Karnataka High Court
United Breweries Limited vs The State Of Karnataka on 10 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3398 OF 2024
BETWEEN:
1 . UNITED BREWERIES LIMITED
UB TOWER, LEVEL 3,4,
VITTHAL MALLYA ROAD,
BENGALURU - 560 001,
REPRESENTED BY ITS
AUTHORISED SIGNATORY
MR.M.V.KARTHICK.
2 . MR.M.V.KARTHICK
BREWERY HEAD
AGED ABOUT 46 YEARS,
S/O LATE M.S.VEDASEKAR
RESIDENTIAL ADDRESS:
107, SAI BRINDAVAN APARTMENTS,
VIDYARANYAPURA
MYSURU - 570 008.
... PETITIONERS
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI YASHODHAR HEGDE, ADVOCATE)
2
AND:
1. THE STATE OF KARNATAKA
ACTING THROUGH
THE MINISTRY OF EXCISE
VIDHANA SOUDHA
BENGALURU - 560 001
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING.
2. THE DEPUTY COMMISSIONER OF EXCISE
2ND FLOOR, TTMC 'A' BLOCK,
BMTC BUILDING,
SHANTINAGAR,
BENGALURU - 560 027.
3. THE JOINT COMMISSIONER OF EXCISE
MYSURU DIVISION,
BUILDING NO.22/1, 1 , I BLOCK,
JAYANAGAR,
KUVEMPU NAGARA,
MYSURU - 570 023.
4. THE DEPUTY COMMISSIONER OF EXCISE
MYSURU (RURAL) DIVISION,
BUILDING NO.1/SMT, JCST
NEAR SAMRAT KALAYNA MANTAPA
UDAYA RAVI ROAD,
I BLOCK, KUVEMPU NAGAR,
MYSURU - 570 023.
5. THE COMMISSIONER OF EXCISE
CHAMARAJANAGAR DIVISION,
DOUBLE ROAD,
CHAMARAJANAGAR - 571 313.
3
6. THE DEPUTY SUPERINTENDENT OF EXCISE
C/O UNITED BREWERIES LIMITED,
THANDYA INDUSTRIAL AREA,
NANJANGUD TALUK
MYSURU DISTRICT.
7. THE SUPERINTENDENT OF EXCISE
C/O UNITED BREWERIES LIMITED,
THANDYA INDUSTRIAL AREA,
NANJANGUD TALUK
MYSURU DISTRICT.
8. THE EXCISE INSPECTOR
C/O UNITED BREWERIES LIMITED,
THANDYA INDUSTRIAL AREA,
NANJANGUD TALUK
MYSURU DISTRICT.
9. THE EXCISE INSPECTOR
C/O UNITED BREWERIES LIMITED,
THANDYA INDUSTRIAL AREA,
NANJANGUD TALUK
MYSURU DISTRICT.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO a) QUASH THE FIR NO.79/2023-
24/75SE/754405 DATED 03.04.2024 (ANNEXURE-J) REGISTERED
BY THE KARNATAKA EXCISE DEPARTMENT THE RESPONDENT NO.5
QUA THE PETITIONER HEREIN PENDING BEFORE PRL.CIVIL JUDGE
AND J.M.F.C NANJANGUD MYSORE FOR THE OFFENCES P/U/S 9,
10, 11, 12, 14, 32, 34, 38, 43 OF THE KARNATAKA EXCISE ACT
AND ETC.,
4
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The 1st petitioner/United Breweries Limited along with
Brewery Head are before this Court calling in question registration
of a crime in Crime No.79/2023-24/75SE/754405 registered by the
Karnataka Excise Department for offences punishable under
Sections 9 to 12, 14, 32, 34, 38(A) and 43 of the Karnataka Excise
Act, 1965 ('the Act' for short).
2. Heard Sri Sandesh J. Chouta, learned senior counsel
appearing for the petitioners and Sri B.N. Jagadeesha, learned
Additional State Public Prosecutor appearing for the respondents.
