- 1 - R CRL.RP No.100006 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE25H DAY OF NOVEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION No.100006 OF2016BETWEEN:
1. PARAPPA S/O HAMAPPA LAMANI AGE ABOUT62YEARS, OCC:COOLIE, R/O:YATTINALLI, TQ:SHIGGAON DIST:HAVERI …PETITIONER (BY SRI. ARAVIND D KULKARNI.,ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH ADUR TOWN POLICE STATION, REP BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD. …RESPONDENT (BY SRI.V.M.BANAKAR, ADDL. SPP) THE CRIMINAL REVISION PETITION IS FILED U/S397R/W401OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
PASSED IN C.C.NO.497/2013 AND CONSEQUENTLY IN CRIMINAL APPEAL NO.50/2015 PASSED BY THE1T ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI DATED3009.2015 AND TO SET ASIDE THE SENTENCE OF THE TRIAL COURT DATED2005.2015 PASSED IN C.C.NO.497/2013 AND THE APPELLATE COURT, DATED3009.2015 IN CRIMINAL APPEAL NO.50/2015 AND ETC., THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 2 - CRL.RP No.100006 of 2016 ORDER
1 The petitioner has filed this petition under Section 397 of Cr.P.C. seeking to set aside the judgment of conviction and order of sentence dated 26.05.2015 passed in C.C.No.497/2013 by the Civil Judge and JMFC, Shiggaon, for the commission of offence punishable under Section 4(1) of Mines and Minerals (Development And Regulation) Act, 1957 (for short ‘MMRD Act’) and Rule 3(1) and Rule 42 of The Karnataka Minor Mineral Concession Rules, 1994 (for short ‘KMMCR Rules’), which is partly allowed by the I Addl. District and Sessions Judge, Haveri, by judgment dated 30.09.2015 in Crl.A.No.50/2015.
2. Parties are referred to as per their ranks before the trial court.
3. The brief facts of the prosecution case are that:
3. 1 On 22.08.2013 as per the letter of Tahsildar, Shiggaon, A.C.Savanur, has seized the tractor which was transporting laterite stones at the - 3 - CRL.RP No.100006 of 2016 outskirts of Shiggaon. On inspection of vehicle they came to know that without permission transporting laterite stones in the said tractor and there is no registration number for the said vehicle. For protection of vehicle, Tahsildar, Shiggaon, handed over the vehicle to the police station for further legal action and wrote a letter to Senior Geologist, Mines and Geology Department, Haveri, with panchanama and photographs. Later, the complainant personally enquired and obtained information from RTO, Haveri, about the owner of the vehicle. On inspection of the vehicle it is found that 3 MT of laterite stones approximately market value of Rs.3,000/-. Accordingly, lodged a complaint under Section 200 of Cr.P.C. before the JMFC, Shiggaon.
4. On the basis of this complaint, the trial court has taken cognizance against the accused for the alleged - 4 - CRL.RP No.100006 of 2016 commission of offence and summons was issued to the accused. In response to summons, accused appeared before the Court and he was enlarged on bail. The substance of accusation was read over and explained to the accused in the language known to him. Having understood the same, accused has pleaded not guilty and claimed to be tried.
5. To prove the case of the prosecution, in all 8 witnesses were examined as P.W.1 to P.W.8. 8 documents were got marked as Exs.P-1 to P-8. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C. was recorded as to the incriminating evidence appearing against the accused. Accused has totally denied the evidence of the prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf.
6. On hearing the arguments, the trial court has convicted the accused for the commission of offence punishable under Section 4(1) of MMRD Act and - 5 - CRL.RP No.100006 of 2016 Rules 3(1) and 42 of KMMCR Rules and accused is sentenced to undergo simple imprisonment for 2 months and to pay fine of Rs.10,000/-, in default of payment of fine, the accused shall undergo simple imprisonment for 15 days.
7. Being aggrieved by this judgment of conviction and order of sentence, the accused has preferred an appeal in Crl.A.No.50/2015 before the I Addl. District and Sessions Judge, Haveri. The said appeal came to be dismissed on 30.09.2015 and appellate court has passed the order as under: “Appeal is partly allowed and accordingly the order of conviction and sentence passed by the Civil Judge & JMFC, Shiggaon in C.C.No.497/2013, dated 26-05-2015 is hereby confirmed but modified as under: The appellant-accused is hereby sentenced to pay fine of Rs.15,000/- for the offence punishable U/s 21 for violation of Section 4(1) of MMRD Act, 1957 and Rule 3(1), 42 of KMMCR, 1994, in default of payment of fine shall under go S.I. for one month. Further the order of confiscation of tractor bearing No.KA-27/TA-3662 and trally No.KA- 27/TA-3663 to State Government as made by the trial court is made absolute.-. 6 - CRL.RP No.100006 of 2016 Send L.C.Rs to the trial court along with the copy of this order forthwith for necessary action.
