Karnataka High Court
Sri Chengappa M S vs The State By Excise Police Station on 22 March, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:12323
CRL.P No. 10259 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 10259 OF 2021
BETWEEN:
SRI. CHENGAPPA M S
S/O SUBBAIAH M M.,
AGED ABOUT 34 YEARS,
R/AT KEDAMULLURU VILLAGE,
VIRAJPET TALUK, KODAGU DISTRICT - 571 218.
...PETITIONER
(BY SRI. KIRAN M M., ADVOCATE)
AND:
1. THE STATE BY EXCISE POLICE STATION
HUNSURU,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2. SUB INSPECTOR OF EXCISE-I,
Digitally signed by
VEDAVATHI A K HUNSUR ZONE, HUNSUR CITY,
Location: High Court MYSORE DISTRICT - 571 105.
of Karnataka
...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP FOR R1 & R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH ENTIRE PROCEEDINGS IN
C.C.NO.63/2021 ARISING OUT OF CR.NO.14/2019-
20/2610SIEI/261010 IN EXCISE INSEPCTOR HUNSUR
DIVISION, FOR THE OFFENCE P/U/S.32, 34, 43-A OF THE
KARNATAKA EXCISE ACT PENDING ON THE FILE OF THE
Ld.PRINCIPAL CIVIL JUDGE AND JMFC AT HUNSUR AS PRAYED.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:12323
CRL.P No. 10259 of 2021
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019- 20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, for the offences punishable under Sections 11, 14, 32, 34, 43(A) of Karnataka Excise Act, 1965 (for short 'K.E. Act').
2. Heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondents.
3. The case of the complainant is that he received information from one R. Somashekhar, Assistant Horticulture Officer, HD Kote Taluk SST-2, who was working in the temporary check post of Manuganahalli, alleging that on 16.11.2019, the election code of conduct was in force and during 2019 Karnataka Assembly Elections, Hundai Crerta 4 wheel vehicle was carrying liquor. When the vehicle was searched around 3.50 p.m., 12 bottles of 750 ML Morpheus XO -3- NC: 2024:KHC:12323 CRL.P No. 10259 of 2021 Blended Premium Brandy were apprehended. After the receipt of intimation, the excise inspector along with team went to the spot, seized the liquor and the car, and thereafter, went to the police station and registered FIR and in turn, filed charge sheet which is under challenge.
4. Learned counsel for the petitioner has contended that there is violation of Sections 53 and 54 of the K.E. Act. Without recording reasons, the respondent has arrested the petitioner and seized the liquor and produced before the Court. There is no reference in the FIR of recording reasons, but in the spot mahazar, the respondent has subsequently added the record of reasons, and the respondents have not obtained warrant under Section 53 of the K.E. Act. Therefore, seizing the articles, registering the FIR without recording reasons and commencement of investigation, is violation of the provisions of the K.E. Act. Therefore, the FIR is not sustainable. Hence, prayed to allow the petition.
In support of his arguments, the learned counsel has relied up on the following judgments of the Hon'ble Supreme Court and this Court:
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(i) K.L. Subbayya Vs. State of Karnataka - (1979) 2 SCC 115
(ii) L Srinivas Vs. The Authorised Officer and another - ILR 1999 KAR 2872
(iii) Sri. Abhijeet Lalchand Landge And Others Vs. State of Karnataka And Another in Criminal Petition No.5855/2019 Dated on 26.11.2019.
(iv) Kumar vs. State of Karnataka And Another in Criminal Petition No.8658/2019 Dated on 08.01.2020.
(v) Babu Naika And Others Vs. State of Karnataka in Crl.R.P. No.52/2014 decided on 09.03.2020
5. Per contra, learned High Court Government Pleader has opposed the petition and contended that the respondent, after following all the procedures, has arrested the petitioner and therefore, prayed for dismissing the petition.
6. Having heard the learned counsel appearing for the parties, perused the records.
7. On perusal of the records, it is clear that one Somashekhar, Assistant Horticulture Officer, gave an intimation -5- NC: 2024:KHC:12323 CRL.P No. 10259 of 2021 to the Excise Inspector that at 3.50 p.m., they apprehended the person having liquor of 10 bottles of brandy, without permit or licence, which is in violation of the provisions of the K.E. Act. The Excise Inspector seized the articles under Panchanama and thereafter, came to the police station and registered FIR.
8. The contention of the petitioner is that though in the panchanama, it is mentioned that FIR was prepared after recording the reasons for not obtaining the warrant under Section 53 of the K.E. Act, there is possibility of the accused flee away from the case and escape from the clutches of law. Record of reasons to be recorded before obtaining the warrant. In FIR, it is stated that the Excise Inspector came to the spot, seized the car and apprehended the accused and came to the office and registered FIR. There is no mention about reducing into writing of reasons or not recording reasons under section 54 of the K.E. Act, which is mandatory.
9. As per Section 53 of the K.E. Act, in any case, there is apprehension by the officer that there is chance of accused fleeing away from the justice, the question of coming to the -6- NC: 2024:KHC:12323 CRL.P No. 10259 of 2021 Court for obtaining warrant, does not arise. Here, in this case, there is an electron officer in the check post and he has already caught the accused red hand and kept in his custody. Therefore, Excise Inspector is required to obtain the warrant under Section 53 of the K.E. Act as there is no chance of the petitioner flee away from the spot.
10. That apart, either in the complaint or in the FIR, which is registered by the respondent-complainant, he has not whispered anything about the record of reasons for visiting the spot or apprehending the accused, whereas in the panchanama, the record of reasons is mentioned and it was reduced into writing, thereafter, went to the spot. The record of reasons has not accompanied with the FIR in order to show that the complainant has obtained warrant before registering the FIR. He visited the spot and registered the FIR. There is clear violation of the provisions of the K.E. Act. There is no mention in the FIR for not obtaining warrant, but it is mentioned in panchanama and it is only after thought. It is not sent immediately after the seizure along with PF and FIR. Such being the case, the panchanama appears to be created by the -7- NC: 2024:KHC:12323 CRL.P No. 10259 of 2021 investigation officer after filing of the charge sheet or before filing of the charge sheet. The entire bottles were not sent to the examination and only four bottles were sent. Here also, the violation of the provisions of the K.E. Act is found.
11. This Court, in the case of DAMERA UPENDRA RAO AND ANOTHER VS. STATE BY EXCISE DEPARTMENT POLICE in Criminal Petition No.2121/2022 decided on 14.12.2022, has considered the aforesaid aspect and quashed the proceedings. Further, in the case of G. PUTTARAJU Vs. STATE OF KARNATAKA AND ANOTHER in Writ Petition No.20816/2023 decided on 31.01.2024, this Court has already held that without registering FIR, commencement of investigation, is in violation of the provisions of the Cr.P.C.
12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the provisions of the K.E. Act as -8- NC: 2024:KHC:12323 CRL.P No. 10259 of 2021 well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law.
13. Therefore, the criminal petition is allowed. The criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, is hereby quashed.
Sd/-
JUDGE CS List No.: 1 Sl No.: 24 CT:SK