shop has been conducted without obtaining a search warrant or without even recording the reasons for not obtaining a search warrant. It is further submitted that the quantity which has been sent for Chemical Examination is less than permitted quantity and therefore there is no evidence for having committed an offence by the petitioner. Hence, he sought to allow the revision petition and to set aside the orders passed by both the Courts below.