3. Facts, in brief, germane are as follows:
1st petitioner is a Company incorporated under the Companies
Act, 1956 having its registered office at Bangalore. M/s United
5
Breweries Limited and its head are the petitioners (referred to
hereinafter as 'the petitioner'). The petitioner, inter alia, is engaged
in the business of manufacture and sale of beer in the State of
Karnataka and operates through its brewery located at Thandya
Industrial Area, Nanjangud Taluk, Mysore District. The State acting
through the Ministry of Excise is empowered to deal with the issues
pertaining to levy, collection and administration of State excise
duties in the State of Karnataka. The 2nd respondent/Commissioner
of Excise and Chief Controlling Authority is connected with the
administration of the Act. The 3rd respondent/Joint Commissioner
and the Deputy Commissioner of Excise, Mysore are the authorities
to approve the permits required by the petitioner in the discharge
of other statutory responsibilities under the Act.
4. The petitioner, as observed hereinabove, manufactures
alcoholic beverages in an excise bonded factory/brewery and is in
the business of inter-State transportation of beverages. The
petitioner has obtained permits from importing and exporting
States in terms of the provisions of the Act. The import and export
permits contained a detailed description and quantity of liquor,
6
route to be followed for transportation, validity of permit etc. Post
receipt of import and export permits, goods are transported along
with the copies of such permits. The goods are required to cross
Karnataka into the designation State within the validity period
specified in the export permit. If they do not, the consignment of
liquor would be held at the check-post and proceedings would be
initiated for transportation of liquor without valid permit. After
having obtained permits from the importing State of Kerala which
was valid up to 30-03-2024, the petitioner applied for permit from
the exporting State i.e., the State of Karnataka on 13-03-2024. For
17 days, no permit was issued. The permit comes about only on
30-03-2024 when the petitioner had less than a day to ensure that
alcoholic beverages reach Kerala before 30-03-2024, failing which,
the goods that are transported would be seized by the Kerala Excise
Department.
5. The petitioner holding the despatch permit, sent through
lorries the liquor under the despatch permit dated 30-03-2024.
Few of the lorries could pass through the check-post at Kerala and
the others could not, as the time for passing through the forest was
7
over. Therefore, the goods returned to the brewery under the
supervision of excise officials. Upon return of the goods to the
brewery, the petitioner is said to have informed the respondents
immediately seeking permission to unload the trucks which
returned to the brewery. Pursuant to acknowledgment of the letter,
the petitioner unloaded the trucks in the presence of excise guards
of respondents 6 and 7. All these activities are said to be evident
from the CCTV camera at the petitioner's brewery. In the
meantime, the excise officials conduct a panchanama at the unit
where the goods had stationed on return and hold that the goods
from 31-03-2024 had been illegally kept in the factory and
registered a crime on 03-04-2024 for several of the afore-quoted
offences. Registration of crime is what has driven the petitioner to
this Court in the subject petition.
6. The learned senior counsel appearing for the petitioner
would vehemently contend that the goods had to be brought back
not because of any violation of law, but the trucks could not pass
through Madhumalai forest before time. The export permit was
granted with only few hours left to load and transport the goods.
8
Therefore, out of 17 trucks, only 10 trucks carrying 7000 cases
passed through as time was still left in the forest and 7 were held,
as the time for passing in the forest for movement of vehicles
ended. As required in law, the excise officials were informed. The
excise guards were present when the trucks came back to the
brewery and goods was unloaded in the brewery. He would thus,
contend that there can be no offence under the Act at all, as the Act
requires information to be given to the nearest Police Station or to
the excise officials. That having been complied with, the learned
senior counsel submits that there cannot be any offence. He seeks
quashment of first information report laid by the respondents.
7. Per contra, the learned Additional State Public Prosecutor
would vehemently refute the submissions to contend that the
petitioner is guilty of the offence. The reason for the petitioner to
be guilty of the offence is that, excise officials were not informed
prior to bringing back lorries loaded with liquor. There was only an
export permit and there was no entry permit to enter back to the
brewery, from the Excise Department. Therefore, it becomes an
illegal transportation in terms of the Act. He would contend that no
9
fault can be found with the proceedings initiated against the
petitioner.
8. The learned senior counsel would join issue in contending
that the petitioner had to initiate proceedings before this Court in
Writ Petition No.10490 of 2024 seeking release of seized beer as it
was a perishable commodity. The reason for initiating proceedings
against the petitioner is that United Breweries is taken over by a
Hollish Company. That Company has zero tolerance for corruption.
