Karnataka High Court
Mr. Navaneeth Mohan. N vs Deputy Superintendent Of Police on 6 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.3908/2019
BETWEEN:
1. Mr. Navaneeth Mohan N.,
S/o Mr. Narasimhaiah N.,
Aged about 48 years
No.67, 4th Main, Binny Mill Road,
Ganga Nagar Extension,
Bengaluru-560 032.
2. Smt. Jyothi G.,
W/o Navaneeth Mohan N.,
Aged about 40 years
No.67, 4th Main, Binny Mill Road,
Ganga Nagar Extension,
Bengaluru-560 032.
...Petitioners
(By Ms. Annu Bharadwaj, Advocate for
Sri Harikrishna S. Holla, Advocate)
AND:
1. Deputy Superintendent of Police
Anti-Corruption Bureau
Bengaluru City Police Station
No.49, Khanija Bhavan
Race Course Road,
Bengaluru-560 001.
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2. The Inspector of Excise
Karnataka Excise Department
Munireddy Palya Range,
K.R.Puram Sub-Division
Bengaluru Urban District-560 032.
3. The Excise Sub-Inspector
Karnataka Excise Department
Munireddy Playa Range
K.R.Puram Sub-Division
Bengaluru Urban District-560 032.
...Respondents
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the charge sheet dated 04.10.2018
filed by the 2nd respondent before the VIII Additional Chief
Metropolitan Magistrate, Bengaluru in C.C.No.5963/2019
and to declare that the petitioners have not committed any
offences punishable under Sections 14, 32, 38(1) r/w.
Section 54 of Karnataka Excise Act, 1956.
This Criminal Petition coming on for Admission this
day, the Court made the following:-
ORDER
This petition has been filed by petitioners - accused Nos.1 and 2 under Section 482 of Cr.P.C. praying this Court to quash the charge sheet in C.C.No.5963/2019 pending on the file of VIII Additional Chief Metropolitan Magistrate Court, Bengaluru for the offences punishable -3- under Sections 14, 32, 38(A) of Karnataka Excise Act, 1956 (hereinafter referred to as 'the Act' for short).
2. I have heard the learned counsel for the petitioners and the learned Additional SPP for the respondent-State.
3. Though this case is listed for admission, with consent of the learned counsels appearing for the parties, the same is taken up for final disposal.
4. The gist of the case is that Deputy Superintendent of Police, A.C.B. conducted a search of the petitioners' house on 27.7.2019 for disproportionate source of income. During such search he noticed that the petitioners-accused were in possession of foreign liquor in excess of limits prescribed under Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967. The said authorities handed over the same to the Inspector of Excise for further investigation. He took up further investigation and seized the said articles and -4- registered the FIR, thereafter after investigation charge sheet has been filed.
5. The main grounds urged by the learned counsel appearing for the petitioners - accused are that, Deputy Commissioner, A.C.B., Bangalore had no power to conduct the search under the Act, contrary to that he has seized the articles and handed over the same to the Excise Department. It is her further submission that the Excise Inspector before seizing of the articles had not followed the provisions of Sections 54 to 56 of the Act. Non compliance of the said provision which is mandatory, it goes to the root and the entire proceedings are liable to be quashed. It is her further submission that even the prior permission has not been obtained under Section 155(2) of Cr.P.C. before registering and investigating the case. She further submitted that non-compliance of the provisions of Section 54 of the Act renders the search completely without jurisdiction. In order to substantiate her said contention she has relied upon the decision of the Hon'ble Apex Court -5- in the case of K.L.Subbayya Vs. State of Karnataka reported in AIR 1979 SC 711. She has also relied upon the decision of this Court in the case of Kumar Vs. State of Karnataka & another, in Criminal Petition No.8658/2019 disposed of on 8.1.2020. On these grounds, she prayed to allow the petition and quash the proceedings.
6. Per contra, the learned Additional SPP has vehemently argued and submitted that the petitioners were in possession of the liquor beyond the quantity which is not permissible under law. It is his further submission that Deputy Superintendent of Police, A.C.B has intimated to the Excise Department and thereafter immediately search and seizure was made. It is his further submission that since the sentence imposed for the offence punishable under Section 34 of IPC is extendable up to five years and it is a cognizable offence, under such circumstances, the provisions of Section 155 of Cr.P.C. are not applicable and therefore no prejudice has been caused to the accused. -6- Under such circumstances, benefit cannot be given to the accused. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
8. On going through the records, it is an admitted fact that Deputy Superintendent of Police, A.C.B. went in search and at that time, he noticed that the accused were in possession of liquor in violation of the Rules. He intimated the same to the Inspector of Excise Department who in turn seized the articles and after investigation filed the charge sheet. The contents of the complaint and other material would also disclose the said details. As rightly pointed out by the learned counsel for the petitioners that Superintendent of Police, A.C.B. is not having any right to seize the articles, appears to be acceptable. -7-
9. Be that as it may, Section 54 of the Act prescribes that before making a search, the officer concerned has to obtain a warrant and if he is unable to obtain the warrant, the reasons have to be specifically stated. In the absence of any such material, safeguards which have been given to the accused cannot be rejected. The provisions of Section 54 of the Act have to be complied with and if there is non- compliance of provisions of Section 54 of the Act with regard to the search, then under such circumstances, the search conducted is completely without jurisdiction. This proposition of law has been laid down by the Hon'ble Apex Court in the case of K.L.Subbayya Vs. State of Karnataka (cited supra), wherein at paragraphs-3 and 4 it has been observed as under:-
"3. In the instant case, it is admitted that the Inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the -8- provisions of Section 54 were not at all complied with.
4. This, therefore, renders the entire search without jurisdiction and as logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyze the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section -9- 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him."
10. Even this Court in the case of Kumar Vs. State of Karnataka & another (mentioned supra) has also taken a similar view. When there is non-compliance of the provisions of Sections 54 to 56 of the Act and even the seizure conducted is not in accordance with law, then under such circumstances, the investigation conducted and filing of the charge sheet is going to vitiate the entire proceedings. In the light, the continuation of the proceedings is nothing but abuse of process of law.
11. Taking into consideration the ratio laid down in the above decisions and under the facts and circumstances of the case, petition is allowed. The proceedings initiated as against the petitioners-accused Nos.1 and 2 in CC.No.5963/2019, pending on the file of VIII Additional
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Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 14, 32, 38A of the Karnataka Excise Act, are hereby quashed.
Sd/-
JUDGE *AP/ck/-