8. Being aggrieved by this order, the accused has preferred this revision petition.
9. Learned counsel appearing on behalf of petitioner’s counsel has submitted his arguments that complainant has not followed the mandatory provisions of Section 23B of MMRD Act, 1957. The Tahasildar has conducted the mahazar as per Ex.P-3 in which the name of driver is shown as Manju Lamani and owner of the vehicle is shown as Annappa Purappa Lamani. Same are not arrayed as accused in this case. After seizure of this tractor Tahasildar has not complied the mandatory provisions of Sections 100 and 102 of Cr.P.C. The alleged pancha witnesses who are examined before the Court as P.W.4 to P.W.8 have not supported to the case of prosecution. Even the complainant who is examined as P.W.1 has clearly admitted in his - 7 - CRL.RP No.100006 of 2016 evidence that he has filed the complaint only on the basis of information furnished by the Tahasildar. The Tahasildar is not examined by the prosecution. However, the trial court has convicted the accused and same is confirmed by the appellate court, which is not sustainable under law. On all these grounds sought for allowing this revision petition.
10. As against this, learned Addl. SPP has submitted his arguments that Courts below have properly appreciated the evidence on record and passed the impugned judgments that there are no grounds to interfere with the impugned judgments. On all these grounds, sought for dismissal of this revision petition.
11. I have carefully gone through the materials placed before this Court and re-examined the evidence of prosecution witnesses. A perusal of Ex.P-3 – panchanama dated 22.08.2013 reveals that the Tahasildar, Shiggaon, has seized the tractor bearing registration No.‘NIL’ Engine No.39.1340/SKD02386 - 8 - CRL.RP No.100006 of 2016 (Ex.P-3), Chassi No.QSTG31719078034 Swaraj 735, which was unauthroisedly transporting laterite stones in the said tractor. In the presence of panchas, he has also taken photos as per Exs.P-4 to P-7.
12. Ex.P-2 – letter addressed by the Taluk Magistrate, Shiggaon, to Sub-Inspector of Police, Shiggaon, reveals that he has requested the Police Sub- Inspector to retain this vehicle in his possession. The copy of this letter is also furnished to the Senior Mines and Geologist, Haveri and RTO, Haveri. After lapse of 6 days from the date of seizure of this tractor under Ex.P-3 – panchanama, the complainant – Shabbir Ahamad has filed a complaint under Section 200 of Cr.P.C. on 28.08.2013. P.W.1 has not offered any explanation as to the non compliance of Section 23B of MMRD Act, which reads as under: “23B. Power to search.―If any gazetted officer of the Central or a State Government authorised by the Central Government 3 [or a State Government, as the case may be,]. in this behalf by genera! or special order has reason to believe that any mineral has been raised in contravention of the provisions of this Act or rules made thereunder or any document or thing in relation - 9 - CRL.RP No.100006 of 2016 to such mineral is secreted in any place 3 [or vehicle]., he may search for such mineral, document or thing and the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every such search.
13. In the case on hand, though Tahasildar who has seized this vehicle under mahazar Ex.P-3 has given intimation to the Sub-Inspector of Police as per Ex.P- 2 and also furnished the copy of same to the complainant. None of them have complied the mandatory provisions of Sections 100 and 102 of Cr.P.C. Without intimation to the Court as to the seizure of the vehicle along with the property, the complainant has retained the same without authority of law.
14. P.W.4 to P.W.8 – pancha witnesses have also not supported to the case of the prosecution. P.W.1 has clearly admitted in his cross examination that he do not know who was the driver of the tractor at the relevant time and he has not explained anything on what basis the name of the driver has been inserted - 10 - CRL.RP No.100006 of 2016 as “Manju Lamani” and owner of the vehicle “Annappa Purappa Lamani”. The Tahasildar, who has conducted the mahazar - Ex.P-3, is not examined by the prosecution. Even, Tahasildar who has seized the vehicle is not cited as witness in the complaint for the reasons best known to the complainant. P.W.1 has clearly admitted in his cross examination that only on the basis of letters furnished by the Tahasildar, he has filed the complaint and he has no personal knowledge as to the alleged crime said to have been committed by this accused.
15. Viewed from any angle, absolutely there is no cogent, corroborative and convincing evidence before the Court to prove the guilt of the accused. The non compliance of mandatory provisions of Sections 23B, 100 and 102 Cr.P.C. is fatal to the prosecution. Both the Courts have not taken into consideration all these lapses committed by the - 11 - CRL.RP No.100006 of 2016 complainant and passed the impugned judgments which are not sustainable under law. Hence, I proceed to pass the following: ORDER
(1) Revision petition is allowed. (2) The judgment of conviction and order on sentence dated 26.05.2015 passed by the Civil Judge and JMFC, Shiggaon, in C.C.No.497/2013, which is confirmed by the I Addl. District and Sessions Judge, Haveri, in Crl.A.No.50/2015, dated 30.09.2015, are set aside. (3) Accused is acquitted for the offence punishable under Section 21 for violation of Section 4(1) of MMRD Act, 1957 and Rule 3(1), 42 of KMMCR, 1994. (4) Trial court is directed to refund the fine amount deposited, if any, by the accused on proper identification.-. 12 - CRL.RP No.100006 of 2016 (5) Interim custody of tractor bearing No.KA- 27/TA-3662 and trally No.KA-27/TA-3663, is made absolute. (6) Registry is directed to transmit the records to the trial court along with the copy of this order. Sd/- JUDGE DR List No.:
1. Sl No.: 8