None of the demands that are generally generated were ever met in
the case at hand. That is the reason how the seizure has happened.
He seeks quashment of proceedings.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. The afore-narrated facts are not in dispute. The issue that
brings the petitioner to this Court is registration of crime on
03-04-2024 for the afore-quoted offences. The reason for
10
registration of crime is that the petitioner manufactures beer and
exports it to various States in the country on export permits being
granted by the Excise Department. Kerala is one of the States to
which beer is exported. An application was made for grant of
export permit on 13-03-2024. For 17 days, despite reminders, no
despatch permit was issued. The import permit issued by Kerala
State was to expire at 12 mid-night on 30-03-2024. The permit was
granted at 7.15 p.m on 30-03-2024. Holding the despatch permit,
7000 cases of consignment of beer was sought to be transported in
GPS enabled trucks. The submission of the learned senior counsel is
that certain lorries could not cross the border on 30-03-2024, as it
had to pass through forest and had returned back to the goal, the
goal is the breweries at Nanjangud. While so returning, the
petitioner has immediately informed the respondents of the events
and also files a letter on 30-03-2024 itself seeking permission to
unload the trucks which returned to brewery. The communication
reads as follows:
"The Superintendent of Excise
United Breweries Ltd.,
Thandya Industrial Area,
Nanjangud - 571 301.
11
Dear Sir,
Sub: Kerala export permit cancellation, due to permit laps
Export pass to Kerala was approved and received from DC
office on 30.03.2024 and same is planned to export on
30.03.2024
Due to permit validity 30.03.2024, Transporter not willing
to carry the goods since permit was expiring the same day.
Hence hereby request your kind self to allow us to unload
the Truck.
Permit details are tabulated as below.
Depot IP No. IP EXPIRY PERMIT QUANTITY LORRY
DATE NO. NO.
KERALA- IP-BEER/2023- 30-03-2024 ES2024031363 700.000 KA 11 C
KOZHIKODE 24/4522 4967
KERALA- IP-BEER/2023- 30-03-2024 ES2024031358 700.000 TN 01 V
PATHANAMTHITA 24/4520 6375
KERALA-ALUVA IP-BEER/2023- 30-03-2024 ES2024031352 700.000 KA 34 B
24/4518 4374
KERALA- IP-BEER/2023- 30-03-2024 ES2024031351 700.000 TN 52 E
TRIPUNITHURA 24/4517 7609
KERALA- ALUVA IP-BEER/2023- 30-03-2024 ES20240313104 700.000 KA 34 B
24/4525 4374
KERALA- IP-BEER/2023- 30-03-2024 ES20240313111 700.000 TN 43 Z
PERINTHALMAN 24/4526 4736
KERALA- IP-BEER/2023- 30-03-2024 ES2024031369 700.000 TN 40 L
TIRUVALLA 24/4524 2538
KERALA- IP-BEER/2023- 30-03-2024 ES2024031360 700.000 TN 52 E
TRIPUNITHURA 24/4521 7609
KERALA- IP-BEER/2023- 30-03-2024 ES20240313114 700.000 TN 28 AF
KOTTARAKARA 24/4529 1674
KERALA- IP-BEER/2023- 30-03-2024 ES20240313127 700.000 TN 28 AF
KOTTARAKARA 24/4579 1674
Thanking you sir
For UNITED BREWERIES LIMITED
12
Sd/-
Authorized Signatory"
The excise officials/respondents 6 and 7 had come to the spot i.e.,
the brewery and respondent No.6 stationed at the brewery sought
further permission from respondent No.7 and got all the 7 trucks
unloaded. Since unloaded material was stored in the brewery, a
search is conducted, panchanama is drawn and several thousand
cases of beer were held to be unlawful, more so, on the score that
code of conduct for, parliamentary election was in force at the time
of return of lorries to the brewery. The submission now is that it is
in violation of the Act and the Rules.
11. The submission of the learned Additional State Public
Prosecutor becomes unacceptable, as the Rule requires information
to be given at the nearest Police Station or to the Excise Officer.
