Karnataka High Court
Sri H K Yuagnamurthy vs State Of Karnataka on 27 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
CRIMINAL REVISION PETITION No.366 OF 2011
BETWEEN:
Sri. H.K.Yuagnamurthy,
S/o Krishnamurthy Bhatt,
Aged about 40 years,
Occ: Archak,
R/o Behind SKP Temple,
Jayapura, Koppa Taluk,
Chikamagaluru District. ... Petitioner
(By Sri. S.V.Prakash, Advocate)
AND:
1. State of Karnataka,
Rep. by Koppa Police,
Koppa Taluk,
Chikamagalur District.
2. Deputy Commissioner of Excise,
Chikamagalur District,
Chikamagalur City. ... Respondents
(By Sri. M. Divakar Maddur, HCGP)
This Criminal Revision Petition is filed under Section
397 r/w 401 Cr.P.C, praying to set aside the order dated
2
17.02.2010 passed by the 2nd respondent in DTCR
No.114/2004-05 produced as Annexure-L and the order
passed by the learned Additional Sessions Judge,
Chikamagalur District dated 12.10.2010 in
Crl.A.No.38/2010 produced as Annexure-M to the writ
petition.
This petition coming on for Hearing this day, the
Court made the following:-
ORDER
This revision petition is filed under Sections 397 read with 401 of the Code of Criminal Procedure calling in question the judgment and order passed by learned Sessions Judge, Chikkamagaluru, in Criminal Appeal No.38/2010 dated 12.10.2010 whereby the order passed by the Deputy Commissioner of Excise, Chikkamagaluru dated 17.02.2010 in DTCR No.114/2004-05 confiscating the Maruthi Omni Van bearing Reg.No.KA-18/M 6488 has been confirmed by dismissing the appeal.
2. Briefly stated, the facts are that, on 03.01.2005 at about 3.45 p.m., the Sub-inspector of Police, Koppa and his staff on credible information, while on patrol duty, seized the vehicle in question, a Maruthi 3 Omni Van bearing Reg.No.KA-18-M-6488 for involving in the alleged offence of transporting 1000 packets of arrack of 100 ml., each in 7 plastic bags without the required licence/permit. After complying with the provisions of the Karnataka Excise Act, 1965 (for short the 'Act') the vehicle in question was confiscated by the Authorized Officer under the provisions of the Act by order dated 17.02.2010.
3. Being aggrieved by the same, the petitioner preferred an appeal bearing Crl.A.No.38/2010 under Section 43(E) of the Act, which came to be dismissed, confirming the order of the Authorized Officer. Hence, this revision petition.
4. Learned counsel Sri. S.V.Prakash appearing for the petitioner would submit that in the proceedings initiated against the driver and the person who was accompanying the liquor alleged to have been transported in the vehicle in question on 03.01.2005, were acquitted for the offence levelled against them as the prosecution had failed to prove the transporting of illegal liquor 4 without the required permit/licence. As such, the confiscation of the vehicle alleged to have been used in the said offence is unjustifiable. Further, confirmation of the said confiscation order by the Appellate Court is contrary to the well established principles of Law and the same deserves to be set aside.
5. Learned counsel further submitted that, out of alleged 1000 packets of arrack containing 100 ml., each in 7 plastic bags said to have been found at the time of interception of the vehicle-Maruthi Omni Van bearing Reg.No.KA-18/M 6488 by the Excise Authorities was not proved to be illicit liquor as only one packet of sample was taken from each bag and totally, 7 packets were sent for chemical examination. In the absence of prosecution proving that 1,000 packets of arrack was illegally transported and in the absence of any FSL report furnished, the Court below as well as Authorized Officer under the Excise Act grossly erred in confiscating the vehicle in question under Section 43(E) of the Act. 5 Reliance was placed on Section 59-A of the Act. Accordingly, learned counsel seeks for setting aside the impugned judgment and order.
6. Per contra, learned HCGP appearing for the State, justifying the impugned judgment and order passed by the Appellate Court confirming the confiscation order of the Authorized Officer, submitted that there is a presumption of commission of offence in case of intoxication as per Sec. 40 of the Act. Once possession of intoxicant is proved, not obtaining the FSL report or any certificate under Sec. 59-A of the Act would not render the case of prosecution invalidated. The concurrent findings of the Excise Authorities as well as Appellate Court require to be confirmed in the circumstances of the case.
