Karnataka High Court
Sri Nagendra @ Babu vs State Of Karnataka By on 31 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.618/2020
BETWEEN:
Sri Nagendra @ Babu
S/o Rudrapashupathi
Aged about 38 years
R/at Hulikunte Village
Doddabelavangala Hobli
Doddaballapura Taluk
Bengaluru Rural-561 204.
...Petitioner
(By Sri Tejas N., Advocate)
AND:
State of Karnataka
by Thyamagondalu Police
Bengaluru Rural-561 204
Represented by learned Public Prosecutor
High Court Building
Bengaluru-560 001.
...Respondent
(By Sri Mahesh Shetty, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the FIR in Crime No.106/2019
on the file of thyamagondalu Police Station, Bengaluru
Rural, which is pending on the file of Civil Judge and
JMFC, Nelamangala, for the offences punishable under
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Sections 15A of Karnataka Excise Act and the
consequent investigation as an abuse of process of law.
This Criminal Petition coming on for Admission
this day, the Court made the following:
ORDER
This petition has been filed by the petitioner/accused under Section 482 of Cr.P.C. praying this Court to quash FIR in Crime No.106/2019 filed by the Thymagondalu police Station, Bengaluru Rural District, Bengaluru pending on the file of Civil Judge and J.M.F.C. Court Nelamangala for the offence punishable under Section 15A of the Karnataka Excise Act, 1965.
2. I have heard Sri. Tejas N, learned counsel for the petitioner and Sri. Mahesh Shetty, learned High Court Government Pleader for respondent - State.
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3. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken for final disposal.
4. On 28.11.2019 at about 2.00 p.m., the complainant received a credible information that in the land of Nagesh, some unknown persons without valid license and permit are supplying liquor to the people in his Tata Ace Luggage Vehicle. Immediately along with panch witnesses, he proceeded and there he noticed that a vehicle was parked and 2 to 3 persons were standing near the Tamarind Tree and the persons, who were inside the vehicle was supplying the liquor pockets. Immediately police surrounded the vehicle and checked, it was found that 13 tetra packets of 90 ml of original choice deluxe whisky, empty 8 tetra packets of 90 ml of original choice deluxe whisky -4- and 4 plastic cups along with Tata Ace vehicle. By drawing mahazar, the same has been seized and a case has been registered.
5. It is the submission of the learned counsel for the petitioner/accused that the respondent - police have registered a false case. It is his further submission that the alleged offences registered against the petitioner/accused is non- cognizable and though the permission from the jurisdictional Magistrate is contemplated under Section 155(2) of Cr.P.C., the same had not been obtained. It is further submitted that as per Section 21 of the Excise Act, it permits to carry 4 to 6 ltrs of Viskey and other articles but the total seized material is only 1.1 ltrs and it is not beyond the limit, which has been prescribed. It is further submitted that even if the same is accepted, the -5- petitioner has not committed any offence and initiation of a criminal proceedings against him per se without jurisdiction and abuse of process of law. On these grounds, he prayed to allow the petition.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that though there is a prohibition, the petitioner/accused was selling the liquor without there being any permit or license and thereby, they have violated the conditions. It is his further submission that though the case is registered is a non-cognizable offence, but the Investigating Officer has obtained the permission on 29.11.2019 and there is an endorsement to that effect in the PF. It is his further submitted that the petitioner has not made out any good grounds to quash the proceedings. On these grounds, he prayed to dismiss the petition.
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7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. On close reading of the records, it is well settled proposition of law that in case of a non- cognizable offence, the Investigating Officer before proceeding to investigate has to obtain the prior permission from the jurisdictional Magistrate as contemplated under Section 154(2) of Cr.P.C. Though it is contended by the learned High Court Government Pleader that the permission has been taken from the jurisdictional Magistrate but there is an endorsement to that effect on the PF and even the permission has been obtained on 28.11.2019.
9. On close reading of FIR and PF it is mentioned at column No.13 that on 18.11.2017 at -7- about 5.00 p.m., that matter has been sent to the learned Magistrate but no documents have been produced for having complied with the provisions of Section 155(2) of Cr.P.C. The PF, which has been produced before the Court indicates that though the permission has been granted when the alleged incident is said to have been taken on 28.11.2019, but the permission is said to have been given on the PF on 29.11.2019 and it is not a permission as contemplated under Section 155(2) of Cr.P.C. It is well settled proposition of law that if police have failed to comply with the requirement of Sections 155(1) and (2) of Cr.P.C. and there is nothing on record to substantiate the said fact, it indicates that there is violation of the provisions of Section 155 of Cr.P.C.
10. Be that as it may. For the purpose of brevity, I quote Rule 21 of the Karnataka Excise -8- (possession, transport, import and export of intoxicants) Rules, 1967 which reads as under:
"21. Case where permit or licence is not required.- No permit or licence, under these rules, shall be required for the possession or transport of the following quantities of liquors.
Liquor Quantity
1. Today, in such areas of the State where The sale of toddy to public is allowed under sub-rule(4) of Rule 3 of the Karnataka Excise (Tapping of Trees) Rules, 1991. 2.5 litres
2. Molasses Arrack 750 Millitres
3. Molasses Arrack in Coorg District 0.8 litres
4. Country Beer 18.2 litres
5. Brandy, Whisky, Gin, Rum, Milk-Punch and such other liquors manufactured in other places in India and imported to Karnataka State, excluding Foreign Liquors (imported) 4.6 litres
6. Foreign Liquors (Imported) 9.1 litres
7. Denatured Spirit 750 Millilitres
8. x x x x
9. Wines (including mass wine and Sacramental wine) 4.5 litres R. 21 - Quantity seized within permitted limit, no offense, See Karnataka Excise Act, Section 34 - 1977 (2) Kar. L.J.463"-9-
11. On close reading of the said Rule, the person can store the Whisky up to 4.5 ltrs and it is permissible in law. As per the case of the prosecution, the seized article is only 1.1 ltrs, so when the law itself permits to store or hold whisky up to 4 to 5 ltrs, which is under the permissible limit, under such circumstance, it can be said that no offence has been made out as against the petitioner/accused to register the case, which amounts to nothing but an abuse of process of law. In that light also, the petition is liable to be allowed.
12. Taking into consideration of the above said facts and circumstances of the case, I am of the considered opinion that the petitioner/accused has made out a case so as to allow the petition.
13. In that light, petition is allowed and the proceedings initiated in Crime No.106/2019 filed by
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the Thymagondalu police Station, Bengaluru Rural District, Bengaluru pending on the file of Civil Judge and J.M.F.C. Court Nelamangala for the offence punishable under Section 15A of the Karnataka Excise Act, 1965 is hereby quashed.
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JUDGE VBS