The petitioner calls up 8threspondent/Excise Inspector and informed
him about the situation that it could not transport the goods into
the State of Kerala and had to get back. This is acknowledged by
the 8th respondent. The petitioner unloads the liquor from the
lorries and places in the brewery. Two days thereafter, a search is
13
conducted and liquor that was found in the lorries and unloaded, is
seized. The crime comes to be registered for the afore-quoted
offences. There cannot be a better illustration of crime being
registered on frivolous grounds, on the score that despatch/export
permit that was applied was on 13-03-2024 and permit was
granted only on 30-03-2024 that too at late hours on the said date,
since the import permit by the Kerala State was to expire at the
mid-night of 30-04-2024. For 17 days the Department of Excise
does not issue the permit, for reasons best known, to it and for the
fault of officers of the Excise Department, the proceedings are now
initiated against the petitioner. The offences alleged are the ones
punishable under Sections 9 to 12, 14, 32, 34, 38(A) and 43 of the
Act. None of the ingredients that are necessary to be present are
even remotely present in the case at hand.
12. Interpretation of offences under the Act need not detain
this Court for long or delve deep into the matter. The Apex Court in
the case of K.L. SUBBAYYA v. STATE OF KARNATAKA1 has held
as follows:
1
(1979) 2 SCC 115
14
"2. Thus this section relates to a contingency where
the statute enjoins that any inspector before searching a
place must obtain a warrant from the Magistrate. Section
54 is a special provision which arises in urgent cases
where it may not be possible for the officer concerned to
get a warrant from the Magistrate. Section 54 runs thus:
"Whenever the Excise Commissioner or a
Deputy Commissioner or any police officer not
below the rank of an officer in charge of a police
station or any Excise Officer not below such rank
as may be prescribed has reason to believe that
an offence under Section 32, Section 33, Section
34, Section 36 or Section 37 has been, is being
or is likely to be, committed, and that a search
warrant cannot be obtained without affording
the offender an opportunity of escape or of
concealing evidence of the offence, he may after
recording the grounds of his belief--
(a) at any time by day or by night enter and
search any place and seize anything found therein
which he has reason to believe to be liable to
confiscation under this Act; and
(b) detain and search and, if he thinks proper,
arrest any person found in such place whom he has
reason to believe to be guilty of such offence as
aforesaid."
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 provisions of Section
54 were not at all complied with.
4. This, therefore, renders the entire search without
jurisdiction and, as a logical corollary, vitiates the
conviction. We feel that both Sections 53 and 54 contain
valuable safeguards for the liberty of the citizen in order
15
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 analyse 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 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."
(Emphasis supplied)
Following the said judgment, this Court in the case of
SMT. AMANGOUA MAGNE ARLATTE v. STATE OF KARNATAKA2
has held as follows:
".... .... ....
4. Learned counsel for the petitioner would submit that
the entire issue of bringing charges against the petitioner stands
covered by the judgment rendered by the Co-ordinate Bench of
this Court in the case of LAKSHMI VENKATESHWARA VS.
STATE OF KARNATAKA reported in 2019 SCC OnLine Kar
3316, wherein it is held as follows:
2
Criminal Petition No.793 of 2022 decided on 14th March, 2022
16
"3. The case of the prosecution is that on credible
information, the lodging house belonging to the
petitioner herein viz., Lakshmivenkateshwara Boarding
and Lodging was raided on 08.10.2016 by the Deputy
Superintendent of Excise of Shahapur Division along
with panchas. They found 4441 numbers of bottle corks
of different companies in a plastic bag in one of the
rooms in the lodge.
4. Learned counsel for the petitioner at the
outset submitted that the investigating officer has failed
to comply with the requirements of Sections 53 and 54
of the Act while conducting the search and seizure and
therefore, the very initiation of the proceedings are
illegal and tainted. Further, the allegations made
against the petitioner do not attract the ingredients of
the offences under Sections 11,12 and 13 of the Act.
These offences relate to possession or manufacture of
excisable articles, transport of intoxicant, Permits for
transport and manufacture of excisable article prohibited
except under a licence. Seizure of bottle carks do not
fall under any of the provisions. Therefore, the
prosecution of the petitioner for the alleged offences is
wholly opposed to the provisions of the Act and
consequently, abuse of the process of the Court.