7. Section 59-A of the Act deals with the certificate of inspectors of excise to be evidenced. In terms of the said provisions, any document purporting to be certificate under the hand of an Inspector of Excise who has undergone the prescribed training in the examination and 6 analysis of intoxicants and materials and who is authorized by the State Government in this behalf, in respect of any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated in such certificate, in any proceedings under this Act.
8. It is not in dispute that only seven packets out of one thousand packets of 100 ml., each was sent for FSL examination and report, but no such report is received or FSL examination report has been marked in evidence to prove the committal of the offence by the accused.
9. It is necessarily to be established by the prosecution that the accused was in illegal possession of the liquor without permit/licence and the vehicle in question was used to illegally transport such liquor. This Court in the case of Srinivas Vs State of Karnataka reported in ILR 2014 KAR 5949 has held that, the burden is on the prosecution to prove that all quantity of liquor in different bottles/packets seized is an intoxicant and the 7 maximum quantity carried against the permitted limit could have been easily proved under Section 59A of the Act by producing the certificate issued under Sec. 59A of the Act. Such exercise having not been done by the prosecution, it is held that the prosecution has failed to prove the alleged offence. However, in the present case, the learned Magistrate, Koppa in C.C.No.546/2005 has acquitted the accused namely Suresh and Syed Ali for the offences charged against them under Sections 32 and 34 of the Act for transporting the illicit liquor without the permit/licence. If the prosecution has failed to prove the alleged offence of transporting illicit liquor in the vehicle in question, Authorized Officer under the Excise Act exercising the power under Section 43-E of the Act confiscating the vehicle for allegedly transporting the illicit liquor would not arise. The base for confiscating the vehicle in C.C.No.546/2005 is only driver of the vehicle and the person accompanying the goods carrying the illegal liquor in the vehicle in question. If the base is held 8 to be not proved, any further structure built upon the base i.e., order of confiscation of the vehicle alleged to have been involved in the offence seems to be weak. Any such action of confiscation by the authorities concerned de hors the failure of the prosecution proving the offence would not be sustainable.
10. It is true that Section 40 of the Act deals with presumption as to commission of offence in certain cases. This presumption is with respect to prosecution under Sections 32 and 34, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of,
(a) any intoxicant; or
(b) any still, utensil, implement or apparatus whatsoever in the manufacture of any intoxicant other than toddy; or
(c) any materials which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured, 9 for the possession of which he is unable to account satisfactorily.
11. When once the contrary is proved, or in other words, the prosecution has failed to establish the presumption, the said provision would not be attracted. Section 43-A of the Act contemplates confiscation by Excise Officers in certain cases. The procedure has to be followed in terms of Section 43-B which mandates the issue of show cause notice before confiscation. 43-B(2) provides that no order confiscating any animal, cart, vessel or other conveyance shall be made under Section 43-A, if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorized officer that it was used in carrying the liquor or intoxicant or the material, still, utensil, implements or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, cart, vessel or other 10 conveyance and that each of them had taken all reasonable and necessary precautions against such use.
12. The defence taken by the petitioner under section 43-B(2) that he had taken all reasonable and necessary precaution against use of the vehicle registered in his name and the same was handed over to his friend Suresh-accused in C.C.No.546/2005, is not countenanced by the Excise Authority as well as the Appellate Court. It was argued that the petitioner had no knowledge or connivance for the committal of the offence, if any. Be that as it may, in the present fact situation, without examining the defense taken by the petitioner under Section 43-B(2) of the Act, the judgment and order impugned herein deserves to be set aside for the other grounds urged by the petitioner. The Excise Authority has not properly appreciated the evidence placed on record, more particularly Ex.D1 copy of the judgment and order passed by the learned Magistrate, Koppa, in C.C.No.546/2005 dated 19.9.2007. Added to this, the procedural flaw 11 pointed out by the learned counsel appearing for the petitioner in not producing the FSL report and Section 59-A certificate by the prosecution to prove the committal of the offence by the accused, goes to the root of the matter.
13. For all these reasons, the judgment and order impugned herein deserves to be set aside. Hence, the following:
ORDER Criminal Revision Petition is allowed. Judgment and order passed by the learned Sessions Judge, Chikkamagaluru, dated 12.10.2010 in Crl. Appeal No.38/2010 as well as the order of the Authorized Officer cum Deputy Commissioner of Excise, Chikkamagaluru, dated 17.2.2010 in No.DTCR 114/2004-05 are set aside. Indemnity bond, if any issued, shall be cancelled.
Sd/-
JUDGE Js/dvr :