Karnataka High Court
Damera Upendra Rao vs State By on 14 December, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.2121 OF 2022
BETWEEN
1 . DAMERA UPENDRA RAO
S/O LATE SRI VENKAT RAYUDU
AGED ABOUT 54 YEARS
2 . DAMERA JAGANNATH RAO
S/O SRI DAMERA UPENDRA RAO
AGED ABOUT 28 YEARS,
BOTH ARE R/AT NO.5, 4TH CROSS
ESHRATH COTTAGE
NEAR SULTHANPALYA BUS STOP
SULTHANPALYA
BENGALURU-560 032
... PETITIONERS
(BY SRI RAGHAVAN P., ADVOCATE)
AND
STATE BY
EXCISE DEPARTMENT POLICE
BASAVESHWARA NAGAR RANGE
BUD-03 SUB DIVISION -05
BENGALRUU
REP. BY PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 009
... RESPONDENT
(BY SRI R.D. RENUKARADHYA, HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE FIR FILED IN CR.NO.8/2020-21/3802SIE/380206 AND
THEREAFTER THE CHARGE SHEET FILED IN C.C.NO.2232/2021
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 11, 14, 15,
32, 34, 38(A) AND 43 OF KARNATAKA EXCISE ACT, 1965 IN
RESPECT OF THE PETITIONERS PENDING ON THE FILE OF V
ADDL.C.M.M., BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.12.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition filed by accused No.2 under section 482 of Cr.P.C. for quashing the criminal proceedings in crime No.8/2020-21/3802SIE/380206 in C.C. No.2232/2021 for the offences punishable under section 11, 14, 15, 32, 34, 38A and 43 of Karnataka Excise Act (hereinafter referred to as K.E. Act), now pending on the file of V Additional CMM, Bangalore.
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the state.
3. The case of prosecution is that on 2.10.2020 at 12.50 p.m. in Thimmaiah Road, Bangalore 3 Basaveshwaranagar area, when the Excise officials found that accused No.1 came on a two wheeler having some bag in his vehicle. When it was searched, he was found to be possession of 20 bottles of military liquors which was 15 litres, after which were seized by the officials under the panchanama and during investigation it was found that accused No.2 is the R.C. owner of the vehicle bearing NO.KA KD 9256. Subsequently, the excise department after completion of investigation, filed charge sheet against accused Nos.1 and 2 which is under challenge.
4. The learned counsel for the petitioner has contended that the petitioner is innocent of the alleged offence. As the petitioner No.1 is an ex army man and he is entitled to purchase liquors from the military canteen for his personal use, that was kept in his vehicle, which is not meant for sale, the military liquor used to be supplied by the defence canteen to the military personnel which is permissible under the military rules and he has not 4 violated any order of government or committed any offence under the K.E. Act.
5. Learned counsel further contended that accused no.2 is only R.C. owner of the vehicle and he has not at all possessed the liquor, because he is the owner of the vehicle, he has been implicated as accused and without his knowledge, the two wheeler vehicle has been taken by accused No.1, who is father of accused No.2. Therefore, absolutely there is no offence committed by the petitioner/ accused No.2. The learned counsel further contended that the excise officials not followed the procedure and obtained any warrant for search and seizure and therefore, the criminal proceedings cannot be sustained. Hence, prayed for quashing the same.
6. Per contra, learned High Court Government Pleader objected the same and contended that the petitioner not produced any bill for having purchased the liquor form the military canteen and accused No.2 is R.C. 5 owner of the vehicle, cannot be quashed. Hence, prayed for dismissal of the petition.
7. Having heard learned counsel for the parties, perused the records.
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 6 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, 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 7 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 the registering of FIR and not 8 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.
10. That apart, the alleged seized article is 20 bottles, but it the Investigating Officer only 6 bottles to the FSL for chemical examination but not entire bottles. Though the investigation officer said to have seized 20 bottles of 15 liters but he has sent only 6 bottles for chemical analysis and without sending the entire bottles for verifying the liquors, the Court cannot presume against the accused that the entire bottles are liquors.
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 9 in the house and of course, he has not produced any bills but it does not mean that the 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.
12. In respect of accused No.2 who is only registered owner of scooter in which accused NO.1 was travelled at the time of incident. There is no investigation by the investigation officer that accused NO.2 given the vehicle with the knowledge that the vehicle will be used by accused No.1 for carrying the liquor. Even other wise, accused No.1 and 2 are father and son. Therefore, accused No.1 could have taken the vehicle without the knowledge of accused No.2 in this aspect, there is no investigation conducted and no voluntary statement 10 recorded by the investigation officer to show that accused No.2 with an intention and knowledge given the vehicle to accused No.1 to transport or to carry liquor. Therefore, in view of the above said reasons the proceedings against the petitioner NOs.1 and 2 are liable to be quashed.
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.
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Accordingly, the petition is allowed.
The criminal proceedings in C.C.No.2232/2021 against accused Nos.1 and 2 on the file of V Additional CMM, Bangalore, for the offences punishable under Sections 11, 14, 15, 32, 34, 38A and 43 of K.E. Act are hereby quashed.
Sd/-
JUDGE CS