5. Learned SPP-II has argued in support of the
impugned charge sheet contending that the
investigating officer has followed all the requirements
laid down under the Act. Huge quantity of caps were
found in the lodging house which indicate that the caps
were stored only for the purpose of illegal manufacture
of prohibited liquor and hence, there is prima-facie case
for prosecution of the petitioner.
6. It is not in dispute that during raid 4441
corks or bottle caps were found in a bag. It is not
clear as to whether the said packet was found in
any of the room of the lodge occupied by the
inmates or in the room which was in exclusive
possession of the owner, none-the-less the articles
found in the possession of the petitioner in my
view do not constitute any of the offence
punishable under Sections 11 to 13 of the Act.
17
7. Section 11 deals with the transport of
intoxicant. Section 13 deals with manufacture of
'excisable articles'. The section reads as under:
8. Manufacture, etc., of excisable article
prohibited except under a licence:
(1) No person shall-
(a) manufacture or collect an intoxicant; or
(b) cultivate hemp plant; or
(c) tap a toddy producing tree or draw toddy
from any tree; or
(d) construct or work a distillery or brewery;or
(e) bottle liquor for sale; or
(f) use, keep, or have in his possession, any
materials, still, utensils, implement or
apparatus, whatsoever for the purpose of
manufacturing any intoxicant other than
toddy,
Except, under the authority and subject to the terms
and conditions of a licence granted by the Deputy
Commissioner in that behalf or under the provisions of
Section 18.
(2) A licence granted under this Section shall
extend to and include servants and other persons
employed by the licensee and acting on his behalf.
9. Section 14 which deals with possession of
excisable articles 14 reads as under:
10. Possession of excisable articles in excess of
the quantity prescribed- (1) The State Government may,
by notification, prescribe a limit of quantity for the
possession of any intoxicant:
Provided that different limits may be prescribed
for different qualities of the same article.
(2) No person shall have in his possession any
quantity of any intoxicant in excess of the limit
prescribed under sub-section (1), except under the
authority and in accordance with the terms and
conditions of -
18
(a) a licence for the manufacture, cultivation,
collection, sale or supply of such article, or
(b) a permit granted by the Deputy
Commissioner in that behalf.
11. A bare reading of the above provisions would
indicate that a person found in possession of any
excisable articles as defined under Section 2(6) of the
Act could be tried and prosecuted for the above
offences. "Excisable Article" is defined under Section
2(6).
2 (6) "Excisable article" means-
(a) any liquor;
(b) any intoxicating drug;
(c) opium; or
(d) other narcotic drugs, narcotics and non-narcotic
Drugs which the State Government may by notification
declare to be an excisable article;
The caps by themselves do not fall within the
definition of "excisable articles". There are no allegation
in the FIR that the said caps were intended for the
manufacture or sale of illicit liquor. From the reading of
panchanama, it cannot be gathered as to whether any
manufacturing activity was carried on in the lodging
house."
This Court in another case
CRL.A.NO.2815/2010
"14. The investigation under the special Act for
special offences, duty is casted on investigation agency
to do the investigation within the parameter of the Act.
The seized articles should be proved that it was contra
band. The search and seizer should be proved beyond
any reasonable doubt. Further, there should not be
violation of any law governing the investigation.
15. The Hon'ble Apex Court is held in the case of
K.L. Subbayya V/s. State of Karnataka, reported in
(1979) 2 SCC 115 that the violation of Sections 53 and
54 of the Karnataka Excise Act, 1965 vitiates the entire
investigation. It reads as follows:
19
"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 provisions of Section 54 were not at all
complied with.
4. This, therefore, renders the entire search
without jurisdiction and, as a logical corrolary',
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 analyse 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 to 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 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."
The said rule is relied on by the appellant's counsel.
16. On perusing of the above said authority,
it is crystal clear that Section 54 of the Act has to
be complied. The warrant for search and seizure
should be obtained for the offences under Sections
32, 33, 34, 36 and 37. It is only in the event of
contingency, Section 54 provides for search and
seizure by excise officials without warrant to
prevent the offender escaping or concealing the
evidence that may be found against the accused.
