Karnataka High Court
State Of Karnataka vs Mr Gopalakrishna on 11 September, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 11TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.531 OF 2012
BETWEEN:
State of Karnataka
By Sub-Inspector of Police,
Sullia Police Station,
Dakshina Kannada.
...PETITIONER.
(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1)
AND:
Mr. Gopalakrishna,
Son of Devayya Gowda,
Aged about 41 years,
Residing at Ballyakhana Patrakodi,
Sullia Taluk,
Dakshina Kannada - 574 234.
... RESPONDENT
(By Shri. Pranesh Chandra, Advocate)
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
2
to set aside the order dated 22.12.2011 passed by the I
Additional Sessions Judge, Dakshina Kannada, Mangalore in
Criminal Appeal No.75/2011 and confirm the order dated
24.3.2011 passed by the Authorised Officer and Deputy
Commissioner of Excise, Dakshina Kannada, Mangalore in
proceedings No.SDK/155/DTCR/2007-08.
This petition coming on for Admission this day, the court
made the following:
ORDER
Heard the learned State Public Prosecutor.
2. The present petition is filed questioning the judgment against an order of confiscation under Section 34 of the Karnataka Excise Act, 1965. The Appellate Court having held that the allegation was that the respondent - accused was carrying liquor beyond the permissible limit, the respondent was said to be selling liquor from a bag containing 27 bottles of whisky of 180 ml. each and the said liquor having been confiscated, an appeal was preferred before the Appellate Court. The Appellate Court has concluded that having regard to the allegation that the respondent was carrying more than the permissible limit namely more than 4.860 litres of whisky, it 3 was necessary for the prosecution to establish that the said quantity was indeed being carried. However, it was found that apart from sending one bottle of the seized liquor for chemical examination and producing the same before the court, the other bottles of whisky were not produced. Therefore, the court has held that even if any such bottles were seized, the question whether the bottles contained whisky or anything else was to be verified through the chemical examiner and the quantity should have been proved to have exceeded 4.860 litres, in the absence of which it could not be said that he was carrying liquor, and has allowed the appeal. It is that which is under challenge in the revision.
It is seen that Chapter VIII provides for detention, investigation and trial of offences under the Karnataka Excise Act, 1965 (hereinafter referred to as 'the Excise Act', for brevity) and Section 59-A provides as follows:
"59A. Certificate of Inspectors of Excise to be evidence- Any document purporting to be a certificate under the hand of an Inspector of Excise who has 4 undergone the prescribed training in the examination and analysis of intoxicants and materials and who is authorised 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:
but the court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Inspector of Excise as to the subject matter of his certificate."
3. Therefore, it was incumbent on the prosecution to have produced the entire quantity of liquor so seized for chemical examination and certification of the quantity and to have obtained a certificate in accordance with the above section. That would have met the requirement of law. Since no such exercise was carried out and mere production of one bottle of several that were seized would not certainly advance the case of the prosecution in the absence of such a certificate. This obviously was not done in the present case on hand.
4. Further, in interpreting Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of 5 Intoxicants) Rules, 1967, this Court has consistently held the same view, in circumstances as above. (See State of Mysore vs. Mohamed Jaffar and others 1966 (2) KLJ 91 and Mahapursha Durga Joglekar vs. State of Karnataka 1977 (2) KLJ 463 as well as in M.R. Manjunath Ramappa Gowda vs. The Authorized Officer & Deputy Commissioner of Excise, Chickmagalur District & Another 2012 (4) AIR Kar Reporter 18). With particular reference to the presumption as to commission of offence in certain cases in prosecutions under Sections 32 and 34, it has been held that it shall be so presumed until the contrary is proved, that the accused person has committed an offence punishable under the Section in respect of liquor, however, a rebuttable presumption. If the petitioner is found in possession of intoxicating substances for which he did not have a permit, it would certainly give rise to a presumption that an offence has been committed. But however, when a person is sought to be prosecuted, the prosecution is required to prove 6 beyond all reasonable doubt that there is a clear violation of the provisions of the Excise Act.
5. Therefore, in the present case on hand as well, when the accusation was of the respondent carrying certain number of bottles of liquor which exceeded the permissible limit, it was necessary for the prosecution to establish that factum and this could have been done in more ways than one. The law itself provides as above of obtaining a certificate which would give a free hand to the prosecution to then establish its case, in the absence of which it cannot be said that there is any error in the judgment of the court below.
Accordingly, the petition is rejected.
Sd/-
JUDGE KS