20
Whatever the information that the Commissioner
of Excise or Police Officer had received regarding
the commission of offence punishable under
Sections 32, 33, 34, 36 or 37 of the Act would be
rendered without jurisdiction and vitiates
conviction. This aspect has not been considered by
the trial Court.
17. Admittedly, PW1/CW1 had received
information that a person is selling illicit arrack in the
public place. Thereafter, he summoned to panchas, then
went to seen of occurrence. He was watching the same
by standing at the distance, they noticed that the
information received was found to be correct and the
accused was found selling illicit arrack to the general
public by keeping in a rubber tubes and vessel (Bindige)
in his possession. Therefore, he filed the complaint at
Ex.P2. In the presence of panchas, PW1 drew a seizure
panchanama as per Ex.P1 and seized the illicit liquor,
cash of Rs.110/- vessels.
18. So far as independent pancha witnesses PW2
and PW8 are concerned they are not supported the case
of the prosecution. The CW10 the Police Inspector, who
registered the complaint on the basis of the grievance
given by CW1.
19. The trial Court found the evidence of PW1, 3
and 4 the corroborative of the documentary evidence at
Ex.P1 Panchanama. Seizure of article is also proved by
the said evidence. Therefore, the trial Court applied the
presumption available under Section 40 of Karnataka
Excise Act. On the basis of evidence of PW6 and Ex.P4
the chemical analysis report, the trial Court came to the
conclusion that the medical seized is intoxicant. It was
found, it was not fit to consume having regard to the
quantity methyl and the trial Court acquitted the
accused for the offences punishable under Section 272
and 328 of IPC.
20. The trial Court convicted the accused for the
offences punishable under Section 273 of IPC.
21. In view of non following the procedure
laid down under Section 53 and 54 of the
Karnataka Excise Act, whole investigation is
vitiated. No reasons are assigned by the
21
Investigating Officer as to why the procedure laid
down under law was not following before
proceeding for investigation. Infact, no crime was
registered after receiving the information
regarding commission of offence. Therefore,
investigation appears to have done before
registration of the crime that is also a serious
error committed by the trial Court. When the
Investigating Officer proceeds with the
investigation without obtaining any search
warrant or seizure warrant from the Magistrate,
corroboration by independent witness is
necessary. In this case, pancha witnesses have
not supported the case of the prosecution. No
witness examined for having purchased noxious
drink from the accused. Therefore, I find that the
accused cannot be convicted for the above said
offences. Hence, point No.1 answered in the
affirmative and point No.2 answered in the
negative. Hence, I proceed to pass the following:
ORDER
The appeal filed by the appellant-accused against the judgment of conviction and sentence dated, 18.06.2010 passed by the Presiding Officer, Fast Track and Additional Sessions Judge, Hukkeri at Hukkeri sitting at Gokak in Sessions Case No.35/2010 for the offence punishable under Section 34 of Karnataka Excise Act and for the offence punishable under Section 273 of IPC is allowed. The conviction and sentence imposed for the above offences is hereby set aside.
The accused is acquitted of all the offences alleged against him. Fine amount if deposited by the accused shall be refunded to him."
5. The aforesaid position of law is not disputed by the learned High Court Government Pleader appearing for the respondents - State.
6. In the light of the judgments rendered (supra), I deem it appropriate to obliterate the proceedings against the petitioner for the same reasons as is rendered by the Co- ordinate Benches of this Court."
22(Emphasis supplied) It is also germane to notice the judgment of the coordinate Bench, following the judgment of the Apex Court, in the case of DAMERA UPENDRA RAO v. STATE3. The coordinate Bench holds as follows:
".... .... ...."
8. On perusal of the records, it reveals that as per the complaint made by the excise officer the petitioner accused No.1 said to be carried 20 bottles of different liquor containing 15 liters and which is said to be a military liquor is not for sale in open market. The same was seized by the respondent department under the panchanama on 2.10.2020. As per Section 53 of Excise Act, before such seizure, the warrant shall be obtained from the Magistrate, however, as per Section 54 of the Excise Act, if any cause, the excise officer or police unable to obtain the warrant they shall record the reason as there is every possibility of the accused escape or conceal the evidence of the offence. Then only, the respondent police or excise officer can search and seize the liquors. Admittedly, the respondent did not obtain any warrant from the magistrate as required under Section 53 of the K.E. Act. However, the excise officer recorded the reason stating that there is no possibility for obtaining the warrant from the court. Therefore, the said officer himself prepared the record of reason on the spot, but on perusal of the seizure panchanama dated 2.10.2020 at 12.15 p.m. which reveals that panchanama was hand written by the one of the officials. but record of reason is cyclostyled form and computerized one. As per the panchanma they got credible information about transporting the liquor, 3 Criminal Petition No.2121 of 2022 decided on 14th December, 2022 23 therefore, they waited near Ambedkar stadium road. At that time the motor cycle of the accused NO.1 came. It is not the case of respondent that they prepared the record of reason prior to proceeding to the spot. But, they stated in the record of reason that on the spot it was prepared. If the record of reason is prepared on the spot, it must have been on the hand writing, but it could not be computerized. Since the seizure panchanama is hand written, it appears that after the arrest and seizure of the liquor the excise department prepared the record of reasons in their office.
9. That apart, when the FIR sent to the Magistrate, the record of reason not sent to the Magistrate along with FIR in order to show that they are unable to obtain the warrant and therefore, they conducted search and seizer of the liquors. There is no endorsement of the magistrate on the FIR and on the record of reason under Section 54 of the K.E. Act, which reveals that the record of reason not accompanied the FIR when the FIR reached the magistrate which categorically suggest the respondent searched and seized the liquor without warrant and not recorded the reason as required under section 54 of the Act. In a similar circumstance, this court also quashed the proceedings in the case of Sunitha and Anr Vs. State of Karnataka, Excise Inspector in Crl.Rev P.2315/2013 dated 19.7.2022, where in this Court has held without registering FIR and seizing the articles is nothing but commencement of investigation prior to recording of FIR and not recording the reasons under Section 54 of Excise Act without obtaining warrant and registering the case amounts to violation of mandatory procedure, therefore on that ground, the search and seizer vitiate and prosecution cannot be sustained.
..... ..... .....
11. That part, the petitioner Counsel stated that the petitioner No.1 is ex-service man and there are labels on the bottles, mentioning that is military liquor and it is not sold in the open market. Admittedly, the petitioner might have purchased from the military canteen and kept in the house and of course, he has not produced any bills but it does not mean that the 24 Excise Officer/ Investigating Officer should not make any enquiry with the military canteen. Absolutely, there is nothing on record to show that investigation officer has verified from which canteen the liquor was purchased. Therefore, there is a flaw in the investigation, not only search and seizure but also in filing the charge sheet. Therefore, the trial cannot be sustained against the petitioner NO.1.
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13. Though, the accused No.1 being an ex-army man who is entitled to receive the liquor from the military canteen but he ought not to have carried on dry day i.e. on 2.10.2020 which is Gandhi Jayanthi. The military person should respect the Father of Nation more than an ordinary citizen and he should not have forgotten the Gandhi Jayanthi day. However, in view the faulty investigation and non compliance of the mandatory provision of section 54 of K.E. Act and not sending the entire bottles to the FSL for chemical analysis, the entire proceedings cannot be sustainable. Therefore, the criminal proceedings against the petitioners are liable to be quashed."
(Emphasis supplied) The afore-mentioned orders are on, one solitary fact that for an offence under Sections 32, 33 and 34 of the Act, which are alleged in the case at hand, it is necessary that procedure stipulated under Section 54 of the Act must be followed. It is admittedly not followed in the case at hand. Therefore, on the facts narrated hereinabove, finding no fault on the part of the petitioner and the procedural violation in registering the crime, particularly under Sections 32 and 25 34 of the Act as held by the Apex Court in K.L. SUBBAYYA supra, the petition deserves to succeed, failing which, it would become an abuse of the process of law and result in miscarriage of justice.
13. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) First Information Report in Crime No.79/2023-
24/75SE/754405 registered by the Karnataka Excise Department, Nanjangud Sub-Division stands quashed.
Consequently, I.A.No.1 of 2024 stands disposed.
SD/-
____________________ JUSTICE M.NAGAPRASANNA bkp CT:MJ